cr v -■! Ml. UNIVERSITY UEG4 1901 LAW LIBRARY CORNELL UNIVERSITY LIBRARY 3 1924 061 134 247 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924061134247 CYCLOPEDIA OF LAW AND PROCEDURE EDITED BY WILLIAM MACK and HOWARD P. NASH VOLUME II NEW YORK THE AMERICAN LAW BOOK COMPANY LONDON: BUTTERWORTH & CO., 12 Bbu. Yard I 901 a Copyright, 1901 By The American Law Book Company J. B. LYON COMPANY PRINTERS AND BINDERS ALBANY, N, t. TABLE OF TITLES, EDITORS, AND CONTRIBUTORS Affidavits, i E. A. Craighill, Jr. Affray, 40 - Charles L. Lewis Agriculture, 53 Gilbert Collins Aliens, 81 Archibald C. Boyd Alterations of Instruments, 137 John F. Dillon Ambassadors and Consuls, 259 Basil Jones Amicus Curiae, 281 Arthur P. Will Animals, 288 Samuel C. Bennett Annuities, 458 Archibald C. Boyd Appeal and Error, 474 Walter Clark Words, Phrases, and Maxims Howard P. Nash Cite this Volume 2 Cyc. Followed by Page. AFFIDAVITS By Edward A. Craighill, Je. I. DEFINITION AND GENERAL NATURE, 4 A. Definition, 4 B. Distinguished from Deposition, 4 C. Distinguished from Pleadings, 4 II. Who may make, 5 A. In General, 5 B. Agent or Attorney, 5 1. In General, 5 2. Necessity of Showing Authority, 6 3. Showing Why Principal Did Not Act, 7 •4. Knowledge or Information of Affiant, 8 C. In Behalf of Partnership, § D. In Behalf of Corporation, 8 1. Private Corporation, 8 2. Municipal Corporation, 9 III. WHO MAY TAKE, 9 A. Domestic Affidavits, 9 1. In General, 9 2. TFAere iV. Substantial Compliance with Statute, 22 c. Alleging Grounds in Alternative, 22 d. legal Conclusions, 22 e. Clerical Errors and Omissions, 23 f . Scandalous and Impertinent Matter, 23 s. Interlineations and Erasures, 23 2. Name and Description of Affiant, 23 3. Showing Oath or Affirmation, 24 4. Knowledge or Information of Affiant, 24 a. Positive Allegation, 24 t>. Information and Belief 25 (i) i» General, 25 (n) Showing Sources of Information, 25 F. Signature of Affiant, 26 G. Jurat, 26 1. Necessity, 26 2. Place of Jurat, 27 3. Sufficiency, 27 a. _Zra General, 27 b. Name of Affiant, 28 c. Appearance of Affiant, 28 d. 6>ai!A, 28 e. Z>. Beebe, 54 Hun (N. Y.) 318, 7 N. Y. Suppl. 442; Leonard v. Bowman, 21 N. Y. Civ. Proe. 237, 15 N. Y. Suppl. 822; Billings v. Noble, 75 Wis. 325, 43 N. W. 1131. 13. Georgia. — Baker v. Akerman, 77 Ga. 89. Kansas. — Pemberton v. Hoosier, 1 Kan. 108. Neie York. — Hodgman v. Barker, 60 Hun (N. Y.) 156, 14 N. Y. Suppl. 574; Westervelt v. Agrumaria Sieula Societa, etc., 58 Hun (N. Y.) 147, 11 N. Y. Suppl. 340; Mechanics, etc., Bank t>. Loucheim, 55 Hun (N. Y.) 396, 8 N. Y. Suppl. 520; Miller v. Oppenheimer, 2 N. Y. City Ct. 408 ; Moore v. Becker, 13 N. Y. St. 567; Hinman v. Wilson, 2 How. Pr. (N. Y.) 27; Markey v. Diamond, 19 N. Y. Suppl. 181; Brown r. Keogh, 14 N. Y. Suppl. 915; Catta- raugus Cutlery Co. r. Case, 9 N. Y. Suppl. 862. yy Tennessee.— Perkins v. Gibbs, 1 Baxt. (Tenn.) 171. West Virginia. — Delaplain v. Armstrong 21 W. Va. 211. ° An allegation in an affidavit that one is a creditor is but a, statement of a conclusion Wallace v. Chicago, etc., Stove Co., 46 111 App. 571. Must not allege facts argumentatively. — An affidavit under N. Y. Code Civ. Proc. § 872, to obtain an order for the examination of plaintiffs before trial, must allege posi- tively and not argumentatively and inferen- tially the facts going to show the necessity AFFIDA VITS 23 tioned in the statute, without stating the facts from which such conclusion may be drawn. 14 J e. Clerical Errors and Omissions. Where the meaning clearly appears from the context an affidavit will not be vitiated by mere grammatical or clerical errors, 15 or by the omission of words not material to the sense. 16 f . Seandalous and Impertinent Matter. An affidavit must not contain scandal- ous and impertinent matter," and if open to this charge it should be suppressed. 18 g. Interlineations and Erasures. An affidavit should be free from interlinea- tions and erasures. 19 2. Name and Description of Affiant. Except in cases where affiant is acting in some special capacity, the omission from the body of the instrument of his name and description is not material, provided the affidavit be signed by him ; 20 but where an affidavit is required to be made by a person acting in a certain capac- ity, the name of affiant and the capacity in which he acts should be stated. 21 for such examination. Feuchtwanger v. Des- sar, 5 N. Y. Suppl. 129. 14. Pindar v. Black, 4 How. Pr. (N. Y.) 85. 15. Pierpont v. Pierpont, 19 Tex. 227 ("known" instead of "unknown"); Corri- gan v. Nichols, 6 Tex. Civ. App. 26, 24 S. W. 952; Bromley v. Foster, 1 Chit. 562, 18 E. C. L. 307 note; Anonymous, 1 Chit. 562 note, 18 E. C. L. 307 ; Anonymous, Lofft. 274. Singular instead of plural. — Where an affi- davit filed by one of several appellants used the words " affiant is aggrieved " instead of " affiants are aggrieved," it was held to be a mere clerical error not vitiating the affidavit. Boss v. Davis, 13 Ark. 293. Past tense instead of present. — The use of the past tense instead of the present in an affidavit, as " was " instead of " is," will not ■ordinarily vitiate it. Vincent v. Snoqualmie Mill Co., 7 Wash. 566, 35 Pac. 396. But see Howarth v. Hubbersty, 3 Dowl. P. C. 455, "Wherein " said " was used instead of " says." 16. Clark v. Miller, 88 Ky. 108, 10 S. W. 277; Huffman v. Hardeman, (Tex. 1886) 1 S. W. 575: Bex v. Stafford, 5 Dowl. P. C. ■238. Where the word "dollars" was omitted from an affidavit, but an account annexed thereto showed the sum intended, it was held that the omission in the affidavit was not material. Jean v. Spurrier, 35 Md. 110. 17. Powell v. Kane, 5 Paige (N. Y.) 265; Balls v. Smythe, 2 M. & G. 350, 40 E. C. L. 636. 18. Opdyke v. Marble, 18 Abb. Pr. (N.Y.) 375. But see Zimmerer v. Fremont Nat. Bank, 59 Nebr. 661, 81 N. W. 849, wherein it was held that where an affidavit contained objectionable matter a motion to strike out should be confined to such matter, and not directed against the whole affidavit. Denial of costs. — In England a party in- corporating scandalous and impertinent mat- ter in his affidavit will be deprived of his costs. Thompson v. Dicas, 2 Dowl. P. C. 93; Cassen v. Bond, 2 Y. & J. 531; Balls v. Smvthe, 2 M. & G. 350, 40 E.' C. L. 636, 2 Scott N. B. 495. 19. Didier v. Warner, 1 Code Bep. (N. Y.) 42 ; Doe v. , 5 Jut. 531. And see In re Imeson, 8 Dowl. P. C. 651 ; Savage v. Hutch- inson, 2 Eq. Rep. 368, 24 L. J. Ch. 232. A line drawn through two words in the jurat of an affidavit, leaving them perfectly legible, is nevertheless an erasure, although the omission or retention of the words will not vary the sense. Williams v. Clough, 1 A. & E. 376, 28 E. C. L. 187. 20. Davidson v. Bordeaux, 15 Mont. 245, 38 Pac. 1075; People v. Sutherland, 81 N. Y. 1; Cunningham v. Doyle, 5 Misc. (N. Y.) 219, 25 N. Y. Suppl. 476. Where the affi- davit by a plaintiff in an action contained an allegation that " he was the plaintiff above named," and was properly entitled in the ac- tion, it was held sufficient, although his name was omitted at its commencement. Morris v. Watson, 23 N. Y. Wkly. Dig. 286. Misrecital treated as clerical error. — Where an affidavit was signed and sworn to by Charles H. Lee, but began by the recital, " Fred. B. Lee, of said county, being duly sworn," etc., it was held that the legal effect of the affidavit was the same as if the name of affiant had not been recited at all in the body thereof, and such misrecital was treated as a clerical error. Torrans v. Hicks, 32 Mich. 307. Sufficient statement of affiant's residence. — In People v. Cady, 105 N. Y. 299, 307, 11 N. E. 810, it was held, that where an affidavit had the venue, " City and County of New York," and continued: "I, Phineas C.Kings- land, of the City of New York," etc., the fact of affiant's residence in the city was suffi- ciently set forth, under a statute requiring affiant to be a resident of the city. 21. People v. Sutherland, 81 N. Y. 1. Where statute prescribes who may make. — Where a statute specifically prescribes what persons may make an affidavit, and requires it to be shown that affiant is one of the speci- fied persons, a failure to show this renders the affidavit defective. Steinbaeh v. Leese, 27 Cal. 295 ; State v. Washoe County, 5 Nev. 317. An affidavit in supplementary proceedings is insufficient if it fails to show that it was made by the judgment creditor, or his at- torney, or someone authorized to make it in his behalf. Brown v. Walker, 8 N. Y. Suppl, 59. Affidavit by agent — Immaterial mistake. — An affidavit of attachment signed by plain- tiff's agent, which, in describing the nature of the claim, inadvertently stated that "plain- tiff " makes oath, instead of using the word, Vol. II 2i AFFIDA TITS Thus, where an affidavit is made in behalf of a corporation, the affidavit should describe affiant sufficiently to show that he is a person authorized to perform such act. 22 3. Showing Oath or Affirmation. The fact that affiant makes his statements on his oath or affirmation should be stated in the body of the affidavit. 23 4. Knowledge or Information of Affiant — a. Positive Allegation. Material facts within the personal knowledge of affiant must be alleged directly and posi- tively, and not on information and belief, 24 and facts will not be inferred where affiant has it in his power to state them positively. 25 Sometimes, moreover, a statute providing for the making of an affidavit requires the facts to be positively stated, and where this is the case an affidavit on information and belief cannot be received. 26 Where the facts are positively affirmed it is not necessary for affiant to state the source of his knowledge, 27 and the affidavit will be presumed to have been made on his personal knowledge if the facts are of such a character that he may have known them, and it does not appear that he did not; 2 * but where it " affiant," is not defective. Whipple v. Hill, 36 Nebr. 720, 55 N. W. 227, 38 Am. St. Rep. 742, 20 L. R. A. 313. 22. Forbes Lithograph Mfg. Co. v. Winter, 107 Mich. 116, 64 N. W. 1053; White Sew- ing Maeh. Co. v. Betting, 53 Mo. App. 260; Cleburne First Nat. Bank v. Graham, (Tex. App. 1889) 22 S. W. 1101. As to who may make affidavits in behalf of corporations see supra, II, D. Sufficient affidavits. — An affidavit which be- gins by reciting: "Silver Peak Mines, a cor- poration, the plaintiff above named, by M. A. Murphy, its attorney, being duly sworn," etc., though irregular in form is not a nullity, the true interpretation thereof being that it is the affidavit of M. A. Murphy, who is the at- torney of the corporation. Silver Peak Mines v. Hanehett, 80 Fed. 990. And in Moline, etc., Co. v. Curtis, 38 Nebr. 520, 57 N. W. 161, it was held that an affi- davit for attachment was not void, although it purported in its opening clause to be that of a corporation, where it appeared in con- nection with what followed to be that of an agent of the corporation, and that he made the oath thereto, and signed it. 23. Kehoe v. Pounds, 69 111. 351; Cosner V. Smith, 36 W. Va. 788, 15 S. E. 977. And Bee supra, IV. As to necessity for jurat to show that the affidavit was sworn to see infra, V, G, 3, d. In England it is held that an affidavit •which omits to state that affiant " made oath " is insufficient notwithstanding the ju- rat states that it was sworn to. Phillips v. Prentice, 2 Hare 542, 24 Eng. Ch. 542 ; Oliver v. Price, 3 Dowl. P. C. 261 ; Doe v. Clark 2 Dowl. N. S. 393, 7 Jur. 327, 12 L. J. Q. B. 69; Allen v. Taylor, L. P. 10 Eq. 52. 24. Whitlock v. Roth, 10 Barb. (N. Y.) 78 ; Willes v. James, 1 Dowl. P. C. 498 ; Reg. v. Manchester R. Co., 3 N. & P. 439 2 Jur 857. As to affidavits made by agents or attor- neys see supra, II, B, 4. Sufficient allegations. — An affidavit that defendant had left the country to avoid the service of summons, " as shown by the return of the constable," is not on information and belief, the reference to the return being made Vol. II as evidence. Webster v. Daniel, 47 Ark. 131, 14 S. W. 550. If the facts are alleged in an affidavit upon the knowledge of affiant, a preliminary state- ment that the facts stated upon affiant's knowledge are true, and that so far as they are stated upon information he believes them to be true, does not affect the validity of the affidavit. Wheat v. Ragsdale, 27 Ind. 191. In Cummings v. Woolley, 16 Abb. Pr. (N. Y.) 297 note, it was held that an averment of a fact, " as deponent has since learned," amounted to a positive allegation, and not an allegation on information and belief. 25. Brooks v. Hunt, 3 Cai. (N. Y.) 128. No presumption will be indulged to supply a defect in an affidavit for attachment which, if not supplied, would prevent the affidavit from coming up to the requirements of the statute. City Nat. Bank v. Flippen, 66 Tex. 610, 1 S. W. 897. Ambiguous language.— In affidavits drawn by counsel for the parties litigant language which is ambiguous in its nature will be construed most strongly against the party in whose behalf such affidavits were prepared. Nebraska Moline Plow Co. v. Fuehring, 52 Nebr. 541, 72 N. W. 1003. 26. Thompson v. Higginbotham, 18 Kan. 42; Atchison v. Bartholow, 4 Kan. 124; Campbell v. Hall, McCahon (Kan.) 53; Lewis v. Connolly, 29 Nebr. 222, 45 N. W. 622; Gawtry v. Doane, 51 N. Y. 84. In Dyer v. Flint, 21 111. 80, 74 Am. Dee. 73, it was held that an affidavit for attach- ment- must positively and unequivocally al- lege the statutory requirement; and that al- legations made on information and belief were not sufficient. For a similar holding under the Georgia statute see Neal v. Gordon, 60 Ga. 112. 27. Pierson v. Freeman, 77 N. Y. 589. "Any person familiar with the facts." — Under a statutory provision allowing a cer- tain affidavit to be made by " any person fa- miliar with the facts," it was held that such affidavit need not recite that affiant was fa- miliar with the facts. Muirhead v. Sands, 111 Mich. 487, 69 N. W. 826. 28. Crowns v. Vail, 51 Hun (N. Y.) 204 4 N. Y. Suppl. 324. But see U. S. v. Moore, AFFIDA TITS- 25 appears that affiant could have had no personal knowledge as to material allega- tions the affidavit is defective. 89 to. Information and Belief — (i) In General. Oftentimes affiant's knowl- edge of matters stated in his affidavit must of necessity rest upon information derived from others, and where this is the case it is generally sufficient if he aver that such matters are true to the best of his knowledge and' belief. 80 Belief is to be considered an absolute term in this connection; hence, to swear that one believes a thing to be true is equivalent to swearing that it is true, 81 and perjury may be assigned on such affidavit if false. 82 (n) Showing Sources of Information. Where material allegations are made on information and belief, the sources of information and grounds of belief should be set out, 83 and a good reason given why a positive statement could not be procured. 84 Thus, if the conclusions of affiant are drawn from the contents 2 Lowell (U. S.) 232, 26 Fed. Cas. No. 15,803, wherein it was held that an affidavit to the existence of a fact does not import that af- fiant has personal knowledge thereof unless bo stated, or the fact be of such a character that he must have personal knowledge. Facts taken as true on appeal. — Where an affidavit for an arrest states the facts posi- tively, and such facts may possibly have been within affiant's knowledge, and are not dis- puted or denied by defendant, the court on appeal mav take such facts as true. Pierson v. Freeman, 77 N. Y. 589. 29. Ferris v. Commercial Nat. Bank, 158 111. 237, 41 N. E. 1118; Hodgman v. Barker, 60 Hun (N. Y.) 156, 14 N. Y. Suppl. 574. Where an affidavit was couched in such general terms as to include facts which affi- ant could not know of his own personal knowl- edge, it was held that it might be entirely dis- credited. Cook v. De la Garza, 13 Tex. 431. 30. California. — Fleming v. Wells, 65 Cal. 336, 4 Pac. 197. Illinois. — Hays v. Loomis, 84 111. 18. Indiana. — Curry v. Baker, 31 Ind. 151 ("as affiant is informed and verily be- lieves " ) . Massachusetts. — Clement v. Bullens, 159 Mass. 193, 34 N. E. 173. Missouri. — Steamboat Osprey v. Jenkins, 9 Mo. 643 ( " true to the best of his knowl- edge " ) . New York. — Pratt v. Stevens, 94 N. Y. 387 ( " to deponent's best knowledge, infor- mation, and belief"); Whitlock v. Roth, 10 Barb. (N. Y.) 78; City Bank v. Lumley, 28 How. Pr. (N. Y.) 397. Pennsylvania. — Election Cases, 65 Pa. St. 20 ( " to the best of affiant's knowledge and belief"). Virginia. — Jackson v. Webster, 6 Munf. (Va.) 462. United States. — In re Keller, 36 Fed. 681 ( " as said deponent verily believes " ) . Following language of statute. — An affi- davit that the statements contained in a no- tice of lien are true to the knowledge, or in- formation and belief, of affiant is good, such being the language of the statute. Cunning- ham v. Doyle, 5 Misc. (N. Y.) 219, 25 N. Y. Suppl. 476. Sufficient compliance with statute. — An af- fidavit appended to an appraisement by ap- praisers that " the foregoing appraisement is correct, to the best of our judgment," is suffi- cient under » statute requiring an affidavit that " the same is in all respects a true as- sessment, to the best of their judgment and belief." Large v. Keens Creek Draining Co., 30 Ind. 263, 95 Am. Dec. 696. " Good reason to believe " facts stated. — An affidavit stating that defendant, " as this deponent has good reason to believe, has dis- posed of his property," etc., was held to be sufficiently positive in its allegation that af- fiant had good reason to believe the facts stated. Nicolls v. Lawrence, 30 Mich. 395. Affidavit made by agent of party. — ■ Where an affidavit recited that affiant says " that he is the duly authorized agent in this behalf of the plaintiff, and that he verily believes," etc., it was held that such affidavit was not defective on account of uncertainty as to whether the statement was made on the be- lief of affiant or that of plaintiff. Angus v. Sullivan, 166 111. 461, 46 N. E. 1079. 31. Simpkins r. Malatt, 9 Ind. 543. 32. Harris v. Heberton, 5 How. (Miss.) 575 ; Mairet r. Marriner, 34 Wis. 582. 33. Harris v. Taylor, 35 N. Y. App. Div. 462, 54 N. Y. Suppl. 864; Whitlock v. Roth, 10 Barb. (N. Y.) 78; Miller v. Oppenheimer, 2 N. Y. City Ct. 408 ; De Weerth v. Feldner, 16 Abb. Pr. (N. Y.) 295; Claflin v. Baere, 57 How. Pr. (N. Y.) 78; City Bank v. Lumley, 28 How. Pr. (N. Y.) 397; Markey v. Dia- mond, 19 N. Y. Suppl. 181; Thompson v. Best, 4 N. Y. Suppl. 229. And see supra, II, B, 4. 34. Steuben County Bank r. Alberger, 78 N. Y. 252; Whitlock v. Roth, 10 Barb. (N. Y.) 78 ; De Weerth v. Feldner, 16 Abb. Pr. (N. Y.) 295; Markey v. Diamond, 19 N. Y. Suppl. 181. A statement by an attorney in an affidavit that his clients have informed him, etc., will not be considered where the parties them- selves can make the affidavit. Pach v. Geof- froy, 19 N. Y. Suppl. 583. Sufficient showing. — An affidavit for an order of arrest which states immaterial facts upon information and belief is not insufficient on that account where it states the sources from which the information is obtained, and shows that the places of residence of the in- formants are at such distance that it would Vol. II m AFFIDA VIT8 of documents, such contents should be set out or exhibited, so that the court may judge whether affiant's deductions are well founded. 35 ¥'. Signature of Affiant. It is generally held that, in the absence of any statute or rule of court requiring a signature, if it clearly appears who made the affidavit, and the fact of his swearing is certified by a proper officer, the affi- davit is sufficient although not subscribed by the affiant, 36 but in some jurisdic- tions affiant's signature is deemed essential even though not expressly required by statute, 37 and in those states where signing is prescribed by statute its omission constitutes a fatal defect. 88 Where an affidavit is resworn it need not be signed in. 39 G. Jurat — 1. Necessity. It has been held in some cases that the jurat is be impracticable to procure their sworn state- ments in season to make a successful arrest. City Bank v. Lumley, 28 How. Pr. (N. Y.) 397. 35. Moore v. Becker, 13 N. Y. St. 567; Thompson v. Best, 4 N. Y. Suppl. 229. Custody of documents. — Documents re- ferred to in affidavits, and exhibited, must be handed in with the affidavits, and remain in court until the matter in respect of which the affidavits are sworn has been disposed of. Attenborough v. Clark, 2 H. & N. 588. Certifying exhibit. — A commissioner be- fore whom an affidavit is sworn ought to cer- tify that any exhibit annexed is the docu- ment referred to in the affidavit. In re Al- lison, 10 Exeh. 561. 36. Alabama. — Watts v. Womack, 44 Ala. 605. Arkansas. — Mahan v. Owen, 23 Ark. 347 ; Gill v. Ward, 23 Ark. 16. See also Forten- heim v. Claflin, 47 Ark. 49, 14 S. W. 462. Indiana. — Turpin v. Eagle Creek, etc., Gravel Eoad Co... 48 Ind. 45. Iowa. — Bates v. Bobinson, 8 Iowa 318. Massachusetts. — Farrar v. Parker, 7 Mete. (Mass.) 43. Michigan. — Wynkoop v. Grand Traverse Circuit Judge, 113 Mich. 381, 71 N. W. 640; Bloomingdale v. Chittenden, 75 Mich. 305, 42 N. W. 836; People v. Simondson, 25 Mich. 113. Minnesota. — Norton v. Hauge, 47 Minn. 405, 50 N. W. 368. Mississippi. — Brooks v. Snead, 50 Miss. 416; Eedus v. Wofford, 4 Sm. & M. (Miss.) 579. New Jersey. — Hitsman v. Garrard, 16 N. J. L. 124; Gaddis v. Durashy, 13 N. J. L. 324. New York. — Millius v. Shafer, 3 Den. (N. Y.) 60; Jackson v. Virgil, 3 Johns. (N. Y.) 540; Haff v. Spicer, 3 Cai. (N. Y.) 190; Soule v. Chase, 1 Bob. (N. Y.) 222, 1 Abb. Pr. N. S. (N. Y.) 48. North Carolina. — Alford v. McCormac, 90 N. C. 151. South Carolina. — Armstrong r. Austin, 45 S. C. 69, 22 S. E. 763, 29 L. E. A. 772. Tennessee. — West Tennessee Agricultural, etc., Assoc, v. Madison, 9 Lea (Tenn.) 407. Compare Watt v. Carnes, 4 Heisk. (Tenn.) 532, wherein the affidavit bore neither sig- nature nor jurat. Texas.— Crist v. Parks, 19 Tex. 234; Shel- Vol. II ton v. Berry, 19 Tex. 154, 70 Am. Dec. 326; Alford v. Cochrane, 7 Tex. 485. United States. — Noble v. U. S., Dev. Ct. CI. 83. Amendment. — The omission of affiant's sig- nature may usually be rectified by amend- ment. See infra. VI, C. Signature in illegible foreign characters. — An affidavit signed by a deponent in some for- eign character, which is illegible, may be read in court. Nathan v. Cohen, 3 Dowl. P. C. 378, 1 Hurl. & W. 107. Variance between signature and name in body. — Where an affidavit described affiant as " Edward Charles Pownall," but the sig- nature at the end was " Charles E. Pownall," the affidavit was held sufficient. Hands v. Clements, 11 M. & W. 816, 1 Dowl. & L. 379, 7 Jur. 658, 12 L. J. Exch. 437. 37. Lynn v. Morse, 76 Iowa 665, 39 N. W. 203; Crenshaw v. Taylor, 70 Iowa 386, 30 N. W. 647; Hargadine v. Van Horn, 72 Mo. 370; Sedalia Third Nat. Bank v. Garton, 40 Mo. App. 113. And see Norman v. Horn, 36 Mo. App. 419. Signature after the jurat. — The fact that the signature of affiant is by mistake placed below the jurat will not invalidate the cer- tificate. Launius v. Cole, 51 Mo. 147 ; Kohn v. Washer, 69 Tex. 67, 6 S. W. 551, 5 Am. St. Bep. 28. In chancery practice, where the verifica- tion of a pleading is in the form of an affida- vit the name of affiant is required to be sub- scribed at the foot thereof. Pincers v. Bob- ertson, 24 N. J. Eq. 348 ; Hathaway v. Scott, 11 Paige (N. Y.) 173. See also Laimbeer v. Allen, 2 Sandf. (N. Y.) 648, 2 Code Bep. (N. Y.) 15. But an objection on this ground comes too late when taken for the first time on appeal. Yeizer v. Burke, 3 Sm. & M. (Miss.) 439. Signature to verified pleading. — Where a pleading is signed at the bottom by defendant and a magistrate appends a proper jurat, it is not necessary for defendant to sign such jurat as an affidavit separate from the plead- ing. Laswell v. Presbyterian Church, 46 Mo. 279; Smith v. Benton, 15 Mo. 371. 38. State v. Washoe County, 5 Nev. 317; Lanier v. Taylor, (Tex. Civ. App. 1897) 41 S. W. 516; Gordon v. State, 29 Tex. App. 410, 16 S. W. 337. 39. Liffin v. Pitcher, 1 Dowl. N. S. 767, 6 Jur. 537. AFFIDA tlTS 27 essential to the validity of an affidavit, 40 but the generally accepted doctrine seems to be that the jurat is not such a part of the affidavit proper that its omission will render the affidavit a nullity, 41 but is only prima facie evidence that the statements therein were sworn to by affiant as certified ; & and it may be shown otherwise that the affidavit was in fact sworn to at the proper time and before the proper officer. 48 2. Place of Jurat. It is not essential that the jurat be written at the foot of the affidavit. It may be embodied therein, 44 or written on the back of the instrument. 45 3. Sufficiency — a. In General. The object of the jurat merely being to evi- dence the fact that affiant took oath to his affidavit before a duly authorized offi- cer, but little formality is required of it ; w and a jurat is usually sufficient which 40. Metealf v. Prescott, 10 Mont. 283, 25 Pae. 1037 ; Gordon v. State, 29 Tex. App. 410, 16 S. W. 337; Cosner v. Smith, 36 W. Va. 788, 15 S. E. 977. Neither signed nor certified. — In Watt v. Carnes, 4 Heisk. (Tenn. ) 532, it was held that an affidavit neither signed nor certified was invalid. The service of a copy affidavit, to be used as the foundation of a special motion, is good without the addition of the jurat if the facts stated are intelligible without it. Union Fur- nace Co. v. Shepherd, 2 Hill (N. Y.) 413. But if the jurat be essential to an intelligent understanding of the affidavit it must be in- cluded in the copy. Chase v. Edwards, 2 Wend. (N. Y.) 283. 41. Alabama. — McCartney v. Branch Bank, 3 Ala. 709. Arkansas. — Fortenheim v. Claflin, 47 Ark. 49, 14 S. W. 462. Georgia. — Smith v. Walker, 93 Ga. 252, 18 S. E. 830; Veal v. Perkerson, 47 Ga. 92. Nebraska. — Bantley v. Finney, 43 Nebr. 794, 62 N. W. 213. New Jersey. — Hitsman v. Garrard, 16 N. J. L. 124. Tennessee. — Wiley v. Bennett, 9 Baxt. (Tenn.) 581. Affidavit made before clerk who issues at- tachment. — In Alabama an affidavit for an attachment, made before the clerk who issues the writ, need not be certified by him. Hyde •V. Adams, 80 Ala. 111. 42. Bantlev v. Finney, 43 Nebr. 794, 62 N. W. 213; Hitsman v. Garrard, 16 N. J. L. 124; Crozier v. Cornell Steamboat Co., 27 Hun (N. Y.) 215, 15 N. Y. Wkly. Dig. 34. The jurat is presumptive evidence of the facts stated therein, including the statement that affiant signed the affidavit. Smith v. Johnson, 43 Nebr. 754, 62 N. W. 217. Sufficient evidence of swearing. — Under Ga. Code, § 3297, providing that a petitioner shall support " his petition by affidavit or testimony, if he can control the same," it was held that the signature of the petitioner or witness and the jurat of the magistrate, an- nexed to the petition, were sufficient evidence "that the oath was taken by the one and ad- ministered by the other. Presumption on appeal. — Where, on ap- peal, it was objected that an affidavit was not sworn to, but it purported to be an affidavit and was so treated in the lower court, it was presumed to have been sworn to although not bearing a jurat. The court held that it might have been sworn to in open court, and, if so, needed no jurat as evidence that it had been duly sworn to by affiant. Cleveland v. Stanley, 13 Ind. 549. 43. Williams v. Stevenson, 103 Ind. 243, 2 N. E. 728; Cook v. Jenkins, 30 Iowa 452; Bantley v. Finney, 43 Nebr. 794, 62 N. W. 213. Amendment. — The omission may usually be supplied by amendment. See infra, VI, D. Appearing from the record. — The failure of the officer to attest the jurat will not viti- ate the affidavit where the record shows that it was in fact properly taken and sworn to. Pottsville v. Curry, 32 Fa. St. 443. 44. Hanson v. Cochran, 9 Houst. (Del.) 184, 31 Atl. 880. In Kleber v. Block, 17 Ind. 294, 295, an affidavit, " Personally came before the under- signed, a notary public of said county, Chris- topher Kleber, who upon his oath saith," etc., which was signed by the said Christopher Kleber, below which signature came the words, " Witness my hand and seal, Febru- ary 19, 1859," signed and sealed by the no- tary, was held to be sufficient. 45. Noble v. U. S., Dev. Ct. CI. (U. S.) 83. Jurat partly on each side of paper. — Part of the jurat was written on one side of the paper, and below it the words, " a commis- sioner for taking affidavits in this court," were erased; the remainder of the jurat was written on the other side of the paper. It was held that the affidavit was not vitiated thereby. Wills v. Dawson, 10 M. & W. 662, 2 Dowl. N. S. 465, 6 Jur. 1068, 12 L. J. Exch. 24. 46. For sufficient forms of jurats see Hosea v. State, 47 Ind. 180; Barhydt v. Alexander, 59 Mo. App. 188 ; Sargent v. Townsend, 2 Disney (Ohio) 472. Need not certify as to affiant's identity. — The officer who takes an affidavit need not al- lege that he knew or had satisfactory evi- dence that the person making the oath was the individual described in, and who executed, the instrument, as in the case of a certificate of acknowledgment. Ross v. Wigg, 34 Hun (N. Y.) 192. Clerical error — " National " seal. — Where, in a jurat, the officer stated that he had thereto affixed his " national " seal, it was held to be an evident clerical error, the word Vol. n 28 AFFIDA VITS shows in any way that affiant 47 swore to the affidavit a before the officer, 49 giving the date 50 and place of administering the oath, 51 and signed by the officer,*® with a statement of his official character. Under the English practice, where an affi- davit is made by an insane or illiterate person, the jurat is required to show, according to the circumstances of the case, that affiant had a sufficient under- standing of the nature of his act and was competent to make the affidavit. 54 b. Name of Affiant. "While it is always the better practice to state in the jurat the name of affiant, yet, where there is no statute requiring this, its omission is not a material defect if affiant's name and signature appear in the affidavit proper. 55 e. Appearance of Affiant., In some cases it has been held that a jurat omit- ting the words " before me " is a nullity on account of such omission, 56 but usually these words are not regarded as essential, and any form is sufficient from which the inference may fairly be drawn that affiant personally appeared before the offi- cer who administered the oath. 57 d. Oath. The jurat must show that the affidavit was sworn to by affiant in the officer's presence. 58 A mere statement that affiant was sworn is sufficient, " notarial " being olearlv intended. Schwartz v. Baird, 100 Ala. 154,*13 So. 947. Omission of word " dollars." — Where, in the jurat of an affidavit for attachment, the word " dollars " was omitted in stating the amount claimed, but the omission was sup- plied by the warrant of attachment, it was held that the affidavit was not invalidated thereby. De Bebian r, Gola, 04 Md. 262, 21 Atl. 275. 47. Naming affiant. — As to the necessity of naming affiant see infra, V, G, 3, b. 48. See infra, V, G, 3, d. 49. See infra, V, G, 3, c. 50. See infra, V, G, 3, e. 51. See infra, V, G, 3, f. 52. See infra, V, G, 3, g. 53. See infra, V, G, 3, h. 54. See Spittle v. Walton, L. R. 11 Eq. 420; Wilson v. Blakely, 9 Dowl. P. C. 352, 5 Jur. 367 ; Savage v. Hutchinson, 24 L. J. Ch. 232 ; Fernyhough v. Naylor, 23 Wkly. Rep. 228; Bosc v. Solliers, 6 D. & R. 514, 4 B. & C. 358, 10 E. C. L. 614. 55. Stoddard v. Sloan, 65 Iowa 680, 22 N. W. 924. As to necessity for naming affiant in body of the instrument see supra, V, E, 2. In Kirby v. Gates, 71 Iowa 100, 32 N. W. 191, where an affidavit began: "I, Frank Pierce, do on oath say," etc., and was signed " Prank Pierce," it was held that a jurat, " Subscribed and sworn to by , before me," etc., was sufficient to show that the affi- davit was sworn to by Prank Pierce. Affidavit by several. — Where an affidavit was signed by several persons the following jurat was held to be sufficient: " I do hereby certify that the persons whose names are signed above were duly sworn to it before me," etc. Taylor v. State, 48 Ala. 180, 183. But, by rule of court in England, where there are several affiants the names of all must be written in the jurat. Luckington v. Ather- ton, 7 Scott N. R. 240, 2 Dowl. N. S. 904; Pardoe v. Terrett, 6 Scott N. R. 273, 5 M. & G. 291, 44 E. C. L. 159; Cobbett v. Oldfield, 4 Dowl. & L. 492, 16 M. & W. 469; Ex p. Smith, 2 Dowl. P. C. 607. Vol. II 56. Smart v. Howe, 3 Mich. 590; Reg. v. Bloxham, 6 Q. B. 528, 51 E. C. L. 528; Gra- ham v. Ingleby, 1 Exeh. 651, 5 Dowl. & L. 737; Reg. v. Norbury, 2 N. Sess. Cas. 344, 15 L. J. Q. B. 264; Archibald v. Hubley, 18 Que- bec Super. Ct. 116; Hayden v. Goodstein, 34 Can. L. J. 639. 57. Clement v. Bullens, 159 Mass. 193, 34 ST. E. 173 ("then personally appeared"); Com. v. Keefe, 7 Gray (Mass.) 332 (" received and sworn to"); Trice v. Jones, 52 Miss. 138 ("Given under my hand and seal"). No express averment of appearance. — An affidavit of sale under the eighth section of the New York statute concerning mortgages is sufficient if certified thus : " Sworn before me this 1st day of June, 1839," etc., without expressly certifying that deponent appeared before the officer. Jackson v. Gumaer, 2 Cow. (N. Y.) 552. Where a complaint shows that it was taken on oath before the proper justice the omission from the jurat of the words " be- fore me " is not ground for reversal. Cross v. People, 10 Mich. 24. Where an affidavit is used before the offi- cer who took it the omission from the jurat of the words " before me " will not vitiate it. Matter of Teachout, 15 Mich. 346. 58. Palmer *>, McCarthy, 2 Colo. App. 422, 31 Fac. 241 ; Hitsman v. Garrard, 16 N. J. L. 124; Gordon v. State, 29 Tex. App. 410, 16 S. W. 337. As to necessity for statement in body of the affidavit that it was made on oath see supra, V, E, 3. Insufficient jurat.— A jurat, "Subscribed in my presence and sworn to by Freedom Way," was held to be insufficient for not showing that the affidavit was sworn to be- fore the officer. Way v. Lamb, 15 Iowa 79. "Sworn and affirmed."— A jurat stating that affiants were " sworn and affirmed " and upon their " oaths and affirmations say," etc.,. is too indefinite to sustain a charge of per- jury, and is therefore insufficient. State- v. Browning, 27 N. J. L. 527. But an affidavit reciting that affiant does "swear (or af- firm)," and containing at tie bottom the AFFIjDA VIT8 29 -without stating the language in which the oath was administered ; 59 and where affiant is allowed to affirm instead of taking an oath in the usual form the jurat need not state that he was conscientiously scrupulous as to swearing, it being pre- sumed that the officer was satisfied on that point. 60 e. Date. Under the English practice the jurat must state the day on which the oath was administered, 61 but in a New York case it was held that the omission of the date was not fatal where it was shown, on objection raised, that the oath was taken in due season. 62 f. Place of Administering Oath — (i) Necessity of Showing. It has been held in some cases that an affidavit containing no evidence that it was sworn to within the jurisdiction of the officer who administered the oath is fatally defective, no presumption arising as to where it was taken if no place is mentioned ; 63 but, under the modern practice in most jurisdictions, where it appears that the oath was administered by an officer authorized to perform such acts, it is presumed that he acted within his jurisdictional limits, in the absence of any showing to the contrary. 64 If, words, " Affirmed before me, one of the jus- tices," etc., is sufficient as an affirmation, and the word " swear " may be rejected as sur- plusage. State v. Shreve, 4 N. J. L. 341. Where several affiants. — Where a magis- trate certifies that more persons than one took an oath it is not necessary for him to certify that they " severally " swore, the use of that word not affecting the sense. Randall v. Baker, 20 N. H. 335. 59. Colvin v. People, 166 111. 82, 46 N. E. 737. Where no statute prescribes the form of the attestation any form which shows that affiant took the oath will be deemed suffi- cient. Thus an attestation, " Sworn to and subscribed before me," etc., was held suffi- cient under the Texas act of 1840, p. 89, § 9. Chevallier v. Williams, 2 Tex. 239. Presumption that oath properly taken. — A bill in chancery prayed that defendants, being Jews, should swear to their answer ac- cording to their creed, setting forth the oath and ceremony which alone was supposed to bind their conscience. The jurat to their answer was in the ordinary form, the officer certifying therein that defendants had been " duly sworn." A motion to strike the an- swer off the files was refused, there being no proof to show that defendants were not sworn according to their creed where the offi- cer certified they had been " duly " sworn. Fryatt v. Lindo, 3 Edw. (N. Y.) 239. See also Wolseley v. Worthington, 14 Ir. Ch. 369. 60. Loney v. Bailey, 43 Md. 10. 61. Doe v. Roe, 1 Chit. 228, 18 E. C. L. 133; Re Lloyd, 1 L. M. & P. 545, 15 Q. B. 682, 69 E. C. L. 682, 14 Jur. 621, 19 L. J. Q. B. 457; Brunswick v. Harmer, 1 L. M. & P. 505, 4 Jur. 620, 19 L. J. Q. B. 456; Wood v. Stephens, 3 Moore C. P. 236, 4 E. C. L. 547; Blackwell v. Allen, 7 M. & W. 146; Frost v. Heywood, 6 Jur. 1045. Not cured by reference in another affidavit. — The want of a date in the jurat of an affidavit is not cured by a reference to it in another affidavit as "an affidavit of A B, sworn on such a day." Brunswick v. Slow- man, 8 C. B. 617, 65 E. C. L. 617, 7 Dowl. & L. 251. 62. Schoolcraft v. Thompson, 7 How. Pr. (N. Y.) 446. And see Freas v. Jones, 15 N. J. L. 20. 63. Barhydt v. Alexander, 59 Mo. App. 188; People v. Be Camp, 12 Hun (N. Y.) 378 ; Clement v. Ferenback, 1 N. Y. City Ct. 57; Lane v. Morse, 6 How. Pr. (N. Y.) 394; Smith v. Collier, 3 N. Y. St. 172 r Smith v. Richardson, 1 Utah 194; U. S. v. Burr, 25 Fed. Cas. No. 14,692c. And see Hart v. Grigsby, 14 Bush (Ky. ) 542; and supra, V, C. In England affidavits in answer to a rule sworn must contain in the jurat the place sworn; otherwise they cannot be read. Cass v. Cass, 1 Dowl. & L. 698, 7 Jur. 1087, 13 L. J. Q. B. 52. 64. Young v. Young, 18 Minn. 90; Crosier v. Cornell Steamboat Co., 27 Hun (N. Y.) 215; Barnard v. Darling, 1 Barb. Ch. (N". Y.) 218; Parker v. Baker, 8 Paige (N. Y.) 428; State v. Henning, 3 S. D. 492, 54 N. W. 536; Brown v. Jowett, 4 Brit. Col. 44. In Dennison v . Story, 1 Oreg. 272, the court said : " It has been a rule of practice in this country for the courts to take official knowl- edge of the existence and qualifications of the officers having authority to administer oaths within the particular judicial district in which such officer resided and had author- ity; and the court are of opinion that when a verification to a pleading is taken by a known and recognized officer, having author- ity within the district, in » cause pending in such district, it is to be presumed that such verification was taken within the local juris- diction ©f such officer; for otherwise we must presume that such officer has violated his official obligations by exercising his functions without his jurisdiction." Entitled in court in which action pending. — Where an affidavit in an action, though not containing a formal venue, was entitled in the court in which the action was pending and was sworn to before the clerk thereof, who affixed his seal, it was held that the presumption was that, in the discharge of his duty, he administered the oath within the jurisdiction in which he was authorized to act. Ormsby v. Ottman, 85 Fed. 492, 56 U. S. App. 510, 29 C. C. A. 295. Vol. II 30 AFFIDA VIT8 however, the affidavit shows on its face that it was taken outside the jurisdiction of the officer who certified it, it is insufficient. 65 (n) Where Venve Appears Otherwise. "Where a venue is given in the caption of an affidavit it is not a material defect if the jurat fails to state the county or state in which the officer is commissioned to act, it being presumed that he is authorized to act in the county named. 66 And so the absence of any direct statement of the venue is not material where the affidavit bears the officer's seal, containing the name of his county, 67 or where the venue is given in another paper to which the affidavit is attached. 68 g. Signature of Offleer. In order for the jurat to serve as evidence of the fact that the affidavit was sworn to it must be signed by the officer, and without such signature the affidavit is prima facie invalid; 69 but where it is otherwise 65. Byrd v. Cochran, 39 Nebr. 109, 58 N. W. 127; Snyder v. Olmsted, 2 How. Pr. (N. Y.) 181 ; Sandland v. Adams, 2 How. Pr. (N. Y.) 127; Davis v. Rich, 2 How. Pr. (N. Y.) 86. Variance between caption and jurat. — An affidavit commencing, " State of Indiana, Marion County ss.," and certified as having been sworn to before a notary public in Ohio, is presumed to have been made in Ohio, as the court will presume that the notary acted within his jurisdiction. Teutonia Loan, etc., Co. v. Turrell, 19 Ind. App. 469, 49 N. E. 852, 65 Am. St. Rep. 419. Where an affidavit was entitled " State of Iowa, County of Webster," but appeared to have been sworn to before a notary public in Dubuque county, it was held that in the absence of evidence to the contrary it would be presumed that the notary took the affi- davit in his own county. Goodnow v. Litch- field, 67 Iowa 691, 25 N. W. 882 [followed in Goodnow v. Oakley, 68 Iowa 25, 25 N. W. 912]. 66. Illinois. — Palmer v. Nassau Bank, 78 111. 380; Dyer v. Flint, 21 111. 80, 74 Am. Dec. 73. Iowa. — Stoddard v. Sloan, 65 Iowa 680, 22 N. W. 924; Stone v. Miller, 60 Iowa 243, 14 N. W. 781. Michigan. — Smith v. Runnells, 94 Mich. 617, 54 N. W. 375. Minnesota. — Rahilly v. Lane, 15 Minn. 447. New Jersey. — Perkins v. Collins, 3 N. J. Eq. 482. New York.— People v. Cady, 105 N. Y. 299, 11 N. E. 810. England.— Grant v. Pry, 8 Dowl. P. C. 234. As to statement of venue in caption of the affidavit see supra, V. C. In Barnard v. Darling, 1 Barb. Ch. (N. Y.) 218, the jurat was as follows: "State of New York, county, ss." The oath was signed " O O, comm'r of deeds," without specifying the county or city for whom the person signing it was a commissioner. It appeared, however, that he was in fact a com- missioner of deeds for the city of Albany. It was held that the affidavit was not invalid, since affiants could be convicted of perjury thereon if they had sworn falsely. Need not state officer's place of residence. — It is presumed that the notary who takes an affidavit performs that act where the venue of the affidavit is laid, and that he Vol. II resides there. Consequently it is unneces- sary to add to his signature his place of resi- dence. Mosher v. Heydrick, 30 How. Pr. (N. Y.) 161, 1 Abb. Pr. N. S. (N. Y.) 258, 45 Barb. (N. Y.) 549. But see People v. Dutchess County, 20 N. Y. Suppl. 329. Sufficient showing of place. — A jurat to an affidavit bearing the caption, " State of West Virginia, County of Summers, to wit," and concluding, " Taken, subscribed, and sworn to before me this 22d day of December, 1896, in Summers county. T. N. Read, Notary Pub- lic," sufficiently shows that such person is a notary of Summers county. Quesenberry v. People's Bldg., etc., Assoc, 44 W. Va. 512, 30 S. E. 73. An affidavit containing the usual venue, the signature of the notary, and his official designation, and the seal of the notary show- ing the city of his residence, sufficiently shows that the affidavit was taken in the county of the notary's residence. Mackie v. Central R. Co., 54 Iowa 540, 6 N. W. 723. Where the caption was "City of St. Louis," it was presumed that the notary be- fore whom the affidavit was made was a notary for that city. Remington Sewing Mach. Co. v. Cushen, 8 Mo. App. Rep. 528. 67. Reavis v. Cowell, 56 Cal. 588; Cox v. Stern, 170 111. 442, 48 N. E. 906, 62 Am. St. Rep. 385 ; Englehart-Davison Mercantile Co. v. Burrell, 2 Mo. App. 1324. 68. Snell v. Eckerson, 8 Iowa 284. Venue appearing from other proceedings. — An affidavit was signed " S. Fee, J. P." It appeared from other proceedings that such affidavit was sworn to in a certain county. It was held that it would be presumed that, the affidavit was taken before the person named, and that such person was justice of the peace of the county where it was sworn to. Larimer v. Knoyle, 43 Kan. 338, 23 Pac. 487. 69. Arkansas. — Guy v. Walker, 35 Ark. 212; State Bank v. Hinchcliffe, 4 Ark. 444. Iowa. — Tunis v. Withrow, 10 Iowa 305, 77 Am. Dec. 117. Michigan. — Calvert v. McNaughton, 2 Mich. N. P. 8 ; Knapp v. Duclo, 1 Mich. N. P. 189. Missouri. — Sedalia Third Nat. Bank v. Garton, 40 Mo. App. 113. Nebraska. — Holmes v. Crooks, 56 Nebr 466, 76 N. W. 1073. New Jersey. — Westerfield v. Bried, 26 N- AFFIDA VIT8 31 shown that affiant in fact swore to the affidavit the failure of the officer to- affix his signature will usually not be allowed to vitiate the proceedings based thereon. 70 When the objection is raised the officer may be allowed to sign the jurat nunc pro tunc y 71 and if he fail to appear voluntarily and attach his sig- nature he may be compelled to do so by rule of court. 73 h. Showing Offleer's Authority — (i) In General. It should appear on the face of the affidavit that the person by whom it was certified was one authorized to administer the oath, 73 and the officer's signature should properly be followed by his official description. 74 The omission to affix such official description is not J. Eq. 357; Hitsman v. Garrard, 16 N. J. L. 124. New York. — Ladow v. Groom, 1 Den. (N. Y.) 429. South Carolina. — Doty V. Boyd, 46 S. C. 39, 24 S. E. 59. Texas.— Morris v. State, 2 Tex. App. 502. England. — Bill v. Bament, 8 M. & W. 317, 9 Dowl. P. C. 810, 5 Jur. 510. Using initial of christian name. — Where the officer in signing the jurat used only the initial of his christian name it was held that the signature was sufficient. Rice v. People, 15 Mich. 9. The copy of an affidavit served on the opposite attorney need not contain the name of the magistrate before whom it was sworn. Livingston v. Cheetham, 2 Johns. (N. Y.) 479. Several instruments on same sheet. — Where a, statement of appeal, affidavit, and recognizance were all on the same sheet of paper, and the officer subscribed his name at the foot of the recognizance, it was held that such signature could not be referred to the affidavit. Shortle v. Stockton, 7 Watts (Pa.) 526. Signature presumed genuine. — The sig- nature of the county clerk or his deputy to the jurat to an oath lawfully filed in his office is presumed to be genuine, and no proof on that point prima facie is required. Mer- riam v. Coffee, 16 Nebr. 450, 20 N. W. 389. Offer to prove signature not in officer's handwriting. — It is not error to exclude evi- dence offered to prove that the signature of the clerk to a jurat is not in his handwrit- ing, that not being the equivalent to an offer to prove the signature a forgery. Etter v. Dugan, 1 Tex. Unrep. Cas. 175. 70. Cook v. Jenkins, 30 Iowa 452; English v. Wall, 12 Rob. (La.) 132; Maples v. Hicks, Brightly (Pa.) 56; Farmers' Bank v. Gittin- ger, 4 W. Va. 305. Not ground for collateral attack. — Where an affidavit for attachment was sufficient in every respect except that the jurat was not signed by the officer, but affiant testified on the trial that he signed and swore to the affi- davit before the deputy clerk, and an attach- ment writ, issued on the same day that the af- fidavit was filed, recited that the affiant named in the affidavit had complained on oath to the clerk issuing the writ, etc., it was held that the affidavit could not be assailed by defend- ant in attachment, in a subsequent action of ejectment brought by him to recover the land sold under the attachment proceedings. Kruse v. Wilson, 79 111. 233. Not ground for dismissing injunction. — Where an injunction bill had been actually sworn to it was held that the injunction would not be dismissed because the master who took the affidavit had omitted to sign the jurat. Capner v. Plemington Min. Co., 3 N. J. Eq. 467. 71. Veal v. Perkerson, 47 Ga. 92; Peter- son v. Fowler, 76 Mich. 258, 43 N. W. 10; People v. Simondson, 25 Mich. 113; State v. Cordes, 87 Wis. 373, 58 N. W. 771. And see- infra, VI, D. Amendment on due proof. — Where the affidavit was properly taken, but the officer neglected to subscribe the jurat, it was held that the defect could be cured and the affi- davit amended upon due proof. Cusick's Election, 136 Pa. St. 459, 20 Atl. 574, 10 L. R. A. 228. But see Shortle v. Stockton, 7 Watts (Pa.) 526. 72. Guy v. Walker, 35 Ark. 212; People v. Simondson, 25 Mich. 113. 73. Hart v. Grigsby, 14 Bush (Ky.) 542; Knight v. Elliott, 22 Minn. 551; Blanchari v. Bennett, 1 Oreg. 328; Reg. v. Bloxham, 6 Q. B. 528, 51 E. C. L. 528, 14 L. J. Q. B. 12; Howard v. Brown, 4 Bing. 393, 13 E. C. L. 556, 1 M. & P. 22. And see supra, III, A, I.. Must appear in some way. — Where a cer- tain affidavit was required by statute to be- taken by a justice of the peace, it was held that unless it appeared, either upon the face of the affidavit or in some other way, that the person before whom the oath was taken was a justice of the peace the proceedings would be set aside. State v. Hutchinson, 10- N. J. L. 242. Insufficient affidavit. — Where an affidavit was entitled " State of Arkansas, County of Sebastian, ss.," and was certified by " John F. Wheeler, Mayor," it was held to be insuffi- cient, as not purporting to be taken before- an officer authorized by law to take it. Ed- mondson v. Carnall, 17 Ark. 284. Objection not available on appeal. — An objection that the affidavit does not show- that the officer was one authorized to take the affidavit will not be considered for the first time on appeal. Snell v. Eekerson, 8 Iowa 284. 74. Jackson v. Stiles, 3 Cai. (N. Y.) 128, Col. & C. Cas. (N. Y.) 468. But see People r. Rensselaer County, 6 Wend. (N. Y.) 543; Hunter v. Le Conte, 6 Cow. (N. Y.) 728, in which cases affidavits were held sufficient al- though the title of office was not appended to> the signature. Date of expiration of commission. — The fact that a notary public, before whom a. Vol. II 32 AFFIDA VITS usually deemed material, however, where it is shown that, in fact, the oath was taken before a duly authorized person, 75 as where the official character is given elsewhere in the affidavit, 76 or sufficiently appears from other papers in the cause. (n) Judicial Notice of Official Csabactee. In some jurisdictions the courts will judicially notice the official character of officers authorized to take affidavits; 78 ' and where the affidavit is made in the county in which the cause is tried it will be presumed on appeal that the lower court was satisfied that the per- son who took the affidavit was authorized to do so. 79 (in) Use of Abbreviations. Abbreviations in general use and commonly understood may be used to indicate the officer's official character. 80 i. Seal. Under some statutes the officer's official seal must be attached to affidavits taken by him, 81 but, in the absence of any statute requiring it, the jurat claim of mechanic's lien is verified, fails to add after his official signature the date of the expiration of his commission does not render such lien void, since the statute re- quiring such addition on the part of the notary does not attempt to avoid the affi- davit on account of such omission, but simply subjects the notary to a penalty therefor. Phelps, etc., Windmill Co. v. Baker, 49 Kan. 434, 30 Pac. 472. 75. Jackman v. Gloucester, 143 Mass. 380, 9 N. E. 740. Amendment. — The failure of the jurat to contain the official designation may be cured by amendment. See infra, VI, D. 76. Heffernan v. Harvey, 41 W. Va. 766, 24 S. E. 592. Appearing in title. — An affidavit for an appeal from a justice of the peace contained in its title the name of the justice before whom the cause was tried. The jurat was subscribed with the same name, but without any official designation. It was held that from the identity of names it would be pre- sumed that the person before whom it was sworn was the justice, and that the affidavit sufficiently showed his official character. Bandy v. Chicago, etc., R. Co., 33 Minn. 380, 23 N. W. 547. 77. Branch v. Branch, 6 Fla. 314; Single- ton v. Wofford, 4 111. 576. Misdescription. — When the affidavit by mortgagees that the debt secured is bona fide and justly due is made at the same time as the acknowledgment and before " Henry Beaver," who takes the acknowledgment as a commissioner of deeds for the state of Mary- land, the fact that " Henry Reaver " desig- nates himself in his signature to the affidavit as a justice of the peace by affixing the let- ters " J. P.," instead of describing himself as commissioner of deeds, does not invalidate the affidavit. Stanhope v. Dodge, 52 Md. 483. 78. In California judicial notice will be taken of the official character of a justice of the peace, and an affidavit is valid although such official character does not appear therein. Ede v. Johnson, 15 Cal. 53. In Illinois the circuit court takes judicial notice of the officers authorized to take affi- davits in the county in which it sits. Schae- fer v. Kienzel, 123 111. 430, 15 N. E. 164; Dyer v. Flint, 21 111. 80, 74 Am. Dec. 73; Rowley v. Berrian, 12 111. 198; Shattuck v. Vol. II People, 5 111. 477. But if the oath is taken in a county other than that in which the suit is brought the authority of the person ad- ministering it must be established by compe- tent evidence. Rowley v. Berrian, 12 111. 198. 79. Buell v. State, 72 Ind. 523; Brooster v. State, 15 Ind. 190. Clerk of court in which cause tried. — A court may take judicial notice of the names and signatures of its own officers. Therefore, where the officer's signature is followed merely by the word " clerk," it will be pre- sumed on appeal that he was clerk of the court in which the cause was tried. Mount- joy v. State, 78 Ind. 172; Hipes v. State, 73 Ind. 39 ; Buell v. State, 72 Ind. 523 ; Allen v. Gillum, 16 Ind. 234; Simon v. Stetter, 25 Kan. 155; Etter v. Dugan, 1 Tex. Unrep. Cas. 175. In Russell v. Oliver, 78 Tex. 11, 14 S. W. 264, it was held that an affidavit purporting to be taken in a proceeding in the probate court of Montgomery county, and sworn to before one who added to his signature " Clk. P. C. M. C," without affixing any seal, was sufficient. 80. The letters "J. P." are a well-known and commonly-used abbreviation for justice of the peace, and sufficiently indicate that office. California. — Ede v. Johnson, 15 Cal. 53. Indiana. — Hawkins v. State, 136 Ind. 630, 36 N. E. 419. Michigan. — Green v. Kindy, 1 Mich. N. P. 41. Missouri. — Sieckman v. Arwein, 10 Mo. App. 259. New Jersey. — Scudder v. Seudder, 10 N". J. L. 340. The characters " N. P." clearly indicate the office of notary public, being in common use and generally understood. Rowley v. Berrian, 12 111. 198. Commr. — In Hill v. Royston, 7 Jur. 930, a jurat attested "A B, Commr.," was held to show sufficiently that the officer was a commissioner. 81. Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496, 18 So. 175 ; Alabama Nat. Bank v. Chattanooga Door, etc., Co., 106 Ala. 663, 18 So. 74; Miller v. State, 122 Ind. 355, 24 N. E. 156; Chase v. Street, 10 Iowa 593; Tunis v. Withrow, 10 Iowa 305, 77 Am. Dec. 117; Boyd v. Spriggins, 17 Ont. Pr. 331. AFFIDA VIT8 33 need not be sealed. 83 Usually an affidavit sworn to before the clerk of the court in which it is to be used need not bear the clerk's seal. 83 VI. AMENDMENTS. A. In General. The right to amend an affidavit is a question depending for the most part upon the statutes. 84 Under the practice in most jurisdictions amendments are very freely allowed, 85 except in cases where the opposite party would be prejudiced thereby ; 86 but it has been held that after a material amend- ment the affidavit must be resworn, since affiant could not otherwise be convicted of perjury if, as amended, it were false. 87 82. Jowers v. Blandy, 58 Ga. 379; Rosen- stein v. State, 9 Ind. App. 290, 36 N. E. 652 ; Clement v. Bullens, 159 Mass. 193, 34 N. E. 173. Illinois — Affidavits for use within county. — In Illinois an affidavit taken by a notary for use in his own county need not bear the notarial seal (Sehaefer v. Kienzel, 123 111. 430, 15 N. E. 164; Dyer v. Flint, 21 111. 80, 74 Am. Dec. 73; Stout v. Slattery, 12 111. 162) ; but if to be used outside that county his official character must be shown either by his seal or in some other way (Stout v. Slattery, 12 111. 162). Iowa — Jurat to pleading. — In Iowa the jurat appended to a pleading need not be authenticated by the clerk's official seal. Finn v. Rose, 12 Iowa 565. 83. Mountjoy v. State, 78 Ind. 172; Crom- bie v. Little, 47 Minn. 581, 50 N. W. 823; Merriam v. Coffee, 16 Nebr. 450, 20 N. W. 389 ; Etter v. Dugan, 1 Tex. Unrep. Cas. 175. And see Simon v. Stetter, 25 Kan. 155. 84. Georgia — Not amendable as plead- ings. — Affidavits of the parties, to protect landowners against intruders, etc., were not amendable as pleadings under the Georgia amendment act of 1854. Ferry v. Martin, 26 Ga. 436. Kentucky — Not amendable after judg- ment. — An affidavit for a continuance can- not be amended after the court has passed judgment on it and held it to be insufficient. Smalley v. Anderson, 4 T. B. Mon. (Ky.) 367; Singleton v. Carr, 1 Bibb (Ky.) 554. Maryland — Cannot strike out a defend- ant.— Under Md. Code, art. 75, §§ 23, 27, the circuit court cannot amend an affidavit in attachment by striking out the name of one of defendants named therein. Halley v. Jackson, 48 Md. 254. 85. Georgia. — Reese v. Walker, 89 Ga. 72, 14 S. E. 888 ; Bryant v. Mercier, 82 Ga. 409, 9 S. E. 166. Michigan. — Emerson v. Detroit Steel, etc., Co., 100 Mich. 127, 58 N. W. 659. Missouri. — Stewart v. Cabanne, 16 Mo. App. 517. New Jersey. — Den v. Fen, 12 N. J. L. 321. New York. — Cutler v. Rathbone, 1 Hill (N. Y.) 204. North Carolina. — State v. Giles, 103 N. C. 391, 9 S. E. 433 ; Weaver v. Roberts, 84 N. C. 493. Tennessee. — Lucas v. Sevier, 1 Overt. . Newell, 1 Den. (N. Y.) 25, 26; Solinger c. Earle, 45 N. Y. Super. Ct. 80, 84. Ohio.— Chinn v. State, 47 Obio St. 575, 579 [quoting Erskine Inst. bk. I, tit. 6, § 8.] Tennessee. — Hume v. Commercial Bank, 10 Lea (Tenn.) 1, 43 Am. Rep. 290. But see Waterhouse -». Martin, Peek ( Tenn. ) 373, 389 [quoting Cooper's Justinian], where it is said that affinity is " the connection between the husband and his wife's parents, and the wife and her husband's parents." Distinguished from " consanguinity."— The term is used in contradistinction to " consan- guinity," which signifies a relation by blood. Kelly v. Neely, 12 Ark. 657, 56 Am. Dec. 288; Spear v. Robinson, 29 Me. 531, 545 [citing Webster Diet.] ; Carman v. Newell, 1 Den. (N. Y.) 25, 26; Hume v. Commercial Bank, 10 Lea (Tenn.) 1, 43 Am. Rep. 290. "A husband is related by affinity to all Vol. II the consanguinei of his wife, and vice versa, the wife to the husband's consanguinei; for the husband and wife being considered one flesh, those who are related to the one by blood, are related to the other by affinity." Higbe c. Leonard, 1 Den. (N. Y.) 186, 187; Chinn v. State, 47 Ohio St. 575, 579. There is no affinity between the blood rela- tives of the husband and the blood relatives of the wife. Kirby v. State, 89 Ala. 63, 69, 8 So. 110; Oneal v. State, 47 Ga. 229, 248. The degrees of affinity are computed in the same way as those of consanguinity. Kelly i\ Neely, 12 Ark. 657, 56 Am. Dec. 288. See, generally, Descent and Distribution. 9. Kelham Diet. 10. Burrill L. Diet. 11. Planters Bank v. Calvit, 3 Sm. & M. (Miss.) 143, 194, 41 Am. Dec. 616. 12. Abbott L. Diet. 13. Wharton L. Lex. 14. Burrill L. Diet. 15. Abbott L. Diet. 16. Stimson L. Gloss. 17. Anderson L. Diet. 18. Fields v. State, 134 Ind. 46, 53, 32 N. E. 780. 19. Burrill L. Diet. Affirmative acts of parliament are those "wherein justice is directed to be done ac- cording to the law of the land." 1 Bl. Comm. 142. 20. Morgan Leg. Max. AFFIXING — AFFRANCHISE 39 AFFIXING. See Fixtures ; Seals. AFFORATUS. Appraised; valued. 21 AFFORCE. To add force to ; to increase the strength of. 22 AFFORCER. To strengthen ; to add to. 23 AFFORCIARE. To Affoece, 24 q. v. AFFOREST. To turn into a forest. 25 AFFORESTARE or AFORESTARE. To Afforest, 26 q. v. AFFRANCHIR. To Affranchise, 27 q. v. AFFRANCHISE. To make free. 28 21. Wharton L. Lex. 23. Kelham Diet. 22. Abbott L. Diet. 24. Burrill L. Diet, [citing Bracton, foL Afforce the assize. — A method, in old Eng- 1856]. lish practice, of securing a verdict, where the 25. Wharton L. Lex. jury disagreed, by adding other jurors to the 26. Burrill L. Diet, panel until twelve could be found who were 27. Stimson L. Gloss. unanimous in their opinion. Black L.Dict. 28. Wharton L. Lex. Vol. II AFFRAY Edited by Charles L. Lewis Associate Justice of Supreme Court of Minnesota I. WHAT CONSTITUTES, 41 A. Generally, 41 B. Commission by Fighting, 41 1. At Common Law, 41 2. Statutory Provisions, 42 3. Elements of Offense, 42 a. Number Who May Commit, 42 b. Fighting, 42 (i) Necessity for and Extent of, 42 (n) Provoking Words, 42 (in) In Public Place, 43 (a) In General, 43 (b) What Constitutes, 43 (c) Commencement in Private Place, 43 c. Consent, 43 d. Incitement of Terror, 43 4. Aiders and Abettors, 44 C. Commission by Going About Armed, 44 1. In General, 44 2. Number Who May Commit, 44 3. Possession of Arms Necessary, 4A II. JURISDICTION OF JUSTICES OF THE PEACE, 44 A. Constitutionality of Statutes Conferring, 44 B. In What Cases, 44 III. THE INDICTMENT OR INFORMATION, 44 A. Number Who May Be Indicted, 4A B. Charging the Offense, 45 1. In General, 45 2. Particular Averments, 45 a. As to Jurisdiction, 45 b. As to Fighting, 45 c. As to Consent, 45 d. As to Place of Fighting, 45 e. As to Going About Armed, 46 f . As to Terror, 46 g. As to Assault and Battery, 46 IV. DEFENSES, 46 V. THE TRIAL, 47 A. Rights of Joint Defendants, 47 B. Examination of Witnesses, 47 C. Proof to Sustain Accusation, 47 D. Instructions, 47 1. As to Elements of Offense, 4H a. In General, 47 b. Statutory Elements, 48 2. As to Justification, 48 3. As to Mutual Assaults, 48 Vol. II 40 AFFRA Y 41 i. As to Self-Defense, 48 5. As to Punishment, 48 6. Effect of Gwmg Undue Prominence to Testimony of Wit- ness, 48 7. Effect of Unnecessary Instructions, 48 E. Province of Jury, 48 F. Verdict, 48 G. Effect of Acquittal of One Defendant, 48 1. iw General, 48 2. TF^re Agreement to Fight Is Essential, 48 H. Conviction of Assault and Battery, 48 VI. PUNISHMENT, 49 VII. Suppression, 49 A. iro General, 49 B. Affray in Progress, 49 0. .Threatened Renewal, 49 D. Degree of Force, 49 E. Suppression by Peace Officer, 49 F. Affray Ended — Probability of Felony, 50 CROSS-REFERENCES For Assault and Battery, see Assault and Battery. Breach of the Peace, see Breach of the Peace. Disorderly Conduct, see Disorderly Conduct. Homicide in Affray, see Homicide. Prize-Fighting, see Prize-Fighting. Riot, see Riot. Unlawful Assembly, see Unlawful Assembly. For General Matters Relating to Criminal Law and Criminal Procedure, see Criminal Law. I. WHAT CONSTITUTES. A. Generally. "Affray" is said to be derived from the French word "effrayer" x or " effraier," 2 to affright 3 or terrify, 4 but Lord Coke says that the word is English, and tha:t the offense is so called because it " affrighteth and maketh men afraid." 5 In a legal sense it signifies a public offense to the terror of the people. 6 B. Commission by Fighting- — I. At Common Law. An affray at common law 7 is defined to be the fighting of two or more persons in a public place, to the terror of the people. 8 1. Burn, verbo Affray [cited in State v. Alabama. — Thompson v. State, 70 Ala. 26; Huntly, 25 N. C. 418, 40 Am. Dee. 416]; MeClellan v. State, 53 Ala. 640; O'Neill v. Jacob L. Diet.; 1 Russell Crimes (9th ed. ) c. State, 16 Ala. 65. 26, p. 406. Arkansas. — State v. Brewer, 33 Ark. 176; 2. 1 Hawkins P. C. c. 63, § 1; Com. v. Sim- Childs v. State, 15 Ark. 204. mons, 6 J. J. Marsh. (Ky.) 614, in which Indiana. — Supreme Council, etc. v. Garri- case the word is spelled " affraier." gus, 104 Ind. 133, 3 N. E. 818, 54 Am. Rep. 3. State v. Huntly, 25 N. C. 418, 40 Am. 298. Dec. 416 ; Jacob L. Diet. Kentucky. — Com. v. Simmons, 6 J. J. 4. 1 Hawkins P. C. c. 63, § 1; Com. v. Marsh. (Ky.) 614. Simmons, 6 J. J. Marsh. (Ky.) 614. North Carolina. — State v. Davis, 65 N. C. 5. 3 Coke Inst. 158. 298; State v. Perry, 50 N. C. 9, 69 Am. Dec. 6. ,1 Haiafkins P. C. e. 63, § 1. 768; State v. Stanly, 49 N. C. 290; State v. 7. See also infra, I, C. Woody, 47 N. C. 335; State v. Allen, 11 N. C. 8. 1 Russell Crimes (9th ed.) c. 26, p. 406 1 Bishop Crim. L. § 535 ; 4 Bl. Comm. 144 3 Coke Inst. 158; 1 Hawkins P. C. c. 63, § 1 356. South Carolina. — State v. Sumner, 5- Strobh. (S. C.) 53. Burn Just. tit. Affray, 1. Tennessee. — State v. Priddy, 4 Humphr. Vol. II 42 AFFRAY 2. Statutory Provisions. In states where the statutory offense consists of the same elements as those which constitute the offense at common law, the statu- tory language is in substantial conformity to the common-law definition of the offense. 9 In some of the states, however, agreement or mutual consent has been added as an element. 10 3. Elements of Offense — a. Number Who May Commit. The commission of an offense of this character requires the participation of two or more persons. 11 But although two are engaged in the affray, unless consent is an element, 12 the offense may be committed by one, 13 as where the other offers no resistance, 14 or acts in self-defense, 15 or, not being the aggressor, employs only sufficient force to defend himself. 16 However, it would seem that in such a case the offense would be assault and battery and not affray." b. Fighting — (i) Necessity for and Extent of. Fighting is an essential ingredient of this form of the offense. 18 It is not necessary, however, that there should be an interchange of blows. One blow will be sufficient ; 19 or all the injury may be inflicted by one party/ as where the other attempts to use a weapon. 21 ISTor is it important who strikes the first blow, 22 or that deadly weapons were used. 23 (n) Provoking Words. Quarrelsome or threatening words will not of themselves amount to an affray, because insufficient to create the terror to the public which the law regards as the obnoxious feature of the offense. 24 But (Tenn.) 429; Simpson v. State, 5 Yerg. (Tenn.) 356. Texas. — Saddler v. Republic, Dall. (Tex.) 610. Virginia. — Wilkes v. Jackson, 2 Hen. & M. (Va.) 355. Distinguished from assault and battery. — Although assault and battery is involved in the offense of affray by fighting, it differs from it in that it may be committed in a private place, and lacks the ingredient of terror. Alabama. — Thompson r. State, 70 Ala. 26; MoClellan v. State, 53 Ala. 640. Arkansas. — Childs v. 'State, 15 Ark. 204. Kentucky. — Com. v. Simmons, 6 J. J. Marsh. (Ky.) 614. North Carolina. — State v. Stanly, 49 N. C. 290 ; State v. Woody, 47 N. C. 335. South Carolina. — State i\ Sumner, 5 Strobh. (S. C.) 53. Tennessee. — State v. Heflin, 8 Humphr. (Tenn.) 84; Simpson v. State, 5 Yerg. (Tenn.) 356; Cash v. State, 2 Overt. (Tenn.) 198. Texas. — Saddler v. Republic, Dall. (Tex.) 610. Virginia. — Wilkes v. Jackson, 2 Hen. & M. (Va.) 355. England. — 1 Hawkins P. C. c. 63, § 1; 1 Russell Crimes (9th ed.) e. 26, p. 406. See, generally, Assault and Batteet. Distinguished from riot. — Affray is distin- guished from riot in that the latter offense must be committed by three or more persons and is of a somewhat more public nature. People -v. Judson, 11 Daly (N. Y.) 1; State v. Allen, 11 N. C. 356. The offense may be an affray and not a riot although many persons engage in it, as where the meeting is innocent and lawful, and the breach of the peace happened unex- pectedly and without previous intention. Vol. II 1 Hawkins P. C. u. 65, § 3; 1 Russell Crimes (9th ed.) c. 26, p. 406. See, generally, Riot. 9. See the statutes cited in Hawkins v. State, 13 Ga. 322, 58 Am. Dee. 517; Pollock v. State, 32 Tex. Crim. 29, 22 S. W. 19. ■ 10. See the statutes cited in Supreme Coun- cil, etc. v. Garrigus, 104 Ind. 133, 3 N. E. 818, 54 Am. Rep. 298; Fritz v. State, 40 Ind. 18; State v. Foy, Tappan (Ohio) 103. 11. See supra, I, B, 1, 2. 12. Fritz v. State, 40 Ind. 18. 13. Cash r. State, 2 Overt. (Tenn.) 198. 14. O'Neill v. State, 16 Ala. 65; Pollock v. State, 32 Tex. Crim. 29, 22 S. W. 19. 15. State v. Sumner, 5 Strobh. (S. C.) 53. And see People v. Moore, 3 Wheel. Crim. (N. Y.) 82. 16. State v. Wilson, 61 N. C. 237. 17. State v. Wilson, 61 N. C. 237, holding that where the grand jury returned a true bill for affray against one defendant, it was in legal effect an indictment for assault and battery. See, generally, Assault and Bat- tery. 18. State v. Foy, Tappan (Ohio) 103; Simpson v. State, 5 Yerg. (Tenn.) 356. 19. State !-. Gladden, 73 N. C. 150; Piper v. State, (Tex. Crim. 1899) 51 S. W. 1118. 20. State v. Downing, 74 N. C. 184. 21. State v. Davis, 80 N. C. 351, 30 Am. Rep. 86. 22. 'State v. Sumner, 5 Strobh. (S. C.) 53; Pollock v. State, 32 Tex. Crim. 29, 22 S. W. 19. 23. State v. Glenn, 119 N. C. 804, 25 S. E. 789. 24. O'Neill v. State, 16 Ala. 65; Hawkins v. State, 13 Ga. 322, 58 Am. Dec. 517 ; State ■v. Sumner, 5 Strobh. (S. C.) 53; Pollock v. State, 32 Tex. Crim. 29, 22 S. W. 19; 1 Hawkins P. C. c. 63, § 4; 1 Russell Crimea (9th ed.) c. 26, p. 407. AFFRA Y 43 where one person uses abusive or offensive language, which is calculated and intended to provoke and bring on a fight, and the other is induced to strike or injure him, the former may be guilty of an affray whether he does or does not return the blow. 35 In such a case he cannot be said to act in self-defense, 26 espe- cially if he was ready and willing to fight. 27 Thus the use of language which evinces a design to precipitate trouble, accompanied by the drawing of weapons and their attempted use, will constitute the offense. 28 (in) In Public Place — (a) In General. It is absolutely necessary that the fighting should have occurred in a public place. 89 (b) What Constitutes. What will constitute a public place in this connection seems to have been fairly well settled. Thus a public highway ^ or a public street S1 will ordinarily be regarded as a public place so that fighting therein will make the offense of affray ; and it has been held that a place in close proximity to a public street, and open and visible to passers-by, was within the definition, 33 but it has also been held that a place out of the sight or hearing of the general public, and considerably distant from a highway, will not lose its private character by the casual presence of persons other than the combatants. 83 (c) Commencement in Private Place. It is not material that the fighting commenced in a private place, if it was continued in a public place, 31 or was car- ried thereto by flight and pursuit, 35 or the commencement and continuation of the fighting were so intimately blended as to constitute but one transaction. 36 e. Consent. Consent to fight is not an element of the common-law offense, 37 but is made an element by statute in some of the states, 38 and when it is so made an element its existence is necessary to complete the offense. 39 The consent may be indicated by words or gestures, and it is not necessary that there should be any form of words or a writing. 40 A party at first unwilling, who is forced into a quarrel, cannot be said to have consented ; 41 nor can a person be presumed to have consented from the mere fact that he engaged in a fight. 42 d. Incitement of Terror. The object of denouncing the offense is to prevent the disturbance of the public peace and quiet. 43 The injury to the people is the 25. State r. Fanning, 94 N. C. 940, 55 Am. South Carolina. — State v. Sumner, 5 Rep. 653; State v. Davis, 80 N. C. 351, 30 Strobh. (S. C.) 53. Am. Rep. 86; State v. Downing, 74 N. 0. Tennessee. — Simpson v. State, 5 Yerg. 184; State v. Perry, 50 N. C. 9, 69 Am. Dec. (Tenn.) 356; State v. Heflin, 8 Humphr. 768; State v. Sumner, 5 Strobh. (S. C.) 53. (Tenn.) 84. Intent to fight. — Actual intent that there Texas. — Shelton v. State, 30 Tex. 431. should be a combat is immaterial. One who England. — Reg. v. Hunt, 1 Cox C. C. 177; has provoked a fight cannot insist that he did 4 Bl. Comm. 146. not believe that his adversary would resent 30. State i', Davis, 80 N". C. 351, 30 Am. the provocation, but will be deemed to have Rep. 86. intended the natural result of his acts. State 31. Carwile v. State, 35 Ala. 392. ' v. King, 86 N. C. 603. 32. Carwile v. State, 35 Ala. 392. Presumption. — All persons engaging in an 33. Taylor v. State, 22 Ala. 15; Reg. v. affray, whether it ensue on a sudden quarrel Hunt, 1 Cox C. C. 177 ; 1 Hawkins P. C. c. 63, or otherwise, are presumed to engage in it § 1 ; 1 Russell Crimes ( 9th ed. ) e. 26, p. 406. with the design of fighting and disturbing the 34. State v. Billings, 72 Mo. 662. peace. Childs v. State, 15 Ark. 204. 35. Wilson v. State, 3 Heisk. (Tenn.) 278. 26. State v. Sumner, 5 Strobh. (S. C.) 36. State v. Billings, 72 Mo. 662. 53. 37. Supreme Council, etc. . Jen- nison, 14 Pet. (U. S.) 540, 572, 10 L. ed. 579. 49. Sage v. Wilcox, 6 Conn. 81, 86. 50. Barkow v. Sanger, 47 Wis. 500, 3 N. W. 16. 51. Century Diet. AGRICULTURE Edited by Gilbert Collins Associate Justice of Supreme Court of New Jersey I. DEFINITION, 56 II. AGRICULTURAL LIENS, 56 A. Kinds of Liens, 56 1. For Advances, 56 a. In General, 56 (i) What Constitutes, 56 (a) Generally, 56 (b) Supplies, 56 (o) Money, 57 (n) By and To Whom Made, 57 (in) Articles Must Be Actually Furnished, 58 (iv) Must Be to Promote Crop, 58 (a) In General, 58 (b) What Constitutes Promotion, 58 (c) Effect of Misapplying Advances, 58 b. To Prevent Waste, 58 2. For Services, 58 a. In General, 58 b. Covers What Services, 59 B. How Created, 59 1. By Contract, 59 a. Time for Making Contract, 59 b. Reqinsites of Contract, 60 . (i) In General, 60 (u) Necessity for Writing, 60 (in) Particular Specifications, 61 (a) Consideration, 61 (b) Amount of Advances, 61 (o) Description of Land, 61 (d) Stipulation for Lien, 61 (iv) Signature, 61 c. Recording, 61 (i) Wlien Necessary, 61 (n) Place of Recording, 62 (m) Time for Recording, 62 (iv) Effect of Withdrawing from Files, 62 2. By Filing Statement of Claim, 62 C. Property Affected, 62 1. In General, 62 2. Effect of Sale or Other Disposition, 63 a. Right to Follow Crop, 63 b. Right to Follow Proceeds, 64 D. Rights of Lien -Holder, 64 1. In General, 64 2. Assignment, 64 3. Priority of Lien, 64 a. -For J4$y. Mahan, 30 La. Ann. 1401, to the effect that advances by a factor to a planter, whether of money or of goods, if used in paying the laborers who< make the crop, constitute privileged debts on the crop. 9. McLester v. Somerville, 54 Ala. 670; Saulsbury v. Eason, 47 Ga. 617; Howe v.. Whited, 21 La. Ann. 495; Wood r. Calloway,. 21 La. Ann. 471; Shaw v. Grant, 13 La. Ann.. 52 [following Shaw v. Knox, 12 La. Ann.,41].. Payment by a factor of debts due by his principal are considered as money advanced and are not " necessary supplies " within arti- cle 3184 of the Civil Code providing for a lien, for advances. Shaw v. Knox, 12 La. Ann. 41. 10. Shields v. Kimbrough, 64 Ala. 504; Whitmore v. Poindexter, 7 Baxt. (Tenn.) 248; Dunlap v. Aycock, 10 Heisk. (Tenn.) 561. Advances by third person on credit of tenant alone are not entitled to protection under a. statute giving a landlord a lien on the tenant's crop " for advances, . . . whether made directly by him, or at his instance and request by any other person, or for which he has assumed the legal responsibility." Bell v. Hurst, 75 Ala. 44, 46. Agreement to raise crop on shares. — Neither party to an agreement to raise a crop on shares has a lien for advances made by him. Dunlap v. Aycock, 10 Heisk. (Tenn.) 561. See also Shields v. Kimbrough, 64 Ala. 504, to the effect that prior to the act of Feb. 9, 1877, the contract between the lessee of lands and his laborers, for the cultivation of land on shares, did not give the lessee any lien on the crops for advances made by him to the laborers during the year. 11. Clark v. Farrar, 74 N. C. 686; Richey v. Du Pre, 20 S. C. 6; Carpenter v. Strick- land, 20 S. C. 1. A mortgagor in possession after condition broken cannot, as against the mortgagee, create a lien in favor of the person advanc- ing supplies. Brewer v. Chappell, 101 N. C. 251, 7 S. E. 670. An agreement to take part of crop for services constitutes one a laborer for hire, and such a one cannot give a lien for ad- vances. Richey v. Du Pre, 20 S. C. 6; Car- penter v. Strickland, 20 S. C. 1. Premises in possession of receiver. — Pend- ing a real action, a receiver of the rents and profits was appointed, but up to the time of such appointment plaintiffs were in possession under claim of title, and had executed an ag- ricultural lien to A for advances. A was en- titled to recover for advances made to plain- tiffs up to the time the receiver entered, but the advances made after such entry would de- pend upon the circumstances under which they were made. McNair v. Pope, 104 N. C. 350, 10 S. E. 252. Vol. II 58 AGRICULTURE (in) Articles Must Be Actually Furnisbed. The advances must be actually furnished to the debtor, 12 and the creation of an agricultural lien to secure an antecedent indebtedness 13 or contemplated future advances u is not authorized. (iv) Must Be to Promote Chop — (a) In General. The particular advances must be made for, and should be entirely devoted to, the raising and perfection of the particular crop. 15 (b) What Constitutes Promotion. Money advanced for necessary repairs on the farm 18 or to machinery 17 is considered money advanced to make a crop, and a balance remaining due to a landlord at the end of a year, the tenancy continu- ing for another year, is regarded as advances made on the crop of that year. 18 (c) Effect of Misapplying Advances. "While it has been said that one making advances is not bound to see to the proper application of such advances, 19 and in consequence is not responsible for any misapplication thereof to which he has not assented or of which he had no knowledge, 30 it has also been held that advances clearly proved to have been diverted to other than plantation pur- poses cannot be allowed a lien. 21 b. To Prevent Waste. One who has a lien on a growing crop may advance what is necessary to preserve it from waste and destruction, and may retain the advances thus made out of the proceeds of sale before crediting any portion of his debt. 22 2. For Services — a. In General. In the absence of statute no lien exists for labor and services performed, 23 but farm-laborers have been held entitled to a preference under general statutes providing for the protection of mechanics, clerks, 12. Warder-Bushnell, etc., Co. v. Minne- sota, etc., Elevator Co., 44 Minn. 390, 46 N. W. 773. What constitutes "furnishing." — A mort- gagee of wheat, entitled to the immediate pos- session of the same for the purpose of fore- closure, who in good faith permits the mort- gagor to retain a portion of the mortgaged wheat for seed and takes a " seed-grain " note therefor, may avail himself of Minn. Gen. Stat. (1894), § 4155, providing that a party who furnishes seed to another and takes a note therefor may have a lien fo. such note on the crop raised from such seed. O'Brien v. Findeisen, 48 Minn. 213, 50 N. W. 1035; War- der-Bushnell, etc., Co. v. Minnesota, etc., Ele- vator Co., 44 Minn. 390, 46 N W. 773. 13. Carter v. Wilson, 61 Ala. 434; Clark v. Farrar, 74 N C. 686. But see Barrett v. Chaler, 2 La. Ann. 874, holding that the priv- ilege granted by the act of March 23, 1843, amending La. Civ. Code, art. 3184, attaches to the crop of the current year for supplies furnished during that and the preceding year. 14. Boyett v. Potter, 80 Ala. 476, 2 So. 534. 15. Bank of America v. Fortier, 27 La. Ann. 243; Howe v. Whited, 21 La. Ann. 495; Wallace v. Palmer, 36 Minn. 126, 30 N. W. 445; Woodlief v. Harris, 95 N C. 211; Clark v. Farrar, 74 N. C. 686. Payment of premiums on life-insurance policy. — No lien on crops exists for money paid by a borrower as premiums on » life-in- surance policy, under an agreement with the lender, out of a sum advanced for supplies of a plantation. Hewitt v. Williams, 47 La. Ann. 742, 17 So. 269. 16. Airey v. Weinstein, 54 Ark. 443, 16 S. W. 123. 17. Laloire v. Wiltz, 31 La. Ann. 436. 18. Thompson v. Powell, 77 Ala. 391. Vol. II 19. Watson v. Auerbaeh, 57 Ala. 353; Bos- well v. Carlisle, 55 Ala. 554; Hewitt p. Wil- liams, 47 La. Ann. 742, 17 So. 269. 20. Watson v. Auerbaeh, 57 Ala. 353 ; Bos- well v. Carlisle, 55 Ala. 554. See also Laloire v. Wiltz, 31 La. Ann. 436, to the effect that a factor's pledge under the Louisiana act of 1874 covers all advances of money and neces- sary supplies that may be required by the planter, unless it be shown that the factor knowingly advanced money or supplies for other purposes than making the crop. 21. Osborn's Succession, 40 La. Ann. 615, 4 So. 580. See also Nash v. Brewster, 39 Minn. 530, 41 N. W. 105, 2 L. R. A. 409, hold- ing that where the seed grain described in a seed-grain note is actually and in good faith furnished to the maker for seeding purposes, and a portion of the seed is subsequently sold or otherwise appropriated by him, and not sown upon the land designated, that fact will not defeat the lien of the seller, under the Minnesota statute, for the price of that por- tion of such seed grain actually sown upon the land, upon the crop grown therefrom. 22. Caldwell v. Hall, 49 Ark. 508, 1 S. W. 62, 4 Am. St. Eep. 64 ; Fry v. Ford, 38 Ark. 246. Disbursements made through the sheriff, by order of court, to gather, manufacture, and ship the crops on a plantation in the keeping of the sheriff, are debts incurred for the preservation of the crops, and therefore privileged. Benton v. Mahan, 30 La. Ann. 1401. 23. Hunt v. Wing, 10 Heisk. (Tenn.) 139. See also Moore v. Gray, 22 La. Ann. 289, hold- ing that since before the passage of the act of 1867 the laborers on the plantation had no privilege on the crop to secure their -wages, when the crop was made in the year 1866, no lien or privilege could be set up on the crop or its proceeds by the laborers who made it. AGRICULTURE 59 laborers, and others. 24 Where the statute expressly provides for a lien for services performed, the services must be rendered by one of the class enumerated therein. 25 b. Covers What Services. "Where the statute provides for a lien in favor of any person who shall do labor, etc., 26 this does not give one a lien for the labor of other persons than himself,* 7 but it does give him a lien for his wages for all services performed by him, including such as had no reference to the crop. 38 An overseer who has served for one year and part of a second has a lien for the whole amount due him. 29 B. How Created — 1. By Contract — a. Time for Making Contract. The instrument by which the lien is created must be made prior to 30 or contemporane- ously with the advance made. 31 24. Dano v. M. 0. & R. R. Co., 27 Ark. 564; John's Estate, 2 Chest. Co. Rep. (Pa.) 458; Purefoy v. Brown, 13 Pa. Co. Ct. 281; Wiand v. Hiinmelwright, 8 Pa. Co. Ct. 663; Buckwalter's Estate, 3 Pa. Co. Ct. 315; Al- derfer v. Beyer, 2 Pa. Co. Ct. 425; Topper v. Krise, 1 Pa. Co. Ct. 300 ; Hogue v. Sheriff, 1 Wash. Terr. 172. Contra, Schilling v. Carter, 35 Minn. 287, 28 N. W. 658 ; Hohman v. Car- ter, 35 Minn. 287 note; Schwartz v. Rhoades, 6 Pa. Co. Ct. 385; Fendrick v. Henry, 5 Pa. Co. Ct. 265 ; Jacobs v. Woods, 14 Wkly. Notes Cas. (Pa.) 237. In the absence of a special contract cre- ating it, to be followed by an actual and physical change of possession in the nature of a pledge, a laborer who has been employed by a farmer to harvest a crop is not entitled to a lien upon it for the value of his work and services under such a general statute. McDearmid v. Foster, 14 Oreg. 417, 12 Pae. 813. And a provision in a lease that the crop should remain the property of the lessor till payment of all expenses necessary to care for the crop, and to put the third thereof, re- served as rent, in sacks, and to cover any liens incurred in caring for, harvesting, or threshing the crop, does not create a lien on the crop in favor of a harvest-hand. Law- rence v. Phy, 27 Oreg. 506, 41 Pac. 671. A blacksmith who shoes horses and repairs implements for a farmer is not a, farm-la- borer and is not entitled to a preference. Baldwin v. Baldwin, 10 Pa. Co. Ct. 194. One who merely clears land and prepares it for cultivation is not entitled to a lien for his wages. Taylor v. Hathaway, 29 Ark. 597. Persons hiring a hay-press and threshing- machine, and operating them wherever they can find employment, are contractors, and not farm-laborers, within the act of 1872, en- titling the latter to a lien for wages. Wilson v. Gibson, 10 Pa. Co. Ct. 191. 25. Saloy v. Dragon, 37 La. Ann. 71; Hes- ter v. Allen, 52 Miss. 162. The necessary relation of debtor and credi- tor does not exist where plaintiff agrees to work on defendant's farm, the latter to fur- nish the mules and implements necessary therefor, the profits, after paying expenses, to be divided equally. Grissom v. Pickett, 98 N. C. 54, 3 S. E. 921. But see Burgie v. Davis, 34 Ark. 179, to the effect that one who raises a crop on land of another under con- tract for a particular part of it is a mere cropper and not » tenant, and has a lien upon the crop for whatever is due him. A laborer who cuts and carries grass has a lien on the hay for the price or value of his labor (Emerson v. Hedrick, 42 Ark. 263), but the fact that a person in service on one place, for a few days supervises laborers sent there- from to another place, does not entitle him to the character of a laborer on the latter place, and, as such, to a lien on the crops thereon (Terry v. Groves, 71 Miss. 539, 14 So. 451). An overseer has » lien under a statute giving " every employee, laborer, part-owner, or other person " such a lien ( Weise v. Rut- land, 71 Miss. 933, 15 So. 38 [distinguishing Hester v. Allen, 52 Miss. 162] ), but the word " laborer " does not embrace an overseer (Whitaker v. Smith, 81 N. C. 340, 31 Am. Rep. 503; Isbell v. Dunlap, 17 S. C. 581. See also Wickham v. Nalty, 42 La. Ann. 423, 7 So. 609, holding that a party claiming » privilege for salary due him as overseer can- not recover under proof that he was merely a laborer), and an overseer who has ceased to act as such has no lien for services ren- dered by him as agent (Johnson's Succession, 3 Rob. (La.) 216). A repairer of carts, wagons, etc., has no privilege on the proceeds of the sale of a plantation on which they were used. McRae v. His Creditors, 16 La. Ann. 305. 26. An implied contract is sufficient to en- title one to a lien for labor and services un- der Ala. Civ. Code, § 3078. Wilson v. Tay- lor, 89 Ala. 368, 8 So. 149. 27. Mohr r. Clark, 3 Wash. Terr. 440, 19 Pac. 28, holding this to be so even though the claimant was present directing the work of such persons. 28. Lumbley v. Thomas, 65 Miss. 97, 5 So. 823. 29. Farrar v. Rowley, 3 La. Ann. 276; Welsh v. Shields, 6 Rob. (La.) 484; John- son's Succession, 3 Rob. (La.) 216. 30. Lowdermilk v. Bostick, 98 N. C. 299, 3 S. E. 844; Clark v. Farrar, 74 N. C. 686. Advances made prior to execution of the agreement are not protected. Lowdermilk v. Bostick, 98 N. C. 299, 3 S. E. 844. But a re- cital in the contract that it is made to secure advances heretofore made, where no advances in fact have been made before the execution of the lien, will not affect its validity. Wooten v. Hill, 98 N. C. 48. 3 S. E. 846. 31. Smith v. Roberts, 43 Minn. 342, 46 N". W. 336 ; Kelly v. Seely, 27 Minn. 385, 7 N. W. 821, holding that no seed-grain lien can be acquired where the seeds for which the note or contract was given are furnished some time after the note or contract is given. Vol. II 60 AGRICULTURE b. Requisites of Contract — (i) In General. To constitute a valid statutory agricultural lien the contract must strictly pursue the la.nguage of the statute. 3 * An instrument may be so framed, however, as to operate in one partas a mort- gage and in another as an agricultural lien ; 3S and an instrument totally insufficient to create a valid crop lien may be valid as a chattel mortgage. 34 (n) Necessity foe Writing. A statutory lien can be created only by instrument in writing, whether it be to secure advances S5 or the wages of a laborer . S6, Transaction a single one. — Under N. C. Code, § 1799, relating to liens for advances in making a crop, which provides that an agreement in writing shall be entered into before an advance is made, if the transaction is a single one it is immaterial which act is done first. Reese v. Cole, 93 N. C. 87. 32. Alabama. — Boyett v. Potter, 80 Ala. 476, 2 So. 534; Tison v. People's Sav., etc., Assoc, 57 Ala. 323; McLester v. Somerville, 54 Ala. 670; Dawson v. Higgins, 50 Ala. 49. Louisiana. — Payne v. Spiller, 23 La. Ann. 248. Minnesota. — Wallace v. Palmer, 36 Minn. 126, 30 N. W. 445; Kelly v. Seely,' 27 Minn. 385, 7 N. W. 821. Mississippi. — Newman v. Greenville Bank, 66 Miss. 323, 5 So. 753 [following Allen v. Montgomery, 48 Miss. 101], holding that a mere contract by one indebted to a merchant, to deliver to such merchant all cotton grown by him, does not create a lien on the cotton in favor of the merchant. North Carolina. — Rawlings v. Hunt, 90 N. C. 270. South Dakota. — Anderson v. Alseth, 6 S. D. 566, 62 N. W. 435. Tennessee. — Dunlap v. Aycock, 10 Heisk. (Tenn,) 561. Where the intent to create an agricultural lien is obvious, the fact that the instrument contains words purporting to convey the crop will not alter its character as such. Eving- ton v. Smith, 66 Ala. 398; Alexander r. Glenn, 39 Ga. 1 ; Townsend v. McKinnon, 98 N. C. 103, 3 S. E. 836. The erasure of printed provisions, in an agricultural lien for rent, for advances in money or supplies to be used in the cultiva- tion of the leased land, and the addition of a covenant that the lienor should return in kind all of the cotton-seed used, the lienee being given, in printed words, a lien for rent and advances, show an intent not to create a lien for advances and the lien created does not cover the cotton-seed. Segler v. Coward, 24 S. C. 119. For forms of instruments held sufficient to create a statutory lien see the following cases : Alabama. — Connor v. Jaekson, 74 Ala. 464; Evington v. Smith, 66 Ala. 398; Grady v. Hall, 59 Ala. 341; Watson v. Auerbach, 57 Ala. 353; Boswell v. Carlisle, 55 Ala. 554; McKinney v. Benagh, 48 Ala. 358. Arkansas. — Sentell v. Moore, 34 Ark. 687. Georgia. — Usry v. Saulsbury, 62 Ga. 179; Alexander v. Glenn, 39 Ga. 1. Worth Carolina. — Lowdermilk v. Bostiek, 98 N. C. 299, 3 S. E. 844; Townsend v. Mc- Kinnon, 98 N. C. 103, 3 S. E. 836 ; Wooten v. Hill, 98 N. C. 48, 3 S. E. 846; Reese v. Cole, 93 N. C. 87. Vol. II South Carolina.— Sternberger v. MeSween, 14 S. C. 35. See also Haden v. Lindsay, (Ky. 1896) 34 S. W. 1065; Whilden e. Pearce, 27 S. C. 44, 2 S. E. 709, for forms set out in substance which were held insufficient to create an agri- cultural lien. 33. Levystein v. Whitman, 59 Ala. 345; Stewart v. Hollins, 47 Miss. 708; Weil v.. Flowers, 109 N. C. 212, 13 S. E. 761; Wooten v. Hill, 98 N. C. 48, 3 S. E. 846; Rawlings v. Hunt, 90 N. C. 270. An instrument including supplies and rent will be held valid as a lien to the extent of the supplies, and as a mortgage subject to priorities to the extent of the rent. Stewart v. Hollins, 47 Miss. 708. 34. Boyett v. Potter, 80 Ala. 476, 2 So. 534; Hamilton v. Maas, 77 Ala. 283; Evans v. English, 61 Ala. 416; Tison v. People's. Sav., etc., Assoc., 57 Ala. 323; McLester v. Somerville, 54 Ala. 670; Gafford v. Stearns, 51 Ala. 434; Dawson v. Higgins, 50 Ala. 49; Brown v. Miller, 108 N. C. 395, 13 S. E. 167 [following Rawlings v. Hunt, 90 N. C. 270] . But see Clark v. Farrar, 74 N". C. 686, to the effect that an agreement in writing, or a deed which purports on its face to be an agricul- tural lien for advances, cannot be supported as a, mortgage for a different purpose, and founded on a consideration not expressed, but concealed or disguised in the deed. For forms of instruments held insufficient to create statutory liens, but valid as chat- tel mortgages, see Boyett v. Potter, 80 Ala. 476, 2 So. 534; Tison v. People's Sav., etc., Assoc, 57 Ala. 323; McLester v. Somerville, 54 Ala. 670 ; Gafford v. Stearns, 51 Ala. 434 ; Dawson v. Higgins, 50 Ala. 49. 35. Tison v. People's Sav., etc., Assoc, 57 Ala. 323 ; Powell v. Weaver, 56 Ga. 288 ; Ware 13. Simmons, 55 Ga. 94; Seago v. Freeman, 54 Ga. 102; Bain v. Brooks, 46 Miss. 537; Cureton v. Gilmore, 3 S. C. 46. Contra, Lewis v. Mahon, 9 Baxt. ( Tenn. ) 374, holding that under Tenn. Acts (1875), c 116, awrit- ten contract is not essential to a lien for necessary supplies of food and clothing fur- nished a tenant, if an account thereof is- kept and duly proved before enforcement. And see Gafford v. Stearns, 51 Ala. 434, to the effect that a verbal agreement for a lien on the crop for supplies furnished is not ob- noxious to the statute of frauds, but is valid and operative against all except bona fide purchasers. A parol agreement unaccompanied by transfer of possession is insufficient to create a lien for supplies furnished to produce a crop. Alexander v. Pardue, 30 Ark. 359. 36. Hair v. Blease, 8 S. C. 63. Contra, Leak v. Cook, 52 Miss. 799; Buck v. Payne, 52 Miss. 271. AGRICULTURE 61 (m^ Particular SPECIFICATIONS — (a) Consideration. It must appear on the face of the instrument that the consideration therefor was the advances, 37 and that these were of the character , w and for the purpose, 39 mentioned in the statute. (b) Amount of Advances. The instrument by which the lien is created must stipulate the amount to be secured thereby, 40 and no further sum can be covered 41 without a specific provision therefor. 43 (c) Description of Zand. The instrument should describe the land on which the crop is to be grown. 43 ft)) Stipulation for Lien. The agreement must stipulate for a lien. 44 (iv) Signature. In some states the agreement must be signed both by the •one who is to make the advances and by the borrower. 45 e. Recording — (i) When Necessary. When the statute so provides, 46 the instrument by which the lien is created must be recorded to be effective against third persons. 47 37. Saulsbury v. Eason, 47 Ga. 617, hold- ing that a note given for money, -which upon its face recites that the money is to be used to purchase provisions, does not create a debt securable by the lien given by the act of 1866 to merchants and factors upon growing crops for provisions and commercial supplies fur- nished. 38. Boyett v. Potter, 80 Ala. 476, 2 So. ■534; Comer v. Daniel, 69 Ala. 434; Schuess- ler v. Gains, 68 Ala. 556. A crop lien for advances is vitiated as a statutory crop lien by including in the items of the claim articles for which the statute .gives no lien, where such articles are know- ingly and intentionally included and consti- tute a material portion of the consideration. Comer v. Daniel, 69 Ala. 434. 39. McLester v. Somerville, 54 Ala. 670; Dawson v. Higgins, 50 Ala. 49 ; Speer v. Hart, 45 Ga. 113. It is insufficient, under a statute requiring a note to recite that the advances were ob- tained " bona fide for the purpose of making a crop," to use the words, " which advances were made me to enable me to make a crop the present year." Dawson v. Higgins, 50 Ala. 49. ' The consideration is properly expressed, under Ala. Civ. Code (1876), § 3286, as " necessary advances in horses, mules, oxen, and necessary provisions, farming tools and implements, and money to procure the same, obtained by me bona fide for the purpose of making a crop the present year," and de- claring that " without such advancements it would not be in my power to procure the necessary teams," etc., " to make a crop the present year." Connor v. Jackson, 74 Ala. 464. 40. Gay v. Pike, 30 La. Ann. 1332; Car- penter v. Strickland, 20 S. C. 1. 41. Gay v. Pike, 30 La. Ann. 1332. See also Franklin v. Meyer, 36 Ark. 96, holding that if one who has a first mortgage on a crop for a specified amount of supplies furnished to make it exceeds in his advances the amount specified, he has no lien for such excess. 42. Tnurman v. Jenkins, 2 Baxt. (Tenn.) ■426. And see Bell v. Radcliff, 32 Ark. 645, •where a deed of trust recited that it was ex- ecuted to secure a given sum for supplies fur- bished and to be advanced during the year to raise a crop on certain premises, and it was held that equity, if necessary, would protect and uphold additional advances over and above the sum named in the deed. But see Collier v. Faulk, 69 Ala. 58, holding that such a stipulation is void. 43. Perry v. Bragg, 109 N. C. 303, 14 S. E. 97; Gwathney v. Etheridge, 99 N. C. 571, 6 S. E. 411; Martin v. Hawthorn, 3 N. D. 412, 57 N. W. 87; Parker v. Lisbon First Nat. Bank, 3 N. D. 87, 54 N. W. 313; Lavin v. Bradley, 1 N. D. 291, 47 N. W. 384. ' Contra, under Ala. Civ. Code (1876), §§.3286-3288, Griel v. Lehman, 59 Ala. 419. It is sufficient to describe the land as " a tract of land in Granville County, known as the ' C. H. Dement, Dec'd,' " as this descrip- tion may be aided by parol proof. Perry v. Bragg, 109 N. C. 303, 14 S. E. 97. But de- scribing the land as " any other lands he may cultivate during the year " is insufficient. Perry v. Bragg, 109 N. C. 303, 14 S. E. 97; Weil v. Flowers, 109 N. C. 212, 13 S. E. 761; Gwathney v. Etheridge, 99 N. C. 571, 6 S. E. 411. 44. Bain v. Brooks, 46 Miss. 537; Dunlap v. Aycoek, 10 Heisk. (Tenn.) 561. 45. Sease v. Dobson, 33 S. C. 234, 11 S. E. 728. 46. Recording unnecessary. — Under La. Const. (1879), art. 177, privileges on mova- bles do not require to be recorded, but have the same validity and effect, with or without registry. Flower v. Skipwith, 45 La. Ann. 895, 13 So. 152 [followed in Hewitt v. Wil- liams, 47 La. Ann. 742, 17 So. 269]. See also Welsh v. Shields, 6 Rob. (La.) 484 (hold- ing that an overseer's privilege need not be recorded), and Tedford v. Wilson, 3 Head (Tenn.) 311 (holding that an agreement that the future products of the farm, not then in existence, shall be first subject to the satis- faction of the employee's wages, does not fall within the letter or spirit of the registration act). When made for less than one year, as in case of a contract to make a crop, the labor- er's lien need not be recorded. Watson v. May. 62 Ark. 435, 35 S. W. 1108. 47. Fargason v. Johnson, 26 La. Ann. 501 ; Beard v. Chappell, 23 La. Ann. 694; White v. Bird, 23 La. Ann. 270 ; Howard v . Simmons, 43 Miss. 75; Martin v. Hawthorn, 3 N. D. Vol. II 62 AGRICULTURE (n) Place of Recording. The instrument must be recorded in the county or other prescribed division where the property lies. 48 (in) Time for Recording. The instrument should be recorded within the time prescribed by the statute, 49 although it will be good between the parties if not recorded within such time. 50 (iv) Effect of Withdrawing from Files. An instrument which is with- drawn from the files after being filed is invalid as against a bona fide purchaser. 2. By Filing Statement of Claim. Where the statute provides for filing a notice of lien-claim such notice must be certain to a reasonable intent and be sufficient to guide an intelligent investigation, 52 and must also be filed within the time allowed by statute. 53 Several claimants may join in one claim. 54 C. Property Affected— 1. In General. The lien which the statute author- izes does not attach to the land, 55 nor to property owned before advances were made and not procured therewith, 56 but extends only to the crop of the year pro- 412, 57 N. W. 87; Whaley v. Jacobson, 21 S. C. 51. Employer and laborer tenants in common. — An employer is required by the Arkansas act of March 6, 1875, to file a copy of the contract in the recorder's office, in order to secure his lien for advances and supplies, only when the laborer is a tenant in common with the employer in the crop raised by him. Sen- tell v. Moore, 34 Ark. 687. Amount of indebtedness. — The third sec- tion of the Mississippi act of Feb. 18, 1867, provides that in the enrolment the amount of indebtedness shall be set down in one col- umn, and that the party agreeing to advance a specific sum during the year may enroll his contract. A subsequently recorded mort- gage specifying the amount will take prece- dence over an earlier one not so doing. French v. Pieard, 49 Miss. 320. Proof of execution. — The privilege acquired by one who furnishes supplies to a planter is not affected by the failure of the recorder of mortgages to register, with the contract for the supplies, the proof of its execution, under La. Civ. Code, art. 3367, providing that mort- gages under private signature may be regis- tered, without previous acknowledgment by the party or proof by subscribing witnesses, where the recorder, on his own responsibility and knowledge, is willing to do so. Elliott v. Elliott, 31 La. Ann. 31. 48. Griel v. Lehman, 59 Ala. 419; Gay v. Bovard, 27 La. Ann. 290; Adams v. Adams, 27 La. Ann. 275 ; Fargason v. Johnson, 26 La. Ann. 501 ; White v. Bird, 23 La. Ann. 270. 49. Gafford v. Stearns, 51 Ala. 434; Gay v. Daigre, 30 La. Ann. 1007; Gay v. Bovard, 27 La. Ann. 290; Adams v. Adams, 27 La. Ann. 275 ; Bank of America v. Fortier, 27 La. Ann. 243 ; Beard v. Chappell, 23 La. Ann. 694. Recording an account current for advances made by a factor to a planter, running through several months, the day after the date of the closing of the account, is not re- cording the evidence of the debt on the day on which a, contract for making the advances was entered into. Gay v. Daigre, 30 La. Ann. 1007. 50. Gay v. Nash, 78 N. C. 100; Loyns v. Tedder, 7 S. C. 69. 51. Sternberger v. McSween, 14 S. C. 35. Vol. II 52. Brown v. McFadden, 5 Pa. Co. Ct. 9; Alderfer v. Beyer, 2 Pa. Co. Ct. 425. Insufficient claim. — Plaintiff filed a labor- er's lien, specifying as follows: " 1886. William Cook to James W. Cook, Dr. " Dec. 8. For labor on farm for 8 months and 4 days, $10 per month $81 46 Cr., by cash 5 00 $76 46 : This was held insufficient in that it did not show where the labor was performed, nor on what farm, nor that the claimant labored on the crop of his employer on which he in- tended to obtain a lien. Cook v. Cobb, 101 N. C. 68, 7 S. E. 700, holding further that such a claim cannot be cured by allegations in the complaint to protect the alleged lien against a third party. For forms of lien-claims see Brown v. McFadden, 5 Pa. Co. Ct. 9 ; Alderfer v. Beyer, 2 Pa. Co. Ct. 425. 53. Pain v. Isaacs, 10 Wash. 173, 38 Pac. 1038, where the lien-claim filed by farm-labor- ers on October 14 recited that claimants com- menced work on August 10 and finished Sep- tember 16. One of the claimants testified merely that he worked fifteen and a half days. It was held that since the presumption was that he worked continuously from August 10, thereby making August 28 his last day, his claim was not filed within forty days after the labor was performed, as required by statute. 54. Pain v. Isaacs, 10 Wash. 173, 38 Pac. 1038, holding that a lien-claim for services rendered by several farm-laborers is good, though not signed by all the claimants, pro- vided the body of the instrument shows who the claimants are. See also Wiand v. Him- melwright, 8 Pa. Co. Ct. 663. holding that a claim for a farm-laborer's lien by husband and wife, under the acts of April 9, 1872. and June 13, 1883, is not rendered invalid by the fact that only one notice of such claim was given, signed by the husband alone. 55. Taylor v. Hathaway, 29 Ark. 597. 56. Evans v. English, 61 Ala. 416; Howe v. Whited, 21 La. Ann. 495. AGRICULTURE 63 duced by reason of the advances, 57 or services, 53 or to property bought with the money advanced. 59 But where a lien has been foreclosed, and levy made upon the crop, and, by reason of an injunction and appointment of a receiver, the crop has been exhausted and used by the receiver in making subsequent crops, equity will enforce such crop lien upon the subsequent rents, issues, and profits of the plantation. 60 2. Effect of Sale or Other Disposition — a. Right to Follow Crop. Except to a purchaser for value without notice 61 a sale or other disposition of the crop 62 or plantation M will not defeat the lien, which adheres to the thing and may be In Louisiana the laborer's privilege is given by La. Civ. Code, art. 3217, par. 3, " on everything which serves to the working of the farm." This is construed to apply only to such things as serve to the working of the farm, but do not constitute a part of the farm itself ; that is, to movables by nature and destination, — movables serving to the making of the farm, but not belonging to the owner, Rogers v. Walker, 24 Fed. 344, wherein it was further held that since the services of labor- ers on a plantation enure directly to the bene- fit of those having liens or privileges upon the crop, in preserving the thing on which their mortgage and privilege rested, they are entitled to an equitable as well as a statutory lien on the proceeds of the crop; but they in no wise benefit the owner of the land, and their wages have no equitable lien whatever against him and a very doubtful statutory privilege. 57. Alabama. — Evans v. English, 61 Ala. 416. Georgia. — Dubose v. McDonald, 46 Ga. 471 ; Speer v. Hart, 45 Ga. 113. Louisiana. — Waddell's Succession, 44 La. Ann. 361, 10 So. 808; Bank of America v. Fortier, 27 La. Ann. 243 ; Given v. Alexander, 25 La. Ann. 71 ; Wallace v. Urquhart, 23 La. Ann. 469; Martin v. Lastrapes, 22 La. Ann. 380; Shaw v. Grant, 13 La. Ann. 52; Mc- Cutchon v. Wilkinson, 12 La. Ann. 483; Carter v. Baker, 7 La. Ann. 547. Minnesota. — Wallace v. Palmer, 36 Minn. 126, 30 N. W. 445. North Carolina. — Wooten v. Hill, 98 N. C. 48, 3 S. E. 846 ; Clark v. Parrar, 74 N. C. 686. Partnership plantation. — Where a planta- tion has been worked in partnership, a com- mission merchant who has made advances and furnished supplies to one of the partners has no privilege on the portion of the crop which belongs to the other partner. Smith v. Wil- liams, 22 La. Ann. 268. Remainder of debt for one year cannot be satisfied out of the proceeds of the next year's crop to the prejudice of another com- mercial firm who made all their advances in that year, and in whose possession part of the crop has been put by consignment, and under a regular bill of lading, before the is- suing of a writ of sequestration. Given v. Alexander, 25 La. Ann. 71. Wife's liability for advances to husband. — Where a. wife, with her husband's consent, rents land, hires a man to cultivate it, fur- nishes and feeds the horses out of her own separate estate, the crop is not subject to a factor's lien given by her husband on his crop made the same year, for provisions fur- nished, none of the provisions being used by the wife in making her crop. Dubose v. McDonald, 46 Ga. 471. Portion of sugar-cane crop covered. — The privilege of the furnisher of supplies on the growing sugar-cane crop, under the Louisiana act of 1874, covers only that portion of the crop which was, in the ordinary sense of the word, to become " merchantable," — not the seed reservation, nor the corn grown for the next sugar crop. Citizens' Bank v. Wiltz, 31 La. Ann. 244. 58. Dano v. M. 0. & R. R. Co., 27 Ark. 564; McRae v. His Creditors, 16 La. Ann. 305; Hunt v. Wing, 10 Heisk. (Tenn.) 139. See also Welsh v. Shields, 12 Rob. (La.) 527, holding that where the owner sells the plan- tation, and the overseer is employed by the purchaser for the rest of the year, receiving his wages for that period from the latter, and continues with him for the succeeding year, he has no privilege on the crop of the second year, made by the purchaser, for wages due by the former owner for the preceding year. Employer's interest limited. — A laborer, under a cropper, has a lien on the crop only to the extent of the latter's claim against the landowner. Burgie v. Davis, 34 Ark. 179. 59. Evans v. English, 61 Ala. 416. 60. Ball v. Vason, 56 Ga. 264. 61. Townsend v. Brooks, 76 Ala. 308; Sternberger v. MeSween, 14 S. C. 35. One is not a bona fide purchaser, but is charged with constructive notice of the ex- istence of a lien who purchases with knowl- edge of the relation between the landlord and superintendent, and of the fact that the crop purchased was raised or grown on the particu- lar premises where such superintendent was employed. Townsend v. Brooks, 76 Ala. 308. 62. Bank of America v. Fortier, 27 La. Ann. 243; Bres v. Cowan, 22 La. Ann. 438; Scarborough v. Stinson, 15 La. Ann. 665. 63. Flower v. Skipwith, 45 La. Ann. 895, 13 So. 152; Farrar v. Rowley, 3 La. Ann. 276; Welsh v. Shields, 6 Rob. (La.) 484. Subsequent lease of premises. — Where a plantation is held by a party under a con- ditional agreement of sale, with authority from the owner to cultivate the same, but under no contract of lease or rent, a merchant who makes advances to the vendee and ac- quires a privilege on the crop under such con- ditions cannot be affected by a subsequent change of arrangements and the execution of a lease creating a lessor's privilege. Flower v. Skipwith, 45 La. Ann. 895, 13 So. 152. Only services rendered protected. — In case Vol. II 64 AGRICULTURE enforced by the creditor against any third person having the property in his possession. 64 b. Right to Follow Proceeds. The lien may in some cases be executed on the proceeds of the crop after it has been sold. 65 D. Rights of Lien-Holder — 1. In General. A crop lien gives no right of property in the products covered, but only a privilege to pursue the things and subject them to the payment of the debts secured, 66 and the claimant cannot sup- port trespass, trover, or detinue. 67 2. Assignment. A lien may be assignable, 68 and the assignment of the debt under which the lien was acquired passes the lien with it. 69 3. Priority of Lien — a. For Advances — (i) In General. The priority of an agricultural lien for advances is fixed by the statutes creating them. They are .generally held superior to all liens 70 except the landlord's lien for rent. 71 ~"" f Such a ■of a forced alienation of a plantation, with the crop in the ground, the overseer has not a, privilege on such crop for his whole year's salary, but simply for the proportion of the year elapsed at the date of such sale. Scar- borough v. Stinson, 15 La. Ann. 665. 64. McLemore v. Cole, 43 Ala. 620 ; Bres v. ■Cowan, 22 La. Ann. 438; Garcia v. Garcia, 7 La. Ann. 525 [following Welsh v. Barrow, 3 La. Ann. 133] ; Farrar v. Rowley, 3 La. Ann. 276; Welsh v. Shields, 6 Rob. (La.) 484 ; Cloud v. State, 53 Miss. 662. Where property is sold on execution, with notice of the existence of the lien, the lien- holder has no cause of action against the offi- cer, his remedy being to prevent the sale or to follow the cotton into the hands of the purchaser and subject it to his lien. Cloud v. State, 53 Miss. 662. 65. Johnson's Succession, 3 Rob. (La.) 216. But see McLemore v. Cole, 43 Ala. 620, holding that while the crop can be followed into the hands of third persons the remedy •cannot apply to any other property, debt, or obligation; and Branch v. Galloway, 105 N. C. 193, 10 S. E. 911, where it was held that the fact that a tenant pays for a mule sold to him by his landlord out of crops on which he had previously executed agri- cultural liens to plaintiffs does not operate to pass title to the mule to plaintiffs, though the landlord had no lien on the crops for the "price of the mule. 66. Wilson v. Stewart, 69 Ala. 302; Stern v. Simpson, 62 Ala. 194; Cloud r. State, 53 Miss. 662. 67. Stern v. Simpson, 62 Ala. 194. See also Kennedy v. Reames, 15 S. C. 548, hold- ing that a lien-holder cannot sue for conver- sion by a creditor of the lienor, who, in good faith, accepted a part of the crop and applied It to the payment of his demand. After condition of seed-grain note broken, the Minnesota statute authorizes the holder of such note to take possession of the crop, and he may enforce his lien as against the "holder of a subordinate lien thereon who has taken possession, and may maintain an ac- tion against him for the conversion thereof. Nash v. Brewster, 39 Minn. 530, 41 N. W. 105, 2 L. R. A. 409. 68. Kerr v. Moore, 54 Miss. 286, holding that an assignee may assert and enforce the Vol. II lien in the same manner and to the same ex- tent as the laborer. 69. Duncan v. Hawn, 104 Cal. 10, 37 Fac. 626. 70. To attachment, judgment, or execu- tion. — The lien for advances is superior to a lien acquired by attachment ( Carter r. Wil- son, 61 Ala. 434), general judgment (Stall- ings v. Harrold, 60 Ga. 478), or execution (Laloire v. Wiltz, 31 La. Ann. 436; Richard- son v. Weiner, 5 La. Ann. 646 ) . To mortgage lien. — The lien for advances is superior to that of a prior mortgage. Alabama. — Hamilton v. Maas, 77 Ala. 283; Lovelace v. Webb, 62 Ala. 271. Arkansas. — Airey v. Weinstein, 54 Ark. 443, 16 S. W. 123. Minnesota. — MeMahan v. Lundin, 57 Minn. 84, 58 N. W. 827. Mississippi. — Herman v. Perkins 52 Miss. 813. North Carolina. — Carr v. Dail, 114 N. C. 284, 19 S. E. 235; Wooten v. Hill, 98 N. C. 48, 3 S. E. 846. The act operates against the landlord and all other persons interested in agricultural products. It takes effect as a limitation or restriction upon the power of the employer, by contract, mortgage, or other act, to defeat this first lien created by law to secure to the laborer his wages out of the fruits of his industry, and the employer can create no other lien that will be paramount to it. Buck v. Paine, 50 Miss. 648. ' Rule changed by contract. — Where an agri- cultural lien on crops to be grown provides that a debt due by the owner of the crops, and secured by a prior recorded mortgage on the same crops, is to be paid out of the crops, the lienor will hold the crops or their pro- ceeds, to the amount of such debt, as trustee for its payment. Brasfield v. Powell, 117 N". C. 140, 23 S. E. 106. 71. Flexner v. Diekerson, 65 Ala. 129; Lovelace v. Webb, 62 Ala. 271 ; Stern v. Simp- son, 62 Ala. 194; McLester v. Somerville, 54 Ala. 670; Brewer v. Chappell, 101 N. C. 251, 7 S. E. 670; Wooten v. Hill, 98 N. C. 48, 3 S. E. 846. Contra, Visanska v. Bradley, 4 S. C. 288, where it was held that a lien, to secure advances for agricultural purposes, given by a tenant of rented land, has prefer- ence over a prior contract to pay the landlord AGRICULTURE 65 lien has been held, also, to be superior to the homestead right of the debtor's wife. 72 (n) How Overcome. Such priority may be overcome by proof that the lien was in fact given to secure an antecedent debt, 73 and does not extend to advances made in excess of the amount specified in the agreement. 74 b. For Services. A crop lien for services is superior to that of the holder of a chattel mortgage, 75 the furnisher of supplies, 76 a judgment debtor, 77 or the lessor, 18 but this superiority over the lien of the lessor extends only to the crop. 79 E. Waiver or Loss of Lien — 1. How Effected — a. In General — (i) Whether Orally or in Writing. Where an agricultural lien is created ver- bally it may generally be waived orally, 80 but in some states it is provided that evidence of the waiver must be in writing by indorsement on the instrument cre- ating the lien. 81 (n) By What Acts — (a) Bringing Suit and Obtaining Judgment. The right to enforce a laborer's lien on crops by attachment is not taken away by a previous suit and j dgment on the debt. 83 (b) Death and Insolvency of Tenant. A crop lien created by contract of the parties is not lost by the death of debtor and the insolvency of his estate. 83 (c) Failure to Enforce. A lien may be lost unless the required proceeding to enforce the same is taken within the time allowed by statute. 84 for the use of the land, from the first mak- ings of the crop, one fourth of all that is made. Rule changed by contract. — Where A agreed to make statutory advances to B's tenant on B's guaranty and assignment of his rent contracts as collateral, and furnished all the supplies according to agreement, he was held entitled to payment out of the crops in preference to B's claim for rent. Foster v. Napier, 74 Ala. 393. In Alabama a landlord's lien for advances is placed by statute on the same basis of •equality as his lien for rent. Thompson v. Powell, 77 Ala. 391. In Louisiana the privilege of the lessor on the crop made on the plantation for the year and that of the furnisher of supplies to make the crop are concurrent. Moore v. Gray, 22 La. Ann. 289. 72. Cook v. Roberts, 69 Ga. 742. 73. Boswell v. Carlisle, 55 Ala. 554. 74. Franklin r. Meyer, 36 Ark. 96. 75. Watson v. May, 62 Ark. 435, 35 S. W. 1108; Irwin v. Miller, 72 Miss. 174, 16 So. 678; Buck v. Paine, 50 Miss. 648; Sitton v. Dubois, 14 Wash. 624, 45 Pac. 303. 76. Bouligny v. Lacour, 24 La. Ann. 76; Hogue v. Sheriff, 1 Wash. Terr. 172. But see Moore v . Gray, 22 La. Ann. 289, holding that the lien of a laborer who has made a crop un- der contract for a, portion thereof is inferior to that of the furnisher of supplies. 77. Jones' Appeal, 102 Pa. St. 285, hold- ing that under the Pennsylvania act .of April 9, 1872, growing crops go to wage claimants in preference to one having a judgment lien on the land, there having been » severance, hy sale or otherwise, before the sale of the land. 78. Saloy v. Dragon, 37 La. Ann. 71 ; Tan- ner v. Tanner, 6 Rob. (La.) 35. 79. Saloy v. Dragon, 37 La. Ann. 71, hold- ing that as to the residue of property subject [5] to two privileges the privilege of a laborer and the lessor are concurrent. 80. Buck v. Payne, 52 Miss. 271, holding that a laborer's lien, being so created, the laborer may waive it in favor of a mortgagee of his employer, thus giviHg the mortgagee a paramount lien. 81. Tinsley v. Craige, 54 Ark. 346, 16 S. W. 570 [affirming 15 S. W. 897], holding that the Arkansas act of April 6, 1885, had no effect to repeal Mansfield Dig. § 4452, re- quiring this? Contracts construed. — Under an agreement between A, a landlord, claiming a lien on his tenants' crops for rent and advances, and B, a, merchant, claiming a lien for advances, pro- viding that " B is to get to-day three bales of cotton ( two from X and one from Y ) , less the rents, and, out of the next lot of said X and Y, A is to get two thirds, provided it does not exceed their indebtedness to him for the year 1881, and so on, until both claims are settled," it was held that A's lien for the rent was expressly reserved, and his lien for advances abandoned as to the three bales, but that two thirds of the residue was subject to both liens, though only for 1881. Coleman v. Siler, 74 Ala. 435. But where the factors of a planter keep two separate accounts, one in the name of the plantation, and the other in the name of its owner, and the balance on the latter is in favor of the owner, but the factors are creditors on the plantation ac- count, the balance due the latter, with the privilege attached to it, will not be extin- guished by that due the owner on his private account, where there is no fraud or violation on the rights of mortgage creditors on the crop on which the balance against the planta- tion is a lien. Farrar v. Rowley, 3 La. Ann. 276. 82. Wilson v. Tavlor, 89 Ala. 368, 8 So. 149. 83. McKinney v. Benagh, 48 Ala. 358. 84. Hume v. Simmons, 34 Fla, 584, 16 So. 552, holding that the lien created by Fla. Acts Vol. n w AGRICULTVRE (d) Leaving Harvested Crop in Owner's Hands. One having a lien on grain which he has harvested and threshed on the owner's premises does not lose his lien, as against one attaching the grain with notice, by having left it there in charge of a third person. 85 (e) Taking Additional Security. A party does not waive his right to a statu- tory hen by taking other security for the debt 86 unless the security taken or credit extended is such as to evidence an intent to waive the lien and rely exclusively on the security given. 87 b. When Tenant Abandons Cultivation. An advancer who, on the tenant's abandoning the cultivation, fails to avail himself of the landlord's permission to enter and finish the same relinquishes his lien on the crops, and cannot afterward have them attached as the property of the tenant. 83 2. Effect on Assignee. Where, prior to assignment, a laborer has waived his lien the assignee cannot disclaim the waiver on the ground that he did not know of it, 89 F. Proceedings to Enforce — 1. By Action — a. Parties. A landlord is not a necessary party to a suit to enforce a laborer's lien on crops grown on his land on shares. 90 b. Requisites of Complaint. The necessary allegations in the complaint will depend on the particular statute involved. 91 e. Evidence. The general rules of evidence are applicable, and it has been held that a party seizing grain under a thresher's lien must establish that the grain was grown on the land described in the statement for lien. 92 And on an issue between one claiming a lien on crops for labor bestowed thereon, and another claiming the crops by virtue of a sale made before they were raised, evidence that the former was a partner of the person raising the crops, and as such had been fully paid for his labor, has been held admissible. 93 d. Filing Record of Sale. While, under the North Dakota statutes, 94 an officer (1887), e. 3747, § 3, in favor of persons labor- ing on any farm, etc., is lost by the limit of section 17 unless an action to enforce the same is commenced within six months from the last day on which the labor was per- formed, though the notice of lien was filed within such time. 85. Hogue v. Sheriff, 1 Wash. Terr. 172. 86. Grady v. Hall, 59 Ala. 341; Story v. Flournoy, 55 Ga. 56; Laloire v. Wiltz, 31 La. Ann. 436; Joslyn v. Smith, 2 N. D. 53, 49 N. W. 382. Subrogation to the rights of laborers whose wages a factor has paid does not exclude him from claiming the sum thus paid as an ad- vance embraced by the recorded contract of pledge between him and the planter. Laloire r. Wiltz, 31 La. Ann. 436. That same instrument contains a mortgage rn the same property to secure the same debt does not impair a lien for advances. Gradv r. Hall, 59 Ala. 341. 87. Joslyn v. Smith, 2 N. D. 53, 49 N. W. 382. 88. Wheat r. Watson, 57 Ala. 581. 89. Buck v. Payne, 52 Miss. 271. 90. Pain v. Isaacs, 10 Wash. 173, 38 Pac. 1038. 91. For form of complaint in action to en- force a seed lien see Lavin v. Bradley, 1 N. D. 291. 47 N. W. 384. Failure to allege that account was made. — A complaint for a threshing lien, under S. D. Laws (1889), c. 88. alleging that "the said S. J. Flynn [plaintiff's assignor] duly executed Vol. II his claim for a lien upon the said grain here- inbefore described, for threshing the same, '. . . and caused the said claim to be filed in the office of the register of deeds," without al- leging that an account had been made, stating the kind of grain threshed and the number of bushels, with a description of the land on which it was grown, as required by section 3 of the act, is sufficient in absence of a formal demurrer or motion to make more definite and certain. Anderson v. Alseth, 6 S. D. 566, 62 N. W. 435. Allegation as to use of seed. — Thus in an action to foreclose the seed lien given by the statute it has been held not necessary to allege in the complaint that the seed was sold to be sown on any particular tract of land, but it is sufficient if the complaint shows that the seed was sown on land " owned, used, occu- pied, or rented" by the purchaser. Joslyn v. Smith, 2 N. D. 53, 49 N. W. 382. Allegation that plaintiff owned machine. — A complaint to enforce a threshing lien should allege that claimant owned and operated the threshing-machine. Parker v. Lisbon First Nat. Bank, 3 N. D. 87, 54 N. W. 313, holding an allegation that plaintiff was " running and operating a threshing-machine" demur- rable. 92. Martin v. Hawthorne, 5 N. D. 66. 63 1ST. W. 895. 93. Essency v. Essency, 10 Wash. 375, 38 Pac. 1130. 94. N. D. Laws (1889), c. 26, § 7; c. AGRICULTURE 67 making the sale on foreclosure of a thresher's lien should tile a record of the same with the register of deeds, failure to do so within the prescribed time will not invalidate the sale. 95 2. By Attachment — a. In General. A common method of enforcing statu- tory agricultural liens is by attachment. 96 b. Who May Enforce. Unless otherwise provided the right to enforce the lien by attachment exists in favor of the advancer only, and not of his assignee. 97 e. Time to Commence. After the crop belonging to a tenant has been seques- tered and bonded it is too late for a third party to intervene, claiming a privilege for supplies furnished by him to the tenant for the purpose of raising the crop! 98 d. Jurisdiction. Jurisdiction in a proceeding to enforce an agricultural lien is determined by the amount demanded and not "by the amount seized. 99 e. Requisites of Affidavit — (i) In General. An affidavit for an attach- ment to enforce a lien for advances is sufficient if it sets forth with substan- tial accuracy the general jurisdictional facts, either expressly or by necessary implication. 1 (n) Particular Averments — (a) As to Advances. The affidavit must state the nature or kind of articles furnished, 2 and where the statute makes a balance due for advances of the preceding year a new advance toward making the crop of the succeeding year it is the better practice to state the facts respect- ing such balance. 3 (b) Grounds for Attachment. The separate grounds for attachment must not be stated in the affidavit in the disjunctive. 4 (c) Parties Claimant. Where some of the joint owners of the interest claimed are minors, the affidavit may be amended by adding their names by affiant as next friend. 5 (in) Signature — (a) Of Affiant. Attachment may issue on an affidavit 95. Martin v. Hawthorne, 5 N. D. 66, 63 N. W. 895. 96. Wilson v. Stewart, 69 Ala. 302; Grady v. Hall, 59 Ala. 341 ; McKinney v. Benagh, 48 Ala. 358. Exclusive remedy. — For the enforcement of the lien for advances on crops, the statu- tory remedy by attachment is exclusive. Stern v. Simpson, 62 Ala. 194. 97. Carter v. Wilson, 61 Ala. 434. 98. Phifer v. Maxwell, 28 -La. Ann. 862. The lien of laborers cannot be defeated by the lessor by his bonding property provision- ally seized for rent, where they have inter- vened in the suit prior to the bonding, asserting their privilege. Nor need they de- mand a separate appraisement of the crops seized prior to the bonding or to judgment rendered. Saloy v. Dragon, 37 La. Ann. 71. 99. May v. Williams, 61 Miss. 125, 48 Am. Rep. 80. 1. Gunter v. Du Bose, 77 Ala. 326. The " matters of substance " which must be stated or shown in an affidavit for attach- ment under Ala. Civ. Code, § 3315, are that advances were made in horses, mules, oxen, necessary provisions, or farming tools and implements, or in money to purchase the same ( the amount being stated ) , to enable defend- ant to make a crop ; that a written note or obligation was taken, declaring that such ad- vances were made bona fide for the purpose of enabling defendant to make such crop, and that without them it would not be in his power to procure the necessary teams, pro- visions, etc., for that purpose; also, the regis- tration of the writing, as required by the statute, and the existence of one of the causes for which an attachment may be sued out. Flexner v. Dickerson, 65 Ala. 129, hold- ing, that an affidavit which states that defend- ant is indebted to plaintiffs in a specified sum " for advances made to him to make a crop in said county for the year 1878, and that he has removed a part of the crop made by him, on which the lien was given, without the consent of said plaintiffs," does not show compliance with the statute and is fatally defective. For form of an affidavit for attachment to enforce an agricultural lien see Gunter v. Du Bose, 77 Ala. 326. 2. Beard v. Woodard, 78 Ala. 317, hold- ing that a general averment that plaintiff made advances to enable defendant to make a crop for the current year is insufficient. Failure to state for what year furnished.— Where an attachment is sued out on the last day of December for advances made to enable a tenant to make a crop on lands rented from plaintiff, but not stating for what year, it will be inferred that the advances were made during the year just expired. Gunter v. Du Bose, 77 Ala. 326. 3. Gunter v. Du Bose, 77 Ala. 326. 4. Watson v. Auerbach, 57 Ala. 353, 358, holding that an affidavit that defendant " has removed, or is about to remove, a portion of the crop from the premises without the con- sent of the said Auerbach " was bad. 5. May v. Williams, 61 Miss. 125, 48 Am. Rep. 80. Vol. II 68 AGRICULTURE sworn to before an officer authorized to administer it, though it be not subscribed by the party making it. 6 (b) Of Officer. If the justice before whom the affidavit is sworn to has failed to sign the jurat, he may affix his signature in open court after motion to dismiss. 7 f. Filing Statement. Where defendant has answered plaintiff's affidavit and concluded to the country, thereby waiving the filing of the statement upon the return-day, plaintiff should be allowed to amend by Sling the statement. 8 g. Defenses — (i) Defective Affida tit. Defects "in an affidavit of attach- ment should be taken advantage of by plea in abatement. 9 (n) Failure to Furnish Supplies. The fact that the limit to which sup- plies might have been required according to contract was not reached does not amount to a violation of, or a refusal to comply with, the contract where there is no evidence that plaintiff was called on and refused to furnish more than is claimed by him in his suit. 10 h. Judgment. Unless otherwise provided no personal judgment can be ren- dered : the proceeding is in rem} 1 3. By Summary Warrant or Fieri Facias — a. In General. The mode of enforcing a crop lien by summary warrant or fieri facias must be strictly observed. 13 b. Requisites of Affidavit — (i) In General. The affidavit necessary to enforce a crop lien must state all the facts necessary to constitute a valid lien. 13 (n) Particular A verments — (a) Amount Due. The affidavit must state the amount due. 14 (b) Completion of Contract. An averment that plaintiff has fully completed and worked out the time is a sufficient allegation that the contract of labor has been completed. 15 (c) Demand. Where plaintiff fails to show a demand his right to enforce the lien fails. 16 An affidavit showing demand on the day of maturity is suffi- cient, 17 and an allegation that defendant has been absent from the county from the time of making the contract until the time of making the affidavit, and that he is likely to be absent for a considerable time, shows a sufficient excuse. 18 (d) Grounds for Issuance. The affidavit must state what is about to be done 6. Watts v. Womaok, 44 Ala. 605. not vest title in the lienor as against an older 7. Hartsell v. Myers, 57 Miss. 135. general judgment lien postponed by the stat- 8. Allen v. Standifer, 57 Miss. 612. ute in favor of the crop lien. Stallings v. Where the claim is on contract by the Harrold, 60 Ga. 478. month at a fixed and definite sum no item- 13. Powell v. Weaver, 56 Ga. 288. ized account need or can be filed by plaintiff. The affidavit must show that plaintiff is Baldwin v. Morgan, 73 Miss. 276, 18 So. 919. either a factor or a merchant, and that as 9. Johnston r. Hannah, 66 Ala. 127, hold- such he has furnished either provisions or ing that it could not be assigned for the first commercial manures, or both, upon such terms time as error on appeal that the affidavit as may have been agreed upon by the par- failed to state that the labor was performed ties; and an execution based upon an affi- under a contract, or that the attachment was davit not containing the above allegations is levied on property which was not a part of void. Gunn v. Pattishal, 48 Ga. 405. the crop subject to the lien. For form of affidavit for warrant to en- 10. Lalanne v. Goodbee, 25 La. Ann. force a crop lien see Owens v. Gentry 30 S. C. 481. 490, 9 S. E. 525. 11. Mitchell v. Drake, 57 Miss. 605. In 14. Segler v. Coward, 24 S. C. 119. Hartsell v. Myers, 57 Miss. 135, it was held 15. Lindsay v. Lowe,' 64 Ga. 438. that no personal judgment for the debt could 16. Moore v. Martin' 58 Ga 411 be rendered in excess of the property seized. 17. Favors v. Johnson, 79 Ga 553 4 S E But by a later statute (Miss. Code (1880), c. 925. 52) a general judgment may be rendered That demand was made on owner suffi- against the person liable. May v. Williams, ciently appears from an averment that pay- 61 Miss. 125, 48 Am. Rep. 80. ment has been demanded of the said A where 13. Stallings v. Harrold, 60 Ga. 478; Stern- the fact of A's ownership appears elsewhere berger v. McSween, 14 S. C. 35. in the affidavit to foreclose the lien Usrv Mere delivery of the crop to the factor, v. Saulsbury, 62 Ga. 179. ' to be applied in part payment of the lien, wili 18. Lindsay v. Lowe, 64 Ga. 438 Vol. II AGRICULTURE 69 which would de'feat the lien, 19 and in doing this must follow the language of the (e) Property Grown under Contract. An averment that plaintiff made a crop of wheat and corn on the land under the contract is a sufficient allegation that it was raised under the contract and during the time of his employment. 21 (f) That Contract Was in Writing. It must appear from the affidavit that the lien was created by special contract in writing. 22 (g) That Work Was Bone oy Plaintiff. The affidavit must allege that the work for which the lien is claimed was done by plaintiff. 23 (h) Time of Commencing Proceeding. The affidavit is sufficient if it shows from all its allegations that the proceeding has been commenced within the time allowed by the statute. 24 e. Issuance and Execution of Warrant. A warrant to enforce an agricul- tural lien can be issued only by the clerk of court and executed only by the sheriff. 25 d. Summons. It is not necessary to the regularity of a summary proceeding for the enforcement of an agricultural lien, under the statute, that a summons should be issued to defendant. 26 e. Counter- Am davit — (i) In General. The affidavit .required of the debtor to raise an issue for trial is sufficient if it denies indebtedness under the lien. 87 Defendant may in his affidavit traverse an averment of demand in plaintiff's affidavit. 28 (n) Second Affida vit. A second counter-affidavit to an execution based on an agricultural lien cannot be filed without an allegation that the facts therein set forth were unknown to defendant at the time the first was filed. 29 f . Vacating Warrant — (i) In General. A warrant to enforce an agricul- tural lien, if issued unlawfully, may be vacated on motion. 30 (n) Who May Vacate. The clerk of the superior court may revoke and supersede a warrant issued to secure agricultural advances, where it was improvi- dently issued ; 31 and a circuit judge has jurisdiction on motion to vacate, whether the warrant were issued by the clerk or by a trial justice. 32 19. Segler v. Coward, 24 S. C. 119. 20. Brogden v. Privett, 67 N. C. 45, 46, holding that an affidavit which stated that defendant was removing and disposing of his crop without regard to the lien, but failed to state that it was removed " without the permission, or with intent to defraud the laborer of his lien," was insufficient. An affidavit was sufficient to authorize the issuance of the lien warrant which recited that the affiant was informed and belie ed that the husband was disposing of his crops in order to defeat the said lien, and which gave as reasons for such belief that the hus- band had sold a portion of his crop without applying any of the proceeds to the satisfac- tion of the lien, and that he had failed to keep his promises with reference to payment. Owens v. Gentry, 30 S. C. 490, 9 S. E. 525. 21. Lindsay v. Lowe, 64 Ga. 438. 22. Powell v. Weaver, 56 Ga. 288. 23. Mabry r. Judkins, 66 Ga. 732. 24. Moore v. Martin, 58 Ga. 411, where an affidavit made Nov. 25, 1874, to foreclose a merchant's lien for fertilizers, showed that 'the contract was made Feb. 27, 1874, for fer- tilizers furnished that year, and that it fell due Nov. 1, 1874, and was held sufficient to show that the prosecution of the lien began within one year from the time the debt fell due. 25. Jones v. Clarkson, 16 S. C. 628. 26. Thomas v. Campbell, 74 N. C. 787. 27. Warren r. Lawton, 14 S.< C. 476. 28. Moore v. Martin, 58 Ga. 411. 29. Story v. Flournoy, 55 Ga. 56. 30. Segler v. Coward, 24 S. C. 119. Such motion is analogous to one to va- cate an attachment, and the time within which it may be filed is not limited by section 2518 of the Revised Statutes of South Caro- lina, which provides for an application to the trial justice, within ten days after the seizure, to have tried the single question of the amount justly due under the lien; the remedy under section 2519 being broader, and permitting the lienor to attack both the lien and the issuance of the warrant. Kennedy v. Dunbar, 46 S. C. 517, 24 S. E. 383. Motion not necessary to contest. — One against whom is issued a warrant to enforce a lien on crops need not move to vacate it, in order to contest the validity of the lien, but may proceed under S. C. Gen. Stat. (1882 ),'§ 2398, providing that, on notice that the amount claimed is not justly due. an issue shall be made and set down for trial. Sease v. Dobson, 33 S. C. 234, 11 S. E. 728. 31. Cottingham v. McKay, 86 N. C. 241. 32. Kennedy v. Dunbar, 46 S. C. 517, 24 S. E. 383. Vol. II TO AGRICULTURE g. Evidence. On the question whether the clerk was justified by the affidavit in issuing the warrant to enforce an agricultural lien, a supplementary affidavit made at the hearing before the judge cannot be considered. 33 h. Setting aside Verdict. Irregularities in proceedings to enforce a crop lien constitute no ground for setting aside a verdict rendered thereon. 34 III. ILLEGAL TRADING IN FARM PRODUCTS. A. Between Sunset and Sunrise — 1. Who Liable. Under a statute pro- hibiting trading in certain farm products after the hour of sunset and before the hour of sunrise of the next day, an agent who does one of the prohibited acts is liable. 35 2. The Indictment. An indictment for this offense should contain the name, either of the owner of the product, or of the person from whom the purchase was made, 86 and should state the name of the person to whom the product was dis- posed of. 87 3. Defense. The fact that the owner of the product consented to the sale is no defense to a charge of buying it. 38 4. Evidence. On the indictment of a principal for the act of his agent, decla- rations made by the agent at the time of the purchase, that he was buying for his principal, are inadmissible without bringing home to the principal the criminal design of the agent. 39 B. Within Certain Boundaries — 1. Constitutionality. A statute making it unlawful for any person to sell cotton in the seed within certain counties specified, 40 or to transport such cotton within such counties by night, 41 is not unconstitutional. 2. Indictment. An indictment for transporting cotton in the seed by night within a prohibited county should aver that the act was knowingly done in viola- tion of the law. 42 IV. INSPECTION AND BRANDING OF FERTILIZERS. A. Constitutionality of Statutes. Statutes regulating the sale of fertilizers, and providing for a method of inspecting, branding, and tagging. the same, have been held to be within the range of legitimate police regulation and are constitu- tional a even where the seller is a resident of another state. 44 B. Nature of Inspection. Where the statute provides for such inspection and branding of fertilizers it contemplates a personal inspection and branding under the immediate supervision of the inspector or subinspector, 45 and the inspection cannot be performed beyond the limits of the state. 46 C. Requisites Of Label. Where the statute requires the label to state the name of the manufacturer and seller, with their places of business and the con- stituent elements of the fertilizer, a label bearing simply the name, location, and trade-mark of the manufacturer is insufficient. 47 33. Segler v. Coward, 24 S. C. 119. 128 [followed in Mangan v. State, 76 Ala. 34. Wicker v. Woods, 55 Ga. 647. 60]. Failure to assess damages, after a general 42. Davis v. State, 68 Ala. 58, 44 Am. Rep. verdict for plaintiff, is no ground for denying 128. judgment. Gay v. Nash, 84 N. C. 333. For form of indictment for buying cot- 35. Reese v. State, 73 Ala. 18, holding lia- ton in the seed in a county where such buying ble an agent of a, mortgagee, who receives is forbidden see Mangan v. State, 76 Ala. 60. from the mortgagor, within the prohibited 43. Steiner v. Ray, 84 Ala. 93, 4 So. 172. hours, cotton subject to the mortgage. 44. Brown v. Adair, 104 Ala. 652, 16 So. 36. Grattan v. State, 71 Ala. 344; Russell 439. v. State, 71 Ala. 348. 45. Pacific Guano Co. v. Dawkins, 57 Ala. 37. Russell v. State, 71 Ala. 348. 115, holding that an analysis of a few sam- For form of an indictment for buying a, pies, and a branding with the inspector's farm product after sunset and before sunrise stamp by the guano-dealer, constitute no corn- see Gilliam v. State, 71 Ala. 10. pliance therewith. 38. Gilliam v. State, 71 Ala. 10. 46. Hammond v. Wileher 79 Ga 491 S 39. Russell v. State, 71 Ala. 348. S. E. 113. ' ' . 40. Mangan v. State, 76 Ala. 60. 47. McConnell v. Kitchens 20 S O 4. Clark, 53 111. App. 368. 74. Delier v. Plymouth County Agricul- tural Soc, 57 Iowa 481, 10 N. W. 872; Mo- shier j'. La Crosse County Agricultural Soc, 90 Wis. 37, 62 N. W. 932. Contra if the offer is illegal. Bronson Agricultural, etc., Assoc. v. Ramsdell, 24 Mich. 441. For form of petition to recover premium see Deher v. Plymouth County Agricultural Soc, 57 Iowa 481, 10 N. W. 872. ™? ffeCt 0f a S reeme nt to scale premium.— Where, in an action to recover a premium it appeared that a rule of defendant association AGBICULTUBE 75 (b) To Protect Exhibit. A society which advertises for exhibits and prom- ises to keep an efficient police force to protect the same is liable for a breach of such promise and for the loss of property which is stolen. 75 {n)Fon Torts — (a) In General. "Where the society is not a public corpo- ration it is responsible for injuries resulting from a want of ordinary care and foresight, 76 provided they are a direct and natural consequence thereof. 77 (b) Acts Ultra Vires. An agricultural society is pot liable for acts not within the scope of the purpose for which it was created. 73 (c) Of Servants. An agricultural society is liable for the act of an author- ized servant in wrongfully ejecting or maliciously injuring one upon its grounds. 79 (d) Unsafe Premises. An agricultural society is liable to one lawfully in attendance at its public exhibitions for injuries caused by its grounds not being reasonably safe. 80 (e) Trial. The general rules of law as to evidence and conduct of trial are applicable. Thus in an action for ejecting plaintiff from the defendant society's grounds for failure to pay an additional charge for a seat, evidence of a custom of the society to make such charge is inadmissible in the absence of evidence that plaintiff knew of such custom or was chargeable with such knowledge, 81 and so it permitted its officers to scale down the pre- miums in case of bad weather, and the court charged that if the conditions authorizing them to scale down existed there would be a liability only for the reduced amount, it was held proper to further charge that no agree- ment by any of the exhibitors to accept a less sum than the whole premium earned would be binding if made without other considera- tion than the payment of such reduced sum. Murray v. Walker, 83 Iowa 202, 48 N. W. 1075. 75. Vigo Agricultural Soc. v. Brumfiel, 102 Ind. 146, 1 N. E. 382, 52 Am. Rep. 657. The designation of a person to receive ex- hibits, where such person is the local secre- tary of the society, and, as such, aids in the preparations for the fair, is to be understood as meaning that no charge would be made to owners or exhibitors for their services. O'Neil v. New York State Agricultural Soc, 19 Barb. (N. Y.) 162. 76. Brown v. South Kennebec Agricultural Soc, 47 Me. 275, 74 Am. Dec 484; Lane v. Minnesota State Agricultural Soc, 62 Minn. 175, 64 N. W. 382, 29 L. R. A. 708, holding a society liable where it engaged plaintiff to ride in a running race for horses, which was promoted and controlled by it, and, knowing a certain horse was dangerous and unsafe to run in a race, owing to a vicious habit of track-bolting, of which plaintiff was ignorant, it negligently permitted such horse to run in the race in which plaintiff rode under engage- ment with defendant, without warning her of the unusual danger to which she was thus ex- posed, and, by the bolting of such horse from the track during the race, plaintiff was thrown from her own horse and injured. 77. Barton v. Pepin County Agricultural Soc, 83 Wis. 19, 52 N. W. 1129, 46 Alb. L. J. 371, where a fair association, having permit- ted private teams to be driven around the race-course after the races had been run, the driver of » team of young horses whipped them into running away, and they ran off the track and injured a visitor at the fair. It was held that, the injury being proximately caused by the driver's wrongful act, and not being a direct or natural consequence of the permission given owners of teams to use the track, the association was not liable. 78. Hern v. Iowa State Agricultural Soc, 91 Iowa 97, 58 N. W. 1092, 24 L. R. A. 655; Bathe v. Decatur County Agricultural Soc, 73 Iowa 11, 34 N. W. 484, 5 Am. St. Rep. 651. Employing persons to convey people to fair. — Such a society is not authorized to employ persons to convey people in their own conveyances to a fair, and is not liable for an injury to a horse caused by such persons neg- ligently driving against it while they were so employed. Bathe v. Decatur County Agricul- tural Soc, 73 Iowa 11, 34 N. W. 484, 5 Am. St. Rep. 651. Wrongful arrests by officers and agents of such a society are acts not within the scope of the purpose for which it is created, and the society is not liable therefor. Hern v. Iowa State Agricultural Soc, 91 Iowa 97, 58 N. W. 1092, 24 L. R. A. 655. 79. Oakland City Agricultural, etc, Soc v. Bingham, 4 Ind. App. 545, 31 N. E. 383. But see supra, V, D, 1, b, (n), (b). 80. Brown v. South Kennebec Agricultural Soc, 47 Me. 275, 74 Am. Dec. 484; Selinas v. Vermont State Agricultural Soc, 60 Vt. 249, 15 Atl. 117, 6 Am. St. Rep. 114. For form of petition for personal injuries from fall of seats see Dunn v. Brown County Agricultural Soc, 46 Ohio St. 93, 18 N. E. 496, 15 Am. St. Rep. 556, 1 L. R. A. 754. Negligent construction of seats. — A county agricultural society, which had constructed seats on its fair-grounds for the use of its patrons, is liable; in its corporate capacity, to a person who, while attending a fair held by it, and rightfully in the occupation of one of the seats, sustains an injury in consequence of negligence in the construction of that seat. Dunn v. Brown County Agricultural Soc, 46 Ohio St. 93, 18 ST. E. 496, 15 Am. St. Rep. 556, H.E.A. 754. 81. Magoverning v. Staples, 7 Lans. (N.Y.) 145. Vol. n 76 AGRICULTURE is a question of fact for the jury to determine whether a society has been guilty of negligence. 82 2. Of Officer — a. Right to Eject. An officer of an agricultural society has the right to eject from its fair-grounds, without an order from the board of directors, or express provisions contained in its by-laws, all persons found therein exercising privileges not paid for by them. 83 b. Criminal Liability — (i) Assault and Battery. Officers of an agricul- tural society who have unlawfully fixed and defined bounds for the purpose of exhibiting horses in a public highway may be convicted of assault and battery if, without legal process, they arrest a person within such bounds. 84 (n) Gambling. An indictment charging the officers of an association with leasing a portion of its grounds for gambling purposes need not allege that the society is a county fair, agricultural society, or joint-stock association, 85 and charg- ing defendants as " officers^ managers, and directors " is sufficient under a statute inflicting a penalty upon any " officer or officers." 86 E. Reorganization. The reorganization of a voluntary agricultural society on the joint-stock plan may constitute such association a distinct organization, 87 or not, according to circumstances. 88 If the society remains substantially the same it succeeds to all the rights and liabilities of the society as they existed at the time of the change; 89 but if a new society is created it does not succeed to the prop- erty rights of the old society. 90 F. Revocation of Charter. The state may revoke the charter of an agri- cultural association for an abuse of its franchise. 91 82. Phillips v. Wisconsin State Agricul- tural Soc, 60 Wis. 401, 19 X. W. 377 (hold- ing, where plaintiff had been injured by a re- volving shaft on defendant's fair-grounds, that, though the shafting was eighteen inches above ground, it was not error to refuse to instruct that it was negligent for the associa- tion to leave the shaft uncovered) ; Selinas v. Vermont State Agricultural Soc, 60 Vt. 249, 15 Atl. 117, 6 Am. St. Rep. 114 (holding that it was a question of fact for the jury to de- termine whether a society is guilty of negli- gence in permitting, during its exhibition, a striking-machine to be used on its grounds without a guard around it, whereby a, per- son was injured ; and that the court cannot assume as matter of law that such machine was not there by the society's permission, if it cannot be assumed that the machine was there by license; it is a question of fact whether it had been so long upon the grounds that the society ought, in the exercise of rea- sonable care, to have known of its presence). 83. Bower r. Robinson. 53 111. App. 370; Robinson v. Clark, 53 111. App. 368. 84. Com. v. Ruggles, 6 Allen (Mass.) 588. 85. State v. Johnson, 115 Ind. 467, 17 N. E. 910. 86. State v. Johnson, 115 Ind. 467, 17 N. E. 910. For forms of indictments in substance against officers of a fair association for leas- ing grants for gambling purposes see State v. Johnson, 115 Ind. 467, 17 N. E. 910: State v. Darroch, 12 Ind. App. 527, 40 X. E. 639; State v. Howard, 9 Ind. App. 635. 37 N. E. 27. 87. Thus in Allen v. Long, 80 Tex. 261, 16 S. W. 43, 26 Am. St. Rep. 735, a voluntary agricultural association, organized as a joint- stock company, ceased to act, elect officers, or do any business for eight years, when some Vol. II of the stockholders in the old association, with others, formed an association in the name of the old one. Many of the stockhold- ers in the old association did not join the new, which increased its capital stock and went into partnership with a race-track asso- ciation, thus introducing a feature unknown to the old association, and it was held that the new association was a, distinct organiza- tion from the old. 88. Thus where the constitution of an ag- ricultural society declared that its object should be " to improve the condition of agri- culture, horticulture, and the mechanic and household arts," and provided for holding an- nual fairs, and on reorganization as a joint- stock company the new constitution declared that the object should be " to improve the con- dition of agriculture, horticulture, floricul- ture, mechanic and household arts," and also provided for holding annual fairs and exhibi- tions, and the name was changed by substi- tuting the word " board " in place of the word " society," it was held that there was no essential change in the object of the so- ciety resulting from its reorganization, and that the new board was not a separate and independent society from the old one, but the same under a slight change in the name. Liv- ingston County Agricultural Soc. v. Hunter, 110 111. 155. 89. Livingston County Agricultural Soc. v. Hunter, 110 111. 155, holding that the old creditors of such a society have the same right to sue the society under its new name as they had to sue it as it was originally or- ganized. 90. Allen r. Long. 80 Tex. 261 16 S W 43. 26 Am. St. Rep. 735. 91. Cope r. District Fair Assoc, 99 111. 489, 39 Am. Rep. 30, wherein it was said that AGBICULTURIST— ALCALDE 77 AGRICULTURIST. A student of the science of agriculture. 1 AID. To support, either by furnishing strength or means to help success. 2 AID AND COMFORT. See Treason. AID BONDS. See Municipal Corporations. AIDER. See Criminal Law ; Indictments and Informations. AIDER BY VERDICT. See Indictments and Informations ; Pleading. AIDERS AND ABETTORS. See Criminal Law; Indictments and Informa- tions. AID-PRAYER. A petition to the court, by a tenant in real actions, for the aid of another person, interested in the property demanded, to help him defend the action. 3 AIDS. Grants of money to the sovereign in support of his person and government. 4 AID SOCIETIES. See Beneficial Societies. AlEL or AILE. See Atle. AlNSI. Thus ; so ; after the same manner. 5 AIR. The respirable fluid which surrounds the earth and forms its atmos- phere. 6 (Air: Easement of, see Easements. Obstruction of, see Adjoining- Landowners.) AIRE. In old Scotch law, the court of the justices itinerant, corresponding with the English eyre. Also, heir. 7 AIR-GUN. See Weapons. AIR-TIGHT. So tight or close as to be impermeable to air. 8 AIRWAY. A passage for the admission of air into a mine. 9 AISEMENT. An easement. 10 AISIAMENTUM. In old English law, an easement. 11 ' AISNE. Eldest or first-born. 12 AJUTAGE. A conical tube which greatly increases the flow of water when applied to an aperture through which the water passes. 13 AKIN. Of kin. 14 AL. In Law French a preposition meaning " at," " to," and " with." 15 ALBUS LIBER. An ancient book containing a compilation of the laws and customs of the city of London. 16 ALCALDE, ALCADE, or ALCAID. A juridical officer, with functions resembling those of a justice of the peace, known in Spain and in those parts of America which were settled under Spanish authority and adopted Spanish institutions. 17 if the stockholders of a fair association au- cago Fruit House Co. v. Busch, 2 Biss. (U. S.) thorized its officers to license a gambling- 472, 479, 5 Fed. Cas. No. 2,669, in eonsider- table upon the fair-grounds this would be ing the use of the word air-tight in speci- such an abuse of the company's franchise as fications for a patent for the floor of an ice would warrant the state in reclaiming it. reservoir, the court said : " The term ' air- 1. Downing v. Indiana State Board of Ag- tight' ... is to be understood the same riculture, 129 Ind. 443, 452, 28 N. E. 123,614 as 'water-tight'; or, substantially, a tight [citing A New English Diet.]. floor through which the water would not run 2. Synod of Dakota v. State, 2 S. D. 366, into the lower room to injure the articles 374, 50 N. W. 632, 14 L. E. A. 418 [citing stored there, nor the air escape into the up- Webster Diet.]. per room to melt the ice." "Aid or assistance is the doing of some act 9. Wharton L. Lex. whereby the party is enabled, or it is made 10. Kelham Diet, easier for him, to do the principal act, or 11. Bouvier L. Diet, effect some primary purpose." Wiley v. Mc- 12. Burrill L. Diet. Eee, 47 N. C. 349, 351. 13. Black L. Diet. 3. Burrill L. Diet. 14. Burrill L. Diet. 4. Brown L. Diet. 15. Burrill L. Diet. 5. Burrill L. Diet. 16. Wharton L. Lex. 6. Century Diet. 17. Abbott L. Diet. ; Strother v. Lucas, 12 7. Burrill L. Diet. Pet. (U. S.) 410, 442 note, 9 L. ed. 1137; 8. Century Diet. TJ. S. v. Castillero, 2 Black (U. S.) 17, 194, Synonymous with " water-tight." — In Chi- 25 Fed. Cas. No. 14,746. Vol. II 78 ALCOHOL — ALFET ALCOHOL. A volatile organic body, constantly formed during the fermenta- tion of vegetable juices containing sugar in solution. 18 ALCOHOLIC LIQUORS. See Intoxicating Liquors. ALCOHOLISM. See Accident Insurance ; Life Insurance. ALDERMAN. A member of the corporation or common council of a city or corporate town, elected by and representing the inhabitants of a ward, and having authority to act as a civil magistrate, and sometimes as a judge. 19 (See also Justices of the Peace ; Municipal Corporations.) ALDERMANNUS. An Alderman, 20 q. v. ALE. A liquor made from an infusion of malt by fermentation. 21 (See, gen- erally, Intoxicating Liquors.) ALEATORY CONTRACT. A mutual agreement, of which the effects, with respect both to the advantages and losses, whether to all the parties or to one or more of them, depend on "an uncertain event. 22 (See, generally, Contracts ; Gaming.) ALE-CONNER, ALE-KENNER, ALE-FOUNDER, or ALE-TASTER. An officer appointed in every court leet, sworn to look to the assize and goodness of ale and beer within the precincts of the lordship. 23 ALEGER. To relieve ; to redress. 24 ALE-HOUSE. A place where ale is sold to be drunk on the premises. 23 ALE-KENNER. See Ale-conner. ALER. To go. 26 ALE SILVER. A rent or tribute paid annually to the lord mayor of London by those who sell ale within the liberty of the city. 27 ALE-TASTER. See Ale-conner. ALFET. The caldron containing the boiling water in which the accused dipped his arm up to the elbow in the ordeal by boiling water. 28 18. Eureka Vinegar Co. v. Gazette Print- ing Co., 35 Fed. 570, 571. Concerning the production of alcohol, the court in State v. Giersch, 98 N. C. 720, 723, 4 .8. E. 193, 37 Alb. L. J. 200, said: "Alco- hol, this essential element in all spirituous liquors, is a limpid, colorless liquid. To the taste it is hot and pungent, and it has a slight and not disagreeable scent. It has but one source — the fermentation of sugar and saccharine matter. It comes through fer- mentation of substances that contain sugar proper, or that contain starch, which may be turned into sugar. All substances that con- tain either sugar or starch, or both, will pro- duce it by fermentation. It is a mistake to suppose, as many persons do, that it is really produced by distillation. It is produced only by fermentation, and the process of distilla- tion simply serves to separate . the spirit — the alcohol from the mixture, whatever it may be, in which it exists." In popular language, alcohol is the intoxi- cating principle of fermented liquor. Eureka Vinegar Co. v. Gazette Printing Co., 35 Fed. 570, 571. 19. Burrill L. Diet. Implies both legislative and judicial power. — " The term ' alderman ' does not import legislative more than judicial power. We learn from ancient authorities that comes, celdorman and earl are equivalent words in the Latin, Saxon, and Danish-Saxon lan- guages. In England this officer sat with the bishop at the trial of causes, and, while the latter expounded the ecclesiastical, it was the Vol. II duty of the former to declare . the common law. Aldermen sat as justices of assize, and exercised such powers of government as were conferred by the charters of the cities or towns where they resided, and, in that char- acter, took cognizance of civil as well as crim- inal matters; at one time administering the laws which emanated from the British par- liament, and at another acting under the code of the corporation laws." Purdy v. Peo- ple, 4 Hill (N. Y.) 384, 409 [citing 1 Hume Hist. Eng. 69; Jacob L. Diet.]. 20. Burrill L. Diet. Aldermannus totius Angliae was an officer among the Anglo-Saxons, supposed by Spel- man to be the same as the chief justice in later times. Jacob L. Diet. 21. Nevin v. Ladue, 3 Den. (N. Y.) 43, 44, wherein it is said to differ from beer chiefly in having a smaller proportion of hops. 22. La. Rev. Civ. Code (1875), art. 2982; Moore v. Johnston, 8 La. Ann. 488. A contract is aleatory or hazardous when the performance of that which is one of its objects depends on an uncertain event. La. Rev. Civ. Code (1875), art. 1776. 23. Wharton L. Lex. 24. Kelham Diet. 25. Wharton L. Lex. 26. Burrill L. Diet. Aler a Dieu — Aler sans jour. — Phrases frequently used in old practice to signify a final dismissal of the cause. Black L. Diet. 27. Wharton L. Lex. 28. Jacob L. Diet. ALIA ENORMIA — ALIEN A TION 79 ALIA ENORMIA. _ Literally, " other wrongs." Words used in old declarations in trespass after stating the particular trespass complained of. 29 ALIAS DICTUS or ALIAS. Literally, " otherwise called " or " otherwise." A term used to denote a second or further description of a person who has gone by two or more names. 30 The single word " alias " is now commonly used. 31 (See, generally, Criminal Law ; Indictments and Informations ; Pleading.) ALIAS WRIT. A second or further writ which is issued after the first writ has expired. 82 (See, generally, Arrest ; Attachment ; Executions ; Process.) ALIBI. Literally, "elsewhere." A defense in criminal law ui which the defendant shows that he was at another place at the time the crime charged was committed. 33 (See also Criminal Law.) ALIEN or A.LIENE. To Alienate, 34 q. v. (See also Aliens.) ALIENAGE or ALIENISM. The state of an alien. 86 (See, generally, Aliens.) ALIEN AND SEDITION LAWS. The acts of congress of July 6 and July 14, 1798. 86 ALIENARE. To Alienate, 37 q. v. ALIENATE. To convey or transfer to another. 38 ALIENATION. The act whereby one man transfers the property and possession of lands, tenements, or other things, to another person. 39 (Alienation : Of Affec- tions, see Husband and "Wife. Power of, see Life Estates ; Property ; Wills. Restraint of, see Charities ; Deeds ; Perpetuities ; Religious Societies ; Wills.) 29. Burrill L. Diet. 30. Burrill L. Diet. The true name is generally given first. Bouvier L. Diet.; Reid v. Lord, 4 Johns. (N. Y. ) 118. But that this is not necessarily so see Kennedy v. People, 39 N. Y. 245. Distinguished from " or " and " either." — In Kennedy v. People, 39 N. Y. 245, it was held that to give the word " alias " the mean- ing " or " or " either " was not according to its well-understood meaning as a term in law long used to avoid a variance or misnomer in pleadings. In a colloquial sense the word " alias " is used to denote an assumed name. Century Diet. 31. Kennedy v. People, 39 N. Y. 245, 251, where Woodruff, J., said: " I apprehend that the use of the single word ' alias,' to express the whole meaning, has so long obtained, that it is not uncertain what is the true meaning of the charge. . . . The term has become familiar as equivalent to ' otherwise called,' or ' otherwise known as,' and may properly be treated as having in use in pleadings in Eng- lish acquired that import, as a technical term constantly employed in that sense without its former Latin companion." 32. Glenn v. Brush, 3 Colo. 26, 34; Far- ris v. Walter, 2 Colo. App. 450, 453, 31 Pae. 231 ; Roberts v. Church, 17 Conn. 142, 145. " The writ is so called from the words, ' as we have formerly commanded you,' being in- serted after the usual commencement, ' we command you.' " Farris v. Walter, 2 Colo. App. 450, 453, 31 Pac. 231 letting Rapalje & L. L. Diet.]. 33. Wisdom v. People, 11 Colo. 170, 174, 17 Pac. 519; State v. Maher, 74 Iowa 77, 80, 37 N. W. 2 ; State v. Fry, 67 Iowa 475, 478, 25 N. W. 738 ; McLain v. State, 18 Nebr. 154, 159, 24 N. W. 720. 34. Black L. Diet. 35. Wharton L. Lex. See also McDonel v. State, 90 lnd. 320, 323. 36. Abbott L. Diet. 37. Burrill L. Diet. 38. Kansas. — Vining v. Willis, 40 Kan. 609, 613, 20 Pae. 232. Massachusetts. — Market Nat. Bank v. Bel- mont, 137 Mass. 407. Nebraska. — Union Ins. Co. v. Barwick, 36 Nebr. 223, 235, 54 N. W. 519. New Hampshire. — Burbank v. Rockingham Mut. F. Ins. Co., 24 N. H. 550, 557, 57 Am. Dec. 300. New York. — Harty v. Doyle, 49 Hun (N. Y.) 410, 413, 3 N. Y. Suppl. 574 [citing Abbott L. Diet.; Wharton L. Diet.; Worces- ter Diet.]. United States. — Gould v. Head, 41 Fed. 240, 245. Technical meaning of term. — " The term ' alienate ' has a technical legal meaning, and any transfer of real estate, short of a con- veyance of the title, is not an alienation of the estate. No matter in what form the sale may be made, unless the title is conveyed to the purchaser, the estate is not alienated." Masters v. Madison County Mut. Ins. Co., 11 Barb. (N. Y.) 624, 630 [quoted in Pollard v. Somerset Mut. F. Ins. Co., 42 Me. 221, 225]. 39. Boyd v. Cudderback, 31 111. 113, 119; Coughlin v. Coughlin, 26 Kan. 116, 118; Hen- drix v. Seaborn, 25 S. C. 481, 484, 60 Am. Rep. 520, 523 [quoting Bouvier L. Diet.]. Imports actual transfer of title. — It is uni- formly true of the word " alienation," when properly employed, that it imports an actual transfer of title. Pollard v. Somerset Mut. F. Ins. Co., 42 Me. 221, 225; Marts v. Cum- berland Mut. F. Ins. Co., 44 N. J. L. 478, 481; Hendrix v. Seaborn, 25 S. C. 481, 484, 60 Am. Rep. 520, in which last case the court Vol. II 80 ALIENATION OFFICE— ALIENOR ALIENATION OFFICE. An office in England to which all writs of covenants and entries were carried for the recovery of tines levied thereon. 40 ALIENATIO REI PR^FERTUR JURI ACCRESCENDI. A maxim meaning " Alienation is favored by the law rather than accumulation." 41 ALIENE. See Alien. ALIENEE. One to whom property is transferred. 48 ALIENI GENERIS. Of another sort. 48 ALIENI JURIS. Under another's authority. 44 ALIENISM. See Alienage. ALIENOR. One who transfers property. 45 said : " It seems to us that the accurate and specific meaning of the word is to pass an es- tate from one to another, involving the idea of a perfected conveyance of title inter vivos." "'Alienation' differs from 'descent' in this, that ' alienation ' is effected by the voluntary act of the owner of the property, while ' de- scent ' is the legal consequence of the decease of the owner, and is not changed by any pre- vious act of volition of the owner." Burbank v. Rockingham Mut. F. Ins. Co., 24 N. H. 550, 558, 57 Am. Dec. 300. Vol. II Alienation in mortmain, in its primary sig- nification, is an alienation of lands or tene- ments to any corporation, aggregate, ecclesi- astical, of temporal. Per Wayne, J., in Perin v. Carey, 24 How. (U. S.) 465, 495, 16 L. ed. 701. 40. Bouvier L. Diet. 41. Broom Leg. Max. 42. Anderson L. Diet. 43. Burrill L. Diet. 44. Abbott L. Diet. 45. Wharton L. Lex. ALIENS By Abchibald C. Boyd I. DEFINITION AND CLASSIFICATION, 83 II. ALIENAGE — HOW DETERMINED, 85 III. EVIDENCE OF ALIENAGE, 87 A. Presumption, 87 B. Burden of Proof, 87 C. Admissibility, 87 D. Weight and Sufficiency, 88 IV. PRIVILEGES AND DISABILITIES, 88 A. In General, 88 B. In Relation to Personalty, 89 C. In Relation to Real Property, 90 1. At Common law, 90 a. Acquired by Act of Parties, 90 (i) In General, 90 (n) Purchase or Devise, 91 (in) State Grants and Patents, 93 (it) Uses and Trusts 93, b. Acquired by Operation of Law, 94 (i) In General, 94 (ii) Descent, 94 (hi) Dower or Curtesy, 96 2. Under Treaties and Statutes, 97 J). Actions against, 104 1. Civil, 104 2. Criminal, 106 E. Actions by, 107 1. iw General, 107 2. Relating to Real Property, 109 3. Defenses, 109 a. irc. General, 109 b. Alienage of Plaintiff , 110 V. NATURALIZATION, 110 A. Definition, 110 B. Power to Naturalize, 111 C. Control of Congress over State Courts, 111 D. Persons Capable, 111 E. Qualifications, 112 F. Jurisdiction, 112 G. Proceedings, 113 1. Nature of Proceedings, 113 2. Declaration of Intention, 113 a. Necessity, 113 b. Requisites and Sufficiency, 113 3. Petition, 114 4. Evidence of Qualifications, 114 5. Judgment, 114 a. Entry; 114 [6] 81 Vol. II 82 ALIENS b. Conclusiveness, 114 c. Modification or Vacation, 115 6. Certificate, 115 H. Evidence of Naturalization, 115 I. Operation and Effect, 116 1. In General, 116 2. Of Declaration of Intention, 117 3. On Minor Children, 117 4. 0/i Wife, 118 5. Retroactive Effect, 118 J. Offenses against Naturalization Laws, 118 VI. IMMIGRATION, 119 A. Definition, 119 B. Power to Exclude or Expel Aliens, 119 1. In General, 119 2. 7m- £Ae United States, 120 C. Immigration Officers, 120 1. Appointment, 120 2. Powers and Duties, 120 3. Review of Officer's Acts, 121 D. Immigrants Excluded, 121 E. Detention and Return of Immigrants, 122 F. Actions for Penalties under Immigration Laws, 123 1. i??#A£ of Action, 123 2. Nature of Action, 123 3. Jurisdiction, 123 4. Pleading, 123 5. Evidence, 124 G. Criminal Prosecutions under Immigration Laws, 124 1. Against Master of Vessel, 124 2. Importation of Prostitutes, 124 VII. Chinese exclusion acts, 124 A. Purpose of Acts, 124 B. Persons Exchided, 124 1. Laborers, 124 2. Merchants, 125 3. Persons Bom in United States, 125 4. Persons Returning to United States, 126 5. TFV/e arac£ Minor Child of Resident, 126 C. Certificate of Ldentity, 126 1. Nature of Certificate, 126 2. Necessity, 126 3. Requisites and Sufficiency, 127 D. Registration of Residents, 127 E. Proceedings to Deport, 128 1. Nature of Proceedings, 128 2. Jurisdiction, 128 3. Pleadings, 128 4. Burden of Proof, 128 5. Order of Deportation, 129 a. Requisites and Sufficiency, 129 b. Conclusiveness, 129 c. To TFAatf Country, 129 6. Appeal, 129 F. Proceedings to Exclude, 130 G. Offenses against Exclusion Acts, 130 Vol. II ALIENS 83 CROSS-REFERENC ES For Alien as : Administrator, see Executors and Administrators. An Enemy, see War. Attorney at Law, see Attorney and Client. - Ambassador, Minister, or Consul, see Ambassadors and Consuls. Director, see Corporations. Executor, see Executors and Administrators. Guardian, see Guardian and "Ward. Juror, see Grand Juries ; Juries. Master of Vessel, see Shipping. Shareholder, see Corporations. Stockholder, see Corporations. Bankruptcy, as Affecting an Alien's Rights, see Bankruptcy. Citizenship, see Citizens. Courts Having Jurisdiction of Actions By or Against Aliens, see Admiralty ; Ambassadors and Consuls ; Courts ; Criminal Law. Domicile of Alien, see Domicile. Eligibility of Alien to Office, see Officers. Eligibility of Alien to Vote, see Elections. Enlistment of Alien as Sailor or Soldier, see Army and Navy ; Militia. Escheat Proceedings against Alien, see Escheat. Exemption Rights of an Alien, see Exemptions. Expatriation, see Citizens. Extradition of Alien, see Extradition. Homestead Rights of Alien, see Homesteads. Insolvency, as Affecting an Alien's Rights, see Insolvency. Mining Rights of Alien, see Mines and Minerals. Patent Rights of Alien, see Patents. Poor Laws, as Affecting Alien's Rights, see Poor Persons. Removal of Cause for Alienage of Party, see Removal of Causes. Rights and Privileges of Ambassador, Minister, or Consul, see Ambassadors and Consuls. Status of Indian, see Indians. Suit by Abandoned Alien Wife, see Husband and Wife. Taxation of Alien, see Taxation. Trade-Mark Rights of Aliens, see Trade-Marks and Trade-Names. Treaties with Foreign Countries, Generally, see Treaties. I. DEFINITION AND CLASSIFICATION. With respect to any country, an alien is a person 1 who is not a citizen or sub- ject of the country, 2 or who does not owe it allegiance. 3 Aliens are classified 1. "Person" is construed to include "cor- Dig. 426; Princeton Min. Co. v. Butte First poration," in respect to alienage, so that a Nat. Bank, 7 Mont. 530, 19 Pac. 210; Reg. v. corporation created by the laws of a foreign Arnaud, 9 Q. B. 806, 58 E. C. L. 806), as country is an alien. Barrowcliffe v. La Caisse these rights are defined by the laws of the Generale, etc., 58 How. Pr. (N. Y.) 131; sovereignty under which it was created (State Terry v. Imperial F. Ins. Co., 3 Dill. (TJ. S.) v. Hudson Land Co., 19 Wash. 85, 52 Pac. 408, 23 Fed. Cas. No. 13,838. See also State 574, 40 L. R. A. 430. See also, generally, v. Hudson Land Co., 19 Wash. 85, 52 Pac. 574, Corporations ) . 40 L. R. A. 430, construing a constitutional 2. Anderson L. Diet.; Rapalje & L. L. Diet.; provision prohibiting alien ownership of lands, 2 Kent Comm. 50 ; Milne v. Huber, 3 Mc- and declaring that every corporation, » ma- Lean (TJ. S.) 212, 17 Fed. Cas. No. 9,617. jority of whose stock is owned by aliens, shall See also, generally, Citizens. be deemed an alien for the purposes of such 3. Abbott L. Diet., defining an alien to be prohibition. But the fact that an alien holds one " who does not, either by nativity or vol- stock in a corporation does not necessarily af- untary adoption, owe allegiance to the gov- fect the rights of the corporation (Comyns ernment within whose territory he dwells." Vol. II 84 ALIENS as resident aliens 4 and non-resident aliens, 5 and as alien friends 6 and alien enemies. 7 See also infra, II; and 2 Cent. Dig. tit. "Aliens," § 1. "Alien, alienigena, is derived from the Latin word alienus, and, according to the etymology of the word, it signifieth one born in a strange country, under the obedience of » strange prince or country (and, therefore, Bracton saith that this exception, propter defectum nationis, should rather be propter defectum subjectionis ) , or, as Littleton saith ( which is the surest), out of the liegeance of the king." Ex p. Dawson, 3 Bradf. Surr. (N. Y.) 130, 136 [citing Coke Litt. 1286; Bacon Abr.; Comyns Dig. 552; Calvin's Case, 7 Coke 16a; Doe v. Jones, 4 T. B. 300; Stanly v. Bernes, 3 Hagg. 373] ; Rapalje & L. L. Diet, [citing Bracton 4276; Coke Litt. 1286]. See also infra, II. Called "a legal 'term." — Burrill L. Diet. [citing Daubigny v. Davallon, 2 Anstr. 462 ) . " Foreigner " is a synonymous term. — Bou- vier L. Diet.; Burrill L. Diet, [citing Spratt v. Spratt, 1 Pet. (U. S.) 343, 7 L. ed. 171]. The word " foreigner " is said to be " a person belonging to a foreign country, or without the country or jurisdiction under considera- tion." Matter of Guilford, 67 Cal. 380, 382, 7 Pac. 763. As distinguished from denizens see Rapalje & L. L. Diet, [citing Coke Litt. 129a]. See also infra, V, I. As distinguished from naturalized persons see Rapalje & L. L. Diet.; Spratt v. Spratt, 1 Pet. (U. S.) 343, 7 L. ed. 171. See also infra, note 11. As distinguished from natural-born sub- jects see Jacob L. Diet.; Rapalje & L. L. Diet. " Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the liegeance, or, as it is generally called, the allegiance of the kins; and aliens, such as are born out of it." 1 Bl. Comm. 366. See also, generally, Citi- zens. The terms " alien " and " alien-born," and " subject " or " citizen," are in their nature relative ; and to what else can they have rela- tion — what else is their correlative — but the sovereignty or government where the dis- cussion is? Read v. Read, 5 Call (Va.) 160. "Alien-born " is a term sometimes applied to a naturalized citizen or subject. Anderson L. Diet. But it has been said that the terms " alien " and " alien-born " are used synony- mously in the English law books. Read v. Read, '5 Call (Va.) 160. 4. Resident alien is one who resides in a country to which he is a, foreigner ; but the term does not include an alien who has be- come naturalized. Luhrs v. Eimer, 80 N. Y. 171; In re Wehlitz, 16 Wis. 443, 84 Am. Dee. 700. 5. Non-resident alien is one residing out of the country or state, the context showing the .territorial limits with reference to which the term "resident" is used. In re Gill, 79 Towa 296, 44 N. W. 553, 9 L. R. A. 126. In Vol. II California the phrase "non-resident aliens," as used in Cal. Civ. Code (1897), § 672, has been construed to mean those persons who are neither citizens of the United States nor residents of the state. State v. Smith, 70 Cal. 153, 12 Pac. 121. 6. Alien friends of a country are those for- eigners whose country is at peace with it. Abbott L. Diet.; 1 Bl. Comm. 372; Anderson L. Diet.; Black L. Diet.; Burrill L. Diet. (where it is said that Lord Bacon denned an alien friend to be " such a one as is born un- der the obeisance of such a king or state as is confederate with the King of England, or, at least, not in war with him) ;" Rapalje & L. L. Diet, [citing Coke Litt. 1296; Calvin's Case, 7 Coke 17]'; Wharton L. Lex. An alien in league has been denned to be a subject of one that is in league with the king. Adams Gloss.: Burrill L. Diet.; Coke Litt. 1296. 7. Alien enemies of a country are those foreigners whose country is at war with it. Abbott L. Diet. ; Anderson L. Diet. ; Burrill L. Diet, (where it is said that Lord Bacon defined an alien enemy to be " such a one as is born under the obeisance of such a king or state as is in hostility with the King of Eng- land) ;" Coke Litt. 2396; Rapalje & L. L. Diet. ; Wharton L. Lex. Otherwise defined as " a person who, by reason of owing a per- manent or temporary allegiance to a hostile power, becomes, in time of war, impressed with the character of an enemy." Burrill L. Diet, [citina 1 Kent Comm. 74; 2 Kent Comm. 63; Bell r. Chapman, 10 Johns. (N. Y.) 183 ; Sparenburgh v. Bannatyne, 1 B. & P. 163]. Usually said of one domiciled or re- siding here pending the war, or seeking relief of some kind from our courts or the general government. Abbott L. Diet. ; Rapalje & L. L. Diet. See, generally, War, for the law relat- ing to alien enemies. AH aliens who are not friends are enemies. Alien enemies are either ( 1 ) temporary, or such as may become friends again; or (2) specially permitted, or commorant, in the enemy's country at the time of the suspension of amity; or (3) perpetual enemies, or all savage and barbarian tribes who have no so- cial, commercial, or diplomatic relations with other nations, and who do not recognize the obligations of international law and comity. Heirn v. Bridault, 37 Miss. 209. Birth, domicile, or residence. — The mere circumstance of birth, however,, is not now held to be of itself sufficient to give the char- acter of an alien enemy. Domicile or resi- dence more frequently has this effect. The lawful residence, pro hac vice, relieves the alien from the character of an enemv. Bur- rill L. Diet, [citing 2 Kent Comm. 63] : Fish v. Stoughton, 2 Johns. Cas. (N. Y.) 407. Distinction between permanent and tempo- rary alien enemy. — A man is said to be per- manently an alien enemy when he owes a per- manent allegiance to the adverse belligerent, ALIENS 85 II. ALIENAGE — HOW DETERMINED. 8 The determination of the status of a person as being an alien may depend upon the fact of the birth of such person out of the jurisdiction and allegiance of the country. 9 It may likewise depend, under some circumstances, upon the and his hostility is commensurate in point of time with his country's quarrel. But he who does not owe a permanent allegiance to the enemy is an enemy only during the existence and continuance of certain circumstances. Burrill L. Diet, [citing 1 Kent Comm. 73]. 8. In Canada, the question of who is an alien is to be decided by the law of England, but, when alienage is established, the conse- quences which result from it are to be deter- mined by the law of Canada. Donegani v. Donegani, 1 L. C. Rep. 605. 9. An alien by birth, alien nie, generally speaking, is a foreigner, a person born abroad in a, foreign country, as distinguished from a native or natural-born subject or citizen. Abbott L. Diet.; Black L. Diet.; Bouvier L. Diet.; Burrill L. Diet.; Jacob L. Diet.; Ra- palje & L. L. Diet. ; Wharton L. Lex. ; 2 Kent Comm. 50; and the following cases: Maryland. — Brown v. Shilling, 9 Md. 74. South Carolina. — Ex p. Dupont, Harp. Eq. (S. C.) 5 [reversed on other grounds in Shanks v. Dupont, 3 Pet. (U. S.) 242, 7 L. ed. 666]. Vermont. — Albany p. Derby, 30 Vt. 718. Virginia. — Barzizas v. Hopkins, 2 Band. (Va.) 276. United States. — U. S. P. Wong Kim Ark, 169 TJ. S. 649, 18 S. Ct. 456, 42 L. ed. 890, where the subject-matter of alienage by birth is elaborately discussed, and where it was held that a child, born in the United States of Chinese parents, who were then residing permanently in the United States, carrying, on business and not being employed in any diplomatic or official capacity by the Empress of China, was not an alien, but a, citizen by birth. There is an elaborate dissenting opin- ion by Fuller, C. J. and Harlan, J. England. — Calvin's Case, 7 Coke 18a. See also infra, eases cited in this note. In England, at the common law, an alien was a person born out of the allegiance of the king, and this still remains the law, sub- ject, of course, to the English statute upon naturalization. Anderson L. Diet. : 1 Bl. Comm. 366, 373: Bouvier L. Diet.; Burrill L. Diet, [citing 2 Stephen Comm. 4261 ; Coke Litt. 1286. 129a; Comyns Dig. 421; Jacob L. Diet.; 2 Kent Comm. 50; Doe P. Acklam, 2 B. & C. 779, 9 E. C. L. 337: Calvin's Case, 7 Coke 18a; Doe r. Davis, 5 U. C. Q. B. O. S. 494; Lynch p. Clark, 1 Sandf. Ch. (N. Y.) 583; Ex p. Dawson, 3 Bradf. Surr. (N. Y.) 130. "Every writer on the common law states two circumstances which must concur in order to make a man an alien in England: (1) He must be born out of the allegiance of the crown. (2) He must be born of par- ents who are not entitled to the privileges of natural-born subjects." Den p. Brown, 7 N. J. L. 305, 335 [citing Bacon Abr. 125]. But it has been said that this definition must be understood with some restrictions. 1 Bl. Comm. 373. For a review of English statutes affecting this definition see Jacob L. Diet. In the United States an alien is a person born out of the jurisdiction and allegiance of the United States, and who has not been made a naturalized citizen. Abbott L. Diet. ; Bur- rill L. Diet.; Rapalje & L. L. Diet.; Bouvier L. Diet.; 2 Kent Comm. 50; and the follow- ing cases: California. — Matter of Guilford, 67 Cal. 380, 7 Pac. 763. Kansas. — Buffington r. Grosvenor, 46 Kan. 730, 27 Pac. 137, 13 L. R. A. 282. Massachusetts. — Ainslie P. Martin, 9 Mass. 454. New York. — Ludlam p, Ludlam, 26 N. Y. 356, 84 Am. Dec. 193; McGregor v. McGregor, 33 How. Pr. (N. Y.) 456; Jackson p. Wright, 4 Johns. (N. Y.) 75. Virginia. — Read v. Read, 5 Call (Va. ) 160. United States. — Blight v. Rochester, 7 Wheat.. (U. S.) 535, 5 L. ed. 516; Fairfax P. Hunter, 7 Cranch (U. S.) 603, 3 L. ed. 453; Dawson P. Godfrey, 4 Cranch (U. S.) 321, 2 L. ed. 634 : Contee P. Godfrey, 1 Cranch C. C. (U. S.) 479, 6 Fed. Cas. No. 3,140; Milne v. Huber, 3 McLean (U. S.) 212, 17 Fed. Cas. No. 9,617. This definition includes persons born in a country prior to its becoming an independent government. Manchester p. Boston, 16 Mass. 230; Palmer v. Downer, 2 Mass. 179 note; Den p. "Brown, 7 N. J. L. 305: Kelly p. Har- rison, 2 Johns. Cas. (N. Y.) 29, 1 Am. Dec. 154 [citing Calvin's Case, 7 Coke 276] ; Jones v. McMasters, 20 How. (U. S.) 8, 15 L. ed. 805; McKinney p. Savieso, 18 How. (U. S.) 235, 15 L. ed.' 365 : Hollingsworth P. Duane, Wall. C. C. (U. S.) 51, 12 Fed. Cas. No. 6,615. But compare infra, note 10. Children of ambassadors, however, consti- tute an exception to the rule. Abbott L. Diet.; Anderson L. Diet, [citing New Hartford P. Canaan, 54 Conn. 39, 5 Atl. 360] ; Bouvier L. Diet. ; Jacob L. Diet. ; Rapalje & L. L. Diet.; Comvns Dig.; Calvin's Case, 7 Coke 18a. Foreign-born wives of naturalized men in some cases constitute an exception to the rule of alienage by birth. Abbott L. Diet.; Ra-palje & L. L. Diet. See also infra, V, I, 4. Persons born in a foreign country, of Amer- ican parents who resided there but never re- nounced their citizenship, are citizens of the United States, and not aliens. Ware v. Wisner, 50 Fed. 310. But see 1 Bl. Comm. 373 ; Jacob L. Diet.: Ex p. Dupont, Hart). Eq. (S. C") 5; Doe P. Jones, 4 T. R. 300. To the same effect see Salter p. Hughes, 6 Nova Scotia 409, wherein it is said that the children and grand- children of natural-born British subjects, Vol. II 86 ALIENS election, 10 such election being either express or implied, of such person. It may though born in a foreign country, are not aliens. See also, generally, Citizens. And compare Albany v. Derby, 30 Vt. 718, wherein it was held that the offspring of a citizen of Vermont, born subsequent to April 14, 1802, in a foreign government, to which their father had removed animo manendi, and who re- turned with their father to the United States after they had become of age, # were aliens. 10. Rapalje & L. L. Diet. Alienage by election may take place under various conditions, such as where a country is divided into two independent sovereign countries, or where a dependent country pro- claims and establishes its independence, or the like. See Carter v. Territory, 1 N. M. 317; Quintana v. Tompkins, 1 N. M. 29 ; Moore v. Wilson, 10 Yerg. (Tenn.) 406; Republic v. Skidmore, 2 Tex. 261, and cases cited infra, this note. The status of citizenship of the United States arose with the Declaration of Inde- pendence, and those within the jurisdiction of the American states who at that time ad- hered to them, either by an express or implied consent, were absolved from allegiance to the British crown and became citizens of the United States (Orser v. Hoag, 3 Hill (N. Y.) 79;- U. S. v. Wong Kim Ark, 169 U. S. 649, 18 S. Ct. 456, 42 L. ed. 890; Inglis v. Sailor's Snug Harbor, 3 Pet. (U. S.) 99, 7 L. ed. 617; Mcllvaine v. Coxe, 2 Cranch (U. S.) 280, 2 L. ed. 279, 4 Cranch (U. S.) 209, 2 L. ed. 598 ) , and aliens with respect to England (The Providence, Stewart 186). The sub- jects of Great Britain resident in the colonies upon the Declaration of Independence had a reasonable opportunity to elect as to whether they would remain subjects of Great Britain or would become subjects of the new sover- eignty then created; and this election would be shown or presumed from some overt act, such as residence in this country, declaration of adherence to its allegiance, or the like. Inglis v. Sailor's Snug Harbor, 3 Pet. (U. S.) 99, 7 L. ed. 617. See also Jackson p. White, 20 Johns. (N. Y.) 313. The period of time which was allowed a person to elect to be- come a citizen of the United States has been variously limited ; thus, in New York, it was held that an English subject, born abroad, who emigrated to the United States in 1779, and lived and died there, was an alien. Jack- son r. Wright, 4 Johns. (N. Y.) 75. In the United States this change of allegiance and citizenship was held to have taken place at the date of the Declaration of Independence ; hut in Great Britain this state of facts is treated as having arisen at the date of the treaty of 1783, by the terms of which all those, whether natives or otherwise, who at that time adhered to the United States were virtually absolved from allegiance to the British crown. See McGregor v. Comstock, 16 Barb. (N. Y.) 427 [affirmed, in 17 N. Y. 162] ; Brown v. Sprague, 5 Den. (N. Y.) 545, construing treaty of 1783; and Harden v. Vol. II Fisher, 1 Wheat. (U. S.) 300, 4 L. ed. 96, construing the treaty of 1794. Compare, also, Shanks v. Dupont, 3 Pet. (U. S.) 242, 7 L. ed. 666. The rule in the United States is, therefore, to take the date of the Declaration of Independence as the time when we ceased to be British subjects; the English rule is to take the date as that of the treaty of peace in 1783; so that, during the interim, a per- son apparently might have had the property rights of a citizen in both countries. Den v. Brown, 7 N. J. L. 305. Compare Moore v. Wilson, 10 Yerg. (Tenn.) 406, where natives of Scotland, who became residents, domiciled in the United States before the close of the Revolutionary War, were deemed prima facie not to be aliens under the treaty of 1783. Persons, born in colonies, who left before the Revolution. — The decisions of the courts of the various states, as to the status of those who were born in the American colonies of Great Britain before the Revolution, and who, before the Declaration of Independence, re- moved from them and never returned, are inconsistent. In Inglis v. Sailor's Snug Har- bor, 3 Pet. (U. S.) 99, 121, 7 L. ed. 617, 625, it is said : " The settled doctrine of this coun- try is that a person born here, who left the country before the Declaration of Independ- ence and never returned here, became thereby an alien." And to the same effect see Stringer v. Phillis, 3 N. C. 342; Ex p. Dupont, Harp. Eq. (S. C.) 5; Clifton v. Haig, 4 Desauss. (S. C.) 330; Com. v. Bristow, 6 Call (Va.) 60. In Massachusetts the question was first raised in Gardner v. Ward, 2 Mass. 244 note [affirmed in Kilham v. Ward, 2 Mass. 236], where it was apparently held that a person born here before the Declaration of Independ- ence would not become an alien even had he removed before the Declaration of Independ- ence and never returned. And in Ainslie v. Martin, 9 Mass. 454, this was expressly de- cided to be the law, although the other two cases were not there referred to. Compare, also, Hollingsworth v. Duane, Wall. C. C. (U. S.) 51, 12 Fed. Cas. No. 6,615, wherein it was held that one who was born within the colony of New York, in the year 1760, and removed to Ireland in 1771, and at the Declaration of Independence was settled as an inhabitant within the British dominions, where he remained until 1795, when he re- turned to America, was to be considered an alien. To the same effect, with respect to the Texas declaration of independence, see Jones v. McMasters, 20 How. (U. S.) 8, 15 L. ed. 805. Persons born abroad, who came to the United States after the Revolution. — While there is no question as to the alienage of a person who was born in England before the year 1775 and always resided there (Jackson v. Burns, 3 Binn. (Pa.) 75; Clifton r. Haig, 4 Desauss. (S. C.) 330: Dawson v. Godfrey, 4 Cranch (U. S.) 321, 2 L. ed. 634; Abbott L. Diet, [citing Blight v. Rochester, 7 Wheat. ALIENS 87 also depend on operation of law, by which the status of such person is changed without regard to his volition. 11 III. EVIDENCE OF ALIENAGE. A. Presumption. 12 Foreigners by birth are presumed to be aliens. 13 The status of a person as to alienage, when once established, is presumed to continue until the contrary is proven. 14 B. Burden of Proof. The burden of proving alienage is upon him who asserts it. 15 „ C. Admissibility. It has been held that a person's own statements are (U. S.) 535, 5 L. ed. 516; Fairfax v. Hunter, 7 Cranch (U. S.) 603, 3 L. ed. 453; Contee v. Godfrey, 1 Cranch C. C. (U. S.) 479, 6 Fed. Oas. No. 3,140]), in Cummington v. Springfield, 2 Pick. (Mass.) 394, it was held that persons born abroad and coming into Massachusetts after 1776 and before 1783 were citizens. This decision was based upon an act passed in 1777. And the same rule was adopted in Connecticut, without being based upon any statute, and it was held that a British soldier who settled in Connecticut in 1778, having deserted from the British army, was a citizen. Hebron v. Colchester, 5 Day (Conn.) 169. Expatriation and naturalization. — To this class of aliens belong those persons who have availed themselves of the right to become aliens by expatriation or by being natural- ized as citizens of another country. Rapalje 6 L. L. Diet. For naturalization see infra, V. For expatriation see Citizens. 11. Alienage by operation of law arises where a person performs some act, or some change of dominion or sovereignty takes place, by which the status of the person is changed without regard to his volition. Thus, when a portion of a country is ceded to an- other country, the inhabitants of the ceded territory, generally speaking, become aliens to the sovereignty of which they formerly were subjects, and subjects of the sovereignty to which the territory is ceded. Abbott L. Diet. But compare on this point State v. Primrose, 3 Ala. 546 ; Com. v. Bristow, 6 Call (Va.) 60. Alienage by marriage. — Whether a woman, who marries an alien and withdraws from her own country to reside with him, can by so doing, in the absence of statutory provision, become an alien and acquire allegiance to the sovereignty of her husband is not clear. The case of Kelly v. Harrison, 2 Johns. Cas. (N. Y.) 29, 1 Am. Dee. 154, proceeds upon the theory that this is so; but since the in- capacities of the feme covert at common law do not reach her political rights, which stand upon the general principles of the law of na- tions, it seems doubtful whether this be the true construction of the law. White v. White, 2 Mete. (Ky.) 185: Alsberry v. Hawkins, 9 Dana (Ky.) 177, 33 Am. Dec. 546; Connolly v. Smith, 21 Wend. (N. Y.) 59; Priest t\ Cummings, 16 Wend. (N. Y.) 617. Compare Headman v. Rose. 63 Ga. 458 ; Moore v. Tis- dale, 5 B. Mon. (Ky.) 352. It has been held, however, that an alien woman who has once become an American citizen by operation of law — namely, by a marriage which is sub- sequently dissolved — may resume her alien- age by a marriage to an unnaturalized native of her own country. Pequignot v. Detroit, 16 Fed. 211. For matters relating to the alienage or citizenship of an alien woman who marries a, citizen, as well as of a citizen woman who marries an alien, see, generally, Citi- zens. Ij2. See infra, III, D; V; and 2 Cent. Dig. tit. "Aliens," §§ 2, 3. 13. Behrensmeyer v. Kreitz, 135 111. 591, 26 N. E. 704; White v. White, 2 Mete. (Ky.) 185. Compare State v. Olin, 23 Wis. 309, wherein it was held that the fact that three years have expired since a person of foreign birth " declared his intention " does not raise a presumption that he has actually become a citizen. See also Trabing v. U. S., 32 Ct. CI. 440, wherein it is held that an application for naturalization negatives any presumption of existing citizenship of the applicant. 14. Kadlec v. Favik, 9 N. D. 278, 83 N. W. 5; Hauenstein v. Lynham, 100 U. S. 483, 25 L. ed. 628, wherein it was held that, in the absence of proof that an alien has become a citizen of the United States, his alienage is presumed to continue. This presumption may be rebutted by proper evidence. Kadlec v. Pavik, 9 N. D. 278, 83 N. W. 5, wherein it was held that proof that the person voted in this country overcomes the presumption of alienage, and raises a presumption of naturalization. Com- pare, also, Ryan v. Egan, 156 111. 224, 40 N. E. 827; Boyd v. Nebraska, 143 U. S. 135, 12 S. Ct. 375, 36 L. ed. 103, on the question of voting as evidence of naturalization or citi- zenship. See also, generally, infra, V, H; and Citizens. 15. State v. Haynes, 54 Iowa 109, 6 N. W. 156; Moore r. Wilson, 10 Yerg. (Tenn.) 406, Richards v. Moore, 60 Vt. 449, 15 Atl. 119; Keenan v. State, 8 Wis. 132. But see White v. White, 2 Mete. (Ky.) 185, 190, wherein it was said that certain persons " being foreign- ers by birth, they were prima facie aliens, and the plaintiff was not bound to prove that they were aliens, although it was denied, but it was incumbent on the defendant to show that they were citizens of the United States, and not aliens." To the same effect see Behr- ensmeyer v. Kreitz, 135 111. 591, 26 N. E. 704 [.citing Kreitz v. Behrensmeyer, 125 111. 141, 17 N. E. 232, 8 Am. St. Rep. 349; Beardstown r. Virginia, 81 111. 541]. Vol. II 88 ALIENS admissible to establish his alienage. 16 Documentary evidence may be received to establish the alienage of a person. 17 D. Weight and Sufficiency. 18 The sufficiency of the evidence is to be deter- mined for each case. 19 The mere fact that a person is a consul of a foreign govern- ment and is residing in this country, 20 or that he resided abroad for a number of years, 21 has been held insufficient to establish a prima facie case of alienage. IV. PRIVILEGES AND DISABILITIES. A. In General. 22 While the rights of aliens depend entirely upon the municipal law of the state or nation, or the rights which are given aliens by international law, 28 16. Groves v. Gordon, 3 Brev. (S. C.) 245, holding, however, that such is not the best evidence. But see Schuster v. State, 80 Wis. 107, 49 N. W. 30, where such declarations were held to be mere hearsay, and inadmis- sible. Compare infra, V, H. The best evidence which the nature of the case admits must be produced to show alien- age. Keenan v. State, 8 Wis. 132. 17. Newcomb v. Newcomb, (Ky. 1900) 57 S. W. 2 (where a certificate of naturaliza- tion in a foreign country was admitted in evidence for this purpose) ; Lacoste v. Odam, 26 Tex. 458 (wherein it was held that re- citals in a deed that the vendees were resi- dents of one of the states of the United States were admissible to establish the fact that they were aliens to the republic of Mexico). 18. See supra, III, A. 19. California. — Walther v. Rabolt, 30 Cal. 185. Illinois. — Ryan v. Egan, 156 111. 224, 40 N. E. 827; Behrensmeyer v. Kreitz, 135 111. 591, 26 N. E. 704. Kentucky. — Moore v. Tisdale, 5 B. Mon. (Ky.) 352. Massachusetts. — Dennis v. Brewster, 7 Gray (Mass.) 351. Mississippi. — Torre v. Jeannin, 76 Miss. 898, 25 So. 860. New Mexico. — Carter v. Territory, 1 N. M. 317. New Jersey. — Coxe v. Gulick, 10 N. J. L. 328. South Carolina. — Groves v. Gordon, 3 Brev. (S. C.) 245. Texas. — Ferguson v. Johnson, 1 1 Tex. Civ. App. 413, 33 S. W. 138. Vermont. — Gilman v. Thompson, 11 Vt. 643, 34 Am. Dee. 714. Wisconsin. — Schuster v. State, 80 Wis. 107, 49 N. W. 30 ; Keenan v. State, 8 Wis. 132. United States.— Boyd v. Nebraska, 143 U. S. 135, 12 S. Ct. 375, 36 L. ed. 103; Bors v. Preston, 111 U. S. 252, 4 S. Ct. 407, 28 L. ed. 419 ; Trabing v. U. S., 32 Ct. CI. 440. Canada. — Brannen v. Leavitt, 6 N. Brunsw. 220; Brannen v. Williams, 6 N. Brunsw. 221; Her v. Elliott, 32 U. C. Q. B. 434. See also, generally, Citizens. Evidence should be conclusive. — Evidence of alienage, by which it is sought to disfran- chise a party, should be clear and conclusive (Jones v. McCoy, 3 Tex. 349; Williams v. Myers, 2 Nova Scotia Dec. 157) ; and it is held that a person's own statements are not conclusive to establish his alienage or citi- Vol. II zenship (Groves v. Gordon, 3 Brev. (S. C.) 245; Lacoste v. Odam, 26 Tex. 458; Schuster v. State, 80 Wis. 107, 49 N. W. 30). Com- pare, also, State v. Burnett, 9 Tex. 48, wherein it was decided that the admission of plaintiff (an empresario) that the parties in interest, for whose use he sued, at that time resided in the state of New York did not authorize the presumption that they were aliens when the statute authorizing aliens to sue was passed. Preponderance of evidence. — Sufficiency of the evidence by which proof of change of status by naturalization or otherwise is sought to be established depends upon the ordinary rules of evidence, in most cases be- ing dependent upon the presentation of such evidence as constitutes a preponderance for or against the fact of alienage. Thus, in Maloy v. Duden, 25 Fed. 673, it was held that an official passport, certifying to the naturali- zation of a person, was amply sufficient to establish prima facie that the requirements of the English naturalization statutes had been complied with ; and in Walther »'. Ra- bolt, 30 Cal. 185, it was held that proof that a German person, of German parentage, lived with his parents in Germany until six years old, that he came to the United States when seventeen or eighteen years old, and did not then speak English, and that his father had died in Germany when he was six or eight years old, is sufficient evidence to raise a pre- sumption that he was alien-born. 20. Bors v. Preston, 111 U. S. 252, 4 S. Ct. 407, 28 L. ed. 419. 21. Ferguson v. Johnson, 11 Tex. Civ. App. 413, 33 S. W. 138; Gilman v. Thompson, 11 Vt. 643, 34 Am. Dee. 714. But see Moore v. Tisdale, 5 B. Mon. (Ky.) 352, wherein it was held that the removal of a wife, with her hus- band, from the United States, and her re- maining abroad with her husband, who had renounced his citizenship in, and died out of, the United States, raised the presumption of alienage of the wife, which presumption, how- ever, was rebutted by the fact that, within a short time after his death, she returned to the United States, with no intention of leav- ing the country. 22. See 2 Cent. Dig. tit. " Aliens," § 4. 23. Jacob L. Diet.; Heirn v. Bridault, 37 Miss. 209. "It is ... a legal and political axiom that ' protection and allegiance are recipro- cal.' . . . Aliens resident, or sojourning here, do not owe the full measure of allegiance exacted from the citizen, nor can they enjoy ALIENS 89 in the United States, except as to certain political and municipal rights 24 to which citizens only are entitled, 25 resident 26 alien friends 27 have practically all and the same rights and privileges as citizens. 28 These rights and privileges include both personal rights — such as the right to dwell safely in the country, 29 and the right of protection to person, reputation, and other relative rights w — and property rights. 81 B. In Relation to Personalty. Aliens may take and hold personal prop- erty in the same manner as citizens, 82 this including taking by succession as all the rights, privileges, and immunities of citizenship. Yet they owe a qualified, local, temporary allegiance. They are bound to obe- dience to all general laws for the maintenance of peace and the preservation of order. If guilty of any illegal act, or involved in any* dispute with our citizens, or with each other, they are amenable to the ordinary tribunals of the country. In return for the qualified allegiance demanded of them a corresponding protection to life, liberty, and property is ex- tended to them." Luke v. Calhoun County, 52 Ala. 115, 121. See also infra, IV, D. Former citizens of the United States, who have by naturalization become British sub- jects, are, while domiciled in the United States, entitled by treaty to all the rights of native-born British subjects. Newcomb v. Newcomb, (Ky. 1900) 57 S. W. 2. 24. Political rights. — An alien has no po- litical rights except those expressly conferred by the statutes or other laws of the country. Borst v. Beecker, 6 Johns. (N. Y.) 332; Opin- ion of Justices, 122 Mass. 594; Opinion of Justices, 7 Mass. 523. For right of alien to vote see Elections. For right of alien to hold office see Officers. 25. Taylor v. Carpenter, 2 Woodb. & M. (U. S.) 1, 23 Fed. Cas. No. 13,785. See also, generally, Grand Juries ; Juries. 26. A statute cannot impose duties upon a non-resident alien, but it may confer rights upon him. Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386. 27. Alien enemies have no rights and no privileges, unless by the king's special favor during time of war. 1 Bl. Comm. 373. See also War. 28. Taylor v. Carpenter, 3 Story (U. S.) 458, 23 Fed. Cas. No. 13,784, Cox Am. Trade- Mark Cas. 14 ; Taylor v. Carpenter, 2 Woodb. & M. (U. S.) 1, 23 Fed. Cas. No. 13,785. Like protection of their rights may be claimed by alien friends as by citizens. Tay- lor v. Carpenter, 3 Story (U. S.) 458, 23 Fed. Cas. No. 13,784, Cox Am. Trade-Mark Cas. 14. See also infra, IV, D. May be taxed. — In return for the protec- tion afforded an alien at common law with re- spect to his person, his property, his relative rights, and his reputation, he is required to pay taxes. Anderson L. Diet. See also, gen- erally, Taxation. A mere license or privilege, however, that may be given to an alien, which license or privilege is personal and untransferable in its nature, is held at the will of the govern- ment, and is revocable at any time at its pleasure. Chae Chan Ping o. U. S., 130 U. S. 581, 9 S. Ct. 623, 32 L. ed. 1068. 29. Comyns Dig. 426. 30. Anderson L. Diet. The fourteenth amendment of the federal constitution protects resident alien Chinese. Yiek Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. ed. 220 ; In re Ah Chong, 6 Sawy. (U. S.) 451,2 Fed. 733; Ho Ah Kow v. Numan, 5 Sawy. (U. S.) 552, 12 Fed. Cas. No. 6,546. (holding unconstitutional an ordinance which declared that every male person imprisoned in the county jail, under the judgment of any court having jurisdiction in criminal eases in the city and county, should immediately upon his arrival at the jail have the hair of his head " cut or clipped to an uniform length of one inch from the scalp thereof) ; " In re Ah Fong, 3 Sawy. (U. S.) 144, 1 Fed. Cas. No. 102. See also Fong Yue Ting v. U. S., 149 TJ. S. 698, 13 S. Ct. 1016, 37 L. ed. 905, wherein it is said that Chinese laborers re- siding in the United States are entitled, like all other aliens, so long as they are permitted by the government to remain in the country, to all the safeguards of the constitution, and to the protection of the laws in regard to their rights of person and of property, and to their civil and criminal responsibility. Treaties guaranteeing personal rights to aliens are paramount to statutes attempting to restrict these rights. People v. Warren, 13 Misc. (N. Y.) 615, 34 N. Y. Suppl. 942, 69 N. Y. St. 167: In re Quong Woo, 7 Sawy. (U. S.) 526, 13 Fed. 229; In re Ah Chong, 6 Sawy. (U. S.) 451, 2 Fed. 733; In re Parrott, 6 Sawy. (U. S.) 349, 1 Fed. 481; Baker v. Portland, 5 Sawy. (U. S.) 566, 2 Fed. Cas. No. 777 [citing Chapman v. Toy Long, 4 Sawy. (U. S.) 28, 5 Fed. Cas. No. 2,610]. But treaties securing general rights to aliens, on the same footing as citizens, do not take away from the government the right to make laws giving special rights of action to its own citizens, to the exclusion of aliens against itself (Valk v. U. S., 29 Ct. CI. 62), or to constitutionally regulate and restrict alike the rights of all persons, alien or citizen (Baldwin v. Goldfrank, 88 Tex. 249, 31 S. W. 1064). 31. For the personal property rights of aliens see infra, IV, B. For the real property rights of aliens see infra, IV, C. 32. Bouvier L. Diet, [citing Calvin's Case, 7 Coke 17] ; Jacob L. Diet.; 1 Bl. Comm. 372; Comyns Dig. 428. See also to the same effect: Connecticut. — Crosgrove v. Crosgrove, 69 Conn. 416, 38 Atl. 219; Evans' Appeal, 51 Conn. 435. Georgia. — Kerr v. White, 52 Ga. 362. Iowa.— Meier v. Lee, 106 Iowa 303, 76 N. W. 712. Vol. II 90 ALIENS next of kin or a distributive share. 33 An alien may make and enforce contracts in relation to his personal estate. 34 C. In Relation to Real Property — i. At Common Law — a. Acquired by Act of Parties — (i) Is General. At common law an alien may take land by act of the parties, 35 and hold the same against all persons, subject only to the right of the state to claim it by escheat upon office found, or some act of the state equivalent to an office found ; x and, until office found, he may either dispose of his Louisiana. — Richmond v. Milne, 17 La. 312, 36 Am. Dec. 613, under the laws of Scotland. Maryland. — Corrie's Case, 2 Bland (Md. ) 488. Missouri. — Greenia r. Greenia, 14 Ho. 526. Xew York. — Ludlow r. Van Xess, 8 Bosw. (X. Y.) 178. Pennsylvania. — Com. v. Detwiller, 131 Pa. St. 614, 18 Atl. 990, 7 L. B. A. 357. Texas. — Franco-Texan Land Co. v. Chap- tive, (Tex. 1886) 3 S. W. 31. See 2 Cent. Dig. tit. " Aliens," § 59. The reason for this has been said to be based upon the fact that " personal estate is of a transitory and movable nature; and, be- sides, this indulgence to strangers is neces- sary for the advancement of trade." 1 Bl. Coram. 372. A chattel mortgage may be given to an alien. Comstock r. Harris, 13 Ont. 407. " Real estate " has been held to include both real and personal property, under a stat- ute giving aliens the capacity to take, recover, and transmit " real estate " as citizens. Corse v. Corse, 4 L. C. Rep. 310. 33. Connecticut. — Crosgrove r. Crosgrove, 69 Conn. 416, 38 Atl. 219; Evans' Appeal, 51 Conn. 435. Ioua. — Greenheld v. Morrison, 21 Iowa 538. Louisiana. — Richmond v. Milne, 17 La. 312, 36 Am. Dec. 613, under the laws of Scotland. Missouri. — Harney v. Donohoe, 97 Mo. 141, 10 S. W. 191. New York. — Meakings v. Cromwell, 5 X. Y. 136; Beck v. McGillis, 9 Barb. (X. Y.) 35; Bradwell v. Weeks, 1 Johns. Ch. ( X. Y. ) 206. South Carolina. — Megrath r. Robertson, 1 Desauss. (S. C.) 445 [citing Slanning v. Stvle, 3 P. Wms. 336]. Tennessee. — Polk v. Ralston, 2 Humphr. (Tenn.) 537. United States. — McLearn v. Wallace, 10 Pet. (U. S.) 625, 9 L. ed. 559: Craig r. Les- lie, 3 Wheat. (TJ. S.) 563, 4 L. ed. 460. England. — Fourdrin r. Gowdey, 3 Myl. & K. 383, 10 Eng. Ch. 383. Canada. — Corse i. Corse, 4 L. C. Rep. 310. Compare also Muus r, Muus, 29 Minn. 115, 12 X. W. 343. As a rule real estate cannot be sold to en- force the payment of legacies to aliens (At- kins !. Kron, 37 X. C. 423), nor for the pur- pose of paying debts of the estate so as to preserve the personal property over to aliens to whom it has been bequeathed ( Trezevant r. Howard, 3 Desauss. (S. C.) 87). But land may be conveyed or devised in trust to a citi- zen for the purpose of being sold, and the pro- ceeds paid over to an alien. See infra, note 46. Legacy to be invested in land for the bene- Vol. n fit of aliens is void at common law. Beek- man v. Bonsor, 23 X. Y. 298, 80 Am. Dec. 269. A donation causa mortis, under Merrick's Civ. Code La. (1900), art. 1477, may be maHe in favor of a foreigner. Mager's Succession, 12 Rob. (La.) 584; Richmond v. Milne, 17 La. 312, 36 Am. Dec. 613. 34. Bouvier L. Diet. Iciting Calvin's Case, 7 Coke 17]. See also Richmond r. Milne, 17 La. 312, 36 Am. Dec. 613, for the rule under the laws of Scotland. See also infra. IV, D. 35. Smith c. Zaner, 4 Ala. 99; Gray v. Kauffman, 82 Tex. 65. 17 S. W. 513; Orr v. Hodgson, 4 Wheat. (U. S.) 453, 4 L. ed. 613. Act of parties distinguished from act of law. — By the common law an alien may take lands by purchase, though not by descent; in other words, while he cannot take by the act of the law he may take by the act of the party. But he has no capacity to hold lands, and they may be seized into the hands of the sovereign. Until so seized, the alien has com- plete dominion over them. In this regard alien friends and alien enemies are alike. An- derson L. Diet. 36. Bouvier L. Diet.; Comyns Dig. 425. To the same effect see the following cases: Alabama. — Smith r. Zaner, 4 Ala. 99. California. — Racouillat i'. Sansevain, 32 Cal. 376; Xorris v. Hoyt, 18 Cal. 217. District of Columbia. — Johnson v. Elkins, 1 App. Cas. (D. C.) 430. Montana. — Quigley v. Birdseye, 1 1 Mont. 439, 28 Pac. 741. Xebraska. — Carlow v. Aultman, 28 Nebr. 672, 44 X. W. 873. Xew York.— Wright v. Saddler, 20 X. Y. 320. Xorth Carolina. — Doe r. Horniblea, 3 X. C. 197; Bayard v. Singleton, 1 X. C. 42. Texas. — Gray v. Kauffman, 82 Tex. 65, 17 S. W. 513; Williams v. Bennett, 1 Tex. Civ„ App. 498, 20 S. W. 856. Vermont. — See State v. Boston, etc., R. Co., 25 Vt. 433. Wash in qt oyi. — Oregon Morte. Co. v. Cars- tens, 16 Wash. 165, 47 Pac. 421. 35 L. R. A. 841. United States.— Manuel r. Wulff, 152 TJ. S. 505, 14 S. Ct. 651. 38 L. ed. 532; Phillips f. Moore, 100 TJ. S. 20S. 25 L. ed. 603; Gover- neur r. Robertson, 11 Wheat. (TJ. S.) 332, 6 L. ed. 488; Randall r. Jaques, 20 Fed. Cas. Xo. 11,553, 4 Quart. L. J. 218; Hammekin v. Clayton, 2 Woods (U. S.) 336, 11 Fed. Cas. Xo. 5,996. See also cases cited infra, notes 39, 40; and 2 Cent. Dig. tit. " Aliens," S 6 et seq. The state or government only can question the right of an alien to take and hold land. California. — Xorris v. Hoyt, 18 CaL 217 ; ALIENS 91 interest by conveyance, 87 or dispose of it by devise, notwithstanding the fact of his alienage. 38 (n) Purchase or Devise. "Within the rule just stated the right of an alien to take title to real estate by purchase and hold till office found was recognized at common law; 89 and taking by purchase has been held to include taking by People v. Folsom, 5 Cal. 373; Ramires v. Kent, 2 Cal. 558. District of Columbia. — Johnson v. Elkins, 1 App. Cas. (D. C.) 430. Montana. — Quigley v. Birdseye, 11 Mont. 439, 28 Pac. 741. Neiv York. — Belden v. Wilkinson, 33 Misc. (N. Y.) 659, 68 N. Y. Suppl. 205 [citing Munro v. Merchant, 28 N. Y. 9; Wadsworth v. Wadsworth, 12 N. Y. 376; People v. Conk- lin, 2 Hill (N. Y.) 67; Seott v. Thorpe, 1 Edw. (N. Y.) 512; Governeur v. Robertson, 11 Wheat. (U. S.) 332, 6 L. ed. 488]. Texas.— Gray v. Kauffman, 82 Tex. 65, 17 S. W. 513. Vermont. — • But see State v. Boston, etc., R. Co., 25 Vt. 433, wherein it is said that the right to interfere with aliens holding land belongs to the national, and not to the state, sovereignty. Washington. — Goon Gan v. Richardson, 16 Wash. 373, 47 Pac. 762; Oregon Mortg. Co. v. Carstens, 16 Wash. 165, 47 Pac. 421, 35 L. R. A. 841. United States. — Manuel v. Wulff, 152 U. S. 505, 14 S. Ct. 651, 38 L. ed. 532; Phillips v. Moore, 100 U. S. 208, 25 L. ed. 603 ; Airhart v. Massieu, 98 U. S. 491, 25 L. ed. 213. See also Jones v. McMasters, 20 How. (TJ. S.) 8, 15 L. ed. 805. Under the civil law, it seems, the same rule obtains. Racouillat v. Sansevain, 32 Cal. 376. Acts similar to office found may be suffi- cient to invest title of an alien acquired by purchase. McCreery v. Allender, 4 Harr. & M. (Md.) 409. Proceedings by office found are abolished and ejectment is provided by the code as the first remedy. Renner v. Mul- ler, 57 How. Pr. (N. Y.) 229. An act of assembly, passed during a war and confiscat- ing the property of an alien enemy by name, is at least as effectual in vesting the prop- erty in the state as any office found, accord- ing to the practice in England. Bayard v. Singleton, 1 N. C. 42. See also New York Indians v. U. S., 170 U. S. 1, 18 S. Ct. 531, 42 L. ed. 927 [citing Atlantic, etc., R. Co. v. Mingus, 165 U. S. 413, 17 S. Ct. 348, 41 L. ed. 770], where a legislative act directly taking lands was held equivalent to an office found. For the procedure relating to office found see Atty.-Gen. v. Duplessis, 1 Bro. P. C. 415, 2 Ves. 286; Cornyns Dig. 427. Vested rights in real property in the United States, acquired by British subjects before the Revolution, may be held by them notwith- standing their alienage. Apthorp v. Backus, Kirby (Conn.) 407, 1 Am. Dec. 26; Jackson v. Lunn, 3 Johns. Cas. (N. Y.) 109. But compare U. S. v. De Repentigny, 5 Wall. (U. S.) 211, 18 L. ed. 627, infra, note 48. 37. Bouvisr L. Diet.; and the following Arkansas. — Jones v. Minogue, 29 Ark. 637. California. — Matter of Leopold, 67 Cal. 385, 7 Pac. 766. Connecticut. — Whiting v. Stevens, 4 Conn. 44. Indiana. — State v. Witz, 87 Ind. 190 ; Hal- stead v. Lake County, 56 Ind. 363. Massachusetts. — Waugh v. Riley, 8 Mete. (Mass.) 290; Sheaffe v. O'Neil, 1 Mass. 256. Montana. — Quigley v. Birdseye, 1 1 Mont. 439, 28 Pac. 741. Neiv Hampshire. — Montgomery v. Dorion, 7 N. H. 475. New York. — Goodrich v. Russell, 42 N. Y. 177; Jackson v. Adams, 7 Wend. (N. Y.) 367. South Carolina. — McCaw v. Galbraith, 7 Rich. ( S. C. ) 74 ; Kottman v. Ayer, 1 Strobh. (S. C.) 552; Jenney v. Laurens, 1 Speers (S. C.) 356; Groves v. Gordon, 3 Brev. (S. C.) 245. Tennessee. — Baker v. Shy, 9 Heisk. (Tenn.) 85; Williams v. Wilson, Mart. & Y. (Tenn.) 248. Texas. — Cryer v. Andrews, 11 Tex. 170. Virginia. — Stephen v. Swann, 9 Leigh (Va.) 404; Marshall v. Conrad, 5 Call (Va.) 364. United States. — De Franca v. Howard, 21 Fed. 774 ; Robertson v. Miller, 1 Brock. (U. S.) 466, 20 Fed. Cas. No. 11,926. The state cannot convey or release to a stranger until after office found. Maynard v. Maynard, 36 Hun (N. Y.) 227. 38. Richmond v. Milne, 17 La. 312, 36 Am. Dec. 613 (under the laws of Scotland) ; Wil- liams v. Wilson, Mart. & Y. (Tenn.) 248; Wallace v. Hewitt, 20 U. C. Q. B. 87; Wal- lace v. Adamson, 10 U. C. C. P. 338. See also Her v. Elliott, 32 U. C. Q. B. 434, and Irwin v. McBride, 23 U. C. Q. B. 570. 39. Anderson L. Diet.; Jacob L. Diet.; 1 Bl. Comm. 372; Comyns Dig. 427; and the following cases: Alabama. — Donovan v. Pitcher, 53 Ala. 411, 25 Am. Rep. 634; Harley v. State, 40 Ala. 689. California. — Ferguson v. Neville, 61 Cal. 356. Georgia. — Fitzgerald v. Garvin, T. U. P. Charlt. (Ga.) 281. Illinois. — Wunderle v. Wunderle, 144 111. 40, 33 N. E. 195, 19 L. R. A. 84. Indiana. — Halstead v. Lake County, 56 Ind. 363. Iowa. — Purczell v. Smidt, 21 Iowa 540. Kentucky. — Murray v. Fishback, 5 B. Mon. (Ky.) 403; Dudley v. Grayson, 6 T. B. Mon. (Ky.) 259; Elmondorff v. Carmichael, 3 Litt. (Ky.) 472, 14 Am. Dec. 86. Louisiana. — Rabasse's Succession, 47 La. Ann. 1452, 17 So. 867, 49 Am. St. Rep. 433; Thompson's Succession, 9 La. Ann. 96. Maine. — Mussey v. Pierre, 24 Me. 559. Maryland. — Guyer v. Smith, 22 Md. 239, Vol. II 92 ALIENS devise. 40 Numerous authorities also hold that the word "purchase" includes 85 Am. Dee. 650; McCreery v. Allender, 4 Harr. & M. (Md.) 409 ; Cunningham v. Brown- ing, 1 Bland (Md.) 299. Massachusetts. — Piper v. Richardson, 9 Mete. (Mass.) 155; Scanlan v. Wright, 13 Pick. (Mass.) 523, 25 Am. Dee. 344; Com. v. Andre, 3 Pick. (Mass.) 224. Michigan. — Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430. Montana. — Quigley v. Birdseye, 11 Mont. 439, 28 Pac. 741; Wulf v. Manuel, 9 Mont. 279, 23 Pac. 723; Tibbitts v. Ah Tong, 4 Mont. 536, 2 Pac. 759. Nebraska. — Carlow v. Aultman, 28 Nebr. 672, 44 N. W. 873. Nevada. — Courtney v. Turner, 12 Nev. 345. New Hampshire. — Montgomery v. Dorion, 7 N. H. 475. New York. — Munro v. Merchant, 28 N. Y. 9; Wright v. Saddler, 20 ST. Y. 320; Heeney v. Brooklyn Benev. Soc, 33 Barb. (N. Y.) 360; Overing v. Russell, 32 Barb. (N Y.) 263; Bradstreet v. Oneida County, 13 Wend. (N. Y.) 546; Goodell v. Jackson, 20 Johns. (N. Y.) 693, 11 Am. Dec. 351; Mooers v. White, 6 Johns. Ch. (N. Y.) 360; Matter of Windle, 2 Edw. (N. Y.) 585. North Carolina. — University Trustees v. Miller, 14 N. C. 188; Doe v. Horniblea, 3 N. C. 197 ; Bayard v. Singleton, 1 N. C. 42. South Carolina. — McClenaghan t\ McClena- ghan, 1 Strobh. ' Eq. ( S. C. ) 295, 47 Am. Dee. 532; Groves v. Gordon, 3 Brev. (S. C.) 245. Tennessee. — Williams r. Wilson, Mart. & Y. (Tenn.) 248. Texas. — Barrett v. Kelly, 31 Tex. 476; Clay v. Clav, 26 Tex. 24; Williams v. Ben- nett, 1 Tex.'Civ. App. 498, 20 S..W. 856. Vermont. — State r. Boston, etc., R. Co., 25 Vt. 433. Virginia. — Sands r. Lynham, 27 Grait. (Va.) 291, 21 Am. Rep. 348; Ferguson v. Franklins, 6 Munf. (Va.) 305. Washington. — Oregon Mortg. Co. v. Car- stens, 16 Wash. 165, 47 Pac. 421, 35 L. R. A. 841. United States. — Osterman r. Baldwin, 6 Wall. (TJ. S.) 116, 18 L. ed. 730; Governeur !\ Robertson, 11 Wheat. (U. S.) 332, 6 L. ed. 488; Hughes v. Edwards, 9 Wheat. (U. S.) 489, 6 L. ed. 142; Soeietv, etc. v. New Haven, 8 Wheat. (U. S.) 464, 5 L. ed. 662; Hepburn v. Dunlop, 1 Wheat. (U. S.) 179, 4 L. ed. 65; Robertson v. Miller, 1 Brock. (U. S.) 466, 20 Fed. Cas. No. 11,926; Society, etc. v. Wheeler, 2 Gall. (U. S.) 105, 22 Fed. Cas. No. 13,156; Stokes v. Dawes, 4 Mason (U. S.) 268, 23 Fed. Cas. No. 13,477; Farmers' L. & T. Co. r. MeKinney, 6 McLean (U. S.) 1, 8 Fed. Cas. No. 4,667. England. — Burk v. Brown, 2 Atk. 397; Theobolds v. Duffoy, 9 Mod. 104. Canada. — Irwin v. McBride, 23 TJ. C. Q. B. 570; Doe v. Cleveland, 6 U. C. Q. B. O. S. 117; Murray v. Heron, 7 Grant Ch. (TJ. C.) 177; Doe v. Dickson. 2 U. C. Jur. 326. See 2 Cent. Dig. tit. "Aliens," § 11 et seq. Mortgages of real estate are within the rule. Richmond v. Milne, 17 La. 312, 36 Am. Vol. II Dec. 613; Goon Gan v. Richardson, 16 Wash. 373, 47 Pac. 762; Hughes v. Edwards, 9 Wheat. (U. S.) 489, 6 L. ed. 142. Compare Oregon Mortg. Co. v. Carstens, 16 Wash. 165, 47 Pac. 421, 35 L. R. A. 841, wherein it was held that a constitutional pro- vision declaring void " all conveyances of lands hereafter made to any alien, directly or in trust for such alien," does not apply to cases in which a citizen deeds to an alien mortgaged lands in satisfaction of a bona fide mortgage debt, since another section of the same constitutional provision excepts from the prohibition upon alien ownership lands acquired " under mortgage or in good faith in the ordinary course of justice in the col- lection of debts." See also Zundell v. Gess, (Tex. 1888) 9 S. W. 879, wherein it was held that while aliens cannot, in Texas, claim a resulting or constructive trust in lands pur- chased by a citizen partly with funds paid him by the aliens through mistake, yet they are entitled to a lien on the land for the amount so furnished, and which is superior to any homestead right acquired by the purchaser. See 2 Cent. Dig. tit. "Aliens," § 14. Trust deeds conveying real estate to aliens for the benefit of others are within the rule. Johnson t\ Elkins, 1 App. Cas. (D. C.) 430; Cumberland v. Graves, 7 N. Y. 305; Randall v. Jaques, 20 Fed. Cas. No. 11,553, 4 Quart. L. J. 218. But compare Kay r. Webb, 5 N. C. 134; Sharp ;;. St. Sauveur, L. R. 7 Ch. 343; and see Comyns Dig. 427, wherein it is said: " So an alien cannot be seized to the use of another, for he cannot be decreed to execute it." The rule obtains in equity. — So held in Cross v. De Valle, 1 Cliff. (U. S.) 282, 6 Fed. Cas. No. 3,430. Under the Mexican law an alien grantee of land could hold and possess it as his own property, until deprived of it by the sovereign authority or the inquisition of denouncement. Merle v. Mathews, 26 Cal. 455. Title by adverse possession. — Adverse pos- session by an alien for the statutory period was held to deprive the true owner of his remedy to eject the alien occupant, although the alien could not acquire title to the land against the owner. See Adverse Possession, XI, E. But under statute in Kentucky (Dud- ley v. Grayson, 6 T. B. Mon. (Ky.) 259) and Massachusetts (Piper v. Richardson, 9 Mete. (Mass.) 155) it has been held that adverse possession by an alien might ripen into title even against the state. 40. Alabama. — Smith v. Zaner, 4 Ala. 99. Arkansas. — Jones v. Minogue, 29 Ark. 637. California. — People r. Folsom, 5 Cal. 373. Indiana. — But see Eldon v. Doe, 6 Blaekf. (Ind.) 341, which seems to be at variance with this rule. New York.— Hall v. Hall, 81 N. Y. 130; Wadsworth v. Murray, 16 Barb. (N. Y.) 601; People v. Conklin, 2 Hill (N. Y.) 67. North Carolina. — Compare Kay v. Webb, 5 N. C. 134; Gilmour v. Kay, 3 N. C. 265. South Carolina.— Clifton v. Haig, 4 De- sauss. (S. C.) 330. ALIEN'S 93 " devise," both at common law 41 and under the provisions of statutes relating to and dealing with this subject. 42 , (m) State Grants and Patents. Aliens may, of course, take real estate from the state either by valid legislative grant or by valid patents issued by minis- terial officers. 48 And where a grant, or a patent held tantamount to a grant, is, by its terms, to an alien, " his heirs and assigns," with warranty, it enables the alien to transmit the title by descent even to alien non-resident heirs ; u but where the patent is issued by ministerial officers, upon ordinary purchases by aliens, the title of the alien has been held to be subject to escheat, as in the case of purchase from a citizen. 45 (iv) 'Uses and Trusts. At the. common law aliens are under the same disa- bilities as to uses and trusts arising out of real estate as they are in respect to the real estate itself, and the uses and trusts escheat to the state in the same way. 46 Tennessee. — Baker v. Shy, 9 Heisk. (Tenn.) 85. Texas.— Gray v. Kauffman, 82 Tex. 65, 17 S. W. 513. Virginia. — Stephen v. Swann, 9 Leigh (Va.) 404; Marshall v. Conrad, 5 Call (Va.) 364. • United States. — Cross v. Del Valle, 1 Wall. (TJ. S.) 1, 17 L. ed. 515, declaring the exist- ence of the rule in Rhode Island. England. — But see Sharp v. St. Sauveur, L. R. 7 Ch. 343; Knight v. Duplessis, 2 Ves. 360; Collingwood v. Pace, 1 Keb. 65, 1 Vent. 413. See 2 Cent. Dig. tit. "Aliens," § 11 et seq. 41. Jones v. Minogue, 29 Ark. 637 ; Fox v. Southaek, 12 Mass. 143; Mooers v. White, 6 Johns. Ch. (N. Y.) 360; Vaux v. Nesbit, 1 McCord Eq. (S. C.) 352; Marshall v. Conrad, 5 Call (Va.) 364; Fairfax v. Hunter, 7 Cranch (U. S.) 603, 3 L. ed. 453. 42. Doehrel v. Hillmer, 102 Iowa 169, 71 N. W. 204; Burrow v. Burrow, 98 Iowa 400, 67 N. W. 287; Bennett v. Hibbert, 88 Iowa 154, 55 N. W. 93; Stamm v. Bostwick, 122 N. Y. 48, 25 N. E. 233, 9 L. R. A. 597. Taking by descent is not taking by pur- chase. — So held in Callahan v. O'Brien, 72 Hun (N. Y.) 216, 25 N. Y. Suppl. 410, 55 N. Y. St. 201. See infra, IV, C, 1, b, (n). Devises in trust for aliens have been up- held as being within the rule. See infra, note 46. Even alien enemies have been held to be within the rule. Stephen v. Swann, 9 Leigh (Va.) 404; Craig v. Radford, 3 Wheat. (TJ. S.) 594, 4 L. ed. 467. 43. Alabama. — Etheridge v. Malempre, 18 Ala. 565. Arkansas. — Wynn v. Morris, 16 Ark. 414. Iowa. — King v. Ware, 53 Iowa 97, 4 N. W. 858. Kentucky. — Elmondorff v. Carmichael, 3 Litt. (Ky.j 472, 14 Am. Dec. 86. Massachusetts. — Com. v. Andre, 3 Pick. (Mass.) 224. New York. — Jackson v. Etz, 5 Cow. (N. Y.) 314; Goodell v. Jackson, 20 Johns. (N. Y.) 693, 11 Am. Dec. 351. South Carolina. — Meeks v. Richbourgh, 1 Mill (S. C.) 410. Texas. — Hornsby v. Bacon, 20 Tex. 556. United States. — Governeur v. Robertson, 1 1 Wheat. (TJ. S.) 332, 6 L. ed. 488, construing a patent, issued under laws of Virginia, sub- sequently confirmed by the legislature of Ken- tucky. England. — Comyns Dig. 426. Canada.— Her v. Elliott, 32 TJ. C. Q. B. 434. 44. Etheridge v. Malempre, 18 Ala. 565; King v. Ware, 53 Iowa 97, 4 N. W. 858; Com. v. Andre, 3 Pick. (Mass.) 224; Jackson v. Etz, 5 Cow. (N. Y.) 314; Goodell v. Jack- son, 20 Johns. (N. Y.) 693, 11 Am. Dec. 351. 45. Etheridge v. Malempre, 18 Ala. 565; Governeur v. Robertson, 11 Wheat. (TJ. S.) 332, 6 L. ed. 488. 46. Leggett v. Dubois, 5 Paige (N. Y.) 114, 28 Am. Dec. 413; Hubbard v. Goodwin, 3 Leigh (Va.) 492; Hammekin v. Clayton, 2 Woods (U. S.) 336, 11 Fed. Cas. No. 5,996; Burney v. Macdonald, 15 Sim. 6, 38 Eng. Ch. 6; Comyns Dig. 427. " Express " distinguished from " implied " trusts. — Where the trust is an express one, there is no uncertainty as to the escheat to the state. Atkins v. Kron, 40 N. C. 207 ; Mc- Caw v. Galbraith, 7 Rich. (S. C.) 74; Hub- bard v. Goodwin, 3 Leigh (Va.) 492. And see Comyns Dig. 427 (wherein it is said: "An alien cannot enforce the execution of an use at common law, or of a trust now " ) , and McCarty v. Deming, 4 Lans. (N. Y.) 440 (wherein it was held that where executors were given power, by will, to sell and convey real estate, their authority to sell is not to be construed as a direction to convert the real into personal estate for distribution among testator's next of kin, some of whom were aliens, but the real estate descended as such to his heirs at law entitled to take as citi- zens ) . But when the trust is an implied one, it is not clearly established whether equity will raise a resulting trust in favor of the alien so that it will revert by escheat to the state or not. President Tucker, of the court of appeals of Virginia, in Hubbard v. Good- win, 3 Leigh (Va.) 492, in an obiter dictum, thinks that, where there is no intent to evade the alien law, equity will not raise a trust to escheat to the state, but will simply declare the trust void ; and in Hammekin v. Clayton, 2 Woods (U. S.) 336, 11 Fed. Cas. No. 5,996, where a deed was given apparently to evade the alien law of Mexico, Wood, C. J., says: " We think . . . that the most that could be Vol. II 94 ALIENS b. Acquired by Operation of Law — (i) Is Gexeeal. An alien cannot, at common law, acquire title to real estate by mere operation of law. 4 ' (n) Descext. Within the rule just stated, an alien cannot inherit real prop erty ; * nor does he possess inheritable blood to transmit the same to a citi- claimed was that the trust was void," but he does not say that it was void. The reason- able and equitable view seems to be that set out by Tucker, P., that equity will not raise a trust to the injury of the alien except where there has been an attempt to violate the alien law by the creation of an express or secret trust in the purchase of lands; and this opin- ion is further supported bv Zundell r. Gess, 73 Tex. 144, 10 S. W. 693, where it was stated as an obiter dictum that a resulting trust would not be raised in favor of an alien whose money may be traced into real estate, pur- chased therewith without his connivance. It is clear that an agreement between an alien and a citizen to purchase lands for the pur- pose of evading the alien law does not work an escheat or forfeiture until the purchase has actually been made. Merle r. Andrews, 4 Tex. 200; Hubbard r. Goodwin, 3 Leigh (Va.) 492. Compare Mussey v. Pierre, 24 lie. 559. In the absence of intent to avoid the alien law the alien is entitled to a sale of the real estate, and to have the proceeds paid to him. Thus, a conveyance or devise of land to a citi- zen, to sell it and pay the proceeds to an alien, will not work an escheat, as there is no vesting nor attempt to vest the title to the land in an alien, or to create in him any trust in the real estate as such; but the land is considered as personal estate. Sew York. — Marx r. McGlvnn, 88 X. Y. 357; Parish v. Ward, 28 Barb! (X. Y.) 328; Ludlow r. Van Xess, 8 Bosw. (X. Y.) 178; Anstice r. Brown, 6 Paige ( X. Y. ) 448 ; Mat- ter of Windle, 2 Edw. fX. Y.l 585: Marx r. McGlynn, 4 Eedf. Surr. (X. Y.) 455. South Carolina. — Jennev ('. Laurens, 1 Speers (S. C.) 356. Texas. — Merle r. Andrews, 4 Tex. 200. Tirginia. — In the ease of Com. r. Martin, 5 Munf. (Va.) 117, there was a devise of real estate to executors, to sell and pay the pro- ceeds and the rents and profits meantime ac- cruing to aliens, subject to payment of tes- tator's debts and certain legacies. The testa- tor left no lawful heirs, and his personal es- tate was sufficient to pay his debts and the legacies. The lower court had held the tes- tator's real estate to be forfeited to the state, and this judgment stood upon appeal, the court of appeals being evenly divided, and giv- ing elaborate opinions pro and eon. United Statec. — Taylor I'. Benham. 5 How. (U. S.) 233, 12 L. ed. 130; Cross r. De Valle, 1 Cliff. (TJ. S.) 282, 6 Fed. Cas. No. 3,430. England. — Sharp r. St. Sauveur. L. R. 7 Ch. 343; Fourdrin v. Gowdey, 3 Mvl. & K. 383, 10 Eng. Ch. 383 : Du Hourmelin r. Shel- don, 1 Beav. 79, 17 Eng. Ch. 79. Canada. — Murray v. Heron, 7 Grant Ch. (U. C.) 177. So, where there is a conversion of real es- tate into personal property before the alien Vol. n acquires any title thereto, no escheat arises in favor of the state, as in the case of a be- quest of money to be raised by the sale of real estate. Meakings v. Cromwell, 5 X. Y. 136; Com. v. Selden, 5 Munf. (Va.) 160; Craig v. Leslie, 3 Wheat. (U. S.) 563, 4 L. ed. 460. Use limited to alien, with power of ap- pointment. — In St. Philip v. Smith, 4 MeCord (S. C.) 452, it was held that when, by deed, a use is limited to a person, an alien, for life, wHh a power of appointment, and, in case of •failure of appointment, to her right heirs, she having made an appointment and died, be- fore office found, the estate in the hands of the appointees (citizens) was not subject to escheat, office not having been found during her lifetime. 47. Alabama.— Smith f. Zaner. 4 Ala. 99. California. — Farrell v. Enright, 12 Cal. 450. Georaia. — Fitzgerald v. Garvin, T. TJ. P. Charlt." (Ga.) 281. Maine. — Mussey r. Pierre, 24 Me. 559. Sew York. — Heeney r. Brooklyn Benev. Soc, 33 Barb. (X. Y.) 360. Sorth Carolina. — Rouche v. Williamson, 25 X. C. 141. England. — Calvin's Case, 7 Coke 25a. See also Bouvier L. Diet. ; and, generally, cases cited infra, notes 48, 49. 48. Abbott L. Diet.; 2 Bl. Comm. 249; 1 Comyns Dig.; and the following cases: Alabama. — Donovan r. Pitcher, 53 Ala. 411. 25 Am. Bep. 634; Etheridge !'. Malempre, 18 Ala. 565 : Smith v. Zaner, 4 Ala. 99. California. — McXeil i: Polk, 57 Cal. 323; Siemssen r. Bofer, 6 Cal. 250. Compare Peo- ple r. Folsoni, 5 Cal. 373. Connecticut. — Crosgrove v. Crosgrove, 69 Conn. 416, 38 Atl. 219. Illinois.— De Graff r. Went, 164 111. 485, 45 X. E. 1075. Indiana. — Eldon v. Doe, 6 Blackf. (Ind.) 341. Iowa. — Meier v. Lee, 106 Iowa 303, 76 X. W. 712: Brown v. Pearson, 41 Iowa 481; Rheim r. Robbins, 20 Iowa 45. Kansas. — See Smith r. Lynch, 61 Kan. 609, 60 Pae. 329, under the Kansas alien land act. Kentucky. — White r. White. 2 Mete. (Kv.) 185; Trimbles v. Harrison, 1 B. Mon. (Kv.) 140; Fry r. Smith, 2 Dana (Ky.) 38: El- mondorff «\ Carmiehael, 3 Litt. (Ky.) 472.14 Am. Dec. 86; Hunt v. Warnicke, Hard. (Ky.) 61. ^ Louisiana. — But see Richmond r. Milne, 17 La. 312, 36 Am. Dee. 613; Phillips f. Rogers, 5 Mart. (La.) 700. Maryland. — Buchanan r. Deshon, 1 Harr. 6 G. (Md.) 280. Massachusetts. — Scanlan r. Wright, 13 Pick. (Mass.) 523. 25 Am. Dec. 344; Sheaffe !'. O'Xeil, 1 Mass. 256. Missouri. — Utassy r. Giedinghagen, 132 Mo. ALIENS 95 zen. 49 Upon the death of an alien intestate, or of a citizen intestate leaving only 53, 33 S. W. 444 ; Harney 17. Donohoe, 97 Mo. 141, 10 S. W. 191; Wacker 17. Wacker,' 26 Mo. 426. New Hampshire. — Montgomery v. Dorion, 7 N. H. 475. New York. — Ettenheimer v. Heffernan, 66 Barb. (N. Y.) 374; Heeney v. Brooklyn Benev. Soc, 33 Barb. (NY.) 360; Larreau v. Davig- non, 5 Abb. Pr. N. S. (N. Y.) 367; Bradley v. Dwight, 62 How. Pr. (N. Y.) 300; Ren- Mr «. Miiller, 57 How. Pr. (N. Y.) 229; Leary v. Leary, 50 How. Pr. (N Y.) 122; Kennedy 17. Wood, 20 Wend. (N. Y.) 230; Bradstreet 17. Oneida County, 13 Wend. (N. Y.) 546; Jackson 17. White, 20 Johns. (N. Y.) 313; Jackson 17. Lunn, 3 Johns. Cas. (N. Y.) 109; Mooers 17. White, 6 Johns. Ch. (N. Y.) 360; Lynch v. Clarke, 1 Sandf. Ch. (N. Y.) 583. North Carolina. — Harman 17. Ferrall, 64 N. C. 474; Paul 17. Ward, 15 N. C. 247. The contrary perhaps was held in the case of Bay- ard 17. Singleton, 1 N. C. 42, but the decision in that case turned also upon an act of the legislature which was declared to be as ef- fective as an office found to work the forfeit- ure. Ohio.— Kay 17. Watson, 17 Ohio 27. Pennsylvania. — Jackson v. Burns, 3 Binn. (Pa.) 75. South Carolina. — McClenaghan v. McClen- aghan, 1 Strobh. Eq. (S. C.) 295, 47 Am. Dec. 532; Jenney 17. Laurens, 1 Speers (S. C.) 356 ; Deseottes v. Talvande, 2 McMull. (S. C.) 300; Vaux 17. Nesbit, 1 McCord Eq. (S. C.) 352: Davis v. Hall, 1 Nott & M. (S. C.) 292; Groves 17. Gordon, 3 Brev. (S. C.) 245; Treze- vant 17. Osborn, 3 Brev. (S. C.) 29; Ennas 17. Franklin, 2 Brev. (S. C.) 398; Sebben 17. Trezevant, 3 Desauss. (S. C.) 213; Halybur- ton v. Kershaw, 3 Desauss. (S. C.) 105. Tennessee. — Baker 17. Shy, 9 Heisk. (Tenn.) 85. Texas. — Pettus 17. Dawson, 82 Tex. 18, 17 S. W. 714; McGahan 17. Baylor, 32 Tex. 789; Barrett 17. Kelly, 31 Tex. 476; Lacoste 17. Odam, 26 Tex. 458; Cryer 17. Andrews, 11 Tex. 170; Yates v. lams, 10 Tex. 168; Williams v. Bennett, 1 Tex. Civ. App. 498, 20 S. W. 856. Virginia. — Barzizas u. Hopkins, 2 Rand. (Va.) 276; Read v. Read, 5 Call (Va.) 160. United States. — Middleton 17. McGrew, 23 How. (U. S.) 45, 16 L. ed. 403; McKinney 17. Saviego, 18 How. (U. S.) 235, 15 L. ed. 365; Taylor 17. Benham, 5 How. (U. S.) 233, 12 L. ed. 130; McLearn v. Wallace, 10 Pet. (U. S.) 625, 9 L. ed. 559; Blight 17. Roches- ter, 7 Wheat. (U. S.) 535, 5 L. ed. 516; Craig 1?. Leslie, 3 Wheat. (U. S.) 563, 4 L. ed. 460; Fairfax r. Hunter, 7 Cranch (U. S.) 603, 3 L. ed. 453; Dawson !'. Godfrey, 4 Cranch (U. S.) 321, 2 L. ed. 634; Contee 17. Godfrey, 1 Cranch C. C. (U. S.) 479, 6 Fed. Cas. No. 3,140; Ware 17. Wisner, 50 Fed. 310. England. — Doe 17. Acklam, 2 B. & C. 779, 9 E. C. L. 337; Doe 17. Jones, 4 T. R. 300; Calvin's Case, 7 Coke 25a. Canada.— Doe 17. Clarke, 1 U. C. Q. B. 37. But see Donegani 17. Donegani, 1 L. C. Rep. 605. See 2 Cent. Dig. tit. "Aliens," § 21 et seq. Extent of rule. — The common-law rule upon this subject was held to be good in equity in the case of Cross v. DeValle, 1 Cliff. (U. S.) 282, Fed. Cas. No. 3,430. The rule applies as well to those who, upon the conquest by one nation of another and surrender of the soil, do not become citizens of the new sover- eign, but adhere to their old allegiance, by which adherence they deprive themselves of protection to their property, except so far as it may be secured by treaty. U. S. v. De Repentigny, 5 Wall. (U. S.) 211, 18 L. ed. 627. 49. Alabama. — Smith 17. Zaner, 4 Ala. 99. See also Bartlett 17. Morris, 9 Port. (Ala.) 266. Arkansas. — Jones 17. Minogue, 29 Ark. 637. Illinois.— De Graff 17. Went, 164 111. 485,45 N. E. 1075. Indiana. — Doe 17. Lazenby, Smith (Ind.) 203, 1 Ind. 234. Iowa. — Purczell 17. Smidt, 21 Iowa 540. Kentucky. — Stevenson 17. Dunlap, 7 T. B. Mon. (Ky.') 134. Louisiana. — Richmond 17. Milne, 17 La. 312, 36 Am. Dec. 613. Massachusetts. — Slater 17. Nason, 15 Pick. (Mass.) 345. Missouri. — Farrar 17. Dean, 24 Mo. 16. New York. — Renner 17. Mailer, 57 How. Pr. (N. Y.) 229. Pennsylvania. — Rubeck 17. Gardner, 7 Watts (Pa.) 455. Rhode Island. — De Wolf v. Middleton, 18 R. I. 814, 26 Atl. 44, 31 Atl. 271, 31 L. R. A. 146. South Carolina. — Ex p. Dupont, Harp. Eq. (S. C.) 5 [reversed on other grounds in Shanks 17. Dupont, 3 Pet. (U. S.) 242, 7 L. ed. 666]. Tennessee. — Hinkle 17. Shadden, 2 Swan (Tenn.) 46. Vermont. — But see Lenehan v. Spaulding, 57 Vt. 115, wherein the right to transmit was not allowed to be raised in a collateral pro- ceeding for distribution under a special stat- ute. Virginia. — Sands ». Lynham, 27 Gratt. (Va.)' 291, 21 Am. Rep. 348. United States. — Blight 17. Rochester, 7 Wheat. (U. S.) 535, 5 L. ed. 516. Canada. — Montgomery 17. Graham, 31 TJ. C. Q. B. 57. See also Donegani v. Donegani, 1 L. C. Rep. 605. See 2 Cent. Dig. tit. "Aliens," § 21 et seq. Alienage of any one in a chain of persons necessary to constitute a chain of title inter- rupts the descent and makes it invalid to pass the title. Alabama. — Bartlett 17. Morris, 9 Port. (Ala.) 266. Connecticut. — But see, contra, Campbell's Appeal, 64 Conn. 277, 29 Atl. 494, 24 L. R. A. 667. District of Columbia,. — Walker 17. Potomac Ferry Co., 3 MacArthur (D. C.) 440. Illinois. — Beavan v. Went, 155 111. 592, 41 N. E. 91, 31 L. R. A. 85. Vol. II 96 ALIENS alien heirs, his real estate, as a necessary result of the general operation of this rule, escheats. 50 (in) Bower or Curtesy. Under the common-law rule that an alien cannot acquire a title to real estate by descent or other mere operation of law, 51 where such rule has not been changed by statute or otherwise, 52 an alien cannot take Iowa. — Furenes r. Miekelson, 86 Iowa 508, 53 X. W. 416. New York. — McLean v. S wanton, 13 X. Y. 535; Larreau v. Davignon, 5 Abb. Pr. X. S. (X. Y.) 367, Sheld. (X. Y.) 128; People v. Irvin, 21 Wend. (N. Y.) 128; Banks v. Walker, 3 Barb. Ch. (N. Y.) 438; Wright v. Methodist Episcopal Church, Hoffm. (X. Y. ) 202; Redpath v. Rich, 3 Sandf. (X. Y.) 79. South Carolina. — But see McKellar v. Me- Kellar, 1 Speers (S. C.) 536, wherein it was held that a remote collateral kinsman, who is a citizen notwithstanding that his relation- ship to the intestate is traced through aliens, will take as his heir in exclusion of living nearer kindred. United States. — Lew v. McCartee. 6 Pet. (U. S.) 102, 8 L. ed. 334: Contee r. Godfrey, I Cranch C. C. (U. S.) 479, 6 Fed. Cas. No. 3,140. For statutory modifications and changes of this rule see the following cases and the stat- utes therein referred to: Illinois. — Meadowcroft v. Winnebago County, 181 111. 504, 54 X. E. 949. Kansas. — Smith v. Lynch, 61 Kan. 609, 60 Pac. 329. Massachusetts. — Palmer r. Downer. 2 Mass. 179 note, referring to 11 & 12 Wm. Ill, u. 6, as in force in Massachusetts. New York. — Jackson r. FitzSimmons, 10 Wend. (X. Y.) 9, 24 Am. Dec. 198: Jackson v. Green, 7 Wend. (X. Y.) 333. North Carolina. — Campbell r. Campbell, 58 X. C. 246. Tennessee. — Starks r. Traynor, 11 Humphr. (Tenn.) 291. United States. — McCreery v. Somerville, 9 Wheat. (C. S.) 354, 6 L. ed. 109, referring to II & 12 Wm. Ill, c. 6, as in force in Mary- land. England. — Comyns Dig. 425 ; Jacob L. Diet. [citing Collingwood r. Pace, 1 Vent. 413]. See also supra, note 48, and 2 Cent. Dig. tit. "Aliens," § 33 et seq. Direct descent distinguished. — It has been held that while a person cannot take title by representation from an alien, as a grandson from his grandfather through an alien father; yet one brother may inherit from another, or one cousin from another, or the like, although the father or other common ancestor be alien, it being held that here the derivation or de- scent is direct, and not through the ancestor, Beavan v. Went. 155 111. 592, 41 X. E. 91, 31 L. R. A. 85 ; Wilcke v. Wilcke, 102 Iowa 173, 71 X. W. 201 (construing an Iowa statute) : McGregor r. Comstock, 3 X. Y. 408 ; Luhrs v. Eimer, 15 Hun (X. Y.) 399, 80 X. Y. 171; Parish v. Ward, 28 Barb. (X. Y.) 328: Ren- ner v. Miiller, 44 X. Y. Super. Ct. 535, 57 How. Pr. (X. Y.) 229; Smith v. Mulligan, 11 Abb. Pr. X. S. (X. Y.) 438; 2 Bl. Comm. 251; Comyns Dig. 425. Vol. II 50. Kentucky. — Fry v. Smith, 2 Dana (Ky.) 38. Massachusetts.— Wilbur r. Tobey, 16 Pick. (Mass.) 177; Slater v. Xason, 15 Pick. (Mass.) 345. Missouri. — Farrar v. Dean, 24 Mo. 16. New Hampshire. — Montgomery v. Dorion, 7 X. H. 475. New York. — Heeney v. Brooklyn Benev. Soc, 33 Barb. (N. Y.) 360; Wright v. Metho- dist Episcopal Church, Hoffm. (N. Y.) 202. Pennsylvania. — Rubeek v. Gardner, 7 Watts (Pa.) 455. Virginia. — Sands v. Lynham, 27 Gratt. (Va.) 291, 21 Am. Rep. 348. United States. — Fairfax v. Hunter, 7 Cranch (U. S.) 603, 3 L. ed. 453. Canada. — Donegani v. Donegani, 1 L. C. Rep. 605. See also 2 Bl. Comm. 249; 2 Kent Comm. 55; and, generally, Escheat. To prevent an escheat (University Trustees r. Miller, 14 N. C. 188), next of kin who have inheritable blood take by descent as against the alien issue of a deceased person. Arkansas. — Jones v. Minogue, 29 Ark. 637. New York. — Renner r. Miiller, 44 X. Y. Super. Ct. 535; Jackson r. Jackson, 7 Johns. (X. Y.) 214. South Carolina. — Keenan r. Keenan, 7 Rich. (S. C.) 345; McKellar v. McKellar, 1 Speers (S. C.) 536; Scott t\ Cohen, 2 Xott & M. (S. C.) 293. Texas. — Hardy r. De Leon, 5 Tex. 211. United States. — Orr v. Hodgson, 4 Wheat. (U. S.) 453, 4 L. ed. 613. Canada. — Salter r. Hughes, 6 Xova Scotia 409; Donegani v. Donegani, 1 L. C. Rep. 605, wherein it was held that if the alien leaves children, some born in Canada, and others not, the former exclude the crown, and then all the children inherit as if they were natural- born subjects. See also Comyns Dig. 425 : 2 Kent Comm. 55. 51. See supra, TV, C, 1, b, (i). 52. State laws have generally modified dower and curtesy rights of aliens. Imca.— In re Gill, 79 Iowa 296, 44 X. W. 553, 9 L. R. A. 126. Kentucky. — White r. White, 2 Mete. (Kv.) 185. Maryland. — Buchanan r. Deshon, 1 Harr. & G. (Md.) 280. Missouri. — Stokes r. O'Fallon, 2 Mo. 32. New York. — Burton r. Burton, 1 Abb. Dec. (X. Y.) 271: Burton r. Burton, 26 How. Pr. (X. Y.) 474: Greer r. Sankston, 26 How. Pr. (X. Y.) 471: Priest r. Cummings, 16 Wend. (X. Y.) 617: Mick v. Mick, 10 Wend. (X. Y.) 379; Forgey r. Sutliff, 5 Cow. (X.Y.I 713: Sutliff r. Forgey, 1 Cow. (X. X.) 89. Pennsylvania. — Ondis v. Banta, 7 Kulp (Pa ) 390. v ALIENS 97 dower or curtesy in the real estate of the spouse ; M neither could the wife or husband of an alien have dower or curtesy in the spouse's real estate, since an alien could not transmit real estate by descent. 54 2. Under Treaties and Statutes. 55 The right to take, hold, and dispose of real estate may be granted to aliens by the United States by treaty 56 or by stat- Tennessee. — Emmett v. Emmett, 14 Lea (Tenn.) 369. Wisconsin. — Bennett v. Harms, 51 Wis. 251, 8 N. W. 222. Such statutes are not retroactive in their operation. Priest v. Cummings, 20 Wend. (N. Y.) 338. 53. 2 Bl. Coram. 131; Comyns Dig. 424; and the following cases: Connecticut. — Sistare v. Sistare, 2 Root (Conn.) 468. Kentucky. — White v. White, 2 Mete. (Ky.) 185; Moore v. Tisdale. 5 B. Mon. (Ky.) 352. Maine. — Mussey r. Pierre, 24 Me. 559 (cur- tesy) ; Potter v. Titcomb, 22 Me. 300. Maryland. — Buchanan v. Deshon, 1 Harr. & G. (Md.) 280. Massachusetts. — Foss v. Crisp, 20 Pick. (Mass.) 121 (curtesy). ~New York. — Greer v. Sankston, 26 How. Pr. (N. Y.) 471; Currin v. Finn, 3 Den. (N. Y.) 229; Connolly v. Smith, 21 Wend. (N. Y.) 59; Sutliff v. Forgey, 1 Cow. (N. Y.) 89. North Carolina. — Copeland v. Sauls, 46 N. C. 70 (curtesy) ; Paul v. Ward, 15 N. C. 247. Oregon. — Quinn v. Ladd, (Oreg. 1899") 59 Pac. 457 (curtesy). Pennsylvania. — Reese v. Waters, 4 Watts & S. (Pa.) 145 (curtesy) ; Ondis v. Banta, 7 Kulp (Pa.) 390. Wisconsin. — Bennett v. Harms, 51 Wis. 251, 8 N. W. 222. England. — Calvin's Case, 1 Coke 25a. See 2 Cent. Dig. tit. "Aliens," §§ 18-20. The extent and limits of this rule are dis- cussed in Davis v. Darrow, 12 Wend. (N. Y.) 65 (wherein it was held that the native-born widow of an alien is entitled to recover dower against a, party whose title is derived from her husband, though her husband was not en- titled to hold real estate when he took the conveyance, and such conveyance was not af- terward confirmed by statute), and in Kelly v. Harrison, 2 Johns. Cas. (N. Y.) 29, 1 Am. Dec. 154 (wherein it was held that, where the wife was a subject of Great Britain prior to the Revolution, and always continued such, but the husband resided in this country both before and after that period, she was entitled to dower out of those lands of which he was seized before the Revolution, but not of those of which he was afterward seized). See also Larreau v. Davignon, 5 Abb. Pr. N. S. (N. Y. ) 367, Sheld. (N. Y.) 128. Where a right of dower or curtesy has be- come vested, a subsequent change of allegi- ance, as by the creation of a new government independent of the old, would probably not work a defeat of the right of dower or cur- tesy. Alsberry v. Hawkins, 9 Dana (Ky. ) 177, 33 Am. Dec. 546. Thus, in Jackson v. Lunn, 3 Johns. Cas. (N. Y.) 109, where a [7] woman was married to a British subject who owned lands in the colonies before the Decla- ration of Independence, her right of dower in the lands was held not to be defeated even where she remained a subject of Great Brit- ain and the husband resided in the United States. 54. Mobile Cong. Church v. Morris, 8 Ala. 182 ; Coxe v. Gulick, 10 N. J. L. 328. The widow of a man who was banished from the state, and whose estate was confis- cated, by the act of 1782, for adhering to the British in the course of the Revolutionary War, is, notwithstanding, entitled to her dower in all his lands. Wells r. Martin, 2 Bay (S. C. ) 20. To the same effect see Sew- all v. Lee, 9 Mass. 363. 55. See 2 Cent. Dig. tit. "Aliens," §§ 5-58. 56. Regulation of rights of aliens is within the treaty-making power of the United States, and a treaty made in pursuance of it will suspend any provisions in state laws which are inconsistent so far as is necessary to give effect to the treaty. Blythe v. Hinckley, 127 Cal. 431, 59 Pac. 787; People v. Gerke, 5 Cal. 381; Wunderle r. Wunderle, 144 111. 40, 33 N. E. 195, 19 L. R. A. 84 ; Doehrel v. Hillmer, 102 Iowa 169, 71 N. W. 204; Opel v. Shoup, 100 Iowa 407, 69 N. W. 560, 37 L. R. A. 583; Yeaker v. Yeaker, 4 Mete. (Ky.) 33, 81 Am. Dec. 530. Treaties, between foreign countries and the United States, have, from time to time, been made empowering aliens to take, hold and dis- pose of real estate. Much adjudication has arisen as to the rights growing out of the various provisions of these treaties. See in- fra, cases cited in this note; and 2 Cent. Dig. tit. "Aliens," § 47 et seq. Under the treaty of 1853 with the French Republic see Baker r. Shv, 9 Heisk. (Tenn.) 85; De Geofroy v. Riggs". 133 U. S. 258, 10 S. Ct. 295, 33 L. ed. 642 [reversing 7 Mackey (D. C.) 331] : Bahuaud V. Bize, 105 Fed. 485. Under the treaty of 1871 with the German Empire see Wunderle v. Wunderle, 144 111. 40, 33 N". E. 195, 19 L. R. A. 84. Under the treaties of 1857 and 1870: with the Grand Duchv of Baden spe Wunderle r. Wunderle, 144 111. 40, 33 N. E. 195, T9 L. R. A. 84. Under the treaty of 1845 with the Grand Du^hy of Hesse see Bollermann r. Blake, 94 N. Y. 624, 24 Hun (N. Y.) 187. Under the treaty of 1827 with the Han- seatic Republic of Bremen see Schultze !'. Sehultze, 144 111. 290, 33 N. E. 201, 36 Am. St. Rep. 432, 19 L. R. A. 90. Under the treaty with the Harseatic towns of Lubeck, Bremen, and Hamburg see Siems- sen v. Bofer, 6 Cal. 250. Under the treaty with the King of Han- over see Ford v. Husman, 7 Rich. (S. C.) 165. Vol. II 98 ALIENS ute, 57 and by the states by statute, 58 or this right may be regulated or modi- Under the treaty of 1845 with the King- dom of Bavaria see Opel v. Shoup, 100 Iowa 407, 69 X. W. 560, 37 L. R. A. 583. Under the treaties of 1798 and 1800 with the Kingdom of France see Carneal v. Banks, 10 Wheat. (U. S.) 181, 6 L. ed. 297; Chirac r. Chirac. 2 Wheat. (U. S.) 259, 4 L. ed. 231. See also Foster v. Xeilson, 2 Pet. (U. S.) 253, 7 L. ed. 415, referring to a treaty of 1803. Under the treaty of 1783 with the King- dom of Great Britain see Munro v. Merchant, 28 X. Y. 9 ; Brown v. Sprague, 5 Den. (X. Y.) 545; Moore v. Wilson, 10 Yerg. (Tenn.) 406; Society, etc. r. Xew Haven, 8 Wheat. (U. S.) 464, 5 L. ed. 662; Blight v. Rochester, 7 Wheat. (U. S.) 535, 5 L. ed. 516; Orr v. Hodgson, 4 Wheat. (U. S.) 453, 4 L. ed. 613; Fisher v. Harnden, 1 Paine (U. S.) 55, 9 Fed. Cas. Xo. 4,819. Under the treaty of 1794 with the King- dom of Great Britain, known as Jay's Treaty, see: Kentucky . — Trimbles v. Harrison, 1 B. Mon. (Ky.') 140. Maryland.— Owings v. Xorwood, 2 Harr. & J. (Md.) 96. Massachusetts. — Fox v. Southack, 12 Mass. 143; Com. v. Sheafe, 6 Mass. 441. Michigan. — Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430. New Y&rk. — People v. Snyder, 51 Barb. (X. Y.) 589; Watson v. Donnelly, 28 Barb. (X. Y.) 653; Munro r. Merchant, 26 Barb. (X.Y.) 383; Jackson v. Decker, 11 Johns. (X.Y.) 418; Jackson r. Wright, 4 Johns. (X. Y.) 75; Jackson v. Lunn, 3 Johns. Cas. (X. Y.) 109. South Carolina. — Duncan r. Beard, 2 Xott & M. (S. C.) 400: Love p. Hadden, 3 Brev. (S. C.) 1; Megrath v. Robertson, 1 Desauss. (S. C.) 445. Virginia. — Fiott r. Com., 12 Gratt. (Va.) 564; Com. r. Bristow, 6 Call (Va.) 60; Fox- well v. Craddock, 1 Patt. & H. (Va.) 250. United States. — Shanks v. Dupont, 3 Pet. (U. S.) 242, 7 L. ed. 666 {reversing Ex p. Dupont, Harp. Eq. IS. C.) 51] ; Hughes P.Ed- wards, 9 Wheat. (U. S.) 489, 6 L. ed. 142; Craig v. Radford, 3 Wheat. (U. S.) 594, 4 L. ed. 467 ; Harden v. Fisher, 1 Wheat. (U. S.) 300, 4 L. ed. 96. Under the treaty of 1783 with the King- dom of Prussia see People r. Gerke, 5 Cal. 381: Wilcke v. Wileke, 102 Iowa 173, 71 X. W. 201 : Doehrel v. Hillmer, 102 Iowa 169, 71 X. W. 204: Stamm v. Bostwiek, 40 Hun (X. Y.) 35; Matter of Beck, 2 Connoly Surr. (X. Y.) 355, 11 X. Y. Suppl. 199, 31 X. Y. St- 965 : Hart v. Hart, 2 Desauss. ( S. C. ) 57. Under the treaty of 1783 with the King- dom of Sweden see Adams v. Akerlund, 168 111. 632, 48 X. E. 454; Meier v. Lee, 106 Iowa 303. 76 X. W. 712. Under the treaty of 1844 with the King- dom of Wiirtemberg see Scharpf v. Schmidt, 172 111. 255, 50 X. E. 182; Kull r. Kull, 37 Hun (X. Y.) 476: Wieland r. Renner, 65 How. Pr. (X. Y.) 245. Under the treaty of 1848 with the Repub- lic of Mexico, known as the treaty of Guada- Vol. II lupe Hidalgo, see Baldwin v. Goldfrank, 88 Tex. 249, 31 S. W. 1064. Under the treaty of 1832 with the Russian Empire see Mavnard c. Maynard, 36 Hun (X. Y.) 227. Under the treatv of 1782 with the States- General of the United Xetherlands see Uni- versity Trustees v. Miller, 14 X. C. 188. Under the treaties of 1848, 1850, and 1855 with the Swiss Confederation see Jost v. Jost, 1 Mackey (D. C.) 487; Yeaker v. Yeaker, 4 Aletc. (Ky.) 33, 81 Am. Dec. 530; Hauenstein v. Lynham, 100 U. S. 483, 25 L. ed. 628 [.re- versing 28 Gratt. (Va.) 62]. For vested rights as affected by treaties see McGregor v. Comstock, 16 Barb. (X. Y.) 427 [affirmed in 17 X. Y. 162] : Chae Chan Ping v. U. S., 130 U. S. 581, 9 S. Ct. 623, 32 L. ed. 1068; Societv, etc. r. Xew Haven, 8 Wheat. (U. S.) 464. 5 L. ed. 662: Harden v. Fisher, 1 Wheat. (U. S.) 300, 4 L. ed. 96. 57. United States.— 29 U. S. Stat, at L. c. 618, U. S. Rev. Stat. Suppl. (1899), p. 573, c. 618 [amending 24 U. S. Stat, at L. c. 340, U. S. Rev. Stat. Suppl. (1891), p. 556, c. 340], defining and regulating the rights of aliens to hold and own real estate in the territories. See Beard v. Rowan, 1 Mc- Lean (U. S.) 135, 2 Fed. Cas. Xo. 1,181, con- struing the meaning of the words, "Who shall have resided within the state two years," with reference to the persons benefited by the statute. 58. Nearly all the states have provisions regulating the rights of aliens. Anderson L. Diet.: Rapalje & L. L. Diet. See 2 Cent. Dig. tit. "Aliens," § 33 et seq.; and infra, notes 59-64. Alabama. — All disabilities removed. Ala. Const. (1875), art. 1, § 36: Ala. Civ. Code (1896), § 419. See Xierosi v. Phillipi, 91 Ala. 299. 8 So. 561 ; Etheridge v. Malempre, 18 Ala. 565. Arizona. — Ariz. Rev. Stat. (1887), § 1472, removing liabilities so as to extend same privileges to aliens as our citizens have in the alien's country. See supra, note 57, for United States statutes. Arkansas. — All disabilities removed. San- dels & H. Dig. Ark. (1894), § 247. California.— Aliens may take, hold, and dispose of real property; and they may also take by succession ; but a non-resident alien taking by succession must appear and claim the property within five years, etc. The alien- age of a relative does not preclude persons who might otherwise succeed to an estate un- der the statute of descent. Cal. Civ. Code (1897), §§ 671, 1404. See Blvthe v. Hinck- ley, 127 Cal. 431, 59 Fac. 787; State v. Smith, 70 Cal. 153, 12 Pac. 121 : Matter of Billings, 65 Cal. 593, 4 Pac. 639; Griffith v. Godey, 113 U. S. 89, 5 S. Ct. 383, 28 L. ed. 934. Colorado. — All disabilities removed. Mills' Anno. Stat. Suppl. Colo. (1896), § 100; Mills' Anno. Stat. Colo. ( 1891 ) , § 99. Connecticut. — Any alien resident of the United States, any citizen of France (so long as the same right is accorded to the citizens ALIEN'S 99 fied by statute or treaty. Arising out of the interpretation of such treaties of the United States by France), may pur- chase, hold, inherit, or transmit real estate as fully as native-born citizens. Other non-resi- dent aliens can hold and transmit lands only for quarrying or mining purposes. Conn. Gen. Stat. (1888), § 15. Delaware. — A resident alien, having de- clared his intention to become a citizen of the United States, may take real property by deed or will, and hold and alienate it. Del. Rev. Stat. (1893), p. 617, c. 81, § 1. Conveyances and devises of lands made before Feb. 1, 1893, to persons then aliens, vest the same title in them as if they had been naturalized. Del. Laws (1893), c. 769. District of Columbia. — The principal rights of aliens are regulated by the act of congress of March 3, 1887, the act of Maryland of 1791 (see Spratt v., Spratt, 4 Pet. (U. S.) 393, 7 L. ed. 897; Spratt v. Spratt, 1 Pet. (U. S.) 343, 7 L. ed. 171), and by 11 & 12 Wm. Ill, c. 6 (see McCreery v. Somerville, 9 Wheat. (U. S.) 354, 6 L. ed. 109; U. S. Rev. Stat. (1878), § 1068). See also 25 U. S. Stat, at L. c. 30, U. S. Rev. Stat. Suppl. (1891), p. 582, e. 30; 24 U. S. Stat, at L. c. 340, U. S. Rev. Stat. Suppl. (1891), p. 556, c. 340. Florida. — All disabilities removed. Fla. Const. (1887), Declaration of Rights, § 18. Georgia. — All disabilities removed as to the subjects of governments at peace with the United States. 2 Ga. Code (1895), § 1816. Idaho. — Ida. Laws (1891), pp. 108, 118; Ida. Laws (1899), p. 98. Illinois. — The matter is regulated in this state by the act of May 14, 1897, which re- pealed the act of 1887. This act, among other things, allows aliens to hold land for six years. 111. Rev. Stat. (1899), c. 6. Indiana. — Disabilities practically removed, except in certain specified cases. Thornton's Stat. Ind. (1897), § 3451 et seq. Indian Territory. — Aliens may remain in the territory but can acquire and hold only lots and parcels of lands in town-sites; the widow of an alien is entitled to dower. Car- ter's Stat. Ind. Terr. (1889), § 1860. Alien- age of ancestor in line of descent is no bar. Carter's Stat. Ind. Terr. (1889), § 1825. Iowa. — By Iowa Const, art. 1, § 22, resi- dent aliens are given the same rights as na- tive-born citizens. By Iowa Code, tit. 14, c. 1, non-resident aliens are prohibited from acquiring title to or holding real estate, cer- tain exceptions being enumerated. See Purc- zell v. Smidt, 21 Iowa 540. Kansas. — See Kan. Laws (1891), c. 3, § 1. Resident aliens who have declared intention of becoming citizens, or bona fide resident fe- male aliens, may take and hold for six years. Dassler's Gen. Stat. Kan. (1899), §§ 99, 1194-1202. Kentucky. — In case of an alien not an enemy, and who has declared his intention to become a citizen of the United States, all dis- abilities removed; resident alien may take and hold for actual residence, occupation, or business for twenty-one years; non-resident alien may take by descent or devise, but must alienate within eight years, and within that period he may transmit title to it by de- scent or devise. Barbour & C. Stat. Ky. (1894), §§ 334, 337, 338, 339. See Com. v. Neweomb, (Ky. 1900) 58 S. W. 445. Maine. — All disabilities removed. Me. Rev. Stat. (1883), c. 73, § 2. Maryland. — All friends may take and dis- pose of property in same manner as native- born citizens. Md. Code (1888), art. 3, § 1. Massachusetts. — Aliens may hold and con- vey real estate as citizens. Mass. Pub. Stat. (1882), e. 126, § 1. Michigan. — Aliens hold and transmit real estate as citizens; alien woman not barred of dower. Mich. Comp. Laws (1897), §§ 9258, 9259, 8938; Mich. Const, art. 18, § 13. Minnesota. — Restrictions removed as to resident aliens who have declared intent to become citizens, and as to actual farm set- tlers; other aliens may take and transmit plats not exceeding three hundred feet square in incorporated city. Minn. Stat. (1894), §§ 5874, 5875; Minn. Laws (1897), p. 197; Minn. Laws (1889), p. 210; Minn. Laws (1887), p. 323. Mississippi. — All disabilities removed as to resident aliens; non-resident aliens may take liens on lands, purchase at foreclosure, and have a good title for twenty years. Miss. Anno. Code (1892), § 2439. Missouri. — Aliens who have not declared their intention to become citizens cannot hold real estate except such as acquired by inher- itance, or as security for obligations. Mo. Rev. Stat. (1889), § 342. See Burke v. Adams, 80 Mo. 504, 50 Am. Rep. 510. Montana. — Resident aliens may take by succession as citizens, and alienage of relative in line of descent is not a bar. Non-resi- dent aliens must appear and claim succession within five years, etc. No provisions as to conveyance inter vivos. Mont. Civ. Code (1895), §§ 1867, 1868. See Territory v. Lee, 2 Mont. 124. Nebraska. — No distinction shall ever be made between resident aliens and citizens, in reference to the possession, enjoyment, or de- scent of property. Nebr. Const, art. 1, £ 25. Non-residents, in general, are unable to take or hold, except those owning lands on March 16, 1899, who may dispose of them during their life, and aliens purchasing land for manufacturing purposes. Nebr. Comp. Stat. (1895), § 4161. Nevada. — All disabilities removed, except as to Chinese. Nev. Comp. Laws (1900), § 2725. New Hampshire. — All disabilities removed as to resident aliens ; special rights given to resident wife of non-resident alien; escheats of resident alien's property discharged. N. H. Pub. Stat. (1901), c. 137, §§ 16, 17; c. 176, § 8. New Jersey. — All disabilities removed. N. J. Gen. Stat. (1895), p. 23. See Colgan v. McKeon, 24 N. J. L. 566, construing the term "heirs," used in the statute. Vol. II 100 ALIENS and the construction of such statutes — many of which have now been repealed New Mexico. — All disabilities removed. N. M. Comp. Laws ( 1897 ) , § 3936. See supra, note 57, for United States statutes. ' New York. — The rights of aliens are gov- erned by various statutes, modifying the com- mon law. Resident aliens who have declared intention to remain residents of United States and citizens thereof may, for six years there- after, take, hold, convey and devise real prop- erty. N. Y. Laws (1897), c. 756. See also Birdseye's Eev. Stat. N. Y. (1896), p. 2601 et seq. for other provisions relating to an alien's real property rights. See Ettenheimer r. Heffernan, 66 Barb. (X. Y.) 374; Cumber- land v. Graves, 9 Barb. (X. Y.) 595. ~Sorth Carolina. — All disabilities removed. N. C. Code (1883), § 7. Xorth Dakota. — All disabilities removed ; alienage of relative in chain of title no bar. N. D. Eev. Codes (1899), §§ 3277, 3758". Ohio. — All disabilities removed ; alienage of ancestors no bar. Bates' Anno. Stat. (1900), § 4173. Oklahoma. — All disabilities removed. Okla. Laws (1897), e. 8, «§ 1, 36. Oregon. — All disabilities removed. Hill's Anno. Laws Oreg. (1892), § 2988. Pennsylvania. — Aliens may buy lands to not exceeding five thousand acres or twenty thousand dollars in annual income, and hold the same as citizens. Aliens may take by de- scent or devise, without limit. Conveyance before escheat by office found passes good title. 1 Pepper & L. Dig. Pa. p. 119, § 11. See 1 Brightly Purd. Dig. Pa. (1894), p. 9. Rhode Island. — All disabilities removed. E. I. Gen. Laws (1896), c. 201, § 4. South Carolina.— S. C. Civ. Stat. (1893), §§ 1879, 1880, 1981, 1982. South Dakota. — All disabilities removed. Grantham's Anno. Stat. S. D. (1899), §§ 3598, 4606. Tennessee. — All disabilities removed, and escheats abolished. Tenn. Anno. Code (1896), §§ 3659-3662. Texas.— Sayles' Tex. Civ. Stat. (1897), arts. 10 et seq., 1701. See Hanrick v. Han- rick, 63 Tex. 618, 61 Tex. 596, 54 Tex. 101; Sabriego r. White, 30 Tex. 576. Utah. — All disabilities removed; agent may be appointed to represent non-resident alien. Utah Eev. Stat. (1898), §§ 2847, 3970-3972. Vermont. — No laws have been passed re- stricting aliens' right to hold real estate; and the state has practically never attempted to enforce any right of escheat, although it may strictly have such a power. State r. Boston, etc.. E. Co., 23 Vt. 433. Virginia. — All disabilities removed as to alien friends. Ya. Code (1887), § 43. Washington. — Aliens other than those who have, bona fide, declared intentions to become citizens of United States are prohibited from holding lands, except such as are acquired by inheritance, under mortgage, or in ordinary collection of debt ; conveyances made other- wise to aliens are void. A corporation whose stock is held by aliens is declared to be an alien corporation. Lands containing valu- Vol. II able deposits of mineral, ores, or fire-clay are not covered by these restrictions. Cor- porations of which majority of stock is owned by aliens is made an alien for this purpose. Wash. Const, art. 2, § 33. Stat- utes passed after the adoption of the consti- tution [Ballinger's Codes & Stat. Wash. (1897), §§ 4548-4552] removed all disabili- ties except so far as the constitution makes that impossible. West Virginia. — All disabilities removed as to alien friends. W. Va. Code (1899), c. 70: W. Va. Acts (1872), c. 48; W. Va. Acts (1892), c. 56. Wisconsin. — All disabilities removed as to resident aliens; restrictions on non-resident aliens. An alien widow is not barred of dower. Wis. Stat. (1898), §§ 2200, 2200a, 2201, 2160. Wyoming. — All disabilities removed as to resident aliens. Wyo. Const, art. 1, § 29. British Columbia. — All disabilities removed and titles then existing not to be affected by having come through alien. Eev. Stat. (1897), c. 6. Manitoba. — All disabilities removed. Eev. Stat. (1891), c. 3. Ontario. — All disabilities, past and future, removed, except that no rights vested prior to Nov. 23. 1849, should be impaired or affected. Eev. Stat. (1897), u. 118. Quebec. — Corse v. Corse, 4 L. C. Eep. 310, construing 12 Vict. e. 197. Authority of state to pass enabling acts has been expressly upheld. Etheridge v. Malempre, 18 Ala. '565; State v. Smith, 70 Cal. 153, 12 Pac. 121; State r. Eogers, 13 Cal. 159; Montgomery v. Dorion. 7 N. H. 475: Beard v. Eowan, 1 McLean (L T . S.) 135, 2 Fed. Cas. No. 1,181. Provisions in the state constitutions are strictly construed as respects their taking away from the legisla- ture the right to regulate this subject-matter, so that grants in the constitution, or a clause prohibiting the taking away of certain rights, will not be construed as preventing the con- ference of additional rights or privileges upon aliens. State v. Smith, 70 Cal. 153, 12 Pac. 121: Matter of Billings, 65 Cal. 593, 4 Pac. 639 : State v. Eogers, 13 Cal. 159 ; Purc- zell t-. Smidt, 21 Iowa 540. Conditions, compliance with which is re- quired to enable the alien to take advantage of its provisions, are often incorporated in the enabling act, such as: That the alien must appear and claim his inheritance. State r. Smith, 70 Cal. 153, 12 Pac. 121. That the alien must be a resident. Norris ?\ Hovt. 18 Cal. 217: Siemssen r. Bofer, 6 Cal. 250: Fu- renes v. Mickelson, 86 Iowa 508. 53 N. W. 416; Yeaker r. Yeaker, 4 Mete. (Ky.) 33, 81 Am. Dec. 530; Louisville r. Gray, 1 Litt. (Kv.) 146: Utassv r. Giedinsrhasren, 132 Mo. 53. 33 S. W. 444: State v. Preble, 18 Nev. 251 ; Larreau v. Davignon, 5 Abb. Pr. N. S. (N. Y.) 367; McClenasrhan v. McCTenaghan, 1 Strobh. Eq. (S. C.) 295, 47 Am. Dec. 532; Sullivan 7-. Burnett, 105 U. S. 334, 26 L. ed. 1124. That the alien must become a citizen, ALIENS 101 or modified — there are various decisions, in the reports of the United States or dispose of his property within a certain time. McCarty v. Deming, 4 Lans. (N. Y.) 440; Richards v. McDaniel, 2 Mill (S. C.) 18; Wiederanders v. State, 64 Tex. 133; Han- rick v. Hanrick, 61 Tex. 596; Andrews v. Spear, 48 Tex. 567; Barclay v. Cameron, 25 Tex. 232; Hanrick v. Patrick, 119 U. S. 156, 7 S. Ct. 147, 30 L. ed. 396. That the alien must have declared his intention of becoming a naturalized citizen. State v. Beackmo, 8 Blackf. (Ind.) 246; Hall v. Hall, 81 N. Y. 130; McKellar v. MeKellar, 1 Speers (S. C.) 536; Sullivan v. Burnett, 105 U. S. 334, 26 L. ed. 1124. [But see Dusenberry v. Dawson, 9 Hun (N. Y.) 511; Smith v. Reilly, 31 Misc. (N. Y.) 701, 66 N. Y. Suppl. 40]. That the alien must not demise or charge with rent the property. Ellice v. Winn, 12 Wend. (N. Y.) 342; Troup v. Mullender, 9 Johns. (N. Y.) '303. [But see Jackson v. Britton, 4 Wend. (N. Y.) 507]. That the alien must take possession of his property within a cer- tain time. Hornsby v. Bacon, 20 Tex. 556; Blythe v. Easterling, 20 Tex. 565 ; McKinney v. Saviego, 18 How. (U. S.) 235, 15 L. ed. 365. That the alien's intestate must have left no citizen heirs. Burnett 'J. Noble, 8 Rich. Eq. (S. C.) 58. That the conveyance to the alien must be made and recorded within a certain time. People v. Snyder, 41 N. Y. 397. That the alien cannot transmit by de- scent to resident aliens. Larreau v. Davig- non, 5 Abb. Fr. N. S. (N. Y.) 367; Branagh v. Smith, 46 Fed. 517. Interpretation of such statutes. — Enabling acts are not extraterritorial when granting rights to non-resident aliens. State v. Smith, 70 Cal. 153, 12 Pac. 121. Exceptions should not, be construed so as to include other per- sons than those specifically designated. Mo- bile Cong. Church v. Morris, 8 Ala. 182; Wun- derle v. Wunderle, 144 111. 40, 33 N. E. 195, 19 L. E. A. 84 [citing Luhrs v. Eimer, 80 N. Y. 171]; Doe v. Lazenby, 1 Ind. 234. As to when such acts should be considered as operating — retrospectively, prospectively, or both retrospectively and prospectively — see: Illinois. — Meadowcroft v. Winnebago County, 181 111. 504, 54 N. E. 949. Kentucky. — Com. v. Newcomb, (Ky. 1900) 58 S. W. 445. New Jersey. — Colgan v. McKeon, 24 N. J. L. 566. New York.— Hall v. Hall, 81 N. Y. 130; Wainwright v. Low, 57 Hun (N. Y.) 386, 10 N. Y. Suppl. 888, 32 N. Y. St. 1044; Heeney v. Brooklyn Benev. Soc, 33 Barb. (N. Y.) 360; Brown v. Sprague, 5 Den. (N. Y.) 545. Texas.— Warnell v. Finch, 15 Tex. 163. United States. — U. S. v. Jung Ah Lung, 124 U. S. 621, 8 S. Ct. 663, 31 L. ed. 591; Chew Heong v. V. S., 112 U. S. 536, 5 S. Ct. 255, 28 L. ed. 770; Airhart v. Massieu, 98 U. S. 491, 25 L. ed. 213; Beard V. Rowan, 9 Pet. (U. S.) 301, 9 L. ed. 135. See 2 Cent. Dig. tit. " Aliens," § 42. For dowei and curtesy rights of aliens as affected by statute see supra, IV, C, 1, b, (m). Acts restricting the rights of aliens have been passed in some states, the interpretation and effect of which have been the subject of adjudication. District of Columbia. — Johnson v. Elkins, 1 App. Cas. (D. C.) 430, construing an act prohibiting aliens from acquiring land in the District of Columbia. Illinois. — Scharpf r. Schmidt, 172 111. 255, 50 N. E. 182; De Graff v. Went, 164 111. 485, 43 N. E. 1075; Ryan v. Egan, 156 111. 224, 40 N. E. 827; Beavan v. Went, 155 111. 592, 41 N. E. 91, 31 L. R. A. 85; Sehaefer v. Wun- derle, 154 111. 577, 39 N. E. 623 ; Schultze v. Schultze, 144 111. 290, 33 N. E. 201, 36 Am. •St. Rep. 432, 19 L. R. A. 90; Wunderle v. Wunderle, 144 111. 40, 33 N. E. 195, 19 L. R. A. 94 — construing an act prohibiting aliens from taking lands by devise, or otherwise, ex- cept under certain circumstances. Iowa. — Burrow v. Burrow, 98 Iowa 400, 67 N. W. 287; Easton v. Huott, 95 Iowa 473, 64 N. W. 408, 31 L. R. A. 177; Furenes v. Mickelson, 86 Iowa 508, 53 N. W. 416 — con- struing an act prohibiting non-resident aliens from holding lands by descent, devise, pur- chase, or otherwise, except under certain con- ditions. See also King v. Ware, 53 Iowa 97, 4 N. W. 858, construing an act prohibiting non-resident children from inheriting land. Kansas.— Smith v. Lynch, 61 Kan. 609, 60 Pac. 329, construing the Kansas alien land act. Maine. — Boies v. Blake, 13 Me. 381, con- struing an act prohibiting any alien from purchasing, cutting, or carrying away trees, timber or grass growing on certain Indian lands. Missouri. — Harney v. Donohoe, 97 Mo. 141, 10 S. W. 191, construing an act prohibiting non-resident aliens of the United States from acquiring title by descent or purchase. New York. — Marx v. MeGlynn, 88 N. Y. 357; Wadsworth v. Wadsworth, 12 N. Y. 376 ; Van Cortlandt v. Laidley, 59 Hun (N. Y.) 161, 11 N. Y. Suppl. 148, 32 N. Y. St. 585; Beck v. McGillis, 9 Barb. (N. Y.) 35; Mick v. Mick, 10 Wend. (N. Y.) 379 — construing an act declaring void devises to aliens. Nebraska. — Carlow v. Aultman, 28 Nebr. 672, 44 N. W. 873, construing an act pro- hibiting non-resident aliens from holding land within the state. North Carolina. — Rutherford v. Wolfe. 10 N. C. 272, construing an act prohibiting alien relatives from inheriting. Texas.— Baker v. Westeott, 73 Tpx. 129. 11 S. W. 157; Barclay v. Cameron, 25 Tex. 232— construing an act of the Republic of Texas providing that no alien shall hold land in Texas, except upon certain conditions. See also Gray v. Kauffman, 82 Tex. 65, 17 S. W. 513. Washington. — State v. Hudson Land Co., 19 Wash. 85, 52 Pac. 574, 40 L. R. A. 430; State v. Morrison, 18 Wash. 664, 52 Pac. 228, — construing Wash. Const, art. 2, § 33, pro- hibiting ownership of lands by aliens, etc. 5 United States. — Airhart v. Massieu, 98 U. S. 491, 25 L. ed. 213, construing the con- Vol. II 102 ALIENS and of the different states, discussing, defining and fixing the rights of aliens to take title to land by either descent, 59 or by act of the parties, as Btitution of the Republic of Texas; Brigham v. Kenyon, 76 Fed. 30, construing Wash. Const, art. 2, § 33 [see supra, Washington cases] ; Ware v. Wisner, 50 Fed. 310, constru- ing an Iowa act prohibiting non-resident aliens from taking lands by descent or de- vise [see supra, Iowa cases]. See 2 Cent. Dig. tit. " Aliens," § 30 et seq. Such acts are not retroactive. Johnson v. Elkins, 1 App. Cas. (D. C.) 430. A lease of lands to an alien for forty-nine years is void under the constitutional pro- hibition against alien ownership of lands, since such persons cannot be allowed to ac- complish indirectly that which they are for- bidden to do directly. State v. Hudson Land Co., 19 Wash. 85, 52 Pac. 574, 40 L. R. A. 430 ; State v. Morrison, 18 Wash. 664, 52 Pac. 228, where the term of the lease was for ninety-nine years. 59. As to alien's right to inherit as af- fected by treaty see: California. — Blythe v. Hinckley, 127 Cal. 431, 59 Pac. 787; People v. Gerke, 5 Cal. 381. District of Columbia. — De GeofFroy v. Riggs, 7 Mackey (D. C.) 331; Jost v. Jost, 1 Mackey (D. C.) 487. Illinois. — Scharpf v. Schmidt, 172 111. 255, 50 X. E. 182; Adams v. Akerlund, 168 111. 632, 48 X. E. 454; Schultze v. Schultze, 144 111. 290, 33 N. E. 201, 36 Am. St. Rep. 432, 19 L. R. A. 90; Wunderle v. Wunderle, 144 HI. 40, 33 X. E. 195, 19 L. R. A. 84. Iowa. — Meier v. Lee, 106 Iowa 303, 76 X. W. -712 ; Wilcke v. Wilcke, 102 Iowa 173, 71 X. W. 201 ; Doehrel v. Hillmer, 102 Iowa 169, 71 X. W. 204; Opel v. Shoup, 100 Iowa 407, 69 X. W. 560, 37 L. R. A. 583. Kentucky. — Yeaker v. Yeaker, 4 Mete. (Ky.) 33, 81 Am. Dec. 530. New York. — Bollermann r. Blake, 94 X. Y. 624, 24 Hun (ST. Y.) 187; Munro v. Mer- chant, 28 X. Y. 9; Kull v. Kull, 37 Hun (X. Y.) 476; Wieland v. Renner, 65 How. Pr. (X. Y.) 245; Orser v. Hoag, 3 Hill (N. Y.) 79; Jackson v. Wright, 4 Johns. (X. Y.) 75; Matter of Beck, 2 Connoly Surr. (X. Y.) 355, 11 X. Y. Suppl. 199, 31 X. Y. St. 965. North Carolina. — University Trustees v. Miller, 14 X. C. 188. South Carolina. — Duncan v. Beard, 2 Xott & M. (S. C.) 400; Megrath v. Robertson, 1 Desauss. (S. C.) 445. United States. — De Geofroy v. Riggs, 133 U. S. 258, 10 S. Ct. 295, 33 L. ed. 642 [re- versing 7 Mackey (D. C.) 331]; Hauenstein l\ Lynham, 100 U. S. 483, 25 L. ed. 628 [.re- versing 28 Gratt. (Va.) 62] ; Shanks v. Dupont, 3 Pet. (U. S.) 242, 7 L. ed. 666 [reversing Ex p. Dupont, Harp. Eq. (S. C.) 5]; Blight v. Rochester, 7 Wheat. (U. S.) 535, 5 L. ed. 516; Orr v. Hodgson, 4 Wheat. (U. S.) 453, 4 L. ed. 613; Chirac v. Chirac, 2 Wheat. (U. S.) 259, 4 L. ed. 234; Bahuaud r. Bize, 105 Fed. 485; Fisher v. Harnden, 1 Paine (U. S.) 55, 9 Fed. Cas. Xo. 4,819. See 2 Cent. Dig. tit. " Aliens," § 47 et seq. ; and see also supra, note 56. Vol. n Statutes empowering aliens to take by de- scent are construed, discussed, or referred to in the following cases: Alabama.— Etheridge v. Malempre, 18 Ala. 565; Bartlett r. Morris, 9 Port. (Ala.) 266. Arkansas.— Jones v. Minogue, 29 Ark. 63 1. California.— Blythe v. Hinckley, 12 1 Cal. 431, 59 Pac. 787; People v. Roach, 76 Cal. 294^ 18 Pac. 407 : State v. Smith, 70 Cal. 153, 12 Pac. 121 ; Matter of Leopold, 67 Cal. 385, 7 Pac. 766; Matter of Guilford, 67 Cal. 380, 7 Pac. 763 ; Matter of Billings, 65 Cal. 593, 4 Pac. 639; State V. Rogers, 13 Cal. 159; Siems- sen v. Bofer, 6 Cal. 250, construing a provi- sion in the constitution. Illinois. — Adams v. Akerlund, 168 111. 632, 48 X. E. 454. Indiana.— State v. Witz, 87 Ind. 190 ; Mur- ray v. Kelly, 27 Ind. 42. Iowa.— Wilcke v. Wilcke, 102 Iowa 173, 71 X. W. 201 ; Furenes v. Mickelson, 86 Iowa 508, 53 X. W. 416; King v. Ware, 53 Iowa 97, 4 X. W. 858. Kentucky. — Eustaehe v. Rodaquest, 11 Bush (Ky.) 42; Louisville v. Gray, 1 Litt. (Ky.) 146. Louisiana. — Sala's Succession, 50 La. Ann. 1009, 24 So. 674. Massachusetts. — Lumb v. Jenkins, 100 Mass. 527; Palmer v. Downer, 2 Mass. 179 note, construing 11 & 12 Wm. Ill, c. 6. Missouri. — Utassy r. Giedinghagen, 132 Mo. 53, 33 S. W. 444: Burke v. Adams, 80 Mo. 504, 50 Am. Rep. 510. New Hampshire. — Montgomery v. Dorion, 7 X. H. 475. New Jersey. — Colgan r. McKeon, 24 X. J. L. 566; Yeo v. Mercereau, 18 X. J. L. 387. New York. — Wainwright v. Low, 132 X. Y. 313, 30 X. E. 747; Stamm v. Bostwick, 122 X. Y. 48, 25 X. E. 233, 9 L. R. A. 597 [af- firming 40 Hun (X. Y.) 35]; Goodrich v. Russell, 42 X. Y. 177 ; Wright v. Saddler, 20 X. Y. 320 ; McCarthv v. Marsh, 5 X. Y. 263 : Callahan v. O'Brien, 72 Hun (X. Y.) 216, 25 X. Y. Suppl. 410, 55 X. Y. St. 201 ; Daly v. Beer, 57 Hun (X. Y.) 590, 10 X. Y. Suppl. 893, 32 X. Y. St. 1064; McCarty v. Terry, 7 Lans. (X. Y.) 236 : Heenev r. Brooklyn Benev. Soc, 33 Barb. (X. Y.) 360; Parish v. Ward, 28 Barb. (X. Y.) 328; Redpath v. Rich, 3 Sandf. (X. Y.) 79; Xolan v. Command, 11 X. Y. Civ. Proc. 295; Larreau v. Davignon, 5 Abb. Pr. X. S. (X. Y.) 367; People v. Irvin, 21 Wend. (X. Y.) 128: Jackson v. FitzSim- mons. 10 Wend. (X. Y.) 9, 24 Am. Dec. 198; Jackson i. Adams, 7 Wend. (X. Y.) 367; Jackson v. Lyon, 9 Cow. (X. Y.) 664; Banks r. Walker, 3 Barb. Ch. (X. Y.) 438; Kilfoy r. Powers, 3 Dem. Surr. (X. Y.) 198. Rhode Island-. — De Wolf v. Middleton, 18 R. I. 814, 26 Atl. 44, 31 Atl. 271, 31 L. R. A. 146. South Carolina. — Keenan v. Keenan, 7 Rich. (S. C.) 345; Ford r. Husman, 7 Rich. (S. C.) 165; Burnett v. Xoble, 8 Rich. Eq. (S. C.) 58; Richards v. McDaniel, 2 Mill (S. C.) 18. ALIEN'S 103 by purchase 60 or devise, 61 and to transmit the title, so acquired and taken, Tennessee. — Garretson v. Brien, 3 Heisk. (Tenn.) 534. Texas. — Hanrick v. Gurley, 93 Tex. 458, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330 [fol- lowing Hanrick v. Patrick, 119 U. S. 156, 7 S. Ct. 147, 30 L. ed. 396; Hanrick v. Hanrick, 63 Tex. 618; Hanrick v. Hanrick, 61 Tex. 596] ; Gray v. Kauffman, 82 Tex. 65, 17 S. W. 513; Andrews v. Spear, 48 Tex. 567; Portia v. Hill, 30 Tex. 529, 98 Am. Dec. 481; Bar- clay v. Cameron, 25 Tex. 232; Wardrup v. Jones, 23 Tex. 489; Hornsby v. Bacon, 20 Tex. 556, construing constitution of the Re- public of Texas. Virginia. — Hannon v. Hounihan, 85 Va. 429, 12 S. E. 157; Jacksons v. Sanders, 2 Leigh (Va.) 109. United States. — Hanrick v. Patrick, 119 U. S. 156, 7 S. Ct. 147, 30 L. ed. 396- Sulli- van v. Burnett, 105 U. S. 334, 26 L. ed. 1124; McKinney v. Saviego, 18 How. (TJ. S.) 235, 15 L. ed. 365; Levy v. McCartee, 6 Pet. (U. S.) 102, 8 L. ed. 334; Spratt v. Spratt, 4 Pet. (U. S.) 393, 7 L. ed. 897; McCreery v. So- merville, 9 Wheat. (U. S.) 354, 6 L. ed. 109, ■construing 11 & 12 Wm. Ill, c. 6; Billings v. Aspen Min., etc., Co., 51 Fed. 338, 10 U. S. App. 1, 2 C. C. A. 252; Branagh v. Smith, 46 fed. 517; McConville v. Howell, 5 McCrary (U. S.) 319, 17 Fed. 104. England. — Doe v. Jones, 4 T. R. 300. Canada. — Rumrell v. Henderson, 22 TJ. C. ■C. P. 180; Leatherman v. Trow, 15 TJ. C. C. P. 578; Doe v. Maloney, 9 TJ. C. Q. B. 251. See 2 Cent. Dig. tit. " Aliens," § 33 et seq.; and also supra, note 58. Construction of acts. — To enable one to take advantage of a statute enabling aliens to take lands from a deceased person the stat- ute must have been complied with at the time of the decease of the intestate, which is the time with reference to which the rights of the parties are determined. If a person cannot inherit lands by reason of alienage of himself or another, a subsequent removal of the dis- qualification will not vest the title in him. Smith v. Smith, 33 Barb. (N. Y.) 371 note. Authorizing aliens to hold real estate does not remove disability of aliens to inherit ; nor does a statute, enlarging the rights of heir- ship of aliens, remove their disability to "transmit title by descent. Bartlett v. Morris, 9 Port. (Ala.) 266. Nor does a statute re- moving disability, due to descent of title through alien ancestors, enable one to take by descent when title must be traced through alien ancestor of another. Banks v. Walker, 3 Barb. Ch. (N. Y.) 438. But the term " an- cestor " in an enabling act was held to include collaterals as well as lineals. McCarthy v. Marsh, 5 N. Y. 263. For right to take col- laterally through alien ancestor, as affected hy statute, see supra, IV, C, 1, b, (n). In an enabling act where an alien is re- quired to " appear and claim " land in order to take it, the word " appear " was held to include appearance by an attorney, although the wording was that the alien should appear. Matter of Guilford, 67 Cal. 380, 7 Pac. 763. So an assignee may " appear." Matter of Leopold, 67 Cal. 385, 7 Pac. 766. The law existing at the time of descent cast governs the right of aliens to inherit realty. Hauensteins v. Lynham, 28 Gratt. (Va.) 62; Pilla v. German School Assoc, 23 Fed. 700. But compare Jackson v. Lyon, 9 Cow. (N. Y.) 664; Jackson v. Skeels, 19 Johns. (N. Y.) 198, construing a special act. 60. For alien's right to purchase as af- fected by treaty see Adams v. Akerlund, 168 111. 632, 48 N. E. 454. See 2 Cent. Dig. tit. " Aliens," § 47 et seq. ; and also supra, note 56. Statutes empowering aliens to purchase real estate are construed, discussed, or re- ferred to in the following cases: Arkansas. — Jones v. Minogue, 29 Ark. 637. California. — Blythe v. Hinckley, 127 Cal. 431, 59 Pac. 787. Illinois. — Adams v. Akerlund, 168 111. 632, 48 N. E. 454. Iowa. — See Greenheld v. Stanforth, 21 Iowa 595 ; Purczell v. Smidt, 21 Iowa 540. Kansas. — An alien woman who in good faith has become a resident of the United States may, under Kan. Gen. Stat. (1897), c. 51, take a defeasible title in land and hold the same for a period of six years: and if, during that time, she complies with the pro- visions of the statute she may acquire an in- defeasible title in it as against an attack by the state or any other party. . Wuester v. Folin, 60 Kan. 334, 56 Pac. 490. Kentucky. — Com. v. Newcomb, (Ky. 1900) 58 S. W. 445. Nevada. — State v. Preble, 18, Nev. 251. New Jersey. — Yeo r. Mercereau, 18 N. J. L. 387. New York. — People v. Snyder, 41 N. Y. 397, 51 Barb. (N. Y.) 589; Cumberland p. Graves, 9 Barb. (N. Y.) 595: Renner v. Mul- ler, 57 How. Pr. (N. Y.) 229; Ellice r. Winn, 12 Wend. (N Y.j 342; Jackson v. Adams, 7 Wend. (N. Y.) 367. Oregon. — Lavery r. Arnold, 36 Oreg. 84, 58 Pac. 524, 57 Pac. 906. South Carolina. — McClenap-han v. McClena- ghan, 1 Strobh. Eq. (S. C.) 295, 47 Am. Dec. 532. United States.— Cross v. Del Valle, 1 Wall. (TJ. S.) 1, 17 L. ed. 515; Spratt r. Spratt, 1 Pet. (U. S.) 343, 7 L. ed. 171; Matthew v. Rae, 3 Cranch C. C. (U. S.) 699, 16 Fed. Cas. No. 9,284. Canada. — Doe r. Malonev, 9 U. C. Q. B. 251. See 2 Cent. Dig. tit. " Aliens," § 33 et seq. ; and also supra, note 58. In one case the word " conveyance " in such an act was held to include " release," and to cover sales, purchases, and conveyances in trust. Cumberland v. Graves, 9 Barb. (NY.) 595. 61. For alien's right to take by devise as affected by treaty see Adams r. Akerlund, 168 111. 632. 48 N. E. 454; Yeaker r. Yeaker, 4 Mete. (Ky.) 33, 81 Am. Dec. 530; Stamm v. Bostwick, 40 Hun (N. Y.) 35; Stephen v. Vol. II 104 ALIENS either by descent 62 or devise, 63 or to dispose thereof by conveyance or otherwise. 64 D. Actions against— 1. Civil. 65 Within the rule that a nation or state has jurisdiction over all persons 66 and property found within its territorial bounds, 67 Swarm, 9 Leigh (Va.) 404; Jackson v. Clarke, 3 Wheat. (U. S.) 1, 4 L. ed. 319. See 2 Cent. Dig. tit. " Aliens," § 47 et seq. ; and also supra, note 56. Statutes empowering aliens to take by de- vise are construed, discussed, or referred to in the following cases: Hatter of Guilford, 67 Cal. 380, 7 Pac. 763; Matter of Billings, 65 Cal. 593, 4 Pac. 639; Adams v. Akerlund, 168 111. 632, 48 X. E. 454; Eustache v. Roda- quest, 11 Bush (Ky.) 42; Stamm v. Bost- wick, 122 X. Y. 48, 25 X. E. 233, 9 L. R. A. 597; Hall v. Hall, 81 N. Y. 130; Wright v. Saddler, 20 N. Y. 320; Dusenberry v. Daw- son, 9 Hun (X. Y. ) 511; Wadsworth U.Mur- ray, 16 Barb. (X. Y.) 601 ; Fay r. Taylor, 31 Misc. (N. Y.) 32, 63 X. Y. Suppl. 572. See 2 Cent. Dig. tit. "Aliens," § 33 et seq. ; and also supra, note 58. A devise to alien trustees of lands held by an alien, under X. Y. Laws (1798), c. 72, " to enable aliens to purchase and hold real estate within this state," was held to be valid. Howard r. Moot, 64 X. Y. 262. 62. For alien's right to transmit by de- scent as affected by treaty see Brown v. Sprague, 5 Den. (N. Y. ) 545; Jackson v. Lunn, 3 Johns. Cas. (X. Y.) 109; Fiott v. Com. 12 Gratt. (Ya.) 564. See 2 Cent. Dig. tit. "Aliens," § 47 et seq. ; and also supra, note 56. Statutes empowering aliens to transmit by descent are construed, discussed, or referred to in the following cases: Cumberland r. Graves, 7 X. Y. 305; Parish r. Ward, 28 Barb. (X. Y.) 328; Larreau r. Davignon, 5 Abb. Pr. X. S. (X. Y.) 367, Sheld. (ST. Y.) 128; Branagh v. Smith, 46 Fed. 517. See 2 Cent. Dig. tit. ", Aliens," § 33 et seq. ; and also supra, note 58. 63. For alien's right to transmit by devise as affected by treaty see Crane !'. Reeder, 21 Mich. 24, 4 Am. Rep. 430; Watson v. Don- nelly, 28 Barb. (X. Y.) 653; Foxwell v. Crad- dock, 1 Patt. & H. (Va.) 250. See 2 Cent. Dig. tit. " Aliens," § 47 et seq. ; and also supra., note 56. Statutes empowering aliens to transmit by devise are construed, discussed, or referred to in the following cases : Dusenberry c. Daw- son, 9 Hun (X. Y.) 511: Richards i: Mc- Daniel, 2 Mill (S. C.) 18; Jackson v. Clarke, 3 Wheat. (U. S.) 1, 4 L. ed. 319. See 2 Cent. Dig. tit. " Aliens," § 33 et seq. ; and also supra, note 58. 64. For alien's right to convey, sell, or dis- pose of realty as affected by treaty see: California. — Matter of Leopold, 67 Cal. 385, 7 Pac. 766; Siemssen v. Bofer, 6 Cal. 250. Illinois. — Scharpf v. Schmidt, 172 HI. 255, 50 N. E. 182: Adams v. Akerlund, 168 111. 632, 48 N. E. 454, wherein it was held that the words " fonds et Mens,"— translated " goods and effects," — covered real estate as well as personal property. Vol. II Kentucky. — Yeaker r. Yeaker, 4 Mete. (Ky.) 33, 81 Am. Dec. 530. Michigan. — Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430. Yew York. — Kull v. Kull, 37 Hun (X. Y.) 476; People v. Snyder, 51 Barb. (X. Y.) 589; Watson v. Donnelly, 28 Barb. (X. Y.) 653; Wieland v. Renner, 65 How. Pr. (X. Y.) 245; Matter of Beck, 2 Connoly Surr. (X. Y.) 355, 11 X. Y. Suppl. 199, 31 X, Y. St. 965. South Carolina. — Love v. Hadden, 3 Brev. (S. C.) 1; Hart v. Hart, 2 Desauss. Eq. (S. C.) 57. Tennessee. — Baker v. Shy, 9 Heisk. (Tenn.) 85. Virginia. — Stephen v. Swann, 9 Leigh (Va.) 404. United States. — Hauenstein v. Lynham, 100 U. S. 483, 25 L. ed. 628; Carneal r. Banks, 10 Wheat. I U. S.) 181, 6 L. ed. 297; Chirac v. Chirac, 2 Wheat. (U. S.) 259, 4 L. ed. 234. See 2 Cent. Dig. tit. " Aliens," § 47 et seq. ; and also supra, note 56. Statutes empowering aliens to convey real estate are construed, discussed, or referred to in the following cases: Illinois. — Scharpf r. Schmidt, 172 111. 255, 50 X. E. 182 : De Graff v. Went, 164 111. 485, 45 X. E. 1075. Iowa. — Purczell r. Smidt, 21 Iowa 540. Xeic York. — Dusenberry v. Dawson, 9 Hun (X. Y.) 511; Cumberland v. Graves, 9 Barb. (X. Y.) 595; Aldrieh i. Manton, 13 Wend. (X. Y.) 458. South Carolina. — Richards v. McDaniel, 2 Mill (S. C.) 18. Washington. — - Oregon Mortg. Co. r. Car- stens, 16 Wash. 165, 47 Pac. 421, 35 L. R. A. 841. United States. — Sullivan r. Burnett, 105 U. S. 334, 26 L. ed. 1124, construing a Mis- souri statute; De Franca v. Howard, 21 Fed. 774, construing a Missouri statute; Matthew v. Rae, 3 Cranch C. C. (U. S.) 699. 16 Fed. Cas. Xo. 9,284, construing a Maryland act relating to the District of Columbia. See 2 Cent. Dig. tit. " Aliens," § 33 et seq.; and also sunra, note 58. 65. See 2 Cent. Dig. tit. "Aliens," § 61 et seq. 66. All persons who are found within the limits of government, whether their residence be permanent or temporary, are to be deemed so far citizens or subjects thereof as that the right of jurisdiction, civil and criminal, will attach to them. Molyneux r. Seymour, 30 Ga. 440, 76 Am. Dee. 662 [citing Story Conn. L., 5§ 539, 543, 550] : Peabody i\ Hamilton, 106 Mass. 217; State r. Bordentown, 32 N. J. L. 192; Johnson r. Dalton, 1 Cow. (X. Y.) 543, 13 Am. Dec. 564; The Schooner Exchange r McFaddon, 7 Cranch (TJ. S.) 116, 3 L. ed. 287. 67. Although the non-resident come not within the territorial limits of a state, still, ALIENS 105 an alien rnay be sued in the proper court — federal, state, or territorial 68 — in an action in personam whenever the court properly obtains jurisdiction of his person, 69 or in a proceeding in rem when the alien's property is within the jurisdiction of the court. 70 Thus an alien may be sued for an assault and bat- tery, 71 upon his contracts, wherever made, 73 as well as to recover property if he owns property there, this will give the local courts jurisdiction. Georgia. — Molyneux v. Seymour, 30 Ga. 440, 76 Am. Dec. 662 [citing Story Confl. L. §§ 539, 543, 550]. Maine. — Smith v. Eaton, 36 Me. 298, 58 Am. Dec. 746; Lovejoy v. Albee, 33 Me. 414, 54 Am. Dec. 630 [citing Story Confl. L. §§ 21, 539, 543, 546, 549, 550, 556 ; Bissell v. Briggs, 9 Mass. 462, 6 Am. Dec. 88 ; Borden v. Fitch, 15 Johns. (N. Y.) 121, 8 Am. Dec. 225; Pic- quet v. Swan, 5 Mason (U. S.) 35, 19 Fed. Cas. No. 11,134; Becquet «'. McCarthy, 2 B. & Ad. 951, 22 E. C. L. 398; Douglas v. Forrest, 4 Bing. 686, 13 E. C. L. 693J. New York. — Olcott v. Maclean, 10 Hun (N. Y.) 277. United States. — Pennoyer v. Neff, 95 TJ. S. 714, 24 L. ed. 565. England. — Anonymous, 1 Atk. 19; War- render v. Warrender, 9 Bligh N. S. 89. Canada. — Buffalo, etc., R. Co. v. Hemming- way, 22 U. C. Q. B. 562. Personal property has no locality other than that of the person having the same in possession, ownership, custody, or control. Molyneux v. Seymour, 30 Ga. 440, 76 Am. Dec. 662 [citing Story Confl. L. §§ 539, 543, 550]. 68. For courts having jurisdiction of ac- tions against aliens see Admiralty; Am- bassadors and Consuls; Courts. . 69. Jurisdiction may be acquired by ap- pearance of alien (Olcott v. Maclean, 73 N. Y. 223), or by personal service of process upon him (Russ_i>. Mitchell, 11 Fla. 80). But ex- traterritorial service of process upon alien de- fendants, who have not voluntarily appeared, is ineffectual to bring them within the juris- diction of the court, or make them parties to the suit. McHenry v. New York, etc., R. Co., 25 Fed. 65. See also, generally, Actions, III: Process. 70. Florida. — Russ v. Mitchell, 11 Fla. 80. Illinois. — Seymour v. Bailey, 66 III. 288. Maryland. — Field v. Adreon, 7 Md. 209. Maine— See Smith v. Eaton, 36 Me. 298, 58 Am. Dec. 746 [citing Lovejoy v. Albee, 33 Me. 414, 54 Am. Dec. 630]. Massachusetts. — Waugh v. Riley, 8 Mete. (Mass.) 290; Barrell v. Benjamin, 15 Mass. 354. Minnesota. — McNair v. Toler, 21 Minn. 175. Missouri. — Greenia v. Greenia, 14 Mo. 526. 'Nebraska. — People v. McClay, 2 Nebr. 7. Nevada. — See Courtney v. Turner, 12 Nev. 345. New York. — Olcott v. Maclean, 73 N. Y. 223; Overing v. Russell, 32 Barb. (N. Y.) 263; Clarke v. Morey. 10 Johns. (N. Y.) 69; Scott v. Thorpe, 1 Edw. (N. Y.) 512. North Carolina. — Rooker v. Crinkley, 113 N. C. 73, 18 S. E. 56. Texas. — Franco-Texan Land Co. v. Chap- tive, (Tex. 1886) 3 S. W. 31. Compare Lee v. Salinas, 15 Tex. 495. United States. — St. Luke's Hospital r>. Barclav, 3 Blatchf. (U. S.) 259, 21 Fed. Cas. No. 12,241. England. — Bouvier L. Diet, [citing Cal- vin's Case, 7 Coke 17]. Canada. — Buffalo, etc., R. Co. v. Hemming- way, 22 U. C. Q. B. 562. See 2 Cent. Dig. tit. "Aliens," § 65 et seq. Alien enemy may be sued. Seymour v. Bailey, 66 111. 288. See, generally, War. Arrest proceedings. — An alien passing through the jurisdiction may be arrested on a, capias ad respondendum upon a cause of action arising in a foreign country. In the absence of proof it will be assumed that the foreign law is the same as that here. Ma- caulay v. O'Brien, 5 Brit. Col. 510. A de- fendant cannot rely on a change of residence to a foreign country so as to avoid the law of arrest to which he was subject in this province at the time he incurred the debt upon which the action is brought, when that change of residence has been effected by a fraudulent flight to avoid arrest. Kerster- man v. MeLellan, 10 Ont. Pr. 122. See also, generally, Arrest. Attachment proceedings are within the rule that aliens may be sued. Olcott v. Maclean, 73 N. Y. 223; Field v. Adreon, 7 Md. 209, wherein it was held that an unnaturalized alien, residing and doing business in the state, is, for commercial purposes, a citizen, in contemplation of the attachment laws. See also, generally, Attachment; Garnish- ment. Within the rule allowing suits against aliens, it seems an alien may be sued by an- other alien. Roberts v. Knights, 7 Allen (Mass.) 449; Barrell v. Benjamin, 15 Mass. 354; Rea v. Hayden, 3 Mass. 24; Dewitt v. Buchanan, 54 Barb. (N. Y.) 31; Johnson v. Dalton, 1 Cow. (N. Y.) 543, 13 Am. Dec. 564; The Jerusalem, 2 Gall. (U. S.) 191, 13 Fed. Cas. No. 7,293, wherein it was held that the court may take jurisdiction of actions between non-resident foreigners, particularly in suits in rem, as in such suits the proper forum is the locus rei sit&. But see Montalet (-. Murray, 4 Cranch (U. S.) 46, 2 L. ed. 545, wherein it was held that, both parties being aliens, no suit can be instituted in the United States; and to the same effect see Dumoussay v. Delevit, 3 Harr. & M. (Md.) 151, where an action of replevin was abated on a plea that both par- ties were aliens, and the court therefore had not jurisdiction. 71. Dewitt v. Buchanan, 54 Barb. (N. Y.) 31, it appearing in this case that the assault had been committed in a foreign country. See, generally, Assault and Battery. 72. Barrell v. Benjamin, 15 Mass. 354. See also, generally, Contracts. Vol. II 106 ALIENS assigned by him, as a bankrupt, in -fraud of the bankruptcy act. 73 So it has been held that the alienage of a mortgagor is no defense to a writ of entry brought by the mortgagee to foreclose the equity of redemption. 74 The liability of an alien to be sued carries with it the right to use all the means and appliances of defense permitted to citizens who are sued. 75 He may employ an attorney to conduct his defense ; 76 he is also entitled to the benefit of bankruptcy laws, 77 exemption laws, 78 and may plead the statute of limitations. 79 2. Criminal. Aliens domiciled in a country owe a local and temporary alle- giance 80 to the government of that country. 81 They are bound to obey the general laws of the country, and may be prosecuted in criminal proceedings for violations of them. 83 Thus, it has been held that they might be prosecuted for homicide, 83 treason, 3 * or for disinterring and removing from the place of burial the remains of any deceased person without a permit. 85 Specific performance of a contract to pur- chase land may be decreed. Scott v. Thorpe, 1 Edw. (N. Y.) 512 (wherein it was held that alienage of defendant is no defense in such suits) ; Milliken v. Barrow, 55 Fed. 148. And it is not competent for a party who goes in under a contract to purchase to avail him- self of the defense of alienage. Williams v. Myers, 2 Nova Scotia Dec. 157. See also Harney v. Donohoe, 97 Mo. 141, 10 S. W. 191 ; Hepburn v. Dunlop, 1 Wheat. (U. S.) 179, 4 L. ed. 65, 3 Wheat. (U. S.) 231, 4 L. ed. 377. But compare Cutten v. McFarlane, 1 Nova Scotia Dec. 468, where it was held that plain- tiff, as an alien, being disqualified from tak- ing a bill of sale or transfer of a British ves- sel, under 17 & 18 Vict. c. 104, and the agree- ment sued on being an attempt to evade the statute, the agreement could not be enforced. See also, generally, Specific Performance. 73. Olcott v. Maclean, 73 X. Y. 223, hold- ing that alienage of defendant is no defense in such an action, where it appears that the suit was brought and the property attached in the state, and jurisdiction of defendant's person acquired by his personal appearance. See also, generally, Bankruptcy. 74. Waugh v. Riley, 8 Mete. (Mass.) 290. See also, generally, Mortgages. 75. Seymour v. Bailey, 66 111. 288. As against a mere naked trespasser an alien will be protected in the possession of his public lands the same, as a citizen. Courtney v. Turner, 12 Nev. 345. Jury medietate linguae. — Alien defendants are not entitled in the province of Nova Sco- tia, in any case, civil or criminal, to a jury de medietate Ungues. Beg. v. Burdell, 6 Nova Scotia 126. See infra, note 85. 76. Buss v. Mitchell, 11 Fla. 80; McNair i;. Toler, 21 Minn. 175. See also, generally, Attorney and Client. The court may appoint counsel to appear for, and defend a suit against, an alien. Russ v. Mitchell, 11 Fla. 80. 77. In re Boynton, 10 Fed. 277. See also, generally, Bankruptcy. 78. People v. McClay, 2 Nebr. 7, wherein it was held that a resident alien, whose family is not in this state, is as much entitled to the benefit of the law giving exemption from sale of his personal property, taken upon execu- tion against him, as is a citizen, if he came Vol. II here with a settled purpose of abandoning his foreign residence, and, on his arrival here, fixed upon this state as his home, and intends to remove his family here. See also, gener- ally, Exemptions; Homesteads. 79. Overing v. Russell, 32 Barb. (N. Y.) 263. See also, supra, IV; and, generally, Limitations of Actions. 80. See Allegiance. 81. Homestead Case, 1 Pa. Dist. 785; Car- lisle v. TJ. S., 16 Wall. (TJ. S.) 147, 21 L: ed. 426. 82. California. — People v. Chin Mook Sow, 51 Cal. 597. New York. — People v. McLeod, 1 Hill (N. Y.) 377, 37 Am. Dec. 328, 25 Wend. (N. Y.) 483 iciting Campbell r. Hall, Cowp. 204]. North Carolina. — State v. Antonio, 1 1 N. C. 200. United States.— Carlisle v. TJ. S., 16 Wall. (TJ. S.) 147, 21 L. ed. 426; Kempe v. Ken- nedy, 5 Cranch (U. S.) 173, 3 L. ed. 70: In re Wong Yung Quy, 6 Sawy. (U. S.) 442, 2 Fed. 624. England. — Rex v. Esop, 7 C. & P. 456, 32 E. C. L. 705. Canada. — Reg. v. School. 26 TJ. C. Q. B. 212 ; Reg. v. Lynch, 26 TJ. C. Q. B. 208 ; Reg. v. McMahon, 26 TJ. C. Q. B. 195. See 2 Cent. Dig. tit. "Aliens," § 67. For general matters relating to criminal law and criminal procedure see Criminal Law. 83. People i>. McLeod, 1 Hill (X. Y.) 377, 37 Am. Dec. 328, 25 Wend. (NY.) 483. See also, generally, Homicide. 84. Homestead Case, 1 Pa. Dist. 785; Car- lisle r. U. S., 16 Wall. (U. S.) 147, 21 L. ed. 426; Kempe r. Kennedy, 5 Cranch (TJ. S.) 173, 3 L. ed. 70. But on this point see TJ. S. v. Villato, 2 Dall. (U. S.) 370, 1 L. ed. 419, 28 Fed. Cas. No. 16,622. See also, generally, Treason. 85. In re Wong Yung Quy, 6 Sawy. (TJ. S.) 442, 2 Fed. 624, under the California statute of April 1, 1878, making such an act a crim- inal offense. It is no defense on behalf of a foreigner, charged in England with a crime committed there, that he did not know he was doing wrong, the act not being an offense in his own country. But, though it is not a defense in law, yet it is a matter to be considered in ALIENS 107 E. Actions by — 1. In General. It may be laid down, as a general rule, that all foreigners, 86 sui juris, and not otherwise specially disabled by the law of the place where the suites brought, 87 may there maintain suits in the proper courts 88 to vindicate their rights and redress their wrongs. 89 All personal actions are mitigation of punishment. Eex v. Esop, 7 0. & P. 456, 32 E. C. L. 705. And to the same effect see Cambioso v. Maffet, 2 Wash. (U. S.) 98, 4 Fed. Cas. No. 2,330. Jury de medietate linguae. — Aliens accused of crime are not entitled to be tried by a jury one half of whom are aliens. People v. Chin Mook Sow, 51 Cal. 597 ; State v. Antonio, 11 N. C. 200; Reg. v. Burdell, 6 Nova Scotia 126. 86. Alien enemies, however, are not within the rule. Anderson L. Diet.; Taylor v. Car- penter, 3 Story (U. S.) 458, 23 Fed. Cas. No. 13.784, 2 Woodb. & M. (U. S.) 1, 23 Fed. Cas. No. 13,785; Pisani v. Lawson, 6 Bing. N. Cas. 90, 37 E. C. L. 524. See, generally, War. 87. By comity and the laws of the states, resident aliens have the right to the same remedies in courts as citizens, and no court will deny those rights without positive legis- lation taking them away. Taylor v. Carpen- ter, 2 Woodb. & M. (U. S.) 1, 23 Fed. Cas. No. 13,785. Compare, however, Mitchell v. Wells, 37 Miss. 235, wherein it was held that, as an alien can sue here only so long as per- mitted by our laws or policy, the declaration of a prohibiting policy, pending » suit, is a bar to its further prosecution. See also Valk v. TJ. S., 29 Ct. CI. 62, as to the application of a treaty upon alien's right to sue under a special statute giving to citizens only a right to sue. 88. For courts having jurisdiction of suits by aliens see Admiralty; Ambassadors and Consuls; Courts; and Taylor v. Carpenter, 2 Woodb. & M. (U. S.) 1, 23 Fed. Cas. No. 13.785, wherein it is said that aliens may sue in the federal courts as extensively as in the state courts; also Breedlove v. Nicolet, 7 Pet. (U. S.) 413, 8 L. ed. 731, to the effect that an alien does not lose his right to sue in the courts of the United States by residing in one of the states of the Union. 89. Story Conn. L. § 565 ; Bouvier L. Diet. [citing Calvin's Case, 7 Coke 17]; Taylor v. Carpenter, 2 Woodb. & M. (U. S.) 1, 23 Fed. Cas. No. 13,785 [citing Silver Lake Bank v. North, 4 Johns. Ch. (N. Y.) 370 ; South Caro- lina Bank v. Case, 8 B. & C. 427, 15 E. C. L. 213; Jesson r. Wright, 2 Bligh 2; King of Spain v. Hullet, 1 CI. & F. 333, 6 Eng. Re- print 941 ; Hullet v. King of Spain, 1 Dow. & C. 169; Berne v. Bank of England, 9 Ves. Jr. 347]; Wood v. Campbell, 3 U. C. Q. B. 269. See 2 Cent. Dig. tit. "Aliens," § 61 et seq. Plea of alienage is discouraged in the courts of both England and the United States, and is a defense not favored in the law. Taylor v. Carpenter, 2 Woodb. & M. (U. S.) 1, 23 Fed. Cas. No. 13,785. See also, generally, War. Alien's right of suit is not affected by the fact that a similar remedy is not afforded to aliens in the country to which he belongs (Taylor v. Carpenter, 2 Woodb. & M. (U. S.) 1, 23 Fed. Cas. No. 13,785), nor by his phys- ical location, nor by his personal character (King of Prussia v. Kuepper, 22 Mo. 550, 66 Am. Dec. 639). Appearance by attorney may be made on behalf of alien claimant. Matter of Guilford, 67 Cal. 380, 7 Pae. 763; Matter of Leopold, 67 Cal. 385, 7 Pae. 766; Rabasse's Succession, 47 La. Ann. 1452, 17 So. 867, 49 Am. St. Rep. 433. See also Rabasse's Succession, 47 La. Ann. 1452, 17 So. 867, 49 Am. St. Rep. 433, relating to other representation of alien claim- ants. For security for costs to be given by alien suitors see Costs. Foreign sovereign or government may sue (King of Prussia v. Kuepper, 22 Mo. 550, 66 Am. Dec. 639; Republic v. De Arrangois, 11 How. Pr. (N. Y.) 1; Waguelin v. Republic, L. R. 20 Eq. 140; U. S. v. Wagner, L. R. 2 Ch. 582; Colombian Government v. Roths- child, 1 Sim. 94, 2 Eng. Ch. 94; Hullet v. King of Spain, 1 Dow. & C. 169), and stands on the same footing with an ordinary citizen to the rules and practice of the court in which the suit is instituted (King of Spain v. Hul- let, 1 CI. & F. 333, 6 Eng. Reprint 941 ) . But compare King of Spain v. Oliver, Pet. C. C. (U. S.) 276, 14 Fed. Cas. No. 7,813; King- of Spain v. Oliver, 2 Wash. (U. S.) 429, 14 Fed. Cas. No. 7,814 ; Berne v. Bank of England, 9 Ves. Jr. 347, to the effect that a judicial court cannot take notice of a foreign government not acknowledged by the government of the country in which the court sits. One alien may sue another. See suvra, note 70; and Roberts v. Knights, 7 Allen (Mass.) 449; Lorwav v. Lousada, 1 Lowell (U. S.) 77, 15 Fed. Cas. No. 8,517. But see Dumoussay v. Delevit, 3 Harr. & M. (Md.) 151 (wherein it was held that replevin could not be maintained when both parties were aliens) ; and Brinley v. Avery, Kirby (Conn.) 25 (wherein it was held that a plea in abate- ment, that both parties are aliens, and that the contract declared on was made in a for- eign country and was to have been performed there, is good [compare, however, Roberts v. Knights, 7 Allen (Mass.) 449, holding that one alien may sue another in the courts of Massachusetts upon a contract made abroad, if the parties are transiently in the common- wealth] ) . Remedy by way of injunction is open to aliens in proper cases. De Laveaga v. Wil- liams, 5 Sawy. (U. S.) 573, 7 Fed. Cas. No. 3,759. See aiso, generally, Injunctions. Suit against governor. — See Rose v. Gov- ernor, 24 Tex. 496, wherein it was held that an alien could not, under the laws of Texas, sue the governor of that state. See also, gen- erally, States. Vol. II 108 ALIENS within this rule, 90 such as actions for assault, 91 libel, 92 or slander, 93 as well as suits for the recovery of money or other personal property, 94 and proceedings for the protection of trade-mark rights. 95 So, also, it has been held that an alien might maintain an action for statutory damages or penalty for death by wrongful act. 90. Alabama. — Luke v. Calhoun County, 52 Ala. 115; Sidgreaves v. Myatt, 22 Ala. 617. Georgia. — Augusta R. Co. v. Clover, 92 Ga. 132, 18 S. E. 406. Illinois. — Zaeharie v. Godfrey, 50 111. 186, 99 Am. Dec. 506. Louisiana. — Richmond v. Milne, 17 La. 312, 36 Am. Dee. 613, under the laws of Scot- land. Maryland. — Dumoussay v. Delevit, 3 Harr. & M. (Md.) 151. Massachusetts. — Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386; Johnston v. Trade Ins. Co., 132 Mass. 432; Peabody v. Hamil- ton, 106 Mass: 217; Seanlan v. Wright, 13 Pick. (Mass.) 523, 25 Am. Dec. 344; Levine v. Taylor, 12 Mass. 8. Missouri. — Greenia v. Greenia, 14 Mo. 526. New Hampshire. — Emerson v. Shaw, 57 N. H. 223. New York. — Dewitt v. Buchanan, 54 Barb. (N. Y.) 31; MeArthur v. Bloom, 2 Duer (N. Y.) 151; Lemoine v. Gauton, 2 E. D. Smith (N. Y.) 343; Lister v. Wright, 2 Hill (N. Y.) 320; Clarke v. Morey, 10 Johns. (N. Y.) 69; Taylor v. Carpenter, 11 Paige (N. Y.) 292, 42 Am. Dee. 114; Coats v. Holbrook, 2 Sandf. Ch. (N. Y.) 586. North Carolina. — Cruden v. Neale, 2 N. C. 338; Ray v. McCulloch, 1 N. C. 543; Hamil- toris v. Eaton, 1 N. C. 83. Texas. — Franco-Texan Land Co. v. Chap- tive, (Tex. 1886) 3 S. W. 31. United States.— TJ. S. v. O'Keefe, 11 Wall. (U. S.) 178, 20 L. ed. 131 ; Breedlove v. Nico- let, 7 Pet. (U. S.) 413, 8 L. ed. 731; Vetaloro v. Perkins, 101 Fed. 393; Wise v. Resler, 2 Cranch C. C. (U. S.) 182, 30 Fed. Cas. No. 17,911 : Otteridge v. Thompson, 2 Cranch C. C. (U. S.) 108, 18 Fed. Cas. No. 10,618; Taylor v. Carpenter, 2 Woodb. & M. (U. S.) 1, 23 Fed. Cas. No. 13,785. England. — 1 Bl. Comm. 372; Comyns Dig. 428; Jacob L. Diet. ; ■ Ramkissenseat v. Bar- ker, 1 Atk. 51 ; Openheimer v. Levy, 2 Str. 1082; Pisani v. Lawson, 6 Bing. N. Cas. 90, 37 E. C. L. 524; Calvin's Case, 7 Coke 17. Canada. — Wood v. Campbell, 3 U. C. Q. B. 269. Personal actions, being transitory, are not limited to any particular country. Taylor v. Carpenter, 2 Woodb. & M. (TJ. S.) 1, 23 Fed. Cas. No. 13,785 [.citing Story Confl. L. 450; 3 Bl. Comm. 249]. Hence an alien, like any other person, may bring suit in personam against any person over whom jurisdiction can be obtained. Sidgreaves v. Myatt, 22 Ala. 617. 91. Luke v. Calhoun County, 52 Ala. 115; Dewitt v. Buchanan, 54 Barb. (N. Y.) 31, holding that one alien may sue another alien in a state court for an assault and battery committed in a, foreign country. See, gener- ally, Assault and Battery. Vol. II 92. Pisani v. Lawson, 6 Bing. N. Cas. 90, 37 E C L 524. 93'. Sidgreaves v. Myatt, 22 Ala. 617; Ot- teridge v. Thompson, 2 Cranch C. C. (U. S.) 108, 18 Fed. Cas. No. 10,618 ; Taylor v. Car- penter, 2 Woodb. & M. (U. S.) 1, 23 Fed. Cas. No. 13,785; Bacon Abr.; Comyns Dig. 428. See also, generally, Libel and Slander. But see Lister v. Wright, 2 Hill (N. Y.) 320, wherein it was doubted whether an alien could sue an alien for slander spoken in a foreign country. 94. Louisiana. — Richmond v. Milne, 17 La. 312, 36 Am. Dee. 613, under the laws of Scot- land. Maryland. — Dumoussay v. Delevit, 3 Harr. & M. (Md.) 151. Missouri. — Greenia v. Greenia, 14 Mo. 526. New York. — Dewitt v. Buchanan, 54 Barb. (N. Y.) 31. North Carolina. — Hamiltons v. Eaton, 1 N. C. 83. Texas. — Franco-Texan Land Co. v. Chap- tive, (Tex. 18S6) 3 S. W. 31. England. — 1 Bl. Comm. 372; Comyns Dig. 428 ; Jacob L. Diet. Canada. — Milne v. Moore, 24 Ont. 456. See also, generally, Replevin; Trover. Distributive share of the personal prop- erty, to which alien may be entitled as next of kin, may be recovered by him. Bradwell v. Weeks, 1 Johns. Ch. (N. Y.) 206 (holding that the right of recovering such property may be suspended during a war, the person in actual possession being constituted a trus- tee for his benefit till the return of peace) ; Page r. Pendleton, Wythe (Va.) 127. See also Milne r. Moore, 24 Ont. 456 [following Re Klcebe, 28 Ch. D. 175], to the effect that, in the administration of the Ontario estate of a deceased domiciled abroad, foreign credit- ors are entitled to dividends pari passu with Ontario creditors. See also, generally, De- scent and Distribution. 95. Lemoine v. Gauton, 2 E. D. Smith (N. Y.) 343; Taylor p. Carpenter, 11 Paige (N. Y.) 202, 42 Am. Dee. 114; Coats r. Hol- brook, 2 Sandf. Ch. (N. Y.) 586; Tavlor p. Carpenter, 2 Woodb. & M. (TJ. S.) 1, 23 Fed. Cas. No. 13,785. See, generally, Trade-Marks and Trade-Names. 96. Luke v. Calhoun County, 52 Ala. 115; Augusta R. Co. v. Glover, 92 Ga. 132, 18 S. E. 406: Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386; Vetaloro v. Perkins, 101 Fed. 393. See also, generally, Death. But see Brannigan v. Union Gold-Min. Co., 93 Fed. 164, wherein it was held that non- resident aliens are not entitled to the benefit of the Colorado statute giving a right of ac- tion for death by wrongful act to the next of kin of the deceased; and to the same effect see Deni v. Pennsylvania R. Co., 181 Pa. St. 525, 37 Atl. 558, under a Pennsylvania stat- ute. ALIENS 109 2. Relating to Real Property. 97 The rule that an alien friend, except when prohibited by law from so doing, 98 may claim the same protection of his lights as a citizen " applies to whatever rights he may have with respect to real property, whether such rights are guaranteed to him by treaty, by statute, 1 or are common- law rights. 2 Thus he may maintain an action — as ejectment or trespass to try title — to recover possession of land. 8 He may maintain trespass quare clausum fregitf or may seek to have lands partitioned. 5 An alien mortgagee is entitled in equity to enforce the sale of the mortgaged premises for the payment of debt secured by the mortgage. 6 3. Defenses — a. In General. A defendant may interpose the same matters of defense against alien plaintiffs as against citizen plaintiffs. 7 Hence it has been 97. Formerly, at common law, an alien could not have any action except a personal action. Comyns Dig. 427 ; Barrett v. Kelly, 31 Tex. 476. At common law, if plaintiff is an alien, named at the commencement of suit, it is a cause for abatement. Levine v. Tay- lor, 12 Mass. 8; Hutchinson v. Brock, 11 Mass. 119; Ainslie v. Martin, 9 Mass. 454; Martin v. Woods, 9 Mass. 377 ; Sewall v. Lee, 9 Mass. 363. But such disability occurring after action brought merely suspends the right to prosecute. Levine v. Taylor, 12 Mass. 8; Hutchinson v. Brock, 11 Mass. 119. 98. In Illinois, a non-resident alien cannot maintain a bill to set aside a will of real es- tate, as the statute [111. Laws (1895) p. 327] allows only a " person interested " to main- tain such bill, and a non-resident alien, under our disqualifying statute, has no interest in the lands devised. Jele v. Lemberger, 163 111. 338, 45 N. E. 279. 99. In the courts of the United States alien friends are entitled to claim the same protec- tion of their rights as citizens. Taylor v. Carpenter, 3 Story (U. S.) 458, 23 Fed. Cas. No. 13,784; Tavlor v. Carpenter, 2 Woodb. & M. (U. S.) 1,"23 Fed. Cas. No. 13,185. 1. See supra, IV, C, 2. 2. See supra, IV, C, 1 ; and Society, etc. v. Wheeler, 2 Gall. (U. S.) 105, 22 Fed. Cas. No. 13,156 [cited in American Mut. L. Ins. Co. v. Owen, 15 Gray (Mass.) 491; March v. Eastern R. Co., 40 N. H. 548, 77 Am. Dec. 732]. 3. Missouri. — Utassy v. Giedinghagen, 1 32 Mo. 53, 33 S. W. 444. New Jersey.- — Den v. Brown, 7 N. J. L. 305. New York. — Peck v. Young, 26 Wend. (N. Y.) 613; Young v. Peck, 21 Wend. (N. Y.) 389. Texas. — Ortiz v. De Benavides, 61 Tex. 60 ; White v. Sabariego, 23 Tex. 243. Virginia. — Farley v. Shippen, Wythe (Va.) 135. United States. — Hauenstein v. Lynham, 100 TJ. S. 483, 25 L. ed. 628 ; Shanks v. Dupont, 3 Pet. (U. S.) 242, 7 L. ed. 666; Bonaparte v. Camden, etc., R. Co., Baldw. (TJ. S.) 205, 3 Fed. Cas. No. 1,617; Fisher v. Harnden, 1 Paine (U. S.) 55, 9 Fed. Cas. No. 4,819. Canada.— See also Doe v. Dickson, 2 U. C. Jur. 326. See also, generally, Ejectment. Before office found, even at common law, it seems, an alien might sue to recover posses- sion of realty. Alabama. — Jinkins v. Noel, 3 Stew. (Ala.) 60. California. — But see, contra, Siemssen v. Bo- fer, 6 Cal. 250; and compare Norris v. Hoyt, 18 Cal. 217. Maryland. — But see Guyer v. Smith, 22 Md. 239, 85 Am. Dec. 650, where this rule was doubted. Massachusetts. — - Scanlan v. Wright, 13 Pick. (Mass.) 523, 25 Am. Dec. 344. Neiv York. — Bradstreet v. Oneida County, 13 Wend. (N. Y.) 546; Jackson v. Britton, 4 Wend. (N. Y.) 507; Jackson v. Lunn, 3 Johns. Cas. (N. Y.) 109. North Carolina. — Rouche v. Williamson, 25 N. C. 141. But see, contra, Barges v. Hogg, 2 N. C. 485. Texas. — But see, contra, Barrett v. Kelly, 31 Tex. 476; Hardy v. De Leon, 5 Tex. 211. United States. — Jones v. McMasters, 20 How. (U. S.) 8, 15 L. ed. 805. Canada. — Williams v. Myers, 2 Nova Sco- tia Dec. 157. As to the common-law right of an alien to take and hold land by act of the parties see supra, IV, C, 1, a. Under the Mexican laws an alien could not maintain an action to recover land in Texas. Holliman v. Peebles, 1 Tex. 673. 4. Ramires v. Kent, 2 Cal. 558 ; Barges v. Hogg, 2 N. C. 485. Compare Courtney v. Turner, 12 Nev. 345; Ortiz v. De Benavides, 61 Tex. 60. 5. Scharpf v. Schmidt, 172 111. 255, 50 N. E. 182; Schultze v. Schultze, 144 111. 290, 33 N. E. 201, 36 Am. St. Rep. 432, 19 L.R. A. 90; Scanlan v. Wright, 13 Pick. (Mass.) 523, 25 Am. Dec. 344; Nolan v. Command, 11 N. Y. Civ. Proc. 295; Cryer v. Andrews, 11 Tex. 170. See also, generally, Partition. 6. Richmond r. Milne, 17 La. 312, 36 Am. Dec. 613 ; Silver Lake Bank v. North, 4 Johns, Ch. (N. Y.) 370 : Hughes r. Edwards, 9 Wheat. (U. S.) 489, 497, 6 L. ed. 142, 144 (wherein it was said that, in such a foreclosure pro- ceeding, " the alienage of the mortgagee, if he be a friend, can, upon no principle of law or equity, be urged against him") ; Craig v. Radford, 3 Wheat. (U. S.) 594, 4 L. ed. 467. See also, generally. Mortgages. 7. Milliken r. Barrow, 55 Fed. 148. See cases cited infra, notes 8, 9. But compare, on this point, Com. v. Beaumarchais, 3 Call (Va.) 122; Page v. Pendleton, Wythe (Va.) 127. Vol II 110 ALIENS held that he may set up a discharge in insolvency, 8 or payment, as a valid defense in an action brought against him by an alien. 9 b. Alienage of Plaintiff. Whenever a plaintiff is incapacitated from suing, by reason of his alienage, defendant should raise the objection by a plea in abatement. 10 V. NATURALIZATION. A. Definition. Naturalization is the act or proceeding by which an alien becomes a citizen. 11 8. Insolvent laws of a state are effective as a discharge against resident aliens in the same way and to the same extent as against resident citizens. Milliken v. Barrow, 55 Fed. 148; Letchford v. Convillon, 20 Fed. 608; Von Glahn v. Varrenne, 1 Dill. (U. S.) 515, 28 Fed. Cas. No. 16,994. See also, generally, Bankruptcy; Insolvency. But see Hobblethwaite v. Batturs, 1 Miles (Pa.) 82, wherein it was held that a dis- charge under the Maryland insolvent law does not bar a recovery on a cause of action exist- ing before the discharge, where, at the time of the contract, plaintiff was an alien and foreign subject. 9. Court v. Vanbibber, 3 Harr. & M. (Md.) 140. See also, generally, Payment. But see Hamiltons v. Eaton, 1 N. C. 83, wherein it was held that debts, due to British subjects, paid into the public treasury eom- pulsorily by an act of assembly, may, not- withstanding, be recovered of the debtor by the creditor under the provisions of the treaty of peace with Great Britain in 1783; and compare, to the same effect, Page v. Pendle- ton, Wythe (Va.) 127. 10. Maryland. — Shivers v. Wilson, 5 Harr. & J. (Md.) 130, 9 Am. Dec. 497. Massachusetts. — Martin v. Woods, 9 Mass. 377. Minnesota. — McNair v. Toler, 21 Minn. 175. ,~New Hampshire. — Educational Soc, etc. v. Varney, 54 N. H. 376. New York. — Burnside v. Matthews, 54 N. Y. 78. Texas. — Lee v. Salinas, 15 Tex. 495. United States. — Bateau v. Bernard, 3 Blatchf. (U. S.) 244, 20 Fed. Cas. No. 11,579; The Bee, 1 Ware (U. S.) 336, 3 Fed. Cas. No. 1,219. England. — Comyns Dig. 428 ; Burk v. Brown, 2 Atk. 397. See, generally, Abatement and Revival; War; and also supra, note 89. But see Dewitt v. Buchanan, 54 Barb. (N. Y.) 31, wherein it was held that an ob- jection to the maintenance of an action in which both plaintiffs and defendants were aliens, but in which defendant was served in the jurisdiction, should be interposed by a motion and not by answer, so that any facts warranting the court, in its discretion, to en- tertain the action might be made to appear by affidavit; and also White v. Sabariego, 23 Tex. 243, holding that, where an action is brought by an alien to recover land, the facts, if any exist, which bring him within the ex- ception to the rule that an alien cannot sue Vol. II for land, must be set forth in his petition to enable him to maintain his action. A plea of alienage interposed to a real ac- tion, it has been held, goes in general to de- feat the right of action altogether. White v. Sabariego, 23 Tex. 243. Replication setting up naturalization. — To the general plea of alien friend, made by the tenant, naturalization may be replied by the demandants ; so, also, that, although" born within the allegiance of the King of England, and without the allegiance of the common- wealth, they were inhabitants of this state at the ratification of the treaty of peace, or that they are citizens of some other of the United States; or British subjects may confess and avoid the plea of alienage by bringing them- selves within the treaty of 1794. Ainslie v. Martin, 9 Mass. 454. 11. Anderson L. Diet. Other definitions. — Naturalization is the removal of the disabilities of alienage. State v. Manuel, 20 N. C. 122. " Naturalization is the act of adopting a foreigner, and clothing him with the privi- leges of a native citizen." Per Fuller, C. J., in Boyd v. Nebraska, 143 U. S. 135, 12 S. Ct. 375, 36 L. ed. 103, 110. A nation, or the sovereign who represents it, may grant to a stranger the quality of a citizen by admitting him into the body of the political society. This is called naturaliza- tion. Vattel L. Nat., bk. I, c. 19, §§ 212-214. Collective naturalization is where the gov- ernment, by treaty or cession, acquires the whole or a part of the territory of another nation, and takes to itself the inhabitants thereof. State v. Bovd, 31 Nebr. 682, 48 N. W. 739, 51 N. W. 602. Distinguished from denizenation. — In Eng- land a denizen is an alien-born who has ob- tained, ex donatione regis, letters patent to make him a subject. White v. White, 2 Mete. (Ky.) 185; dissenting opinion of Brewer, J., in Fong Yue Ting v. TJ. S., 149 U. S. 698, 13 S. Ct. 1016, 37 L. ed. 905; Levy v. McCartee. 6 Pet. (U. S.) 102, 8 L. ed. 334; 1 Bl. Comm. 374; Coke Litt. 8a; Comyns Dig. tit. Aliens (D) ; Craw r. Ramsay, Vaughan 278. The crown may denizenize but cannot naturalize, the latter requiring the consent of parliament. Calvin's Case, 7 Coke^ 256 ; 2 Rolle 93; Comyns Dig. 430. In the primary but ob- solete sense of the word a denizen is a nat- ural-born subject of a country. Coke Litt. 129a. A denizen is in a kind of middle state, between an alien and natural-born sub- ject, and partakes of both of them. 1 Bl. ALIENS 111 B. Power to Naturalize. Congress having exercised the power " to estab- lish an uniform rule of naturalization," conferred by the federal constitution, 12 no alien can become a citizen except in the mode pointed out by congress. Such mode, under the power so conferred, is exclusive. 13 C. Control of Congress over State Courts. Though congress may author- ize state courts to naturalize aliens, and state courts, under such authority, may do so, 14 a state is under no constitutional obligation to furnish tribunals to aid in the administration of the naturalization laws of congress, 15 and hence may pre- scribe limitations upon the exercise, by its courts, of jurisdiction in such matters, 16 or even altogether prohibit its courts from entertaining jurisdiction. 17 D. Persons Capable. The power to naturalize is applicable only to those of foreign birth, 18 and is limited to " aliens, being free white persons, and to aliens of African nativity, and to persons of African descent." 19 Comm. 375. In South Carolina the status seems to have been created by statute. Vaux v. Nesbit, 1 MeCord Eq. (S. C.) 352. Deni- zenation has no retrospective operation. Priest v. Cummings, 20 Wend. (N. Y.) 338; Vaux v. Nesbit, 1 MeCord Eq. (S. C.) 352. 12. U. S. Const, art. 1, § 8, cl. 4. In England. — Formerly an act of parlia- ment was required in each particular case to naturalize an alien. White v. White, 2 Mete. (Ky.) 185; U. S. v. Rhodes, 1 Abb. (tJ. S.) 28, 27 Fed. Cas. No. 16,151. But by 7 & 8 Vict. c. 66, which was a general act, it was enacted that aliens of friendly states might become naturalized British subjects upon complying with the requisites of the act. By 33 & 34 Viet. c. 14, further facilities of nat- uralization are afforded. 13. Alabama. — Etheridge v. Malempre, 18 Ala. 565. California. — Ex p. Knowles, 5 Cal. 300. Illinois. — See Behrensmeyer v. Kreitz, 135 111. 591, 26 N. E. 704. Massachusetts. — Stephens, Petitioner, 4 Gray (Mass.) 559; Gladhill, Petitioner, 8 Mete. (Mass.) 168. Michigan. — Andres v. Arnold, 77 Mich. 85, 43 N. W. 857, 6 L. R. A. 238. "New Hampshire. — Beavins' Petition, 33 N. H. 89. New York. — Matter of Ramsden, 13 How. Pr. (N. Y.) 429; Lynch v. Clarke, 1 Sandf. Ch. (N. Y.) 583; People v. Sweetman, 3 Park. Crim. (N. Y.) 358. North Carolina. — Rouche v. Williamson, 25 N. C. 141 ; State v. Manuel, 20 N. C. 122. South Carolina. — Davis v. Hall, 1 Nott & M. (S. C.) 292. Virginia. — Com. v. Towles, 5 Leigh ( Va. ) 743; Barzizas v. Hopkins, 2 Rand. (Va.) 276. Wisconsin. — In re Wehlitz, 16 Wis. 443, 84 Am. Dec. 700. United States. — Houston v. Moore. 5 Wheat. (U. S.) 1, 5 L. ed. 19; Chirac v. Chirac. 2 Wheat. (U. S.) 259, 4 L. ed. 234; In re Gee Hop, 71 Fed. 274; U. S. v. Villato, 2 Dall. (U. S.) 370, 1 L. ed. 419, 28 Fed. Cas. No. 16,622; Minneapolis v. Reum, 56 Fed. 576, 12 TJ. S. App. 446, 6 C. C. A. 31 ; Matthew v. Rae, 3 Cranch C. C. (U. S.) 699. 16 Fed. Cas. No. 9.284: Lanz v. Randall, 4 Dill. (U. S.) 425, 14 Fed. Cas. No. 8,080. See also Collet v. Collet, 2 Dall. (U. S.) 294, 1 L. ed. 387, wherein it was held that, though the states have concurrent authority with the United States to naturalize aliens, such authority cannot be exercised so as to contravene the acts of congress. See 2 Cent. Dig. tit. "Aliens," § 117. As to courts possessing power to naturalize see infra, V, F. 14. State v. Penney, 10 Ark. 621; Rump v. Com., 30 Pa. St. 475; Croesus Min., etc., Co. v. Colorado Land, etc., Co., 19 Fed. 78. As to state courts possessing power to nat- uralize see infra, V, F. 15. Morgan v. Dudley, 18 B. Mon. (Ky.) 693, 68 Am. Dec. 735; Stephens, Petitioner, 4 Gray (Mass.) 559; State v. Whittemore, 50 N. H. 245; Lab's Petition, 3 Pa. Dist. 728. See also Seott v. Strobach, 49 Ala. 477, 488, wherein it is said : " The courts of the state exercise the power thus conferred, rather as matter of comity than as matter of duty." 16. Rushworth v. Judges, 58 N. J. L. 97, 32 Atl. 743, 30 L. R. A. 761. See also Lab's Petition, 3 Pa. Dist! 728. 17. Gilroy, Petitioner, 88 Me. 199, 33 Atl. 979, 51 Am. St. Rep. 392 (wherein it was held that Me. Laws (1893), c. 310, which pro- hibit any court, other than the supreme ju- dicial and superior courts, from entertaining any jurisdiction over the naturalization of aliens, is not in violation of any provision of the constitution of the United States) : Ste- phens, Petitioner, 4 Grav (Mass.) 559; Beav- ins' Petition, 33 N. H. 89. See 2 Cent. Dig. tit. "Aliens," § 117. 18. U. S. v. Rhodes, 1 Abb. (U. S.) 28, 27 Fed. Cas. No. 16,151. 19. U. S. Rev. Stat. (1878), § 2169'. See also the following cases: Schutz's Petition, 64 N. H. 241, 8 Atl. 827 : In re Kanaka Nian, 6 Utah 259, 21 Fac. 993, 4 L. R. A. 726; North Noondav Min. Co. r. Orient Min. Co., 6 Sawv. (U. S.) 299, 1 Fed. 522. See 2 Cent. Dig. tit. "Aliens," §§ 119-122. An alien enemy cannot be permitted to make the declaration required by law pre- paratory to the naturalization of aliens. U. S. Rev. Stat. (1878), § 2171: Ex p. Newman, 2 Gall. (U. S.) 11, 18 Fed. Cas. No. 10.174. See also Ex p. Overington, 5 Binn. (Pa.) 371. Compare Ex p. Little, 2 Browne (Pa.)' 218. Half white. — A person of half white and Vol. II 112 ALIENS E. Qualifications. To entitle an alien to be admitted to citizenship by natu- ralization, he must possess all the qualifications made requisite by statute. F. Jurisdiction. The statute authorizing any court of record of a^ state having common-law jurisdiction and a seal and clerk to naturalize aliens does not require such court to have common-law jurisdiction over all classes of actions. It is sufficient that it has common-law jurisdiction over all subjects upon which it has authority to adjudicate, and that it exercises its powers according to the course of the common law. 22 The court, however, must have a clerk, distinct half Indian blood is -not a white person within the meaning of the naturalization laws, and therefore he is not entitled to be admitted to citizenship thereunder. In re Camille, 6 Sawy. (U. S.) 541, 6 Fed. 256. Minors. — An alien, though a minor, may be admitted to citizenship. Priest r. Cum- mings, 20 Wend. (X. Y.) 338; In re Merry, 9 Wkly. Notes Cas. (Pa.) 169. But in such case the proceedings therefor must be had through a guardian or next friend. Le For- estiere's Petition, 2 Mass. 419; In re Lawler, 5 Montg. Co. Rep. (Pa.) 77. As to effect of naturalization of parent on child see infra, V, I, 3. Mongolians are not white persons within the meaning of the naturalization laws. Ac- cordingly, natives of Burmah (Matter of Po, 7 Misc. (N. Y.) 471, 28 X. Y. Suppl. 383), natives of China {In re Hong Yen Chang, 84 Cal. 163, 24 Pac. 156; U. S. v. Wong Kim Ark, 169 TJ. S. 649, 18 S. Ct. 456, 42 L. ed. 890; Fong Yue Ting v. U. S., 149 U. S. 698, 13 S. Ct. 1016, 37 L. ed. 905; In re Gee Hop, 71 Fed. 274; In re Ah Yup, 5 Sawy. (U. S.) 155, 1 Fed. Cas. No. 104), and natives of Japan [In re Saito, 62 Fed. 126), being Mon- golians, are not entitled to become citizens of the United States. Native citizens of Mexico, whatever may be their status, are eligible to be naturalized. In re Rodriguez, 81 Fed. 337. Women, either single (Brown r. Shilling, 9 Md. 74) or married (Ex p. Pic, 1 Cranch C. C. (U. S.) 372, 19 Fed. Cas. No. 11,118), may be naturalized, and, in the case of a married woman, without the consent of her husband (Priest v. Cummings, 16 Wend. (N. Y.) 617). As to effect of naturalization of husband on alien wife see infra, V. I, 4. 20. Matter of Stewart, 7 Rob. (N. Y.) 635; Northumberland County Naturalizations, 18 Pa. Co. Ct. 270; In re Kanaka Nian, 6 Utah 259, 21 Pac. 993, 4 L. R. A. 726. See 2 Cent. Dig. tit. "Aliens," §§ 123-130. As to evidence of qualifications see infra, V, G, 4. Good moral character. — An applicant for naturalization must be a person of good moral character. Matter of Stewart, 7 Rob. (X. Y.) 635; In re Bodek, 63 Fed. 813. One who has been convicted of perjury, though afterward pardoned, is not of good moral character. In re Spenser, 5 Sawy. (U. S.) 195, 22 Fed. Cas. No. 13,234. Residence for the requisite time must have passed. State V. Macdonald, 24 Minn. 48; Sehutz's Petition, 64 N. H. 241, 8 Atl. 827 ; Vol. II Matter of Clark, 18 Barb. (N. Y.) 444; Mat- ter of Stewart, 7 Rob. (N. Y.) 635; Matter of Rice, 7 Daly (N. Y.) 22; Matter of Bye, 2 Daly (N. Y.) 525; Matter of Scott, 1 Daly (X Y.) 534: Matter of Hawley, 1 Daly 'X. Y.) 531: Ex p. Paul, 7 Hill (X. Y.) 56: Ex p. Walton, 1 Cranch C. C. (U. S.) 186, 29 Fed. Cas No. 17,127 ; Ex p. Saunderson, 1 Cranch C C (U. S.) 219, 21 Fed. Cas. Xo. 12,378; Ex p. Pasqualt, 1 Cranch C. C. (U. S.) 243, 18 Fed. Cas. Xo. 10,788; Anonymous, 1 Fed. Cas. Xo. 465, 4 X. Y. Leg. Obs. 98 : In re An Alien, 1 Fed. Cas. Xo. 201a. But U. S. Rev. Stat. (1878), § 2174, conferring upon sea- men who have served on board merchant ves- sels of the United States the right to citi- zenship does not extend to the naval service. In re Gormly, 14 Phila. (Pa.) 211, 37 Leg. Int. (Pa.) 346, 9 Wkly. Xotes Cas. (Pa.) 96. 21. U. S. Rev. Stat. (1878), § 2165. 22. California. — Matter of Conner, 39 Cal. 98, 2 Am. Rep. 427 [disapproving Ex p. Knowles, 5 Cal. 300]. Illinois'. — Dale v. Irwin, 78 111. 170; Peo- ple v. McGowan, 77 111. 644, 20 Am. Rep. 254. Compare Mills v. McCabe, 44 111. 194. Kentucky. — Morgan v. Dudley, 18 B. Mon. (Ky.) 693^ 68 Am. Dec. 735. Maine. — Dean, Petitioner, 83 Me. 489, 22 Atl. 385, 13 L. R. A. 229. Massachusetts. — Gladhill, Petitioner, 8 Mete. (Mass.) 168. ~Neic York. — People v. Sweetman, 3 Park. Crim. (X. Y.) 358. Pennsylvania.- — Moran r. Rennard, 3 Brewst. (Pa.) 601; Com. v. Lee, 1 Brewst. (Pa.) 273. United States. — U. S. v. Lehman. 39 Fed. 49; U. S. v. Power, 14 Blatchf. (U. S.) 223, 27 Fed. Cas. Xo. 16,080 ; Ex p. Smith, 22 Fed. Cas. Xo. 12,969, 3 Wkly. L. Gaz. 237. But see State r. Baker, 51 La. Ann. 1243, 26 So. 102, wherein it was held that a crim- inal district court is without jurisdiction to entertain an application for naturalization, though it is a court of record, possessed of common-law iurisdiction. See 2 Cent'. Dig. tit. "Aliens," §§ 131-137. Court of appellate jurisdiction. — A court possessing appellate jurisdiction only has been held to have no power to naturalize an alien. Ex p. Knowles, 5 Cal. 300. See also Ex p. McKenzie, 51 S. C. 244, 28 S. E. 4. Bergin, 84 Fed. 140. 35. Matter of Christern, 43 N. Y. Super. Ct. 523, 56 How. Pr. (N. Y.) 5; Richards v. McDaniel, 2 Nott & M. (S. C.) 351. But see Matter of Desty, 8 Abb. N. Cas. (N. Y.) 250, wherein it was held that, where the record fails to show the proceedings necessary to the issue of a certificate of naturalization, the court cannot make up the record nuna pro tunc, and issue the certificate accord- ingly- A clerical error in » record admitting an alien to citizenship may be corrected. State v. Macdonald, 24 Minn. 48 ; Priest v. Cum- mines, 16 Wend. (N. Y.) 617. 36. U. S. r. Norsch, 42 Fed. 417. Laches. — Neglect for more than twenty-five years to make an application for the setting aside of an order of naturalization is fatal to the application. Matter of McCarran, 8 Misc. (N. Y.) 482, 31 Abb. N. Cas. (N. Y.) 416, 29 N. Y. Suppl. 582, 60 N. Y. St. 168, 23 L. R. A. 835. Suit by United States on certificate of state court. — The United States can sue in a fed- eral court for the cancellation of a certificate or decree of naturalization which has been obtained by fraud in a state court. U. S. v. Norsch, 42 Fed. 417. 37. Behrensmeyer t\ Kreitz, 135 111. 591, 26 N. E. 704, wherein it was held that a misnomer in a certificate of naturalization does not vitiate it. See also Com. v. Towles 5 Leigh (Va.) 743, wherein it was held that a certificate, stating that .the party " took the oath in such case required by the act of congress," imports that he took the oath re- quired in the very words prescribed by the statute, and that the act of naturalization is good. See 2 Cent. Dig. tit. "Aliens," §§ 148-150. Amendment. — A naturalized alien who sub- sequently obtains an order of court changing his name is not entitled to have his naturali- zation certificate amended to conform to the change. Matter of Nigri, 32 Misc. (N. Y.) 392, 66 N. Y. Suppl. 182. Attestation. — A certificate of naturaliza- tion must be attested by a prothonotary op clerk. In re Questions on Election, etc., 2 Brewst. (Pa.) 138. Sufficiency of certificate. — A certificate of naturalization was to this effect: I, J. F. G., Clerk, etc., certify that, at a superior court held at Savannah, J. M. R., an alien, etc., petitioned the court to be admitted a citizen, and having in all things complied with the law in such case made and provided, the said J. M. R. was accordingly admitted a citizen of the United States of America, having first taken and subscribed, in open court, the oath of naturalization. It was held that the cer- tificate was not sufficient to show J. M. R. naturalized. Miller v. Reinhart, 18 Ga. 239. In Canada the certificate required by the act of 31 Viet. c. 66, § 5, must be both filed and openly read in court on the first day of the term. Ex n. Dow, 18 N. Brunsw. 302. 38. As to evidence of alienage see supra, III. 39. California. — Belcher v. Farren, 89 Cal. 73, 26 Pac. 791; Prentice v. Miller, 82 Cal. 570, 23 Pac. 189; Bode v. Trimmer, 82 Cal. 513, 23 Pac. 187; Miller v. Prentice, 82 Cal. 104, 23 Pac. 8. New Mexico. — Berry v. Hull, 6 N. M. 643, 30 Pac. 936. Vol. II 116 ALIENS naturalization of an alien possessing the requisite qualifications to become a citi- zen, naturalization may be inferred from the fact that for a long time he voted, held office, and exercised all the rights and privileges of a citizen. 40 I. Operation and Effect — l. In General. An alien on becoming a natural- ized citizen possesses the rights of a native-born citizen. 41 Fed. Cas. No. 15,710, 3 Am. L. Rev. 777, Hoffm. Op. 500. In a plea of naturalization, in answer to an information of the attorney-general pray, ing forfeiture of the land of an alleged alien, it is not necessary to aver compliance with the prerequisites to the admission to citizen- ship. The record of naturalization is suffi- cient. Harley v. State, 40 Ala. 689. Presumption from declaration of intention. — The fact that three years hare expired since an alien declared his intention to be- come a citizen does not raise a presumption that he has actually become a citizen. State f. Olin, 23 Wis. 309. Secondary evidence. — Where the record of naturalization proceedings have been de- stroyed secondary evidence is admissible to prove that the party became a citizen. Ho- gan r. Kurtz, 94 U. S. 773, 24 L. ed. 317. But the certificate of the clerk of a court, to the effect that there is no evidence on the records of the court that certain persons had been naturalized therein as testified to bv them, is not competent evidence to disapprove the fact of naturalization, as it is secondary. Beardstown r. Virginia, 81 111. 541. 41. Scott v. Strobach, 49 Ala. 477: Heney v. Brooklyn Benev. Soc, 39 X. Y. 333: Os- born v. U. S. Bank, 9 Wheat. (U. S.) 738, 6 L.- ed. 204: U. S. e. Rhodes, 1 Abb. ("U. S.) 28, 27 Fed. Cas. Xo. 16,151; Bulwinkle r. U. S„ 4 Ct. CI. 395 ; Bacon Abr. tit. Aliens, 6. Acquiring and holding land. — The natural- ization of an alien places him upon the foot- ing, in respect of acquiring and holding real estate, of a natural-born citizen. People v. Conklin, 2 Hill (X. Y.) 67; Priest v. Cum- mings, 16 Wend. (X. Y.) 617; Manuel v. Wulff, 152 TJ. S. 505, 14 S. Ct. 651, 38 L. ed. 532. See also Harley r. State, 40 Ala. 689, wherein it was held that the defeasible estate of an alien, in lands purchased by him, is perfected by his becoming a naturalized citi- zen before office found. But see SutlifF v. Forgey, 1 Cow. (X. Y.) 89, wherein it was held that naturalization merely removes the disability of the alien to hold lands, leaving the state a right to enter if he dies without heirs, or leaving alien heirs only. Citizen of state of residence. — An alien naturalized under the laws of the United States is a citizen of the state in which he resides. In re Wehlitz, 16 Wis. 443, 84 Am. Dec. 700; Gribble r. Pioneer Press Co., 5 McCrary (TJ. S.) 73. 15 Fed. 689. Civil rights. — Xaturalization by judicial proceeding or otherwise confers only civil rights. Dorsev r. Brigham, 177 111. 250, 52 X. E. 303, 69 Am. St. Rep. 228, 42 L. R. A. 809. Necessity of order of court.— The oath of naturalization, when taken, confers the rights Vermont.— State v. O'Hearn, 58 Vt. 718, 6 Atl. 606. West Virginia. — Dryden v. Swinburne, 20 W. Va. 89. United States. — Green r. Salas, 31 Fed. 106; Slade v. Minor, 2 Cranch C. C. (TJ. S.) 139, 22 Fed. Cas. No. 12,937. See 2 Cent. Dig. tit. "Aliens," §§ 152, 153. Identification of person. — Where a certifi- cate of naturalization recites the person as Patrick W. Doran, and his real name is Pat- rick Peter William Doran, he may prove by his own oath that it was issued to him, and that he is the person naturalized thereby. Beardstown r. Virginia, 81 111. 541. 40. Illinois. — Ryan r. Egan, 156 111. 224, 40 X. E. 827. See also Behrensmeyer v. Kreitz, 135 111. 591, 26 N. E. 704. A'eto York. — People v. Pease, 27 X. Y. 45, 84 Am. Dec. 242 ; People v. MeNally, 59 How. Pr. (X. Y.) 500. yorth Dakota. — Kadlec v. Pavik, 9 X. D. 278, 83 X. W. 5. South Carolina. — Sasportas v. De la Motta, 10 Rich. Eq. (S. C.) 38. Virginia. — Nalle v. Fenwick, 4 Rand. (Va.) 585. United States. — Boyd v. Nebraska, 143 TJ. S. 135, 12 S. Ct. 375, 36 L. ed. 103 [re- versing 31 Xebr. 682, 48 X. W. 739, 51 X. W. 602]. 351, wherein it was held that proof that a But see Dennis r. Brewster, 7 Gray (Mass.) foreigner, now deceased, resided in the United States, owned parts of vessels, and acted as master of coasting vessels in the United States, and that the records of shipping of the port where he resided had been destroyed, is not sufficient to be submitted to the jury as evidence of his having been naturalized during that period, without proof of a search among his papers for a certificate of natur- alization, or some evidence that such a. cer- tificate once existed. Copy of record. — An exemplified copy of the record is the best evidence of naturaliza- tion and is, of course, competent to show it. Alabama. — See Harley r. State, 40 Ala. 689. California. — Belcher v. Farren, 89 Cal. 73, 26 Pac. 791 : Prentice r. Miller, 82 Cal. 570. 23 Pac. 189; Bode v. Trimmer, 82 Cal. 513, 23 Pac. 187. Kentucky. — Xewcomb r. Xewcomb, "(Ky. 1900) 57 S. W. 2. Minnesota. — State r. Barrett, 40 Minn. 65, 41 X. W. 459. Yen- Mexico. — Berry v. Hull, 6 X. M. 643, 30 Pac. 936. Ypir York. — People v. McXally, 59 How. Pr. (X. Y.I 500. United States.— The Acorn. 2 Abb. (U. S.) 434, 1 Fed. Cas. Xo. 29 ; U. S. r. Makins, 26 Vol. II ALIENS 117 2. Of Declaration of Intention. A declaration of intention to become a citi- zen does not make the alien a citizen. An alien remains such until naturalization is complete. 42 Consequently, an alien cannot take by descent, in the absence of Enabling statutes, where the ancestor dies after the alien has tiled a declaration of intention, but before actual naturalization. 48 3. On Minor Children. The minor child of an alien, though born out of the United States, if dwelling within the United States at the time of the naturaliza- tion of his parent, becomes a citizen by virtue of such naturalization. 44 It has of a citizen, and it is not necessary that there should be an order of court admitting him to become a citizen. Campbell v. Gordon, 6 Cranch (U. S.) 176, 3 L. ed. 190. 42. Berry v. Hull, 6 N. M. 643, 30 Pac. 936; In re Moses, 83 Fed. 995 (wherein it was held that an immigrant does not cease to be an alien, merely by declaring his in- tention of becoming a citizen, so as to relieve his wife and minor children from the opera- tion of the law governing the admission of aliens) ; Minneapolis v. Reum, 56 Fed. 576, 12 U. S. App. 446, 6 C. C. A. 31 (wherein it was held that a foreign-born resident of the United States, who has merely declared his intention to become a citizen, but has never complied with any other provision of the naturalization laws, is none the less an alien, because of the fact that the constitution and laws of the state wherein he resides have con- ferred the elective franchise and other privi- leges of citizenship on foreign subjects who have declared their intention to be natural- ized, and that he has actually voted for mem- ber of congress and state and county officers); Maloy v. Duden, 25 Fed. 673. See also Valk I'. U. S., 28 Ct. CI. 241, wherein it was held that a claimant under the Indian depredation act is not a citizen, within the meaning of that statute, merely because he has taken the primary declaration. As to necessity and requisites of declara- tion of intention see supra, V, G. 2. 43. White r. White, 2 Mete. (Ky.) 185; Foss v. Crisp, 20 Pick. (Mass.) 121; Harman v. Ferrall, 64 N. C. 474. See also McDaniel v. Richards, 1 McCord (S. C.) 187, wherein it appeared that an alien female had given notice of her intention to become a citizen, and had taken the oath, but died before she was duly naturalized. It was held that her husband could not inherit through her. See 2 Cent. Dig. tit. " Aliens," § 160 In Indiana, aliens who have declared their intention, according to law, to become citi- zens may hold land in fee simple. State v. Beackmo, 8 Blackf. (Ind.) 246; Eldon v. Doe, 6 Blackf. (Ind.) 341. In Louisiana, a person who has declared his intention to become a citizen of the state, and has qualified as an elector under La. Const, art. 185, is a citizen of the state, and eligible to the office of coroner (State v. Fowler, 41 La. Ann. 380, 6 So. 602), or inspector of weights and measures (State v. Abbott, 41 La. Ann. 1096, 6 So. 805). In Texas, after a foreigner bv birth has duly declared his intention of being natural- ized as a citizen, he is invested with all the rights of citizenship except the elective fran- chise; and therefore he can acquire real es- tate by purchase, and, on his death, can transmit by descent to his children. Sehrimpf v. Settegast, 38 Tex. 96, 35 Tex. 323. 44. Arkansas. — State r. Penney, 10 Ark. 621. Florida. — O'Connor v. State, 9 Fla. 215. Illinois. — Dorsey v. Brigham, 177 III. 250, 52 N. E. 303, 69 Am. St. Rep. 228, 42 L. R. A. 809; Behrensmeyer v. Kreitz, 135 111. 591, 26 N. E. 704; Kreitz v. Behrensmeyer, 125 111. 141, 17 N. E. 232, 8 Am. St. Rep. 349. Maine. — See Calais v. Marshfield, 30 Me. 511. Maryland. — Brown v. Shilling, 9 Md. 74. Minnesota. — State v. Minis, 26 Minn. 183, 2 N. W. 494, 683. Missouri. — Gumm v. Hubbard, 97 Mo. 311, 11 S. W. 61, 10 Am. St. Rep. 312; State v. Andriano, 92 Mo. 70, 4 S. W. 263. New Mexico.^- Berry r. Hull, 6 N. M. 643, 30 Pac. 936. Neio York. — Matter of Morrison, 22 How. Pr. (N. Y.) 99; Young v. Peck, 21 Wend. (N. Y.) 389; Sutliff v. Forgey, 1 Cow. (N. Y.) 89; West v. West, 8 Paige (N. Y.) 433. South Carolina. — North v. Valk, Dudley Eq. (S. C.) 212. Texas. — Franks v. Hancock, 1 Tex. Unrep. Cas. 554. See also Warnell v. Finch, 15 Tex. 163. West Virginia. — Dryden r. Swinburne, 20 W. Va. 89. United States. — Campbell v. Gordon, 6 Cranch (U. S.) 176, 3 L. ed. 190; North Noonday Min. Co. v. Orient Min. Co., 6 Sawy. (U. S.) 299, 1 Fed. 522; Vint v. King, 28 Fed. Cas. No. 16,950, 2 Am. L. Reg. 712. See 2 Cent. Dig. tit. "Aliens," § 156, and Citizens. As to capacity of minor to be naturalized see supra, V, D. An illegitimate minor child living as a member of his reputed father's family be- comes a citizen on the naturalization of his reputed father. Dale v. Irwin, 78 111. 170. But see Guyer v. Smith, 22 Md. 239, 85 Am. Dec. 650. Naturalization after majority of child. — A father's naturalization after his child has at- tained majority does not make such child a citizen. Dorsey v. Brigham, 177 111. 250, 52 N. E. 303, 69 Am. St. Rep. 228, 42 L. R. A. 809; State v. Boyd, 31 Nebr. 682, 48 N. W. 739, 51 N. W. 602; Dryden v. Swinburne, 20 W. Va. 89. Naturalization by treaty. — The minor child of one who became a citizen under a Vol. II 118 ALIENS also been held that if an alien father takes the oath declaring his intention to become a citizen, his minor child thereby acquires an inchoate status as a citizen , and, if he attains majority before the father completes his naturalization, that status is capable of being converted into complete citizenship by other means* than the direct application provided for by the naturalization laws. 4 * But the naturalization of a father does not affect the citizenship of his minor son, who did not come to the United States until after his father had been naturalized.* 6 4. On Wife. An alien woman whose husband becomes a naturalized citizen of the United States is thereby made a citizen, 47 even though she has not attained her majority, 48 or does not come to the United States until after his death. 49 5. Retroactive Effect. Numerous authorities support the doctrine that natu- ralization, of itself, has no retroactive effect, 50 J. Offenses against Naturalization Laws. An applicant for naturaliza- tion cannot be indicted for falsely swearing as to his residence for the requisite time in the state. The statute provides that proof of such residence shall be by other testimony. Consequently, such oath is not one that the court can take, and is extrajudicial. 51 treaty, if residing in the United States at the time, would thereby become a citizen. Crane t . Reeder, 25 Mich. 303. Naturalization of stepfather. — The minor child of an alien widow becomes a citizen upon the naturalization of his mother's second husband. Behrensmeyer v. Kreitz, 135 111. 591, 26 X. E. 704; People v. Newell, 38 Hun (X. Y.) 78; U. S. v. Kellar, 11 Biss. (U. S.). 314, 13 Fed. 82. 45. Boyd v. Nebraska, 143 U. S. 135, 12 S. Ct. 375, 36 L. ed. 103 [reversing 31 Nebr. 682, 48 N. W. 739, 51 X. W. 002]. See also Sehrimpf v. Settegast, 38 Tex. 96. 46. Behrensmeyer v. Kreitz, 135 111. 591, 26 X. E. 704. 47. Georgia. — Headman r. Rose, 63 Ga. 458. Illinois. — Dorsev r. Brigham, 177 111. 250, 52 X. E. 303, 69 Am. St. Rep. 228, 42 L. R. A. 809. yew York. — Burton v. Burton, 1 Keyes fX. Y. ) 359 ; People v. Newell, 38 Hun IN. Y.) 78 ; Renner v. Miiller, 44 X. Y. Super. Ct. 535. Sorth Carolina. — Kane v. McCarthy, 63 N. C. 299. United States. — Kellv r. Owen, 7 Wall. (U. S.) 496, 19 L. ed. 283; U. S. r. Kellar, 11 Biss. (17. S.) 314, 13 Fed. 82; Leonard v. Grant, 6 Sawv. (U. S.) 603, 5 Fed. 11. See 2 Cent. Dig. tit. " Aliens," § 157, and ClTIZEXS. But see White r. White, 2 Mete. (Ky.) 185, wherein it was said that '' naturalization is a personal privilege, and the alien wife does not become a naturalized citizen by the nat- uralization of the husband." As to capacity of married woman to be naturalized see surira. V, D. 48. Renner v. Miiller, 44 N. Y. Super. Ct. 535. 49. Headman v. Rose, 63 Ga. 458 ; Burton r. Burton, 1 Keyes (X. Y.) 359: 19 Op. Atty.-Gen. (U. S.) 402. See also Kircher v. Murray, 54 Fed. 617. wherein it was held that, under the declaration adopted by the convention of Texas. Nov. 7. 1835. promising citizenship and donations of land to all vol- Vol n unteers in her war for independence, a citizen of Illinois who afterward entered her army as a volunteer, and died in her service, be- came a citizen of Texas, and his wife's citi- zenship followed his, though she never came to Texas. 50. Kentucky. — White v. White, 2 Mete. (Ky.) 185. Nebraska. — State r. Boyd, 31 Nebr. 682, 48 N. W. 739, 51 X. W. 602. Hew York. — Heney v. Brooklyn Benev. Soc, 39 X. Y. 333 [affirming 33 Barb. (X. Y.) 360]; Smith v. Smith, 33 Barb. (N. Y.) 371 note; Priest r. Cummings, 20 Wend. (X. Y.) 338 [affirming 16 Wend. (X. Y.) 617]. Com- pare Jackson r. Beach, 1 Johns, Cas. (X. Y.) 399. South Carolina. — Yaux v. Xesbit, 1 Me- Cord Eq. (S. C.) 352. West Virginia. — Dryden r. Swinburne, 20 W. Va. 89, wherein it was held that no court has power, in naturalizing an alien, to de- clare in its order that such alien shall De held to be a citizen from a time preceding the making of the order. England. — See Collingwood v. Pace, 1 Vent. 419. See 2 Cent. Dig. tit. " Aliens," § 155. On alien wife. — Marriage of an alien wife to a citizen has no retrospective effect (Dor- sey r. Brigham, 177 111. 250, 52 N. E. 303, 69 Am. St. Rep. 228, 42 L. R. A. 809), and will not entitle her to dower in lands of which her husband was seized during cover- ture, and which he had aliened previous to her naturalization (Priest r. Cumminsrs, 20 Wend. (N. Y.) 338 [affirming 16 Wend. (N. Y.) 617]: Labatut v. Schmidt. Speers Eq. (S. C.) 421). 51. State v. Helle, 2 Hill (S. C.) 290; TJ. S. r. Grottkau, 30 Fed. 672. See 2 Cent. Dig. tit. " Aliens," § 161. Forgery of certificate. — The words, " if any person shall make, forge," etc., a certifi- cate of naturalization, as used in the act of congress of March 3. 1813, entitled "An act for the regulation of seamen." etc.. are in- tended to be general in their operation, and ALIENS 119 VI. IMMIGRATION. A. Definition. Immigration is the entering into a country with the intention of residing in it. 52 B. Power to Exclude or Expel Aliens— 1. In General. According to the accepted maxims of international law, every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. 53 And the right of a nation to are not confined to seamen. U. S. v. Ran- dolph, 1 Pittsb. (Pa.) 24, 1 Pittsb. Leg. J. 21, 27 Fed. Cas. No. 16,120. Sale of certificate. — The certificate or evi- dence of citizenship, the sale of which is made criminal by the act of congress of March 3, 1813, is a certified copy of the act by which one was naturalized, and does not include a certificate signed by the clerk, and under the court's seal, to the effect that one, on the day named therein, was admitted to be a citizen. U. S. v. Makins, 26 Fed. Cas. No. 15,710, 3 Am. L. Rev. 777, Hoffm. Op. 500. Under U. S. Rev. Stat. (1878), § 5424, it is a criminal offense to sell a certificate of naturalization to other than the person to whom it was issued; and it is immaterial that such certificate was fraudulently pro- cured, by misrepresentation to the court, or that it was forged, if prima facie and appar- ently valid. U. S. v. Ragazzini, 50 Fed. 923. As to nature of offense see Berkowitz v. U. S., S3 Fed. 452, 35 C. C. A. 379. Jurisdiction of state courts. — Perjury com- mitted in a state court relative to an appli- cation for naturalization under the laws of the United States is indictable in the courts of the state. State v. Whittemore, 50 N. H. 245 ; Rump !'. Com., 30 Pa. St. 475. Contra, People v. Sweetman, 3 Park. Crim. (N. Y.) 358. Indictment. — An indictment for false swear- ing in a naturalization proceeding which al- leges that the person who administered the oath was a deputy clerk of the court, and act- ing as such when the oath was administered, is sufficient, without alleging the steps by which the officer became deputy clerk. Nor, in such ease, is it necessary to allege that the deputy clerk was authorized to administer such oath. U. S. v. Lehman, 39 Fed. 49. An indictment for a violation of U. S. Rev. Stat. (1878), § 5425, making any one guilty •of a felony who obtains any certificate of citizenship known to such person to have been procured by fraud, which describes the fraud charged by averring only that defendant ob- tained a certificate at a time when he was not legally entitled thereto, without describing the facts constituting the fraud, is bad, though it avers that such facts are unknown to the grand jury. U. S. v. Lehman, 39 Fed. 768. An indictment for perjury alleged to have been committed by respondent in his declara- tion of intention to become » citizen of the United States need not set forth the declara- tion. And an allegation in such indictment which states that the application of respond- ent to becoate a citizen was before " the dis- trict court of the said United States then and there holden for the said district of Massachusetts," and that said respondent " did then and there, in the said matter and proceeding, knowingly swear falsely and make oath before said court," is a sufficient desig- nation of the court, and a distinct averment that the oath was made before it. U. S. v. Walsh, 22 Fed. 644. An indictment for perjury alleging the making of a false affidavit relative to an ap- plication for naturalization thereafter to be made, and that affiant at the time of making the affidavit was sworn as a witness in sup- port of said application, is sufficient. It is unnecessary to aver that such application was afterward made, or that the affidavit was used. State v. Whittemore, 50 N. H. 245. Evidence. — Where the indictment alleges the perjury to have been committed by re- spondent in his application for naturaliza- tion, the record of the court before which the application was made by him, signed, and sworn to, is the best and only evidence that can be produced. U. S. v. Walsh, 22 Fed. 644. 52. U. S. r. Burke, 99 Fed. 895. Distinguished from deportation. — Deporta- tion is the removal of an alien out of the country because his presence is deemed in- consistent with the public welfare, but with- out any punishment being imposed or contem- plated, either under the laws of the country out of which he is sent or of those of the country to which he is taken. Fong Yue Ting v. U. S., 149 U. S. 698, 13 S. Ct. 1016, 37 L. ed. 905. Distinguished from emigration. — Emigra-, tion is the act of removing from one place or country to another. One who is called an emigrant at the place of his former residence is styled an immigrant on arrival at his new domicile. Rapalje & L. L. Diet. Distinguished from expatriation. — Expat- riation is the voluntary act of abandoning one's country and becoming the citizen or subject of another. Black L. Diet. See also Mcllvaine v. Coxe, 2 Cranch (U. S.) 280, 2 L. ed. 279. 53. U. S. v. Wong Kim Ark, 169 U. S. 649, 18 S. Ct. 456, 42 L. ed. 890; Wong Wing v. U. S., 163 U. S. 228, 16 S. Ct. 977, 41 L. ed. 140 ; Lem Moon Sing v. U. S., 158 U. S. 538, 15 S. Ct. 967, 39 L. ed. 1082; Lees v. U. S., 150 U. S. 476, 14 S. Ct. 163, 37 L. ed. 1150; Fong Yue Ting v. U. S., 149 U. S. 698 13 Vol. II 120 ALIENS expel or deport foreigners who have not Deen naturalized, or taken any steps toward becoming citizens of the country, is as absolute and unqualified as the light to prohibit and prevent their entrance into the country. 5 * 2. In the United States. In the United States control over aliens belongs exclusively to the political department of the government, and may be exercised either through treaties made by the president and senate, or through statutes enacted by congress. 55 C. Immigration Officers — 1. Appointment. Inspectors of immigration, under the act of congress of March 3, 1891, are to be appointed by the secretary of the treasury, and not by the superintendent of immigration. 56 2. Powers and Duties. Under a statute requiring the board of immigration commissioners to examine into the condition of immigrants, such board cannot delegate to a committee the power to determine whether immigrants shall be per- mitted to land. 5 ' S. Ct. 1016, 37 L. ed. 905 : Ekiu r. U. S.. 142 U. S. 651, 12 S. Ct. 336, 35 L. ed. 1146: Chae Chan Ping r. U. $.. 130 U. S. 581, 9 S. Ct. 623, 32 L. ed. 1068: Edve r. Robertson, 112 U. S. 580, 5 S. Ct. 247. 2S L. ed. 798: In re Way Tai, 96 Fed. 484: In re Florio, 43 Fed. 114; U. S. l\ Craig, 2S Fed. 795; In re Dav, 27 Fed. 678: Bar Int. L. (Gillespie's ed. 1883) 708, note 711; 2 Ortolan Diplomatic de la Mer (4th ed.) c. 14. p. 297: 1 Phil- limore Int. L. ( 3d ed. ) e. 10, § 220 : 1 Vattel L. Xat. e. 19, §§ 230, 231: Wharton Dig. Int. L. § 206. See 2 Cent. Dig. tit. "Aliens," S§ 70-72. 54. Wong Wing v. U. S., 163 U. S. 22S. 16 S. Ct. 977, 41 L. ed. 140: Fong Yue Ting r. U. S„ 149 U. S. 698, 13 S. Ct. 1016, 37 L. ed. 905 : In re Sing Lee, 54 Fed. 334. As to expulsion of alien enemies see Was. In England the only question that has ever been made in regard to the power to expel aliens has been whether it could be exercised by the king without the consent of parlia- ment. It was formerly exercised by the king, but in later times by parliament, which passed several acts on the subject between 1792 and 1848. 1 Bl. Comm. 260; 1 Chalmer Col. Op. 26: Chitty Prerog. Crown 49; 2 Coke Inst. 57: 34 Hansard Pari. Deb. (first series I 441. 445. 471, 1065-1071: In re Adam, 1 Moore P. C. 460 : Musgrove ( . Chun Teeon" Toy. [1891] A. C. 272. 55. Chan Gun r. U. S., 9 App. Cas. (D. C.) 290: Won? Wing v. V. S.. 163 V. S. 228, 16 S. Ct. 977; 41 L. ed. 140: Fong Yue Ting v. U. S.. 149 L T . S, (]io revertendi and within the class entitled to reentry may do so on presenting a proper certificate of identity. 82 5. Wife and Minor Child of Resident. The wife and minor children of a Chinese person who is domiciled in the United States may enter the United States, by reason of the right of the husband and father, without a certificate. 83 C. Certificate of Identity — 1. Nature of Certificate. Certificates of iden- tity merely establish prima facie the right of their holders to enter the United States, 84 and are licenses revocable at the pleasure of congress. 85 _ 2. Necessity. Chinese persons, other than laborers, desiring to enter the United States, and not domiciled therein, must procure a certificate from the Fed. 827; Gee Fook Sing v. U. S., 49 Fed. 146, 7 U. S. App. 27, 1 C. C. A. 211; Lem Hing Dun v. U. S. 3 49 Fed. 148, 7 U. S. App. 31, 1 C. C. A. 210; In re Wy Shing, 13 Sawy. (U. S.) 530, 36 Fed. 553; In re Yung Sing Hee, 13 Sawy. (U. S.) 482, 36 Fed. 437; Exp. Chin King, 13 Sawy. (U. S.) 333, 35 Fed. 354 ; In re Look Tin Sing, 21 Fed. 905. See, generally, Citizens, and 2 Cent. Dig. tit. "Aliens," § 83. 82. In re Tong Ah Chee, 23 Fed. 441 ; Case of Former Residence by a Chinese Laborer, 21 Fed. 791; Case of Limited Tag, 21 Fed. 789; Case of Unused Tag, 21 Fed. 701 ; In re Shong Toon, 21 Fed. 386; In re Pong Ah Chee, 18 Fed. 527; Case of Chinese Cabin Waiter, 7 Sawv. (U. S.) 536, 13 Fed. 286. See also infra, VTI, C, 2 ; and 2 Cent. Dig. tit. "Aliens," § 85. What constitutes a departure. — Chinese subjects purchasing through tickets, and em- barking in an American vessel bound from one American port to another, who do not leave the vessel when she, having leave to do so, touches at a foreign port, have not de- parted from the United States within the meaning of the Chinese exclusion act. In re Tong Wah Sick, 13 Sawy. (U. S.) 497, 36 Fed. 440. And a Chinese laborer, a resident of the United States, does not lose his resi- dence by going into Mexico and remaining there only one night. U. S. v. Lee Yung, 63 Fed. 520. So a Chinese laborer who has ac- quired a residence does not lose the same by shipping as one of the crew on an American vessel, at an American port, for a voyage to a foreign port and return, though he may land at such foreign port. In re Jack Sen, 13 Sawy. (U. S.) 510, 36 Fed. 441; Case of Chinese Laborers on Shipboard, 7 Sawy. (U. S.) 542, 13 Fed. 291; Case of Chinese Cabin Waiter, 7 Sawy. (U. S.) 536, 13 Fed. 286. Departure before passage of exclusion acts. — Chinese persons who were in the United States at the date of the treaty of 1880 with China, and who departed before the exclusion act of 1882 took effect, are entitled, under such act, to land without producing custom- house certificates. U. S. v. Jung Ah Lung, 124 U. S. 621, 8 S. Ct. 663, 31 L. ed. 591; Chew Heong v. U. S., 112 U. S. 536, 5 S. Ct. 255, 28 L. ed. 770: In re Ah Ping, 23 Fed. 329; In re Shong Toon, 21 Fed. 386; In re Tung Yeong, 9 Sawy. (U. S.) 620, 19 Fed. 184. See also In re Moncan, 8 Sawy. (U. S.) 350, 14 Fed. 44, wherein it was held that a Vol. II person on board a vessel of the United States, or any one of them, is, in contemplation of law, within the territory and jurisdiction of the United States; and therefore a Chinese laborer who shipped on an American vessel at London prior to the passage of the ex- clusion act of 1882, and continued on her un- til her arrival in the United States, although after the expiration of the ninety days next following the passage of said act, is entitled to reside therein. But under the act of con- gress of Xov. 3, 1893, Chinese persons who left the United States before its passage can- not return. Lai Moy p. U. S., 66 Fed. 955, 29 U. S. App. 517, 14 C. C. A. 283; Lew Jim r. U. S., 66 Fed. 953, 29 U. S. App. 513, 14 C. C. A. 2S1. And the right of a Chinese person to readmission to the United States, on the ground that he has already been en- gaged as a merchant therein, is governed by such act, though he departed from the coun- try before that act was passed. U. S. v. Loo Way, 68 Fed. 475; In re Yee Lung, 61 Fed. 641. 83. U. S. r. Gue Lim, 176 U. S. 4.59, 20 S. Ct. 415, 44 L. ed. 544 [affirming 83 Fed. 136] : In re Lee Yee Sing, 85 Fed. 635; In re Lum Lin Ying, 59 Fed. 682; In re Chung Toy Ho. 42 Fed. 398, 9 L. R. A. 204. Contra, In re Li Foon, 80 Fed. 881 ; In re Wo Tai Li, 48 Fed. 668; Case of Chinese Wife, 21 Fed. 785; In re Ah Quan, 21 Fed. 182. See 2 Cent. Dig. tit. "Aliens," § 80. 84. In re Tung Yeong, 9 Sawy. (U. S.) 620, 19 Fed. 184. But see In re Chinese Rela- tors, 58 Fed. 554, wherein it was held that where the passport, certificate, and papers of a Chinese immigrant are regular, and such as the statutes declare to be prima facie evi- dence of the facts therein stated, their effect is not to be overcome by the sworn statement of a special inspector that he was told by an interpreter that the immigrant had made statements inconsistent with the papers. See also Jew Sing v. U. S., 97 Fed. 582, wherein it was held that a certificate of residence is- sued to a Chinese person is prima facie evi- dence of the right of the holder to remain in the United States, of which right he can only be deprived by the courts upon proof that he has committed some act which would work its forfeiture. 85. Fong Yue Ting r. U. S., 149 U. S. 698, 13 S. Ct. 1016, 37 L. ed. 905: Chae Chan Ping v. U. S., 130 U. S. 581, 9 S. Ct. 623, 32 L. ed. 1068, holding that the license exists at the will of the government. ALIENS 127 Chinese authorities, vised by the consular representative of the United States, 86 as such certificate in such cases is sole evidence of the right to enter the United States. 87 ■ 3. Requisites and Sufficiency. In order to make a certificate of identity 'prima facie evidence of the holder's right to come into the United States, it must conform to the requirements of the statute. 88 D. Registration of Residents. A Chinese laborer, convicted of felony, is not entitled to register under the exclusion act of Nov. 3, 1893. 89 86. Wan Shing v. U. S., 140 U. S. 424, 11 S. Ct. 729, 35 L. ed. 503; Chew Heong v. U. S., 112 U. S. 536, 5 S. Ct. 255, 28 L. ed. 770. As to necessity of certificate in ease of wife or minor child of Chinese person domi- ciled in the United States, or of child born in the United States of Chinese parentage, see supra, VII, B, 3; VII, B, 5. Under the act of congress of May 6, 1882, it has been held that the certificate is not the only competent evidence that a Chinese per- son is not a laborer, and therefore entitled to come to and reside within the United States, but the fact may be shown by any other per- tinent and convincing testimony. In re Ho King, 8 Sawy. (U. S.) 438, 14 Fed. 724. See also In re Ah Quan, 21 Fed. 182. Domiciled persons. — The only evidence of the right of a Chinese laborer, who left the United States after the passage of the act of congress of May 6, 1882, to reenter is the certificate provided in the act. Case of Lim- ited Tag, 21 Fed. 789; Case of Unused Tag, 21 Fed. 701; In re Shong Toon, 21 Fed. 386; In re Pong Ah Chee, 18 Fed. 527. See also supra, VII, B, 4. But the requirements of the exclusion act that the vised certificate of identity therein provided for shall be the sole evidence permissible to establish a right to enter the United States does not apply to a merchant, long domiciled in the United States, who is returning from a temporary visit to China, and he may establish his right by the documentary evidence of identity fur- nished to him by the customs officers on his departure from the United States. Lau Ow Bew v. U. S., 144 U. S. 47, 12 S. Ct. 517, 36 L. ed. 340 [reversing 47 Fed. 578]. See also In re Yee Lung, 61 Fed. 641 ; U. S. v. Chin Quong Look, 52 Fed. 203; U. S. v. Gee Lee, 50 Fed. 271, 7 U. S. App. 183, 1 C. C. A. 516. 87. U. S. v. Pin Kwan, 100 Fed. 609, 40 C. C. A. 618 ; Mar Bing Guey v. U. S., 97 Fed. 576 (wherein it was held that a Chinese per- son, erroneously permitted to enter without such certificate, is unlawfully within the United States and may be arrested and de- ported without regard to his occupation since his entry) ; In re Wo Tai Li, 48 Fed. 668. See 2 Cent. Dig. tit. "Aliens," § 89. Loss of certificate. — A Chinese person, hav- ing obtained a certificate on his departure, and having had it stolen from him during his absence, is entitled to land, on his return to the port whence he sailed (no one in the meantime having, presented the certificate), on proving these facts and identifying him- self as the person to whom the certificate was issued. U. S. v. Jung Ah Lung, 124 U. S. 621, 8 S. Ct. 663, 31 L. ed. 591. 88. U. S. v. Yee Mun Sang, 93 Fed. 365; U. S. v. Chu Chee, 93 Fed. 797, 35 C. C. A. 613 (wherein it was held that a certificate of a consul of the United States in China, not indorsed on one from the Chinese government, is not evidence tending to establish the right of a Chinese person to enter into the United States) ; U. S. v. Yong Yew, 83 Fed. 832. But see U. S. v. Pin Kwan, 94 Fed. 824, wherein it was held that a Chinese person, not a la- borer, who has come to the United States with a certificate properly signed and visgd, and after examination has been permitted to enter the United States and has engaged in business as a merchant for seventeen months, cannot in the absence of fraud be deported on the ground that the certificate is incomplete and defective in matters of nomenclature and description. Authority of consul. — A certificate of iden- tification given by a Chinese consul in Japan, and visgd by the vice consul-general of the United States at Yokohama, is not sufficient, in the absence of evidence other than the cer- tificate itself, that the consul issuing it has authority from the Chinese government to do so. U. S. v. Mock Chew, 54 Fed. 490, 7 U. S. App. 534, 4 C. C. A. 482. 89. U. S. 1*. Chew Cheong, 61 Fed. 200; 2 Cent. Dig. tit. "Aliens," § 91. Necessity of registration. — A Chinese per- son who fails to show one of the prescribed excuses for not having procured a certificate is liable to deportation, although he does show the required residence. In re Ny Look, 56 Fed. 81. Excuse for failure to register. — Imprison- ment pursuant to sentence for crime is not a valid excuse for failure to register within the time limited by exclusion acts of May 5, 1892, and Nov. 3, 1893, providing for the deporta- tion of Chinese laborers who fail to register within a prescribed time unless prevented by accident, sickness, or other unavoidable cause. U. S. v. Ah Poing, 69 Fed. 972. Payment of costs. — The act of congress of May 5, 1892, § 6, permitting a Chinese la- borer, arrested without a certificate of resi- dence, to show that he was entitled to such a certificate, but was prevented, by reason of accident, sickness, or other unavoidable cause, from procuring it, declares that on such showing a certificate shall be granted to him " upon his paying the cost." It was held that the act does not refer to the costs of the la- borer's arrest and trial. U. S. v. Tye, 70 Fed. 318. Vol. II 128 ALIENS E. Proceedings to Deport — 1. Nature of Proceedings. A proceeding for deportation under the Chinese exclusion acts is in no proper sense a trial and sentence for a crime or offense. It is simply the ascertainment by appropriate and lawful means of the fact whether the conditions exist upon which congress has enacted that an alien of this class may remain within the country. 90 2. Jurisdiction. The provisions of the Chinese exclusion acts authorizing Chinese persons, thought to be unlawfully within the United States, to be arrested and taken before a commissioner, confer jurisdiction upon such com- missioner to determine the cases, and no order of the district judge, referring such cases to the commissioner for hearing, is either required or authorized. 91 3. Pleadings. It is not necessary for a complaint in a deportation proceed- ing to allege anything further than that defendant is a Chinese person and is found within the United States without the certificate of residence required by statute. 92 4. Burden of Proof. The burden rests upon a Chinese person, arrested for deportation as being unlawfully within the United States, to prove that he belongs to one of the privileged classes named in the statute. 93 90. Chan Gun v. U. S., 9 App. Cas. (D. C.) 290 ; Fong Yue Ting v. U. S., 149 U. "S. 698, 13 S. Ct. 1016, 37 L. ed. 905; The Haytian Republic, 57 Fed. 508 ; U. S. v. Wong Dep Ken, 57 Fed. 206; In re Sing Lee, 54 Fed. 334; In re Ng Loy Hoe, 53 Fed. 914; U. S. v. Hing Quong Chow, 53 Fed. 233; TJ. S. v. Wong Sing, 51 Fed. 79; In re Chow Goo Pooi, 25 Fed. 77. See also U. S. v. Lee Ching Goon, (Ariz. 1900) 60 Pac. 692, wherein it was held that a proceeding for deportation is special and statutory. It is analogous to a criminal action in the respect that the ma- chinery is criminal. Jury trial. — -An order of deportation may be made without a jury trial. In re Tsu Tse Mee, 81 Fed. 562; In re Sing Lee, 54 Fed. 334; In re Chow Goo Pooi, 25 Fed. 77. 91. U. S. v. Lee Lip, 100 Fed. 842. A justice of the supreme court of the Dis- trict of Columbia is a " United States judge " within the meaning of the Chinese exclusion acts, and hence has jurisdiction to grant or- ders for deportation as provided by those acts. Chan Gun v. TJ. S., 9 App. Cas. (D. C.) 290. Cancellation of certificate. — In a, proceed- ing for the deportation of a Chinese person arrested as being unlawfully in the United States, the commissioner has no jurisdiction to cancel » certificate of residence, issued to defendant and regular on its face, on the ground that it was procured by fraud. In re See Ho How, 101 Fed. 115. Conditions precedent. — An arrest upon a formal complaint under oath is not a neces- sary precedent to the jurisdiction of a United States judge to grant an order for deporta- tion of a Chinese laborer. Chan Gun r. U. S., 9 App. Cas. (D. C.) 290. Detention of vessel. — If the court should be of opinion that a Chinese person had no right to land, it is its duty to remand him to the custody from which he was taken, if the ship be in port and about to return to the country from which he came ; but the court has no right, nor color of right, to detain the ship. In re Chow Goo Pooi, 25 Fed. 77. Vol. II Imprisonment at hard labor. — A United States commissioner, while he has authority, in a summary proceeding under the Chinese exclusion acts, to order the deportation of a Chinaman found to be unlawfully within the United States, has no jurisdiction to order him to be imprisoned at hard labor for thirty days prior to the time fixed for his deporta- tion. In re Ah Yuk, 53 Fed. 781. Want of funds to deport. — A warrant for the arrest of a Chinese person will not be re- fused by a district judge who has no judicial knowledge that the executive department is without the funds necessary to deport such person. In re Lintner, 57 Fed. 587. See also U. S. v. Chum Shang Yuen, 57 Fed. 588 ; In re Ny Look, 56 Fed. 81; In re Chow Goo Pooi, 25 Fed. 77. 92. U. S. v. Williams, 83 Fed. 997. No formal complaint or pleadings are re- quired in a proceeding to deport a Chinese person. Fong Yue Ting v. U. S., 149 U. S. 698, 13 S. Ct. 1016, 37 L. ed. 905. Return of process. — In general, process is not returnable to a district other than that of its issuance ; but the Chinese exclusion act of 1888 alters this rule so far as relates to inquiry into the right of a Chinese person to be in the United States. U. S. v. Long Hop, 55 Fed. 58. See, generally, Peocess. 93. U. S. v. Lung Hong, 105 Fed. 188. The power of congress to prescribe a rule of evidence in proceedings for the deporta- tion of Chinese aliens is included within its general authority to exclude aliens, or to prescribe the conditions upon which they may remain in the United States. Fong Yue Ting r. V. S., 149 U. S. 698, 13 S. Ct. 1016, 37 L. ed. 905: U. S. r. Williams, 83 Fed. 997; U. S. v. Wong Dep Ken, 57 Fed. 206; In re Sing Lee, 54 Fed. 334. Refusal to testify. — A Chinese person, who has been shown by uncontradicted evidence to be entitled to remain in the United States, cannot be deported because of his refusal to be sworn to testify at the request of the United States. Ex p. Sing, 82 Fed. 22. ALIENS 129 5. Order of Deportation — a. Requisites and Sufficiency. The order of deportation need not explicitly refer to the specific act of congress under which the person to be deported is adjudged to be unlawfully in the United States. 94 b. Conclusiveness. A judgment of deportation of a Chinese person, by a court having jurisdiction of the controversy and the parties, cannot be impeached on habeas corpus by proof of a different state of facts from that on which the judgment was based. 95 e. To What Country. The words " country from whence he came," as used in the act of congress of Oct. 1, 1888, providing for deportation " to the country from whence he came " of a Chinese person not entitled to remain in the United States, and other acts on the subject, do not refer exclusively to the empire of China. 96 Accordingly, where a Chinese person has been convicted of being unlawfully in the United States, and the evidence shows that he entered the United States from Canada after having been in that country for a time, he must be returned to Canada. 97 6. Appeal. The right of appeal to a district court, given by § 13 of the act of congress of Sept. 13, 1888, to a Chinese person adjudged by a United States commissioner to be unlawfully in the United States, is not taken away by § 3 of the act of congress of May 5, 1892. 98 94. In re Tsu Tse Mee, 81 Fed. 562, wherein it was held that it is sufficient if the order of deportation shows that the person to be deported has been adjudged to be un- lawfully within the United States. Surplusage. — A commissioner having made an order of deportation, a further order, that the person to be deported " be forthwith taken before the nearest United States judge, that a, review of these proceedings may be had and proper order of deportation made," being un- necessary, may be treated as surplusage. In re Wong Foek, 81 Fed. 558. Forms of orders of deportation may be found in Fong Yue Ting v. U. S., 149 U. S. 698, 13 S. Ct. 1016, 37 L. ed. 905; U. S. v. Wong Dep Ken, 57 Fed. 206. 95. In re Gut Lun, 83 Fed. 141 ; In re Tsu Tse Mee, 81 Fed. 702. See also U. S. v. Chung Shee, 76 Fed. 951, 44 U. S. App. 751, 22 C. C. A. 639 [affirming 71 Fed. 277], wherein it was neld that a judgment of a federal court discharging on habeas corpus a Chinese immigrant detained on board a Tessel pursuant to a collector's decfsion, and permitting him to land, is conclusive of the right of entry and that right cannot be re- examined by any subsequent proceedings for ■deportation. See, generally, Habeas Corpus. 96. In re Leo Hem Bow, 47 Fed. 302; 2 Cent. Dig. tit. "Aliens," § 92. Departure of vessel. — Where a Chinese per- son has, on proceeding by habeas corpus, or by a justice, judge, or commissioner, been found to be unlawfully within the United States, and the vessel from which he was taken has sailed, the court may direct the marshal to whose custody such person has been remanded to cause him to be removed to the countrv whence he came. In re Chin Ah Sooey, 21 Fed. 393. Vacation of order. — The cotirt, on applica- tion of the United States attorney, may va- cate a sentence, and issue a new writ of de- portation to China, where the commissioner's [9] order is impossible of execution and effective only to detain and imprison defendant in the United States unlawfully. U. S. v. Ah Toy, 47 Fed. 305. 97. U. S. v. Don On, 49 Fed. 569 ; U. S. v. Chong Sam, 47 Fed. 878; In re Mah Wong Gee, 47 Fed. 433. 98. U. S. v. Wong Dep Ken, 57 Fed. 203. But see U. S. v. Lee Ching Goon, (Ariz. 1900) 60 Pac. 692, wherein it was held that the United States has no right of appeal from the order of a United States commis- sioner discharging a Chinese person as a member of the privileged class, since the stat- ute provides an appeal only for defendant from a conviction. Bail pending appeal. — The court will not admit to bail, pending appeal from the denial of a writ of habeas corpus, a Chinese immi- grant seeking discharge from detention by the collector. Chan Gun v. U. S., 9 App. Cas. (D. C.) 290; In re Chin Yuen Sing, 65 Fed. 788. See also Case of Chinese Wife, 21 Fed. 808. Compare Case of Unused Tag, 21 Fed. 701. A notice of appeal to the district court from an order of deportation must be served within the time provided by statute. U. S. v. See Ho How, 100 Fed. 730. Review on appeal. — The finding of a com- missioner that a Chinese person is not law- fully in the United States will not be dis- turbed on appeal unless clearly against the weight of evidence. U. S. v. Chung Fung Sun, 63 Fed. 261. So, while a court in its dis- cretion may permit a Chinese laborer, ar- rested on the Texas side of the Rio Grande, and ordered deported by a commissioner, to return to Mexico, where he formerly resided, when satisfied of the proof of his claim that he entered the United States unintentionally, it will not interfere with the order of depor- tation where it appears more probable, from the evidence, that his entry was intentional. Yee Yee Chung v. U. S., 95 Fed. 432. Waiver of objections. — Where a Chinese Vol. II 130 ALIENS F. Proceedings to Exclude. Authority to investigate and determine the facts upon which a Chinese person's right to enter the United States is made to depend is vested in the collector of customs. And the decision of a collector, when adverse to the right of a Chinese person to enter, is conclusive upon the courts. 99 In such case the only remedy is an appeal to the secretary of the treas- ury. 1 It has been held, however, that this rule will not prevent a court from entertaining an application for a writ of habeas corpus in behalf of one who was refused a fair hearing by the collector, and deported before the expiration of the time allowed him by law for appeal. 2 It has also been held that a collector's decision is not conclusive upon the courts when favorable to the right to land. 3 G. Offenses against Exclusion Acts. A vessel stolen from its owner and used, while out of his control, without his knowledge or consent, in bringing Chinese laborers into the United States in violation of law, does not become liable to seizure and forfeiture. To work a forfeiture of a vessel the master must knowingly violate the statute. 4 person was ordered deported by a commis- sioner, and appealed to the district court, where the case was tried de novo and he was discharged, the United States cannot for the first time, on a writ of error in the circuit court of appeals, raise the objection that the record filed on appeal was insufficient to give the district court jurisdiction. U. S. v. Lee Seick, 100 Fed. 398, 40 C. C. A. 448. 99. Act of congress of Aug. 18, 1894; Lem Moon Sing v. U. S., 158 U. S. 538, 15 S. Ct. 967, 39 L. ed. 1082; Ekiu v. U. S., 142 U. S. 651, 12 S. Ct. 336, 35 L. ed. 1146; In re Lee Ping, 104 Fed. 678 (wherein it was held that the fact that the collector disregarded the plain provisions of the statute and refused the right to land to one having a certificate of his student character conforming to the requirements of the statute, and which was not controverted by the United States, did not give a court jurisdiction to review his decision); In re Lee Lung, 102 Fed. 132; U. S. v. Gin Fung, 100 Fed. 389, 40 C. C. A. 439 [reversing 89 Fed. 153] ; In re Way Tai, 96 Fed. 484; In re Leong Youk Tong, 90 Fed. 648 ; In re Lee Yee Sing, 85 Fed. 635 ; In re Chin Yuen Sing, 65 Fed. 571; 2 Cent. Dig. tit. "Aliens," § 95. But see In re Tom Yum, 64 Fed. 485, wherein it was held that a col- lector did not have final jurisdiction to de- termine whether a person of Chinese descent is a citizen of the United States, but such question may be determined by the courts. See also U. S. v. Wong Chung, 92 Fed. 141, wherein it was held that, in a proceeding be- fore a commissioner for the deportation of a Chinese person, the action of a deputy col- lector some months previously, in refusing defendant the right to enter into the United States, is not an adjudication which consti- tutes a bar to the consideration of defend- ant's rights by the commissioner on the mer- its, where the deputy entered no decision, made no findings, and heard no evidence to rebut the prima facie showing made by de- fendant of his right of entry. See, generally, Habeas Corpus. Prior to the act of congress of Aug. 18, 1894, it had been held that there was no stat- ute or treaty making the decision of customs officials final, or ousting the courts of juris- Vol. II diction. U. S. v. Jung Ah Lung, 124 U. S. 621, 8 S. Qt. 663, 31 L. ed. 591 [affirming 25 Fed. 141]; In re Chow Goo Pooi, 25 Fed. 77. 1. In re Lee Lung, 102 Fed. 132. 2. In re Gin Fung, 89 Fed. 153. See also U. S. v. Chin Fee, 94 Fed. 828, wherein it was held that the decision of a customs offi- cer, that a Chinese person is not entitled to enter the United States, made after such per- son has already entered and without any ap- plication for entry, is not such an adjudica- tion as is made conclusive by the statute. 3. In re Li Sing, 86 Fed. 896, 58 U. S. App. 1, 30 C. C. A. 451 ; In re Li Foon, 80 Fed. 881. See also U. S. v. Lau Sun Ho, 85 Fed. 422, wherein it was held that the action of the collector of a port in permitting a Chi- nese laborer to land, upon representations that he was born in the United States, is not in any sense judicial, and, in a proceeding for the laborer's deportation, does not constitute even prima facie evidence of his right to re- main in the United States. And see U. S. v. Lee Hoy, 48 Fed. 825, wherein it was held that the presence of a Chinese merchant, otherwise entitled to be in the United States, is not rendered unlawful by the fact that, upon his return from a visit to Canada, the collector permitted him to land, upon the cer- tificates of private persons and his own per- sonal knowledge, without the vised certificate required by the amended exclusion act. Com- pare U. S. v. Loo Way, 68 Fed. 475. 4. U. S. v. The Geo. E. Wilton, 43 Fed. 606. See 2 Cent. Dig. tit. "Aliens," §'§ 96-99. As to proceedings to deport see supra, VLT, E. To exclude see supra, VII, F. A vessel touches at a port of the United States, within the meaning of the act to ex- clude Chinese laborers from the United States, when she calls there for orders, or a cargo for a foreign port ; and Chinese laborers who are on board of her as passengers or crew are not unlawfully in the country, contrary to said act, during her stay for such purpose. In re Moncan, 8 Sawy. (U. S.) 350, 14 Fed. 44. Change in management. — A steamship com- pany cannot escape its duty to take back, to the country from which they are brought, ALIENUS— AL1ZABIN 131 ALIENUS. In old English law, another's, or the property of another. 1 ALIGNMENT. The act of adjusting a line ; the state of being so adjusted ; and, in terms of engineering, " the ground-plan of a road or other work as dis- tinguished from its profile." 2 ALIKE. Equally. 8 ALIMENT. In Scotch law, a fund for maintenance ; Alimony, 4 q. v. ALIMONY. See Divoece ; Husband and Wife ; Maeeiage. A L'IMPOSSIBLE NUL EST TENU. A maxim meaning " No man is bound to perform the impossible." 5 ALIO INTUITU. With another view or object. 6 ALIQUIS. One ; a person. 7 ALIQUIS NON DEBET ESSE JUDEX IN PROPRIA CAUSA, QUIA NON POTEST ESSE JUDEX ET PARS. A maxim meaning " One ought not to be a judge in his own cause, because he cannot be a judge and party both." 8 ALITER. Otherwise. 9 ALIUD EST CELARE, ALIUD TACERE. To conceal is one thing ; to be silent is another. 10 ALIUD EST DISTINCTIO, ALIUD SEPARATIO. Distinction is one thing ; sepa, ration is another. 11 ALIUD EST POSSIDERE, ALIUD ESSE IN POSSESSIONE. It is one thing to possess ; it is another to be in possession. 18 ALIUD EST VENDERE, ALIUD VENDENTI CONSENTIRE. To sell is one thing ; to consent to sell is another. 13 ALIUD EXAMEN. A different or foreign mode of trial. 14 ALIUNDE. From another source or quarter. 15 ALIZARIN. A red coloring matter, of the character of Turkish reds, extracted from madder-root or made from anthracene, and extensively used as a dye-stuff." Chinese laborers unlawfully landed in the United States by it, by the departure of the vessel on which they are brought, or any change in its officers or management, pending proceedings to determine the right of the Chinese persons to reenter the United States. Case of Unused Tag, 21 Fed. 701. Indictment for aiding unlawful entry. — An indictment under the act of congress of May 6, 1882, making it unlawful for any person " to aid or abet the landing in the United States from any vessel of any Chinese person not lawfully entitled to enter the United States," must state facts sufficient to show that the Chinese person was one prohibited from landing, and that he was brought on the same vessel from which he landed on a voyage which terminated at the time of the landing. It is demurrable if it mereTy shows that he was a Chinese laborer, and alleges that he was not lawfully entitled to enter the United States, and that he landed from a certain vessel. U. S. v. Trumbull, 46 Fed. ,755. 1. Burrill L. Diet. 2. Chester v. Leonard, 68 Conn. 495, 507, 37 Atl. 397 [citing Webster International Diet.]. 3. The word " alike " is the same as the word " equally " when used in the expression, " to be possessed and enjoyed by them alike," in a will. Loveacres v. Blight, Cowp. 352, 357. 4. Wharton L. Lex. 5. Adams Gloss. 6. Burrill L. Diet. Used as in the expression, " The act . . , did not, as it seems to me, contemplate a case like the present, but was passed alio in- tuitu," per Ellenborough, C. J., in Payne v. Spencer, 6 M. & S. 231, 234. 7. Burrill L. Diet. 8. Broom Leg. Max. 9. Burrill L. Diet. Used in the reports to introduce a converse proposition or exception to a rule stated, as in the expression, " It has been held aliter ever since," in Copley v. Hepworth, 12 Mod. 1. 10. Burrill L. Diet, {citing Carter v. Boehm, 3 Burr. 1905, 1910]. Applied in Eoseman v. Canovan, 43 Cal. 110, 118. 11. Black L. Diet. 12. Wharton L. Lex. 13. Burrill L. Diet. 14. Black L. Diet. 15. Burrill L. Diet. Used in the expression, "And it appeared aliunde that the name of the vicar was," etc., in 1 Greenleaf Ev. § 291. 16. In re Schaeffer, 2 App. Cas. (D. C.) 1, 4. " The name has its origin in the trade- name — Alizari — applied to madder in the countries bordering on the Mediterranean Sea." In re Schaeffer, 2 App. Cas. (D. C.) 1, 4. Vol. II 132 ALL — ALLEGIANCE ALL. Each ; every ; 17 and sometimes equivalent to " any." 18 ALLAY. See Alloy. ALLEGANS CONTRARIA NON EST AUDIENDUS. A maxim meaning "He is not to be heard who alleges things contradictory to each other." 19 ALLEGANS SUAM TURPITUDINEM NON EST AUDIENDUS. A maxim mean- ing " He is not to be heard who alleges his own infamy." 20 ALLEGARI NON DEBUIT QUOD PROBATUM NON RELEVAT. A maxim meaning " That ought not to be alleged which, if proved, is not relevant." 21 ALLEGATA ET PROBATA. Allegations and proof. 22 ALLEGATION. The assertion, declaration, or statement of a party to an action, made in a pleading, setting out what he expects to prove. 23 ALLEGATION OF FACULTIES. An allegation of the means at the disposal of the husband, where, in a suit for divorce, alimony is demanded. 24 ALLEGED. Charged; stated. 25 ALLEGIANCE. The obligation of fidelity and obedience which the individual owes to the government or to the sovereign under which he lives in return for the protection he receives. 26 (See, generally, Aliens ; Citizens ; Treason.) 17. Powle v. Delano, 144 Mass. 95, 100, 10 N. E. 769; Sherburne v. Sischo, 143 Mass. 439, 442, 9 N. E. 797; State v. Babcock, 22 Nebr. 33, 37, 33 N. W. 709; State v. Cum- mings, 17 Nebr. 311, 316, 22 N. W. 545 [citing Craig Universal Diet.; Webster Diet.]; Bloom v. Xenia, 32 Ohio St. 461, 467; Bur- nett v. Great North Scotland R. Co., 54 L. J. Q. B. 531, 539. 18. Agawam Bank v. Strever, 18 N. Y. 502, 510. See also Moore v. Virginia J. & M. Ins. Co., 28 Gratt. (Va.) 508, 516, 26 Am. Rep. 373. Rule of construction. — In acts of assembly as well as in common parlance the word " all " is a general rather than a universal term, and is to be understood in one sense or the other, according to the demand, or sound reason. Stone v. Elliott, 11 Ohio St. 252, 258; Kieffer v. Ehler, 18 Pa. St. 388, 391. The word " all," as applied to persons and things, occurs frequently in all writings — lay, as well as legal — sacred and profane ; and the generality of the phrase is frequently to be restrained in an act, not only by the context, but by the general form and scheme of the statute, as demonstrative of the inten- tion of the legislature. Phillips v. State, 15 Ga. 518. 19. Broom Leg. Max. 20. Wharton L. Lex. 21. Burrill L. Diet. 22. Burrill L. Diet. A phrase frequently used to express the rule that the evidence and allegations in the pleadings must correspond, as in the sen- tence, " The allegata and probata must agree ; the latter must support the former," in Boone v. Chiles, 10 Pet. (U. S.) 177, 209, 9 L. ed. 388, 399. 23. Black L. Diet. 24. Lovett v. Lovett, 11 Ala. 763, 771; Wright v. Wright, 3 Tex. 168, 179. 25. Scholfield, J., in Watt v. People, 126 111. 9, 33, 18 N. E. 340, 1 L. R. A. 403. 26. Jackson v. Goodeil, 20 Johns. (N. Y.) 188, 191; State v. Hunt, 2 Hill (S. C.) 1, 219; Carlisle v. U. S., 16 Wall. (U. S.) 147, 21 L. ed. 426; Inglis v. Sailors' Snug Harbor, 3 Pet. Vol. II (U. S.) 99, 155, 7 L. ed. 617, 637; Calvin's Case, 7 Coke 1, 46; 1 Bl. Comm. 366. May be absolute or qualified. — " It may be an absolute and permanent obligation, or it may be a qualified and temporary one. The citizen or subject owes an absolute and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or another sovereign. The alien, whilst domi- ciled in the country, owes a local and tem- porary allegiance, which continues during the period of his residence. This obligation of temporary allegiance of an alien resident in a friendly country is everywhere recognized by publicists and statesmen." Carlisle v. TJ. S., 16 Wall. (U. S.) 147, 21 L. ed. 426. Not dependent on ownership of land. — "As to allegiance, it is indeed due from every citizen to the state, but it is a political obli- gation, and is as binding on him who enjoys the protection of the Commonwealth, without owning a, foot of soil, as on him who counts his acres by hundreds of thousands. So also it is due to the Federal Government, through which none of our titles have been derived. The truth is, that this obligation, which is reciprocal to the right of protection, results out of the political relations between the gov- ernment and the citizen, and bears no rela- tion whatever to his land-titles any more than to his personal property." Wallace v. Harmstad, 44 Pa. St. 492, 501. Binds to observance of what laws. — " Alle- giance binds the citizen to the observance of all laws which are promulgated by his own sovereign, not inconsistent with the laws of nature. The laws of nature as they are de- nominated also rightfully require obedience, not by reason of allegiance, but because they emanate from a higher authority than any human government. They are written upon the hearts of all men; exist before govern- ments are organized ; anterior of course to al- legiance, ' and are binding all over the globe, in all countries and at all times ' ... al- legiance itself is modified and controlled by them." Adams v. People, 1 N. Y. 173, 175. ALLEGIARE— ALLOCUTION 133 ALLEGIARE. To defend or justify by due course of law. 27 ALLEN ARLY. Only ; ffl a technical term used in Scotch conveyancing. 29 ALLEVIARE. To levy or pay an accustomed fine or composition. 30 ALLEY. A narrow passage or way in a city, 81 not meant primarily as a substi- tute for a street, but only as a local accommodation to a limited neighborhood. 32 (Alleys : As Boundaries, see Boundaries. Dedication of, see Dedication. Duties, Liabilities, and Powers of Municipalities Concerning, see Municipal Corporations.) ALL FAULTS. "Words used in contracts of sale, which, in the absence of fraud on the part of the vendor, cover all such faults and defects as are not incon- sistent with the identity of the goods as described. 33 ALL-FOURS. A metaphorical expression used to describe cases which are alike in all the circumstances which affect their determination, and which are said to be, or run, upon all-fours. 34 ALLIANCE. The union or connection of two persons or families by mar- riage. 35 In international law, a union between two or more nations, contracted by compact, treaty, or league. 86 ALLISION. The running of one vessel into another. 37 ALLOCARE. To Allow, 88 q. v. ALLOCATIO. An Allocation, 39 q. v. ALLOCATION. An allowance made upon accounts in the exchequer. 40 ALLOCATIONE FACIENDA. Literally, " making allowance." A writ for allow- ing to an accountant such sums of money as he hath lawfully expended in his office, directed to the lord treasurer and barons of the exchequer. 41 ALLOCATUR. Literally, <; it is allowed." A term used to express the allow- ance of a thing or proceeding by a court, judge, or judicial officer, and now applied in England to the certificate given by the master, on taxing a bill of costs, showing the amount taxed or allowed. 42 (See, generally, Appeal and Error ; Costs ; Damages.) ALLOCUTION. The formal address of the judge to a prisoner, asking him why sentence should not be pronounced. 43 (See, generally, Criminal Law.) 27. Jacob L. Diet. alley can in no proper or legal sense be con- 28. Balmerino's Case, 3 How. St. Tr. 591, sidered as a public highway, or be governed 699. by rules relating thereto. While the city 29. Century Diet.; Macintosh v. Gordon, may have, and undoubtedly has, certain lim- 4 Bell Sc. App. 105, 119, 124. ited rights therein for municipal purposes, 30. Burrill L. Diet. yet the public have no general right of way 31. Winston v. Johnson, 42 Minn. 398, over or through the same. It is designed 401, 45 N. W. 958 ; Bailey v. Culver, 12 Mo. more especially for the use and accommoda- App. 175, 183; Matter of Woolsey, 95 N. Y. tion of the owners of property abutting 135, 140. thereon, and to give, the public the same un- The term " public alley " has not, like qualified rights therein that they have in and " highway," any fixed and legal meaning. to the use of the public streets would defeat People v. Jackson, 7 Mich. 432, 447, 74 Am. the very end and object intended;" but an Dec. 729. alley was held to be a road in Sharett's Road, 32. Horton v. Williams, 99 Mich. 423, 427, 8 Pa. St. 89, 92. 58 N. W. 369; Beecher v. People, 38 Mich. 33. Whitney v. Boardman, 118 Mass. 242; 289, 291, 31 Am. Rep. 316. Shepherd v. Kain, 5 B. & Aid. 240, 7 E. C. L. Distinguished from "highway." — In De- 137; Schneider v. Heath, 3 Campb. 506, 508; bolt v. Carter, 31 Ind. 355, 367, the court, Pickering v. Dowson, 4 Taunt. 779. speaking of alleys, said : " Ordinarily, they 34. Abbott L. Diet, are laid out and dedicated to the public use, 35. Bouvier L. Diet. and especially for the use and convenience 36. Burrill L. Diet, of the property-holders of the town or city, 37. Burrill L. Diet. by the proprietor thereof, or are laid out and Distinguished from " collision," which is » established for the same purpose by the cor- running of two vessels into each other. Bur- porate authorities. ' Highway ' is a word of rill L. Diet. much broader signification; it includes every 38. Adams Gloss, species of ways over which the public at 39. Burrill L. Diet, large have a right of passage, whether they 40. Wharton L. Lex. be roads, navigable rivers, or streets and al- 41. Jacob L. Diet, leys; " and in Bagley v. People, 43 Mich. 42. Burrill L. Diet. 355, 5 N. W. 415, 38 Am. Rep. 192: "An 43. State v. Ball, 27 Mo. 324, 326. Vol. II 134: ALL DAB II— ALL WANCE ALLODARII. Tenants in fee simple. 44 ALLODIAL. Free; held in free and absolute ownership. 45 (See, generally, Property.) ALLODIUM. Land possessed by one in his own right, without owing any rent or service to any superior. 46 ALLOGRAPH. A document not written by any of the parties thereto. 47 ALLONGE. A paper attached to a negotiable instrument for receiving indorse- ments too numerous to be written on the bill itself. 48 (See, generally, Bills and Notes.) ALLOT. To set apart a thing to a person as his share. 49 ALLOTMENT. The act of allotting ; that which is allotted. 50 (Allotment : Of Corporate Stock, see Corporations. Of Dower, see Dower. Of Exempt Prop- erty or Homestead, see Exemptions ; Homesteads.) ALLOTMENT NOTE. A writing by a seaman, whereby he makes an assign- ment of part of his wages in favor of his wife, father or mother, grandfather or grandmother, brother or sister. 51 ALLOTMENT SYSTEM. The practice of dividing land into small portions for cultivation by agricultural laborers and other cottagers at their leisure, and after they have performed their ordinary day's work. 52 ALLOTTEE. A person to whom land under an inclosure act or shares in a public undertaking are allotted. 53 ALLOW. To permit ; M to grant license to ; to yield ; M to suffer ; to tolerate ; M to fix ; m to substitute by way of compensation something for another ; M and fre- quently used in wills in the sense of " intend ; " 59 " direct ; " w " give ; " 61 and " will." m ALLOWANCE. Something conceded as a compensation, abatement, or deduc- tion ; M a gift or gratuity to a child or other dependent ; M the sanction or appro- 44. Coke Litt. 16. 45. Wallace v. Harmstad, 44 Pa. St. 492, 499; Barker v. Dayton, 28 Wis. 367, 384. 46. McCartee v. Orphan Asylum Soc, 9 Cow. (N. Y.) 437, 513, 18 Am. Dec. 516 [citing 2 Bl. Comm. 104]. 47. Wharton L. Lex. 48. Alabama. — Crutchfleld r. Easton, 13 Ala. 337, 338. Indiana. — French v. Turner, 15 Ind. 59, 62 [citing Story Bills, § 204]. Nebraska. — Doll v. Hollenbeck, 19 Nebr. 639, 643, 28 N. W. 286 [citing Webster Diet.; Daniel Neg. Instr. 690]. Wisconsin. — Crosby v. Eoub, 16 Wis. 616, 626, 84 Am. Dec. 720. United States. — Osgood v. Artt, 17 Fed. 575, 577. 49. Glenn v. Glenn, 41 Ala. 571, 586; Fort v. Allen, 110 N. C. 183, 190, 14 S. E. 685 [citing Anderson L. Diet.]. 50. Century Diet. 51. Abbott L. Diet, [citing Mozley & W. L. Diet.]. 52. Black L. Diet. 53. Wharton L. Lex. 54. Kearns v. Kearns, 107 Pa. St. 575, 578 : Doty v. Lawson, 14 Fed. 892, 901 ; Hux- ham v. Wheeler, 3 H. & C. 75, 84. 55. Doty v. Lawson, 14 Fed. 892, 901: 56. Gregory v. U. S., 17 Blatchf. (U. S.) 325, 330, 10 Fed. Cas. No. 5,803. 57. Equivalent to " fix " in a statute re- lating to the rate of interest allowed. Hinds e. Marmolejo, 60 Cal. 229, 231. 58. Glenn v. Glenn, 41 Ala. 571, 586. 59. Hunter v. Stembridge, 12 Ga. 192, 194; Harmon v. James, 7 Ind. 263, 264. Vol. II 60. Cabeen v. Gordon, 1 Hill Eq. (S. C.) 51, 55. 61. Cabeen v. Gordon, 1 Hill Eq. (S. C.) 51, 55. 62. Ramsey v. Hanlon, 33 Fed. 425, 426. 63. Carroll County v. Richardson, 54 Ind. 153, 159 [citing Worcester Diet.]. Expenses and charges of trustee. — In the English cases the expenses and the charges to which the trustee may be entitled outside of the ordinary fee-bill are designated as al- lowances. Downing v. Marshall, 37 N. Y. 380, 390. Other than money. — In Burgess v. Clark, 14 Q. B. D. 735, 738, Brett, M. R., defined the word '■ allowance " as '•' a payment beyond the agreed salary of the officer, for additional services rendered by him," but in the same case Cotton, L. J., confined the meaning of the word to " the use of a room, or coals, or candles, or article of the like kind," or an allowance for the payment of them, while in Reg. v. Ramsgate, 23 Q. B. D. 66, Field, J., expressed a preference for the latter view, and defined the word as an allowance of some- thing other than money. This decision was followed in Edwards v. Salmon, 23 O. B. D. 531. 64. Taylor v. Staples, 8 R. I. 170, 179, 5 Am. Rep. 556. Imports a voluntary act. — "Whether we consider the ordinary and popular significa- tion of the word, or the more accurate and technical meaning attached to it by lexicog- raphers, it is entirely inappropriate to ex- press the idea of a fixed compensation adopted for the payment of services rendered by one person to another. The word 'allowance' ALLO WANOE— ALONG 135 bation of the court to certain acts ; 65 settlement ; 66 to put upon allowance; to restrain or limit to a certain quantity of provision or drink. 67 (Allowance : Additional — To Costs, see Costs ; To Pay in Army or Navy, see Army and Navy. Of Appeal or Writ of Error, see Appeal and Error. Of Claim against Decedent's Estate, see Executors and Administrators. To Surviving Spouse or Child, see Executors and Administrators.) ALLOWER. To let ; to hire. 68 ^ ALLOY or ALLAY. An inferior metal added to gold or silver in coining and in manufacture. 69 ALLUVIO or ALLUVIO MARIS. Alluvion, 70 q. v. ALLUVION. See Navigable Waters ; Waters. ALMANAC. See Evidence ; Time. ALMS. That which is given to the poor or needy. 71 ALMSHOUSE. A house appropriated for the poor. 73 (See, generally, Asy- lums ; Charities ; Hospitals ; Paupers.) ALNAGE. Ell-measure ; the measuring with an ell. 73 ALNAGE DUTIES. Duties payable on woolen cloths at so much per ell. 74 ALNAGER. A sworn public officer whose duty it was to measure woolen cloths and collect the duties thereon. 75 ALNETUM. In old English law, a place where alders grew. 76 ALONE. Solely. 77 ALONG. By ; ^ by the length of ; 79 on ; 80 over ; 81 adjoining. 83 imports the voluntary act of one party in do- ing something which is in his discretion to perform or withhold, at pleasure. To allow implies the right to determine, and is the act of a superior toward a dependent, granting a privilege which he has authority to confer or deny. It does not express the relations existing between co-contractors, vendor and vendee, or employer and employee, where there is a right secured by contract on one side, and no power of voluntary action on the other. Allowances are made by husband to wife, parents to children, the head of a fam- ily to its members, superannuated dependents and servants, from the benevolent to the poor, and, in cases where the act is discretionary with the donor, as a reward for benefits con- ferred, or services voluntarily rendered by one to another." Mangam v. Brooklyn, 98 N. Y. 585, 596, 50 Am. Rep. 705. Not necessarily payable in instalments. — While " allowance " is often used in the sense of a stated sum paid from time to time, it is susceptible of a much more enlarged sig- nification, and is often used to denote a sum or thing granted or permitted by the law. Jeter v. Jeter, 36 Ala. 391, 408. 65. Gildart v. Starke, 1 How. (Miss.) 450, 457. 66. " Allowance," when used in a, judge's certificate to a case-made, is equivalent to the word " settlement." Atchison, etc., R. Co. v. Cone, 37 Kan. 567, 569, 15 Pac. 499. 67. Feagin v. Comptroller, 42 Ala. 516, 522 [citing Webster Diet.]. 68. Kelham Diet. 69. Abbott L. Diet. 70. Burrill L. Diet. 71. Century Diet. Distinguished from " charity." — " In many instances where the words ' alms ' and ' char- ity' are both used, we are to consider it as mere tautology." Bedford's Case, 2 Dougl. El. Cas. 69, 106. But in Taunton's Case, 1 Dougl. El. Cas. 367, 370, the court said: " 'Alms ' means parochial collection, or par- ish relief. ' Charity ' signifies sums arising from the revenue of certain specific funds which have been established or bequeathed for the purpose of assisting the poor." 72. Colored Orphans' Ben. Assoc, v. New York City, 104 N. Y. 581, 586, 12 N. E. 279; People v. Tax, etc., Com'rs, 36 Hun (N. Y.) 311, 312 [citing Webster Diet.]; Matter of Curtis, 25 N. Y. St. 1028, 7 N. Y. Suppl. 207, construing statute exempting almshouses from certain tax. 73. Burrill L. Diet. 74. Brown L. Diet. They were abolished by 11 & 12 Wm. Ill, c. 20, § 2. 75. Jacob L. Diet. 76. Burrill L. Diet. 77. Salem Capital Flour Mills Co. v. Stay- ton Water Ditch, etc., Co., 13 Sawy. (U. S.) 99, 110, 33 Fed. 146. 78. Church v. Meeker, 34 Conn. 421, 425. 79. Cook County v. Great Western R. Co., 119 111. 218, 225, 10 N. E. 564 [citing Web- ster Diet.] ; Pratt v. Atlantic, etc., R. Co., 42 Me. 579, 585; Postal Tel. Cable Co. v. Nor- folk, etc., R. Co., 88 Va. 920, 926, 14 S. E. 803. 80. Church v. Meeker, 34 Conn. 421, 425; Nappanee v. Ruckman, 7 Ind. App. 361, 34 N. E. 609 ; Heath v. Des Moines, etc., R. Co., 61 Iowa 11, 14, 15 N. W. 573. Context must show meaning. — The word " along " does not mean " upon " unless the context shows that it is used in the sense of " upon and along." Stevens v. Erie R. Co., 21 ST. J. Eq. 259, 34 N. J. L. 532. 81. Church v. Meeker, 34 Conn. 421, 425; Heath r. Des Moines, etc., R. Co., 61 Iowa 11, 14. 15 N. W. 573. 82. Walton v. St. Louis, etc., R. Co., 67 Mo. 56, 58. " ' Along ' a line does not signify that Vol. II 136 ALONG — ALTERATION ALONG WITH. In addition to. 83 ALORS. There ; at that time ; in that place. 84 ALSO. Likewise ; M in the same or like manner ; M in addition ; K besides ; ffi too ; w also used as a copulative conjunction denoting nearly the same as the word " and." *> ALT. High ; 91 and, in Scotch practice, an abbreviation of alter, — the oppo- site party, the defender. 92 ALTA PRODITIO. High treason. 93 ALTARAGE. The offerings made upon the altar, and also the profits that arise to the priest by reason of the altar. 94 ALTA VIA. The highway. 95 ALTER. To change " or make different OT without destroying identity. 98 ALTERATION. A change or substitution of one thing for another. 99 (Altera- tion : Of Boundaries, see Boundaries. Of Brands or Marks, see Animals ; Inspection. Of Instruments, see Alterations of Instruments. Of Political Divisions, see Counties; Municipal Corporations; Schools and School Dis- tricts ; Towns. Of Records, see Records. Of Streets or Highways, see Streets and Highways.) an object must be on the line, but rather the reverse ; ' along,' in this sense, is used as the equivalent of ' up to,' ' extending to,' ' reach- ing to'" (Benton v. Horsley, 71 Ga. 619, 626) ; nor do the words necessarily import that the object must at all points touch or be parallel to the line (Com. v. Franklin, 133 Mass. 569, 570, construing Mass. Gen. Stat, c. 45, § 6, authorizing a. person adjoining a highway to construct a sidewalk along the lines of his land ) . 83. Pilkington v. Myers, 8 L. T. Rep. N. S. 720. 84. Kelham Diet. 85. Panton v. Tefft, 22 111. 367; Allison v. Bates, 6 B. Mon. (Ky.) 78, 80; Eawlings i?. Hunt, 90 N. C. 270, 273; Howell v. Com., 87 Pa. St. 332, 335 [citing Worcester Diet.]. 86. Dakota. — Van Dusen v. Fridley, 6 Dak. 322, 43 N. W. 703 [.citing Webster Diet.]. Illinois.— Panton v. Tefft, 22 111. 367. Kentucky. — Allison v. Bates, 6 B. Mon. (Ky.) 78, 80. New Jersey. — Morgan v. Morgan, 41 N. J. Eq. 235, 237, 3 Atl. 63. North Carolina. — Eawlings v. Hunt, 90 N. C. 270, 273 ; Hyman v. Williams, 34 N. C. 92, 94; Sherrill v. Echard, 29 ST. C. 161, 164. Pennsylvania. — Howell v. Com., 97 Pa. St. 332, 335 [citing Worcester Diet.]. 87. Dakota. — Van Dusen r. Fridlev, 6 Dak. 322, 43 N. W. 703 [citing Webster Diet.]. Illinois. — Panton v. Tefft, 22 111. 367. Maine. — Loring v. Hayes, 86 Me. 351, 29 Atl. 1093. Vol. LT Nevada. — McCurdy v. Alpha Gold, etc., Min. Co., 3 Nev. 27, 37. North Carolina. — Eawlings v. Hunt, 90 N. C. 270, 273. Pennsylvania. — Howell v. Com., 97 Pa. St. 332, 335 [citing Worcester Diet.]. 88. Eawlings v. Hunt, 90 N. C. 270, 273. 89. Howell v. Com., 97 Pa. St. 332, 335 [citing "Worcester Diet.]. 90. Parish v. Cook, 6 Mo. App. 328, 332; Evans v. Knorr, 4 Eawle (Pa.) 66, 69; Gar- land v. Harrison, 8 Leigh (Va.) 368, 384. 91. Kelham Diet. 92. Burrill L. Diet. 93. Wharton L. Lex. 94. Jacob L. Diet. 95. Bouvier L. Diet. Used in Primer v. Philips, 1 Salk. 222. 96. California. — People v. Sassovich, 29 Cal. 480, 484. New Jersey. — Jaqui v. Johnson, 26 X. J. Eq. 321, 327. Ohio. — Haynes v. State, 15 Ohio St. 455, 457. Oregon. — Heiple v. Clackamas County, 20 Oreg. 147, 149, 25 Pac. 291. Pennsylvania. — Wallace v. Blair, 1 Grant (Pa.) 75, 79. 97. Black River Imp. Co. v. Holway, 87 Wis. 584, 590, fb N. W. 126. 98. Heiple v. Clackamas County, 20 Oreg. 147, 149, 25 Pac. 291 ; Davenport v. Magoon, 13 Oreg. 3, 7, 4 Pac. 299, 57 Am. Eep. 1; Black Eiver Imp. Co. v. Holway, 87 Wis. 584, 590, 59 N". W. 126. 99. Johnson v. Wyman, 9 Gray (Mass.) 186, 189. ALTERATIONS OF INSTRUMENTS Edited by John F. Dillon.* I. DEFINITION, 142 II. Time of Change, 143 A. After Complete Execution, 143 B. Before Issue of Bill or Note, 144 C. Tinder Circumstances Importing Authority, 145 . D. After Signing by One Party, 145 1. In General, 145 2. Changes Not Affecting Parties Who Have /Signed, 145 III. INTENT, 146 A. In General, 146 B. Accident or Mistake, 146 C. Fraudulent Purpose, 146 D. Correction of Mistake to Conform to Original Intention, 148 1. Rule Permitting, 148 2. Rule Prohibiting Reformation by Parties, 149 IV. BY WHOM MADE, 150 A. In General, 150 B. By One of Several Obligors or Promisors, 151 C. Changes by Stranger to Instrument, 151 1. General Rule, 151 2. When Identity of Instrument Destroyed, 152 3. Party to Instrument as Stranger, 152 V. AUTHORITY AND CONSENT, 152 A. Authority, 152 1. In General, 152 2. Sufficiency of Agency — Mere Custody of Instrument, 153 a. In General, 153 b. Partners, 153 . c. No Inference from Marital Relation, 154 d. One of Several Parties to Instrument, 154 3. Agent Regarded as Stranger, 155 B. Consent, 155 1. In General, 155 2. Changes in Deeds, 156 a. In General, 156 b. After Acknowledgment and Delivery, 157 3. By One of Several, 158 4. By Maker and Obligee against Co-ObUgor, 158 5. As to Party Making Alteration, 159 C. Filling Blanks, 159 1. In General, 159 2. Implied Authority, 159 a. In General, 159 * Sometime Chief Justice of the Supreme Court of the State of Iowa, United States Circuit Judge for the Eighth Circuit, and Author of " Commentaries on the Law of Municipal Corporations," " Removal of Causes from State to Federal Courts," etc. 137 Vol. II 138 ALTERATIONS OF INSTRVMENTS b. FilUng by Bona Fide Holder, 160 c. Circumstances Must Import Authority, 160 d. Authority Confined to Perfecting the Instrument, 161 e. As between Original Parties or Those Moving Notice, 162 3. Filling Amount, 162 4. Filling Date, 163 5. Filling Place of Payment, 163 6. Filling Amount of Interest, 164 7. Filling Time of Payment j 164 8. Filling im, Names of Parties, 164 a. ./« General, 164 b. Name of Payee, 165 9. Blanks in Deeds, 165 a. Parol Authority and Delivery, 165 (i) Conflict of Authority, 165 (n) Character of Blank as Affecting Authority to Fill, 166 (a) Instrument Wholly Blank, 166 (b) Material and Immaterial Matter, 166 (in) Filling before Delivery, 167 (a) Jfo General, 167 (b) _Sy Agent Acting under Parol Authority, 167 (rv) Redelivery or Filling in Presence of Maker, 167 (a) Where Parol Authority Not Sufficient, 167 (1) Filling in Presence of Maker Good Delivery, 167 (2) Necessity for Redelivery When Filled out of Presence of Maker, 167 (a) In General, 167 (b) Instrument Evidence under Statute of Frauds, 168 (c) Sufficient Adoption of Instrument after Filling, 168 (b) Where Parol Authority Sufficient, 168 (c) Actual or Implied Authority, 169 (d) Formalities in Conveyance of Land, 170 (e) Where Seals Are Abolished, 171 b. Estoppel, 171 VI. RATIFICATION, 172 A. In General, 172 B. New Consideration, 172 C. Sufficiency of Ratification, 173 1. Acquiescence, 173 2. New Promise, 174 3. Waiver of Protest and Notice, 174 4. Obtaining Extension of Time, 174 5. Giving Other Security, 174 6. Payment, 174 7. Bringing Suit on Altered Instrument, 174 8. Necessity for Full Knowledge of Facts, 174 VII. NATURE AND EFFECT OF MATERIAL AND IMMATERIAL CHANGES, 175 A. Early Doctrine Applied to Deeds, 175 B. Doctrine Extended to Other Instruments, 175 C. Abandonment of Early Doctrine, 176 D. Nature and Effect of Material Changes Generally, 177 Vol. II ALTERATIONS OF INSTRUMENTS 139 1. Statement of Rule, 177 2. Reason of Rule, 179 3. Extent of Change, 180 a. In General, 180 ■ b. Liability Increased or Enlarged, 180 c. Change Not Prejudicial, 180 4. Extent of Vitiating Effect, 181 a. In General, 181 b. No Right or Title Conferred, 181 c. No Recovery on Altered or Original Terms of Instrument, 182 d. Restoration of Instrument, 182 (i) In General, 182 (n) Exceptions — Before Delivery, 183 e. Effect as to Original Consideration, 183 (i) Extinguishment of Debt, 183 (n) Debt Not Extinguished in Absence of Fraud, 183 (a) In General, 183 (b) As between Particular Parties, 184 (c) Production of Note, 185 (in) Fraudulent Alteration, 185 (a) In General, 185 (b) Effect of Judgment in Action on Note, 185 f. Equitable Relief, 185 f. Rescission, 187 . Recovery for Conversion of Altered Instrument, 187 i. Recovery of Possession of Altered Instrument, 187 j. Distinction between Executed and Executory Instru- ments, 187 (i) In General, 187 (n) As to Vested Titles and Covenants, 187 (in) Mortgages, 188 (iv) Estate Dependent upon Deed or Otherwise, 189 (v) Lease, 189 k. Who May Complain, 189 E. Nature and Effect of Immaterial Changes, 190 1. General Rule, 190 2. Cases Recognizing Ancient Rule, 191 3. Supplying What the Law Implies, 192 4. Intent, 193 E. Character and Effect of Particular Changes, 193 1. Adding, Changing, or Destroying Covenants and Conditions in General, 193 2. Character or Quality of Goods, 194 3. As to Separate Estate, 194 4. RisTc in Insurance Policy, 194 5. Consideration, 195 6. Amount, 195 7. Cbsfe «w Hampshire. — Cole r. Hills, 44 X. H. 227, holding that in such cases assent may be implied. But see Bowers v. Jewell, 2 X. H. 543. New York. — Clute v. Small, 17 Wend. (X. Y. ! 238, wherein it is said that though the cases allowing an alteration of express words to correct a mistake were very scant, while those allowing an omission to be sup- plied were numerous, no distinction appeared to be established and they all seemed to stand upon the same principle — that of carrying out the original intent. Ohio.— Jessup r. Dennison. 2 Disney (Ohio) 150. Oregon. — Wallace r. Tice, 32 Oreg. 283, 51 Pac. 733. Pennsylvania. — Latshaw r. Hiltebeitel, 2 Pennyp. (Pa.) 257. Utah. — McClure r. Little. 15 Utah 379. 49 Pac. 298, 62 Am. St. Rep. 938. Vermont. — Derby v. Thrall, 44 Vt. 413, 8 Am. Rep. 3S9. England.— Brutt t\ Picard, R. & M. 37. 21 E. C. L. 698 ; Jacob r. Hart, 6 M. & S. 142 : Byrom v. Thompson, 11 A. & E. 31, 39 E. C. L. 42: Kershaw v. Cox, 2 Esp. 246: London, etc., Bank r. Roberts, 22 Wkly. Rep. 402: Webber r. Maddocks, 3 Campb. 1. Canada. — Fitch r. Kelly, 44 U. C. Q. B. 578; Sayles r. Brown, 28 Grant Ch. (U. C.) 10; Merchants' Bank r. Stirling, 13 Nova Scotia 439. ALTERATIONS OF INSTRUMENTS 149 tion must be made wilfully or intentionally. 21 Some of these cases apparently proceed upon the theory that the fact that the change is made only for the pur- pose of correcting a mistake is that which renders the change immaterial, and for this reason will not vitiate the instrument, 22 while in others the inherent imma- teriality of the correction would seem to have its due weight in connection with the purpose for which the change is made. 23 2. Rule Prohibiting Reformation by Parties. On the other hand, it is laid down broadly that one party to an instrument has no right to reform its language without the consent of the other party, however inaccurately the real contract between the parties may be expressed. 24 21. Hayes v. Dumont, 2 Ohio Cir. Ct. 229. And if made for the' purpose of correcting a mistake the change is to that extent consid- ered innocently done. Sill v. Reese, 47 Cal. 294; Ames v. Colburn, 11 Gray (Mass.) 390, 71 Am. Dee. 723. Stated in another way, it is competent, in determining whether a change has materially affected the rights of the par- ties, to take into consideration their inten- tion when the agreement was executed. Ryan v. Springfield First Nat. Bank, 148 111. 349, 3o N. E. 1120. So in Chamberlain v. Wright, (Tex. Civ. App. 1896) 35 S. W. 707, where a note was executed for a certain amount and thereafter a line was drawn through the mar- ginal figures indicating the amount, and the amount expressed in the body of the note was left in its original condition, corresponding with the marginal figures through which the line had been drawn, it was held that the supposed change was simply indicative of a mistake to be corrected to the advantage of the maker, and showing an honest purpose on the part of the holder not to avail him- self of an error in his favor; that it was not supposed that the maker was " panting, like a hart for the water-brook," to pay more money than he justly owed, but that if he had such a desire he could have gratified it by complying with his obligation as it re- mained expressed in the note. 22. See Duker v. Franz, 7 Bush (Ky.) 273, 3 Am. Rep. 314 ; McRaven v. Crisler, 53 Miss. 542; Latshaw v. Hiltebeitel, 2 Pennyp. (Pa.) 257; London, etc., Bank v. Roberts, 22 Wkly. Rep. 402. 23. Connecticut. — Murray v. Klinzing, 64 Conn. 78, 29 Atl. 244. Maryland. — Outtoun v. Dulin, 72 Md. 536, 20 Atl. 134. Mississippi. — Conner v. Routh, 7 How. (Miss:) 176, 40 Am. Dec. 59. New Hampshire. — Cole v. Hills, 44 N. H. 227. New York. — Clute v. Small, 17 Wend. (N. Y.) 238; Boyd v. Brotherson, 10 Wend. (N. Y.) 93. Vermont. — Derby v. Thrall, 44 Vt. 413, 8 Am. Rep. 389. England. — An award by an umpire which mistakenly recites the christian name of one of the original arbitrators is not thereby vitiated. The mistake is in an immaterial part. Hence it follows that the alteration, subsequent to the publication of the award, by striking out the writing and inserting the right christian name, does not vitiate the award, but it leaves it as it was before the alteration. Trew v. Burton, 1 Cr. & M. 533. 24. Illinois. — Kelly v. Trumble, 74 111. 428. Iowa. — Murray v. Graham, 29 Iowa 520. Michigan. — Aldrich v. Smith, 37 Mich. 468, 26 Am. Rep. 536. Missouri. — Capital Bank r. Armstrong, 62 Mo. 59 (to the effect that if mistakes arise in the preparation of written instruments, aside from consent of all parties to the needed correction the courts of the country alone can furnish adequate redress) ; Evans v. Foreman, 60 Mo. 449. New Jersey. — Hunt v. Gray, 35 N. J. L. 227, 10 Am. Rep. 232. Pennsylvania. — Clark v. Eckstein, 22 Pa. St. 507, 62 Am. Dec. 307 ; Miller v. Gilleland, 19 Pa. St. 119, 1 Am. L. Reg. 672. Tennessee. — Taylor v. Taylor, 12 Lea (Tenn.) 714. Texas.— Otto v. Halff, 89 Tex. 384, 34 S. W. 910, 59 Am. St. Rep. 56. Utah. — The same rigid rule cannot be ap- plied to a report made by a business firm to a commercial agency for the purpose of ob- taining credit. Belleville Pump, etc., Works v. Samuelson, 16 Utah 234, 52 Pac. 282. Cases distinguished. — Many of the cases on this particular feature of the subject seem to be irreconcilable. From the general statements in the cases adhering to the vari- ous views above indicated it would sometimes appear that the cases permitting the correc- tion of a mistake and those refusing to al- low one party, without the consent of the other, to reform the language of the contract, are directly opposed to each other. Thus in Taylor v. Taylor, 12 Lea (Tenn.) 714, it was said that to hold as it was held in Duker v. Franz, 7 Bush (Ky.) 273, 3 Am. Rep. 314 (both of which cases are cited supra, in this section) would open the door to controversies intended by the law to be closed by the writ- ten contract of the parties. On one point, however, there is a clear and well-drawn line of distinction. Thus, in some of the cases which permit the correction of a mistake by one party to an instrument without the con- sent of the other, the mistake which may be corrected must be one which makes the in- strument conform to the original intention of the parties in the sense of making it as the parties intended it to be at the time of its execution, and not merely to make it con- form to the real contract of the parties made Vol. II 150 ALTERATIONS OF INSTRUMENTS IV. BY WHOM MADE. A. In General. The term " alteration " is said to be usually applied at this day to the act of the party entitled under the instrument. 25 The rule thus broadly stated is true, however, only in distinguishing the effect of a spoliation or an act done by a stranger from the effect of such a change made by a party to the instru- ment, 26 for while it is true that the change must be made by a party interested, or with his knowledge or consent, 27 and it is equally well settled that an alteration by the holder, obligee, or party claiming under the instrument will vitiate it, 28 it is not always true that the change must be made by the holder of the instrument or the party claiming under it, but, on the contrary, the general rule is that a mate- rial change made by any party to the instrument will vitiate it as against another party not consenting. 29 before the instrument was reduced to writ- ing, for whether the real facts conform to the instrument as changed is immaterial if the party without whose consent the change is made intended to execute the instrument as it appeared before the change. See: Georgia. — Low v. Argrove, 30 Ga. 129. Illinois. — So while in Ryan r. Springfield First Nat. Bank, 148 111. 349, 35 X. E. 1120, it is held to be competent, in determining whether a change has materially affected the rights of the parties, to take into considera- tion their intention when the agreement was executed, in Kelly v. Trumble, 74 111. 428, the court held in accordance with the last text statements, at the same time recogniz- ing the principle that if the law would have supplied the words added the change would have been immaterial. Kentucky. — Duker v. Franz, 7 Bush ( Ky. ) 273, 3 Am. Rep. 314. Maine. — Hervey v. Harvey, 15 Me. 357. New Hampshire. — Bowers v. Jewell, 2 N. H. 543 [distinguishing the remark in Chitty on Bills, p. 85, that an alteration to correct a. mistake will not vitiate a bill of exchange, in that, from the English cases on this point, it appeared that the alteration was by consent and the effect was considered with reference to the stamp act; and citing Knill j?. Williams, 10 East 431; Kershaw v. Cox, 2 Esp. 246; Cardwell r. Martin, 9 East 190, 1 Campb. 79, 180]. 25. 1 Greenleaf Ev. § 566. See also Grimes v. Piersol, 25 Ind. 246 ; Bingham v. Shadle, 45 Nebr. 82, 63 N. W. 143; Oliver v. Hawley, 5 Nebr. 439; State v. Manhattan Silver Min. Co., 4 Nev. 318; Blair v. State Bank, 11 Humphr. (Tenn.) 83. 26. See infra, IV, C. Comprehensive statement. — Perhaps ■*, bet- ter statement of the rule in this connection, in view of the authorities as a whole, is the comprehensive one to the effect that a change otherwise amounting to a technical altera- tion is vitiating if made by one other than a stranger. Alabama State Land Co. v. Thompson, 104 Ala. 570, 16 So. 440. 53 Am. St. Rep. 80; Lesser v. Scholze, 93 Ala. 338, 9 So. 273. 27. Alabama. — Jordan v. Long, 109 Ala. 414. 19 So. 843. Idaho.— Mulkey v. Long, (Ida. 1897) 47 Pac. 949. Vol. II New Hampshire. — Hills v. Barnes, UN. H. 395. New York. — Martin r. Tradesmen's Ins. Co., 101 N. Y. 498, 5 N. E. 338, holding that an alteration made by defendant or a. third party without plaintiff's consent, or while the contract is out of plaintiff's hands, has no effect as long as the original contents of the instrument are ascertainable. Ohio. — Hayes r. Dumont, 2 Ohio Cir. Ct. 229. 28. Alabama. — Payne r. Long, 121 Ala. 385, 25 So. 780. Arkansas. — Overton r. Matthews, 35 Ark. 146, 37 Am. Rep. 9; Chism r. Toomer, 27 Ark. 108. Indiana. — Nicholson r. Combs, 90 Ind. 515, 46 Am. Rep. 229. Kentucky. — Phoenix Ins. Co. r. McKernan, 100 Ky. 97, 18 Ky. L. Rep. 617, 37 S. W. 490; Singleton v. McQuerrv. 85 Ky. 41, 8 Ky. L. Rep. 710, 2 S. W. 652'. Massach usftts. — Cape Ann. Nat. Bank v. Burns, 129 Mass. 596. Missouri. — Moore r. Hutchinson, 69 Mo. 429. Nebraska. — Hurlbut v. Hall, 39 Nebr. 889, 58 N. W. 538. New Jersey. — Quinzel v. Schmidt, ( N. J. 1897) 38 Atl. 665. New York. — Colson r. Arnot, 57 N. Y. 253, 15 Am. Rep. 496; Bruce v. Westcott, 3 Barb. (N. Y.) 374. Ohio. — Newman r. King, 54 Ohio St. 273, 43 N. E. 683, 56 Am. St. Rep. 705, 35 L. R. A. 471. Pennsylvania. — Southwark Bank v. Gross, 35 Pa. St. 80; U. S. Bank v. Russel, 3 Yeates (Pa.) 391. South Carolina. — Mills r, Starr, 2 Bailey (S. C.) 359, which was a change in a spe- cialty by party claiming under it. West Virginia. — Yeager v. Musgrave, 28 W. Va. 90. See also, generally, VII, D et seq. Very slight alterations in a written instru- ment, made after it is signed by the obligor, if made without his knowledge or consent and by a party interested in the contract, or at the instance of such party, will destroy the instrument altogether. American Pub. Co. v. Tishos, 10 Utah 147, 37 Pac. 259. 29. Alabama. — Jordan v. Lomt, 109 Ala. 414, 19 So. 843; Montgomery v. Crossthwait, ALTERATIONS OF INSTRUMENTS 151 B. By One of Several Obligors op Promisors. As further illustrating the last text statement, the weight of authority supports the view that an alteration made by one obligee or principal, without the consent of his co-obligor or surety, discharges the latter, 80 and the rule that, when one of two innocent persons must suffer for the fraud of a third, the loss must fall on the one who enabled the com- mission of the fraud, has no application. 81 C. Changes by Stranger to Instrument — 1. General Rule. Erasures, interlineations, and changes, however material, made in and upon an instrument by a stranger to it, are in legal contemplation wholly immaterial and ineffective to give to the instrument any other or different meaning or operation than that which attached to it before such interlineation. Such a mutilation is a mere spoliation, as distinguished from an alteration. 82 The instrument will be enforced 90 Ala. 553, 8 So. 498, 24 Am. St. Rep. 832, 12 L. R. A. 140. Indiana. — If plaintiff made the alteration himself it is immaterial whether or not he was the holder at the time he made it. Brooks v. Allen, 62 Ind. 401. Ohio. — Carlile v. Lamb, 16 Ohio Cir. Ct. 578, holding that a material alteration by one maker without the assent of others will release the latter, and that an instruction that the alteration must be made by or at the instance of, or with the complicity of, the owner or holder of the note meant that some of the parties in interest, or all of the parties in interest, must know something about it. Tennessee. — Organ v. Allison, 9 Baxt. (Tenn.) 459. 30. See infra, V, A, 2, d; and 2 Cent. Dig. tit. "Alteration of Instruments," § 57 et seq. 31. Goodman v. Eastman, 4 N. H. 455. For negligent execution of commercial paper see Bills and Notes. 32. Alabama. — Anderson v. Bellenger, 87 Ala. 334, 6 So. 82, 13 Am. St. Rep. 46, 4 L. R. A. 680 ; Davis v. Carlisle, 6 Ala. 707. Arkansas. — Andrews v. Calloway, 50 Ark. 358, 7 S. W. 449. California. — Walsh v. Hunt, 120 Cal. 46, 52 Pac. 115, 39 L. R. A. 697 ; Robinson v. Ne- vada Bank, 81 Cal. 106, 22 Pac. 478; Langen- berger v. Kroeger, 48 Cal. 147, 17 Am. Rep. 418. Connecticut. — Nichols v. Johnson, 10 Conn. 192. Florida. — Orlando v. Gooding, 34 Fla. 244, 15 So. 770. Idaho. — Mulkey v. Long, (Ida. 1897) 47 Pac. 949. Illinois. — Condict v. Flower, 106 111. 105; Bledsoe v. Graves, 5 111. 382 ; Paterson v. Hig- gins, 58 111. App. 268. Indiana. — John v. Hatfield, 84 Ind. 75; Pallard v. Franklin L. Ins. Co., 81 Ind. 239 ; Brooks v. Allen, 62 Ind. 401 ; State v. Berg, 50 Ind. 496 ; Cochran v. Nebeker, 48 Ind. 459 ; Piersol v. Grimes, 30 Ind. 129, 95 Am. Dec. 673; Nelson v. Johnson, 18 Ind. 329; Collins v. Makepeace, 13 Ind. 448 ; Kingan v. Silvers, 13 Ind. App. 80, 37 N. E. 413. Iowa. — Andrews v. Burdiek, 62 Iowa 714, 16 N. W. 275; Murray v. Graham, 29 Iowa 520. Kentucky. — Terry v. Hazlewood, 1 Duv. . TJ. S., 1 Wall. (U. S.) 282, 17 L. ed. 594, which was a grant. In Fitzpatrick v. Fitz- patrick, 6 R. I. 64, 75 Am. Dec. 681, it was held that where a deed is so defectively exe- cuted, under a power contained in a mort- gage, as to be void, and the grantee there- after executed a quitclaim deed to the mortgagee, who sold under the power, the first deed may be corrected by interlinea- tions by consent of the parties and, both ■deeds being reacknowledged and recorded afresh, it will be presumed to have been de- livered as of a new date, so as to take effect irom redelivery. To revest part of estate. — It is held, how- ever, that an alteration by consent cannot operate to revest a part of the estate. Booker v. Stivender, 13 Rich. (S. C.) 85. 62. Bassett v. Bassett, 55 Me. 127, where a deed of an undivided half of certain prem- ises, once completed and delivered, was sub- sequently surrendered for the purpose of striking out the words " one undivided half of," and again delivered as a conveyance of the whole. To the same effect see Pretty- man v. Goodrich, 23 111. 330; Woodbury v. Allegheny, etc., R. Co., 72 Fed. 371. So where, as between the parties to the deed, no deed is necessary, the insertion of additional land into a deed, by consent and after acknowl- edgment, does not affect its validity. Walk- ley v. Clarke, 107 Iowa 451, 78 N. W. 70. 63. See Moore v. Bickham, 4 Binn. (Pa.) 1, wherein it was held that a purchaser of land was not bound to accept a deed in which there was a blank left for the consideration money, notwithstanding the grantors author- ized their agents to fill the blank. See infra, V, C, 9. 64. Coit v. Starkweather, 8 Conn. 289 (under a positive requirement that all deeds of land should be attested by two witnesses and ac- knowledged before a magistrate, holding that a material change is fatally defective with- out a new attestation and acknowledgment; but that, if the change is immaterial, then it will be good without such new acknowleds- ment and attestation) ; Collins v. Collins, 51 Miss. 311, 24 Am. Rep. 632 (which was a bill by a woman to obtain a decree asainst her husband for support, in aid of which object she charged a fraudulent disposition of his property by her husband, and sought to set aside or avoid a, deed of trust of real estate, and a sale thereof. The husband had exe- cuted a deed of trust to secure eighteen hun- dred dollars, and, after the execution, ac- knowledgment, and recording of the instru- ment, he borrowed a further sum from the person secured in the deed, and thereafter attempted to secure the latter sum by inter- lineation in the trust deed, and it was held that such attempt created no new contract or deed, and that it did not invalidate or change the original deed, or affect the inter- ests of third parties in the property). So in Alabama it is held that an alteration by the grantor, or by his authority, after ac- knowledgment but before delivery, will be inoperative without a new acknowledgment when the effect of the alteration made is to enlarge the estate or premises conveyed. But Vol. II 158 ALTERATIONS OF INSTRUMENTS held, on the one hand, that a redelivery will be necessary ; and mere parol authority, at this stage, to make an alteration, in the absence of the obligor or grantor, is not sufficient. 66 On the other hand, actual redelivery is not neces- sary, but the circumstances may be sufficient to import the legal equivalent of such delivery, 66 as where the change is made in the presence of the parties, 67 or where the grantor himself carries the instrument to the proper office to be recorded. 68 ' Subsequent assent or ratification may be sufficient, 69 and, where the party who makes the change is the agent of the obligor, it is considered that parol authority is sufficient, because the authority thus conferred is not to execute a deed, but to make it certain by alteration or addition. 70 3. By One of Several. If a change is made with the consent of only one of several parties liable on an instrument it will be good as to him, though as to the others the instrument will be void. 71 4. By Maker and Obligee against Co-Obligor. A change made by the maker or obligor, with the knowledge or at the instance of the payee or obligee, will dis- charge a co-maker, obligee, or surety not consenting to such change. 72 when its effect is to limit or restrict the estate, and it is made in pursuance of an intention expressed at the time of the sig- nature and acknowledgment, it will take effect from the subsequent delivery of the deed, and another acknowledgment will not be necessary. Burgess v. Blake, (Ala. 1900) 28 So. 963; Webb v. Mulling, 78 Ala. Ill; Sharpe v. Orme, 61 Ala. 263. In Moelle v. Sherwood, 148 U. S. 21, 13 S. Ct. 426, 37 L. ed. 350, it is held that the old execution and ac- knowledgment are not continued in existence as to new property inserted; that if the deed can be deemed valid as between the parties from the time of the alteration it could not affect and be in force as to subsequent pur- chasers without notice whose deeds were al- ready recorded, but that as to them, by the statute of Nebraska, it is void. See also infra, V, C, 9, a, (rv), (d). A chattel mortgage requires neither attes- tation or acknowledgment, and therefore the insertion, by consent, of other property will not affect its validity. Winslow v. Jones, 8 Ala. 496, 7 So. 262. See also Chicago Title, etc., Co. v. O'Marr, 18 Mont. 568, 46 Pae. 809, 47 Pae. 4. A chattel mortgage is not a deed. Jones Chatt. Mort. (4th ed.), § 102. 65. Martin v. Hanning, 26 U. C. Q. B. 80; Thorne v. Williams, 13 Ont. 577. 66. Hoffecker v. New Castle County Mut., etc., Ins. Co., 4 Houst. (Del.) 306. 67. See infra, V, C, 9. 68. Prettyman v. Goodrich, 23 111. 330. To the same effect see Woodbury v. Allegheny, etc., R. Co., 72 Fed. 371. 69. Camden Bank v. Hall, 14 N. J. L. 583 ; Wester v. Bailey, 118 N. C. 193, 24 S. E. 89. See also infra, V, C, 9, a, (iv), (a), (2), (c). Contra, Sans v. People, 8 111. 327 ; Cleaton v. Chambliss, 6 Rand. (Va.) 86. Conveyance of land. — If a grantor ratines an insertion in the deed, he and those claim- ing under him are bound thereby. Chezum v. McBride, 21 Wash. 558, 58 Pae. 1067. See also Mohlis v. Trauffler, 91 Iowa 751, 60 N. W. 521 ; Cutler v. Rose, 35 Iowa 456. 70. Knapp v. Maltby, 13 Wend. (N. Y.) 587, upon the authority of Texira v. Evans Vol. II [cited in Master v. Miller, 1 Anstr. 228], in- volving the filling of blanks. See infra, V, C, 9, a, (in), (b). 71. Illinois. — Canon v. Grigsby, 116 111. 151, 5 N. E. 362, 56 Am. Rep. 769; Pretty- man v. Goodrich, 23 111. 330, holding that a deed by husband and wife, altered, after exe- cution, by the husband's consent, is still good against him, though void as against the wife. Massachusetts. — Where a change is made, with the assent of the party, with a view to the immediate discount of the paper, but upon agreement to obtain the consent of an- other party to the change, the note so nego- tiated will be valid as against the assenting party, though the consent of the other was not obtained. Stoddard v. Penniman, 113 Mass. 386. North Carolina. — Spivey v. Grant, 96 N. C. 214, 2 S. E. 45. Oregon. — Wills v. Wilson, 3 Oreg. 308. Pennsylvania. — Myers v. Nell, 84 Pa. St. 369. But in Smith v. Weld, 2 Pa. St. 54, the instrument was sued on as a joint bond, and, as the assent of one of the obligors was not proved, it was held that no recovery could be had in this action against the other ohji- gor, for the discharge of one of the joint and several obligors is the discharge of all. Vermont. — Broughton v. Puller, 9 Vt. 373. England. — Coke v. Brummell, 8 Taunt. 439, 4 E. C. L. 220. 72. Alabama. — White Sewing Maeh. Co. v. Saxon, 121 Ala. 399, 25 So. 784; Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 24 Am. St. Rep. 832, 12 L. R. A. 140; Glover v. Rob- bins, 49 Ala. 219, 20 Am. Rep. 272. Delaware. — Newark Bank v. Crawford, 2 Houst. (Del.) 282. Georgia. — Hanson v. Crawley, 41 Ga. 303. Iowa. — Marsh v. Griffin, 42 Iowa 403. Missouri. — King v. Hunt, 13 Mo. 97. Nebraska. — Brown v. Straw, 6 Nebr. 536; 29 Am. Rep. 369. New Hampshire. — Haines v. Dennett, 11 N. H. 180. New Mexico. — Ruby v. Talbott, 5 N. M. 251, 21 Pae. 72, 3 L. R. A. 724. . ALTERATIONS OF INSTRUMENTS 159 5. As to Party Making Alteration. The rule that an alteration avoids the instru- ment does not apply, of course, so as to release the party who makes the alteration. 78 C. Filling Blanks — 1. In General. It may be laid down generally that if one signs an instrument containing blanks, he must be understood to intrust it to the person to whom it is so delivered to be filled up properly, according to the agreement between the parties, and when so filled the instrument is as good as if originally executed in complete form ; 74 and if one sign or indorse a note or bill containing blanks to be filled, the delivery of such an instrument is an authority to fill up the blanks in conformity with the original agreement.' 5 As has been pointed out, however, this is a question of authority, and not of alteration of a completed instrument. 76 2. Implied Authority — a. In General. If a party to an instrument intrusts it to another for use, with blanks not filled, such instrument so delivered carries on its face an implied authority to fill up the blanks necessary to perfect the same ; and as between such party and innocent third persons the person to whom the instrument is so intrusted must be deemed the agent of the party who committed the instrument to his custody. 77 Even if the note is not a negotiable one, still the Horth Carolina. — Darwin v. Rippey, 63 N. C. 318. Ohio. — Thompson v. Massie, 41 Ohio St. 307; Harsh v. Klepper, 28 Ohio St. 200; Sturges v. Williams, 9 Ohio St. 443, 75 Am. Dee. 473. Pennsylvania. — Hartley v. Corboy, 150 Pa. St. 23, 24 Atl. 295 ; Neff v. Horner, 63 Pa. St. 327, 3 Am. Rep. 555. 73. Indiana. — Where defendant erased a subscription made by him to a proposed cor- poration, action on the subscription may still be maintained, as the terms of the subscrip- tion may be shown by parol evidence. John- son v. Wabash, etc., Plank-road Co., 16 Ind. 389. Maine. — Hughes v. Littlefield, 18 Me. 400. Pennsylvania. — Struthers v. Kendall, 41 Pa. St. 214, 80 Am. Dec. 610; Patterson v. Patterson, 2 Penr. & W. (Pa.) 200. Texas. — Butler v. State, 31 Tex. Crim. 63, 19 S. W. 676. West Virginia. — Ohio Valley Bank v. Lock- wood, 13 W. Va. 392, 31 Am. Rep. 768. United States. — U. S. v. Linn, 1 How. (U. S.) 104, 11 L. ed. 64; Cutts v. U. S., 1 Gall. (U. S.) 69, 6 Fed. Cas. No. 3,522. And \ so if done by the obligee — as tearing off the seal or canceling the instrument, through the fraud of the obligor — the instrument will not be vitiated. U. S. v. Spalding, 2 Mason (U. S.) 478, 27 Fed. Cas. No. 16,365. 74. Illinois. — White v. Alward, 35 111. App. 195. Kentucky. — Yocum v. Barnes, 8 B. Mon. (Ky.) 496. Missouri. — Roe v. Town Mut. F. Ins. Co., 78 Mo. App. 452; New England L. & T. Co. v. Brown, 59 Mo. App. 461, holding that the rule that the alteration of a contract in a material or immaterial particular by a party thereto discharges another party not consent- ing cannot be applied to every form and kind of written instrument, and that where the contract is executory, and is not for the pay- ment of money or to affect the title to real estate, it has no application. Pennsylvania. — Bugger V. Cresswell, (Pa. 1888) 12 Atl. 829. United States. — Violett v. Patton, 5 Cranch (U. S.) 142, 3 L. ed. 61. England. — In re Tahiti Cotton Co., L. R. 17 Eq. 273. 75. Mississippi. — Wilson v. Henderson, 9 Sm. & M. (Miss.) 375, 48 Am. Dec. 716. Oregon. — Cox v. Alexander, 30 Oreg. 438, 46 Pac. 794. Pennsylvania. — Stahl v. Berger, 10 Serg. & R. (Pa.) 170, 13 Am. Dec. 666. Virginia. — Jordan v. Neilson, 2 Wash. (Va.) 164. United States. — Davidson v. Lanier, 4 Wall. (U. S.) 447, 18 L. ed. 377. 76. White v. Alward, 35 111. App. 195; Waldron i>. Young, 9 Heisk. (Tenn.) ,777. 77. Alabama. — Robertson v. Smith, 18 Ala. 220; Roberts v. Adams, 8 Port. (Ala.) 297, 33 Am. Dee. 291. Illinois. — Canon v. Grigsby, 116 111. 151, 5 N. E. 362, 56 Am. Rep. 769. Indiana. — De Pauw v. Salem Bank, 126 Ind. 553, 25 N. E. 705, 26 N. E. 151 ; Cronk- hite v. Nebeker, 81 Ind. 319, 42 Am. Rep 127; Gothrupt v. Williamson, 61 Ind. 599 Gillaspie v. Kelley, 41 Ind. 158, 13 Am. Rep 318; Spitler v. James, 32 Ind. 202, 2 Am Rep. 334; Johns v. Harrison, 20 Ind. 317. Kansas. — Lowden v. Schoharie County Nat. Bank, 38 Kan. 533, 16 Pac. 748. Kentucky. — Smith v. Loekridge, 8 Bush (Ky.) 423; Commonwealth Bank v. MeChord, 4 Dana (Ky.) 191, 29 Am. Dec. 398. Maine. — Abbott v. Rose, 62 Me. 194, 16 Am. Rep. 427. Massachusetts. — Greenfield Sav. Bank v. Stowell, 123 Mass. 196, 25 Am. Rep. 67. Michigan. — Weidman v. Symes, 120 Mich. 657, 79 N. W. 894, 77 Am. St. Rep. 603. Mississippi. — Davis v. Lee, 26 Miss. 505, 59 Am. Dec. 267; Torry v. Fisk, 10 Sm. & M. (Miss.) 590; Wilson v. Henderson, 9 Sm. & M. (Miss.) 375, 48 Am. Rep. 716; Hemp- hill v. Alabama Bank, 6 Sm. & M. (Miss.) 44. Missouri. — Green v. Kennedy, 6 Mo. App. 577. New York. — Weyerhauser v. Dun, 100 N.Y. 150, 2 N. E. 274; Redlich v. Doll, 54 N. Y. 234, 13 Am. Rep. 573; Chemung Canal Bank Vol. II 160 ALTERATIONS OF INSTRUMENTS rule above stated is held to be the same as to the liability of the person signing the blank, if it is a contract for the payment of money, for the leaving of a blank raises the implied authority to treat the person with whom the paper was intrusted as an agent authorized to fill the blank. 78 So the doctrine applies whether the paper is discounted or is delivered in payment of an existing debt. 79 b. Filling by Bona Fide Holder. In like manner any bona fide holder into whose hands the instrument passes has authority to fill blanks to perfect the instrument. 80 e. Circumstances Must Import Authority. The cases which recognize the foregoing doctrine are such only in which the possession of the uncompleted paper has been intrusted to others under circumstances which permit the infer- ence of authority to perfect it, and where, in view of such apparent authority, it would be a fraud upon innocent parties to permit the assertion to the contrary. 81 v. Bradner, 44 N. Y. 680; Van Duzer v. Howe, 21 N. Y. 531 ; Page v. Morrell, 3 Keyes (N. Y.) 117; Hardy v. Norton, 66 Barb. IN. Y.) 527; Mitchell v. Culver, 7 Cow. (N. Y.) 336 ; Harris v. Berger, 15 N. Y. St. 389. Ohio. — Jones v. Bangs, 40 Ohio St. 139, 48 Am. Rep. 664; Fullerton v. Sturges, 4 Ohio St. 529. Tennessee. — Waldron r. Young, 9 Heisk. (Tenn.) 777; Grissom v. Fite, 1 Head (Teim.) 331. Vermont. — Michigan Ins. Co. r. Leaven- worth, 30 Vt. 11. United States. — Angle v. Northwestern L. Ins. Co., 92 U. S. 330, 23 L. ed. 556; Pitts- burgh Bank v. Neal, 22 How. (C. S.) 96, 16 L. ed. 323; Goodman r. Simonds, 20 How. (U. S.) 343, 15 L. ed. 934; Violett v. Patton, 5 Cranch (U. S.) 142, 3 L. ed. 61. England. — Russel r. Langstaffe, 2 Dougl. 514, which is the early and leading English case on this subject, cited in many of the cases. See also Collis r. Emett, 1 H. Bl. 313; Montague v. Perkins, 22 Eng. L. & Eq. 516; Cruchley v. Claranee, 2 M. & S. 90; Snaith v. Mingay, 1 M. & S. 87 : Schultz r. Astler, 2 Bing. N. Cas. 544, 29 E. C. L. 655. Canada. — Le Banque Nationale ('. Sparks, 27 U. C. C. P. 320. Reason of rule. — The rule is founded not only upon that principle of general jurispru- dence which casts the loss, when one of two equally innocent persons must suffer, upon him who has put it in the power of another to do the injury, but also upon that rule of the law of agency which makes the principal liable for the acts of his agent, notwithstand- ing the private instructions of the principal have been disregarded, when he has held the agent out as possessing a more enlarged au- thority. Fisher v. Dennis, 6 Cal. 577. 65 Am. Dec. 534; Spitler v. James, 32 Ind. 202. 2 Am. Rep. 334; Fullerton v. Sturges, 4 Ohio St. 529. Filling after insolvency of drawer. — An accommodation indorser will not be dis- charged notwithstanding the blanks are filled after the insolvency of the drawer and ac- ceptor of the bill, and the creditor has notice of such condition. Fetters r. Muncie Nat. Bank, 34 Ind. 251, 7 Am. Rep. 225. Filling after death of indorser. — It has Vol. II been held, however, that with the death of the indorser the authority to fill blanks left by him ceases, and the fact that he is an accommodation indorser is sufficient notice to one who takes the instrument thereafter. Michigan Ins. Co. v. Leavenworth, 30 Vt. 11. Filling when indorser unconscious. — But the fact that after delivery to the maker, and before the instrument is discounted, the in- dorser becomes unconscious by sudden illness will not affect his liability on the indorse- ment, even though the bank has notice of these facts. Bechtel's Estate, 133 Pa. St. 367, 19 Atl. 412. 78. Johnston Harvester Co. v. McLean, 57 Wis. 258, 15 N. W. 177, 46 Am. Rep. 39. 79. Smith v. Lockridge, 8 Bush (Ky.) 423. Renewal notes. — Fetters v. Muncie Nat. Bank, 34 Ind. 251, 7 Am. Rep. 225 ; Bechtel's Estate, 133 Pa. St. 367, 19 Atl. 412. See also Douglass !'. Seott, 8 Leigh (Va. ) 43. 80. Xew York.— Redlich v. Doll, 54 N. Y. 234; 13 Am. Rep. 573; Page v. Morrell, 3 Keyes (N. Y.) 117. Oregon. — Cox r. Alexander, 30 Oreg. 438, 46 Pac. 794. Pennsylvania. — Bechtel's Estate, 133 Pa. St. 369, 19 Atl. 412. South Carolina. — Aiken v. Cheeseborough, 1 Hill (S. C.) 172. England. — Cruchley v. Claranee, 2 M. & S. 90. 81. Solon v. Williamsburgh Sav. Bank, 114 N. Y. 122, 21 N. E. 168, 23 N. Y. St. 138; Taddiken r. Cantrell, 69 N. Y. 597, 25 Am. Rep. 253; Ledwich r. McKim, 53 N. Y. 307 (holding that where bonds conditioned for the payment, in the alternative, of two kinds and amounts of national currency, to be determined by the place to be fixed for payment, contained a clause authorizing the president to fix by indorsement such place of payment, and had been indorsed in blank, but while in the possession of the corpora- tion were stolen, a bona fide purchaser frora- the thief has no authoritv to fill up the blank) ; Baxendale r. Bennett, 3 Q. B. D. 525 (analogous to last case). Application of text. — The mere signing a blank piece of paper, without any intention that it shall be used for any purpose, does not confer an implied authority upon one ALTERATIONS OF INSTRUMENTS 161 d. Authority Confined to Perfecting the Instrument. The implied authority to till blanks is confined to such insertions as are necessary to make the instru- ment perfect according to its nature, frame, and intended use. There is no infer- ence of authority to make any addition to the terms of the instrument, or to make a new instrument by erasing what is written or printed, or by filling blanks with stipulations repugnant to the plainly expressed intention of the paper as shown by its written or printed terms, and such an addition or alteration will avoid the instrument even in the hands of an innocent holder, 82 unless the person authorized to fill the blanks may be considered as a stranger with reference to any other changes which he may make. 83 But, on the other hand, where an accommoda- tion note is delivered with a blank to be filled by authoritj', he to whom it is so delivered may make a change in the matter inserted in the blank before the instrument is negotiated. 84 who obtains possession thereof to write a note over the name and negotiate it as such, and the instrument under these circumstances will be void. Nance v. Lary, 5 Ala. 370. This is instanced by the writing of an obligation ■over a signature in an album. Harris v. Berger, 15 N. Y. St. 389. So where one writes his name on a piece of paper, to be used for the purpose of identifying his sig- nature, and the person to whom it is de- livered fills up the paper with a promissory note and negotiates it, the instrument is a forgery and no recovery can be had on it. Grand Haven First Nat. Bank v. Zims, 93 Iowa 140, 61 N. W. 483; Caulkins v. Whisler, 29 Iowa 495, 4 Am. Rep. 236. And where one, with whom an indorsed instrument con- taining blanks was not left and intrusted for use, obtains possession thereof without the knowledge of the party with whom the paper was left, there is no authority in the person so obtaining possession of the instrument to fill the blanks so as to bind the indorser. iLenheim v. Wilmarding, 55 Pa. St. 73. 82. Alabama. — Toomer v. Rutland, 57 Ala. '379, 29 Am. Rep. 722. Signing a piece of paper with intent that it shall be filled up with a simple promise does not import au- thority to seal and deliver as a bond. Man- ning v. Norwood, 1 Ala. 429. Connecticut. — Mahaiwe Bank v. Douglass, 31 Conn. 170, holding that a custom among banks of regarding erasures of printed mat- ter in negotiable paper as no evidence of an unauthorized alteration when the same era- sures of written matter would be so, has not existed so long or become so general as to be a part of the law merchant. Indiana. — De Pauw v. Salem Bank, 126 Ind. 553, 25 N. E. 705, 26 N. E. 151 ; Cronk- "hite v. Nebeker, 81 Ind. 319, 42 Am. Rep. 127; McCoy v. Loekwood, 71 Ind. 319; Frank- lin L. Ins. Co. v. Courtney, 60 Ind. 134; Coburn v. Webb, 56 Ind. 96, 26 Am. Rep. 15. Where one signs a blank form of a bill of ex- change as drawer, for the 'accommodation of another to whom it is delivered, and it is filled up as a promissory note without the knowledge of the drawer, he is discharged upon the instrument in the hands of the per- son chargeable with the alteration. Luellen v. Hare, 32 Ind. 211. In Holland v. Hatch, 11 Ind. 497, 71 Am. Dec. 363, it was held that the insertion of a clause waiving ap- [11] praisement laws, made by plaintiff, rendered the instrument void, because such clause was in no manner necessary to make a complete instrument, and that it did not matter that there were other blanks to be filled which were necessary to make the instrument com- plete. This ruling resulted in a reversal of the judgment of the lower court, after which plaintiff took a nonsuit and subsequently brought suit in Ohio, where it seems a major- ity of the court did not disagree with the above decision, but held that the added words might be rejected as forming no part of the instrument. Holland v. Hatch, 15 Ohio St. 464. Later, in Spitler v. James, 32 Ind. 202, 2 Am. Rep. 334, it was held that the signing of a note blank in several respects necessary to make a complete instrument, and also con- taining sufficient space to insert the place of payment, raised a sufficient inference of au- thority to insert a place of payment in favor of a bona fide holder to whom the note passed after such insertion. Kentucky. — Blakey v. Johnson, 13 Bush (Ky.) 197, 26 Am. Rep. 254. Massachusetts. — Greenfield Sav. Bank v. Stowell, 123 Mass. 196, 25 Am. Rep. 67. Missouri. — Ivory v. Michael, 33 Mo. 398. New York. — Weyerhauser v. Dun, 100 N. Y. 150, 2 N. E. 274; McGrath v. Clark, 56 N. Y. 34, 15 Am. Rep. 372; Meise v. Doscher, 83 Hun (N. Y.) 580, 31 N. Y. Suppl. 1072, 65 N. Y. St. 50; Farmers' Nat. Bank v. Thomas, 79 Hun ( N. Y. ) 595, 29 N. Y. Suppl. 837, 61 N. Y. St. 518; National Ulster County Bank v. Madden, 41 Hun (N. Y.) 113; Bruce v. Westcott, 3 Barb. (N. Y.) 374. United States. — Angle v. Northwestern L. Ins. Co., 92 U. S. 330, 23 L. ed. 556. England. — Crotty v. Hodges, 4 M. & G. 561, 43 E. C. L. 292. Canada.— Hall v. Merrick, 40 TJ. C. Q. B. 566; Halcrow v. Kelly, 28 U. C. C. P. 551. 83. Fullerton v. Sturges, 4 Ohio St. 529, wherein it appears that, though one may be authorized to fill blanks in a note, the un- authorized affixing of seals will be considered as an act of a stranger. See supra, IV, C. 84. Michigan Ins. Bank v. Eldred, 9 Wall. (U. S.) 544, 19 L. ed. 763, which was a change of a date inserted in a blank, before negotiating the instrument. To the same point is Hepler p.Mt.Carmel Sav. Bank, 97 Pa. Vol. II 162 ALTERATIONS OF INSTRUMENTS e. As between Original Parties or Those Having Notice. One who signs a blank piece of paper cannot be bound without showing an authority to fill it, unless some principle of estoppel can be applied, 85 and as between the signer and the party to whom the instrument is intrusted, or as between the former and a subsequent purchaser with notice of limitations upon the authority of the person to whom the instrument is intrusted, the signer cannot be bound by the filling of unauthorized blanks or the excessive exercise of authority in filling blanks inten- tionally left to be filled. 86 But it does not matter that the party taking such instrument has knowledge of the mere fact that it was executed in blank, so long as there is nothing to put him on notice that the authority thereby conferred is restricted or has been violated. 87 3. Filling Amouht. Where one signs an instrument blank as to amount, 88 or signs or indorses a note, bill, or acceptance with such blank, he will be liable to a bona fide holder for any amount which has been inserted in the blank, as the delivery in blank authorizes the person to whom the instrument is delivered to fill the blank with any amount. 89 It will not alter the effect, as far as an innocent St. 420, 39 Am. Rep. 813, where one month was inadvertently written for another and was immediately corrected by drawing a pen through it and writing the correct month above that first written. So as to changing the time of payments once inserted into the blank. Douglass v. Scott, 8 Leigh (Va.) 43, upon the principle, however, that the person with whom the instrument was left has au- thority to make changes therein up to the time it becomes an available security, and that at the time of its change the instru- ment had not been issued so as to make it such security. 85. Richards r. Day, 137 X. Y. 183, 33 N. E. 146, 50 X. Y. St. 389, 33 Am. St. Rep. 704, 23 L. R. A. 601 [citing Dutchess, etc., County R. Co. t\ Mabbett, 58 X. Y. 397; Chauncey v. Arnold, 24 X. Y. 330; Drury v. Foster, 2 Wall. (U. S.) 24, 17 L. ed. 780]. But no such principle arises in an action be- tween original parties, or one of the original parties and the representative of the other. Richards v. Dav, 137 N. Y. 183, 33 X. E. 146, 50 X. Y. St. 389, 33 Am. St. Rep. 704, 23 L. R. A. 601. 86. Arkansas. — Little Rock Trust Co. v. Martin, 57 Ark. 277, 21 S. W. 468; Over- ton v. Matthews, 35 Ark. 146, 37 Am. Rep. 9. Indiana. — Luellen r. Hare, 32 Ind. 211. Kentucky. — Limestone Bank v. Penick 2 T. B. Mon. (Ky.) 98, 15 Am. Dec. 136. Mississippi. — Goss v. Whitehead, 33 Miss. 213; Goad v. Hart, 8 Sm. & M. (Miss.) 787; Hemphill i\ Alabama Bank, 6 Sm. & M. (Miss.) 44; Johnson v. Blasdale, 1 Sm. & M. (Miss.) 17, 40 Am. Dec. 85, in which cases it appears that an excess of authority in filling a blank as to the amount of a note will render the instrument void as against one who takes the note with knowledge of the limited authority, only as to the excess. Upon the same question Patton r. Shanklin, 14 B. Mon. (Ky.) 13, involving the insertion of an excessive rate of interest, is in point, and Clower v. Wynn, 59 Ga. 246. seems to the same effect as the cases cited from Missis- sippi. Missouri. — Wagner v. Diedrich, 50 Mo. Vol. II 484; Mackey v. Basil, 50 Mo. App. 190; Goodman v. Simonds, 19 Mo. 106. 87. Alabama. — Huntington v. Mobile Branch Bank, 3 Ala. 186. Indiana. — Eiehelberger v. Old Nat. Bank, 103 Ind. 401, 3 X. E. 127. Kansas. — Joseph v. Eldorado First Xat. Bank, 17 Kan. 256. Massachusetts. — Putnam v. Sullivan, 4 Mass. 45, 3 Am. Dec. 206. Xew York. — Redlich r. Doll, 54 X. Y. 234, 13 Am. Rep. 573; Chemung Canal Bank v. Bradner, 44 X. Y. 680; Mitchell v. Culver, 7 Cow. (N. Y.) 336. United States. — Michigan Ins. Bank v. Eldred, 9 Wall. (L 7 . S.) 544, 19 L. ed. 763. England. — Russel r. Langstaffe, 2 Dougl. 514. 88. Jewell v. Rock River Paper Co., 101 111. 57, holding that if a subscription-book for corporation stock is signed for the purpose of inducing others to subscribe, leaving the amount of such subscription blank raises an implied authority in those taking subscrip- tions to fill up the blank. 89. Alabama. — Huntington v. Mobile Branch Bank, 3 Ala. 186. Kentucky. — Smith v. Lockridge, 8 Bush (Ky.) 423; Hall r. Commonwealth Bank, 5 Dana (Ky.) 258, 30 Am. Dec. 685; Common- wealth Bank v. Curry, 2 Dana (Ky.) 142; Limestone Bank v. Penick, 5 T. B. Mon. (Ky.) 25. Illinois. — Trainor v. Adams, 54 111. App. 523 ; Young r. Ward, 21 111. 223. Mississippi. — Johnson v. Blasdale, 1 Sm. & M. (Miss.) 17, 40 Am. Dec. 85. Xew York. — Van Duzer v. Howe, 21 X. Y. 531. Tennessee. — Grissom v. Fite, 1 Head (Tenn.) 331. IVisconsin. — Johnston Harvester Co. v. Mc- Lean, 57 Wis. 258, 15 N. W. 177, 46 Am. Rep. 39. England. — Montague v. Perkins, 22 Eng. L. & Eq. 516 (any amount covered by the stamp); Schultz r. Astley, 2 Bing. N. Cas. 544, 29 E. C. L. 655. Canada. — Le Banque Nationale v. Sparks, 27 U. C. C. P. 320. ALTERATIONS OF INSTBU2fENTS 163 holder is concerned, that there was a marginal notation for the amount for which the body of the instrument was to be filled, which notation was also changed, 90 but it is otherwise as to a person having knowledge of such notation. 91 4. Filling Date. Where a note or bill contains a blank for the date, and it is signed and indorsed to another in this condition, the necessary presumption is that the latter, or the person to whom he passes it, is authorized to fill in the date, 92 and this implied authority extends to the insertion of any date, and is not confined to the insertion of the date of the signing, 93 though it is also considered otherwise where the person to whom the instrument is passed has knowledge of the true date of its execution. 94 5. Filling Place of Payment. Where a note is intended to be made pay- able at a bank there is implied authority to insert such place in a blank left in a note, 95 and where no place of payment is inserted, but a blank is left in the note following the word " at," the frame of the note thus indicating the intention to make it payable at a particular place, there is an implied authority to fill such blank. 96 On the other hand, the mere omission of a place of payment, such a clause not being necessary to the completeness of the instrument, is not of itself, and without anything in the frame of the instrument to indicate that the place of payment was intended, sufficient to raise an inference of authority to insert a place of payment. 97 A payee has no authority to fill a blank indicating a place of 90. This is because such notation is no part of the note, as well as because the pur- chaser had no notice of the change. Merritt v. Boyden, (111. 1901) 60 N. E. 907; Schryver v. Hawkes, 22 Ohio St. 308; Johnston Har- vester Co. v. McLean, 57 Wis. 258, 15 N. W. 177, 46 Am. Rep. 39; Garrard v. Lewis, 10 Q. B. D. 30. See also Poorman v. Mills, 39 Cai. 345, 2 Am. Rep. 451. 91. Woolfolk v. Bank of America, 10 Bush (Ky.) 504; Hall v. Commonwealth Bank, 5 Dana (Ky.) 258, 30 Am. Dec. 685; Hender son v. Bondurant, 39 Mo. 369, 93 Am. Dec 281. 92. Illinois. — Gill v. Hopkins, 19 111. App 74. Indiana. — Emmons v. Meeker, 55 Ind. 321 Massachusetts. — Androscoggin Bank v Kimball, 10 Cush. (Mass.) 373. New York. — Page v. Morrell, 3 Keyes (N. Y.) 117; Mechanics', etc., Bank v. Schuy ler, 7 Cow. (N. Y.) 337 note; Mitchell v Culver, 7 Cow. (ST. Y.) 336. Pennsylvania. — Bechtel's Estate, 133 Pa St. 367, 19 Atl. 412 (holding that indorsing an accommodation note, left blank as to date, confers authority to insert a date to corre- spond with the note for which the note exe- cuted in blank is given in renewal) ; Hepler D. Mount Carmel Sav. Bank, 97 Pa. St. 420, 39 Am. Rep. 813. United States. — Michigan Ins. Bank v. El- dred, 9 Wall. (U. S.) 544, 19 L. ed. 763. Contra, Inglish v. Breneman, 5 Ark. 377, 41 Am. Dec. 96, 9 Ark. 122, 47 Am. Dec. 735. 93. Androscoggin Bank v. Kimball, 10 Cush. (Mass.) 37 3 ; Page v. Morrell, 3 Keyes (N. Y.) 117; Mechanics', etc., Bank v. Schuy- ler, 7 Cow. (N. Y.) 337 note; Mitchell v. Culver, 7 Cow. (NV Y.) 336. 94. Overton v. Matthews, 35 Ark. 146, 37 Am. Rep. 9 (holding that the implied au- thority to fill the date is authority to insert the true date; that as between the payee and the maker the insertion of an untrue date will, avoid the instrument, though as between the maker and an innocent purchaser for value before maturity the insertion of an un- true date by the payee would not avoid the instrument) ; Emmons v. Meeker, 55 Ind. 321 ; Emmons v. Carpenter, 55 Ind. 329. In the last ease, Biddle, J., dissented upon this particular phase of the question upon the ground that if the parties had intended to insert the true date there would appear to be no reason for leaving the blank. 95. Marshall v. Dreseher, 68 Ind. 359, wherein the payee inquired of the maker as to where the note should be left for payment, and the latter mentioned a particular bank, and it was held that the payee had an im- plied authority to insert the name of such bank. 96. Illinois. — Canon v. Grigsby, 116 111. 151, 5 N. E. 362, 56 Am. Rep. 769. Indiana. — Gillaspie v. Kelley, 41 Ind. 158, 13 Am. Rep. 318. Ken tunky. — Cason v. Grant County De- posit Bank, 97 Ky. 487, 16 Ky. L. Rep. 344, 31 S. W. 40, 53 Am. St. Rep. 418. Neto York. — Redlich v. Doll, 54 N\ Y. 234, 13 Am. Rep. 573; Waggoner v. Millington, 8 Hun (N. Y.) 142; Kitchen v. Place, 41 Barb. (ST. Y.) 465. Oregon. — Cox e. Alexander, 30 Oreg. 438, 46 Pac. 794. Pennsylvania. — Wessell v. Glenn, 108 Pa. St. 104. Contra, Morehead v. Parkersburg Nat. Bank, 5 W. Va. 74, 13 Am. Rep. 636, which, however, was not a case of accommodation paper. 97. McCoy v. Lockwood, 71 Ind. 319 [but in Spitler v. James, 32 Ind. 202, 2 Am. Rep. 334, it seems that the insertion of a place of payment was considered as impliedly author- ized to complete the instrument for the pur- poses for which it was intended, notwith- Vol. IT 164 ALTERATIONS OF INSTRUMENTS payment where his authority is limited to the filling in of other particularly designated blanks only. 98 6. Filling Amount of Interest. The holder of a note, though it contains other blanks," has no implied authority to insert into it matter causing it to bear interest, or changing its effect as to the rate of interest, 1 but, if the frame of the note as written manifests an intention or agreement that it shall run at some rate of interest, it is held that the implied authority is sufficient if the note passes into the hands of an innocent party with the blank filled, 3 though, if it remains in the hands of the original party, evidence of the agreement or consent of the maker to allow the payee to fix the rate would be necessary. 3 But, notwithstanding a blank is left in the place for the insertion of a rate of interest, this imports no authority to insert a greater rate than the legal rate of interest. 4 7. Filling Time of Payment. The execution and delivery of an instrument in blank as to time of payment is implied authority to fill it in with any time, and if the blank is filled the maker cannot complain after the note has reached the hands of an innocent holder for value. 5 But if the blank indicates that the instrument is to be a time note there is no authority to write any words making it payable on demand. 6 8. Filling in Names of Parties — a. In General. Where a note is signed by one maker when it contains, among other blanks, one for words making it a joint and several obligation, its delivery to the person for whose accommodation it is standing the frame of the instrument itself did not indicate that a place of payment was intended to be inserted] ; Charlton v. Reed, 61 Iowa 166, 16 N. W. 64, 47 Am. Rep. 808; Kitchen v. Place, 41 Barb. (N. Y.) 465; Crotty v. Hodges, 4 M. & G. 561, 43 E. C. L. 292. 98. Toomer v. Rutland, 57 Ala. 379, 29 Am. Rep. 722. 99. Coburn v. Webb, 56 Ind. 96, 26 Am. Rep. 15. Compare Weidman v. Symes, 120 Mich. 657, 79 N. W. 894, 77 Am. St. Rep. 603. 1. See infra, VII, F, 8. See also McGrath v. Clark, 56 N. Y. 34, 15 Am. Rep. 372 (hold- ing that the addition of the words " with in- terest " was not within the rule of implied authority to fill a blank, even though the note is given to take up another which con- tains such clause) ; Meise v. Doscher, 83 Hun (N. Y.) 580, 31 N. Y. Suppl. 1072, 65 N. Y. St. 50; Farmers' Nat. Bank v. Thomas, 79 Hun (N. Y.) 595, 29 N. Y. Suppl. 837, 61 N. T. St. 518. 2. See Fisher v. Dennis, 6 Cal. 577, 65 Am. Dec. 534; Rainbolt v. Eddy, 34 Iowa 440, 11 Am. Rep. 152. See also Weidman v. Symes, 120 Mich. 657, 79 N. W. 894, 77 Am. St. Rep. 603. 3. Fisher v. Dennis, 6 Cal. 577, 65 Am. Dec. 534, holding, however, that such an insertion is not an alteration which will vitiate the in- strument entirely, as an alteration to vitiate must change something expressed so as to de- feat the intention of one of the contracting parties, but that it will vitiate the instru- ment only to the excess over the legal rate, the form of the instrument indicating that some interest was intended. See also Patton v, Shanklin, 14 B. Mon. (Ky.) 13. 4. Colorado. — Hoopes v. Collingwood, 10 Colo. 107, 13 Pac. 909, 3 Am. St. Rep. 565. Vol. II Indiana. — Palmer v. Poor, 121 Ind. 135, 22 N. E. 984, 6 L. R. A. 469. Iowa. — Conger v. Crabtree, 88 Iowa 536, 55 N. W. 335, 45 Am. St. Rep. 249 (holding that the mere delivery of a negotiable note with interest blanks unfilled will not of it- self raise a legal presumption of authority to fill such blanks, and that the burden is upon plaintiff, even though he be an inno- cent purchaser, to show such negligence in the execution of the instrument as to estop defendant from pleading the alteration. The pleadings in this case did not aver that de- fendant was negligent in making and deliv- ering the note with the blanks unfilled, nor that plaintiff had no notice of the alleged al- teration when he purchased the note) ; Grand Haven First Nat. Bank v. Hall, 83 Iowa 645, 50 N. W. 944. Michigan. — Holmes v. Trumper, 22 Mich. 427, 7 Am. Rep. 661, where interest clause was added at the end. Missouri. — Paris Nat. Bank v. Nickell, 34 Mo. App. 295, upon the authority of Wash- ington Sav. Bank v. Ecky, 51 Mo. 272, which last case, however, is said, in Capital Bank v. Armstrong, 62 Mo. 59, to have been over- ruled in effect by Shirts v. Overjohn, 60 Mo. 305. 5. Johns v. Harrison, 20 Ind. 317 ; Lowden v. Schoharie County Nat. Bank, 38 Kan. 533, 16 Pac. 748; Waldron v. Young, 9 Heisk. (Tenn. ) 777. Where a note is on a printed blank, erasing the words " after date " fol- lowing the words " on demand," the note hav- ing been signed in blank, is not material. Bingham v. Reddy, 5 Ben. (U. S.) 266, 3 Fed. Cas. No. 1,414. 6. Farmers' Nat. Bank v. Thomas, 79 Hun (N. Y.) 595, 29 N. Y. Suppl. 837, 61 N. Y. St. 518. ALTERATIONS OF INSTRUMENTS 165 signed raises an implied authority to procure an additional signer. 7 Where one signs a blank form of a note, 8 or indorses a note with a blank for the signature of the maker, there is an implied authority to fill the blanks, even though the person to whom it is delivered exceeds his authority. 9 To fill a blank in a printed form of a contract with the name of a party is not an alteration. 10 b. Name of Payee. The signing and delivery to another of a bill or note, blank as to the name of the payee, confers authority to fill such blank, 11 and any lonafide holder may fill such an instrument by inserting his own name. 12 9. Blanks in Deeds — a. Parol Authority and Delivery — (i) Conflict of Authority. Upon the question of filling in blanks in deeds under parol author- ity, or under such authority before or after delivery of the instrument, the authori- tiesare in irreconcilable conflict. 18 While it is the law in England that authority to fill in a blank in a deed must be under seal, 14 and this is followed in many of 7. Snyder v. Van Doren, 46 Wis. 602, 1 N. W. 285, 32 Am. Rep. 739. 8. Geddes v. Blackmore, 132 Ind. 551, 32 N. E. 567, in which case a maker signed a printed blank form of a note and delivered it to another with instructions to purchase mer- chandise, to fill in the blanks in the note, and to give it in payment, and it was held that there was sufficient authority for the person to whom the note was thus delivered to sign his own name as a maker. See infra, VII, F, 21, j. 9. Whitmore v. Nickerson, 125 Mass. 496, 28 Am. Rep. 257. 10. Briscoe v. Reynolds, 51 Iowa 673, 2 N. W. 529. 11. Gothrupt v. Williamson, 61 Ind. 599; Armstrong v. Harshman, 61 Ind. 52, 28 Am. Rep. 665; Wilson v. Kinsey, 49 Ind. 35. 12. Delaware. — Townsend v. France, 2 Houst. (Del.) 441; Farmers', etc., Bank v. Horsey, 2 Houst. (Del.) 385. Indiana. — Rich v. Starbuck, 51 Ind. 87; Greenhow v. Boyle, 7 Blackf. (Ind.) 56. Maryland. — Dunham v. Clogg, 30 >ld. 284 ; Boyd v. McCann, 10 Md. 118. Minnesota. — Mcintosh v. Lytle, 26 Minn. 336, 3 N. W. 983, 37 Am. Rep. 410. Missouri. — Schooler v. Tilden, 71 Mo. 580. N ew York. — Chemung Canal Bank v. Brad- ner, 44 N. Y. 680; Hardy v. Norton, 66 Barb. (N. Y.) 527. Oregon. — Thompson v. Rathbun, 18 Oreg. 202, 22 Pac. 837. Tennessee. — Seay v. State Bank, 3 Sneed (Tenn.) 557, 67 Am. Dec. 579. Texas.— Close v. Fields, 2 Tex. 232. England. — Cruchley v. Clarance, 2 M. & S. 90; Attwood v. Griffin, R. & M. 425. Where the owner of shares borrows money and de- posits with the lender certificates of the shares and transfers thereof signed by him, but with the date and name of the transferee left blank, the lender has implied power to fill in the blanks and convey good title if a deed is not required, but if a deed is required he can convey only the equitable interest. In re Tahiti Cotton Co., L. R. 17 Eq. 273. Canada. — Mutual Safety Ins. Co. v. Por- ter, 7 N. Brunsw. 230. 13. Texira v. Evans Icited in Master v. Miller, 1 Anstr. 228] is the leading authority for the proposition that » blank in a bond may be filled in by parol authority, even in the absence of the obligor. In that case, however, the blank was filled before actual delivery to the obligee, and by the agent of the obligor. This case was overruled in Hib- blewhite v. McMorine, 6 M. & W. 200, as in- dicated in Davidson v. Cooper, 11 M. & W. 778, the question decided in the overruling case being that a deed executed and delivered with a material blank could not be made a deed by filling in the blank thereafter, as the instrument, when originally executed, was inoperative and could not be perfected by parol authority. ( See also Enthoven v. Hoyle, 9 Eng. L. & Eq. 434; In re Tahiti Cotton Co., L. R. 17 Eq. 273.) In a later case, Eagle- ton v. Gutteridge, 11 M. & W. 465, it was held that where a power of attorney was exe- cuted abroad, appointing one designated merely by a surname, and was delivered to a party by that name, the insertion of his christian name in the blank left for that pur- pose did not invalidate the instrument. This decision was made by the court which over- ruled Texira v. Evans [cited in Master v. Miller, 1 Anstr. 228], and at the term prior to the decision of .Davidson v. Cooper, 11 M. & W. 793, and therefore must have been re- garded as consistent with Hibblewhite v. Mc- Morine, 6 M. & W. 200. Nevertheless it has been considered at a very recent date as an authority for the proposition that a bond made and delivered in blank may be com- pleted by filling in the blanks, under parol authority, as opposed to the doctrine laid down in Hibblewhite v. McMorine, 6 M. & W. 200. See Brown v. Colquitt, 73 Ga. 59, 54 Am. Rep. 867, wherein it was said that when the decision in Ingram v. Little, 14 Ga. 173, 58 Am. Dec. 549, was rendered it was probable that the court had not seen the decision in Eagleton v. Gutteridge, 11 M. & W. 465. In Ingram v. Little, 14 Ga. 173, 58 Am. Dec. 549, the holding was that a deed with blanks for the grantee's name and the consideration could not be filled in by a third person under parol authority before delivery to a purchaser and in the absence of the grantor. But in this case the court expressly indicated that it had no doubt an immaterial blank in a deed might be filled in by parol au- thority. 14. See supra, note 13. Vol. II 166 ALTERATIONS OF INSTRUMENTS the American cases to such an extent that it may be said to be the rule, on the whole weight of authority, yet it would seem that, according to the weight of the more modern decisions in this country, parol authority is sufficient. 15 (n) Character of Blank as Affecting Authority to Fill — (a) Instrument Wholly B 'lank. If a blank is signed, sealed, and delivered, and afterward written, it is no deed, because there is nothing of substance contained in it, and nothing can pass by it. 16 Some of the cases draw a distinction between the filling of a particular blank left to be filled when the instrument was exe- cuted, and the writing of the whole deed over the signature and seal. 17 This dis- tinction does not always exist, however. It does not seem to influence the decision of cases which hold that a specialty may be perfected by filling material blanks after delivery, 18 and the blanks to be filled in these cases are generally such that the instrument would not be a good deed with the blank, the filling of such blank being the very thing which comes within the inhibition of the rule against parol authority to make a deed. 19 (b) Material and Immaterial Matter. The existence of blanks which do not impair the validity of the instrument is not material and they may be filled with- out authority under seal. Such cases are not within the reason of those which hold that blanks in a deed, and constituting a material part of it, cannot, in the absence of the maker, be filled by parol authority. 20 15. See infra, cases cited in note 16 et seq. 16. Kentucky. — Lockart v. Roberts, 3 Bibb (Ky.) 361. Maryland. — Bvers v. McClanahan, 6 Gill & J. (Md.) 250." Mississippi. — Dickson v. Hamer, Freem. (Miss.) 284. Ohio. — Ayres v. Harness, 1 Ohio 368, 13 Am. Dec. 629. South Carolina. — ■ Perminter v. McDaniel, 1 Hill (S. C.) 267, 26 Am. Dec. 179; Dun- can v. Hodges, 4 McCord (S. C.) 239, 17 Am. Dec. 734. Tennessee. — Wynne v. Governor, 1 Yerg. (Tenn.) 149, 24 Am. Dec. 448; Gilbert v. An- thony, 1 Yerg. (Tenn.) 69, 24 Am. Dec. 439. 17. Simms v. Hervey, 19 Iowa 273 (wherein, after noting many of the cases which follow or repudiate Texira v. Evans [cited in Mas- ter v. Miller, 1 Anstr. 228], (supra, note 13) it is pointed out that, of the former, one class hold that if only certain blanks are left, those may be filled in, in the absence of the obligor, pursuant to parol authority, though the cases which deny the authority of Texira v. Evans [cited in Master v. Miller, 1 Anstr. 228] hold otherwise; that substantially all of the eases hold that a specialty cannot be signed and sealed in blank and wholly filled, in the absence of the obligor, pursuant to parol authority) ; South Berwick v. Hunt- ress, 53 Me. 89, 87 Am. Dec. 535 [referring te Burns v. Lynde, 6 Allen (Mass.) 305]; Ayres v. Harness, 1 Ohio 368, 13 Am. Dec. 629, wherein the court said that the cases against the rule requiring authority under seal to write a deed over a signature and seal ■were those in which all the material parts were written at the time of making the sig- nature and seal. But see infra, V, C, 9, a, (iv) (A) (2). 18. Wiley v. Moor, 17 Serg. & R. (Pa.) 438, 17 Am. Dec. 696. Vol. II See infra, V, C, 9, a, (iv), (b). 19. See, for example, Cross v. State Bank, 5 Ark. 525. Thus Hibblewhite v. McMorine, 6 M. & W. 200, did not hold contrary to Tex- ira v. Evans [cited in Master v. Miller, 1 Anstr. 228], (see supra, note 13), on the ground that the instrument involved in the first case was wholly blank, but because the matter of the blank to be filled in was neces- sary to the validity of the deed. And the subsequent case of Eagleton v. Gutteridge, 11 M. & W. 465, is consistent with Hibblewhite v. McMorine, 6 M. & W. 200 (see supra, note 13) because the blank in the former did not affect the validity of the deed. See also infra, note 20. So the cases which sustain the filling in of blanks by an agent, pursuant to parol authority and in the absence of the maker, proceed upon the principle of a suffi- cient delivery. See infra, V, C, 9, a, (in), ( B ) . And those above cited to rule against writing a deed over a seal and signature (see supra, note 16) involve instruments which have been completely delivered. 20. Connecticut. — Murray v. Klinzing, 64 Conn. 78, 80, 29 Atl. 244, holding that where a deed recites that it is " for the considera- tion of dollars," it is not a material al- teration to insert the number of dollars so as to express the actual consideration paid. Massachusetts. — Vose v. Dolan, 108 Mass. 155, 11 Am. Rep. 331; Smith v. Crooker, 5 Mass. 538. New York. — Kinney v. Schmitt, 12 Hun (N. Y.) 521. North Carolina. — Martin v. Buffaloe, 121 N. C. 34, 27 S. E. 995, holding that filling a blank in a trust deed with the name of the attorney employed to defend the conveyance, and his charge for services, does not invali- date the instrument. Virginia.— Preston v. Hull, 23 Gratt. (Va.) 600, 14 Am. Rep. 153; Whiting v. Daniel, 1 ALTERATIONS OF INSTRUMENTS 167 (in) Filling before Delivery— (a) In General. The rule that the sign- ing, sealing, and delivery of a blank which is to be filled as a deed can give "no authority to make the paper a deed was never intended to prescribe to the grantor the order of time in which the several parts of a deed should be written. The whole act of execution is finally consummated by delivery, and if the grantor should think proper to reverse the usual order in the manner of executing the instru- ment, but in the end perfect it by delivery, it is a good deed. 31 (b) By Agent Acting under Parol Authority. The last general statement refers particularly to delivery by the maker. It is not necessary in all cases, how- ever, that the grantor should in person make delivery of the deed, 23 and, upon this principle, a deed executed with blanks and afterward filled and delivered by the agent of the grantor or obligor, is good, according to the weight of the modern authorities. 23 (iv) Redelivery or Filling in Presence of Maker — (a) Where Parol Authority Not Sufficient — (1) Filling in Presence of Maker Good Delivery. As already indicated, the mere order of perfecting a deed before actual delivery is not material. 24 Hence, even where parol authority to fill blanks in a deed is not recognized, if after delivery the blanks are filled in the presence and with the consent of the maker, this ' is taken to be a good delivery to con- summate the execution of the perfected deed. 25 (2) Necessity for Redelivery "When Filled out of Presence of Maker. — (a) In General. In this connection a distinction is made between acts done in the presence and by the direction of the principal, and acts done in his absence. The former are regarded as done by the principal himself, but, when the principal is not present at the filling of a material blank, there must be a redelivery or the filiing must have been under sealed authority. 28 Hen. & M. (Va.) 390 ; Ross v. Overton, 3 Call (Va.) 309, 2 Am. Dee. 552. See also Keen v. Monroe, 75 Va. 424. England. — See Hudson v. Revett, 5 Blng. 368, 15 E. C. L. 625; Eagleton v. Gutteridge, 11 11. & W. 465. Canada. — Stuart v. Prentiss, 20 U. C. Q. B. 513; Keane v. Smallbone, 17 C. B. 179, 84 E. C. L. 179. 21. Loekart v. Roberts, 3 Bibb (Ky.) 361; Bassett v. Bassett, 55 Me. 127; Lock-wood v. Bassett, 49 Mich. 546, 14 N. W. 492 ; Duncan ». Hodges, 4 McCord (S. C.) 239, 17 Am. Dec. 734. 22. Duncan v. Hodges, 4 McCord (S. C.) 239, 17 Am. Dec. 734. 23. A lahama. — Gibbs v. Frost, 4 Ala. 720, holding that authority to fill is authority to redeliver. Missouri. — Field v. Stagg, 52 Mo. 534, 14 Am. Rep. 435. Nebraska. — Garland v. Wells, 15 Nebr. 298, 18 N. W. 132. See also Reed v. Morton, 24 Nebr. 760, 40 N. W. 282, 8 Am. St. Rep. 247, 1 L. R. A. 736. New York. — Hemmemvay v. Mulock, 56 How. Pr. (N. Y.) 38; Ex p. Kerwin, 8 Cow. (N. Y.) 118. See also Chauneey v. Arnold, 24 N. Y. 330. Oregon,— Cribben v. Deal, 21 Oreg. 211, 27 Pac. 1046, 28 Am. St. Rep. 746. South Carolina. — Bank v. Hammond, 1 Rich. (S. C.) 281; Duncan v. Hodges, 4 Mc- Cord (S. C.) 239, 17 Am. Dec. 734 (follow- ing which case it was held, in Lamar v. Simp- son, 1 Rich. Eq. (S. C.) 71, 42 Am. Dec. 345, that where the legislature authorized the cir- cuit solicitor to convey certain property to A, and the solicitor executed deeds reciting his authority, and containing blanks for the de- scription, which blanks were afterward filled by A as various parcels of the land were sold by him, these conveyances were suffi- cient). Words which properly should have been inserted in a blank in a conveyance, but which are inserted after the conveyance leaves the granto'r's hands, but before delivery to the grantee and while in the hands of the grantor's agent, will not invalidate the deed in equity. Pope v. Chafee, 14 Rich. Eq. (S. C.) 69. Wisconsin. — Schintz v. McManamy, 33 Wis. 299; Van Etta v. Evenson, 28 Wis. 33, 9 Am. Rep. 486 {.citing Vliet v. Camp, 13 Wis. 198]. England. — Texira v. Evans [cited in Mas- ter v. Miller, 1 Anstr. 228]. 24. See supra, V, C, 9, a, (in), (a). 25. People r. Organ, 27 111. 27, 79 Am. Dec. 391; Burns v. Lynde, 6 Allen (Mass.) 305: Hudson v. Revett, 5 Bing. 368, 15 E. C. L. 625. See also Doe v. MeArthur, 9 N. C. 33, 11 Am. Dec. 738. 26. Arkansas. — Cross v. State Bank, 5 Ark. 525. Compare Lemay v. Johnson, 35 Ark. 225. Georgia. — Ingram v. Little, 14 Ga. 173. 58 Am. Dec. 549. But see Brown v. Colquitt, 73 Ga. 59, 54 Am. Rep. 867. Illinois-.— Wilson v. South Park Com'rs, 70 111. 46; Chase v. Palmer, 29 111. 306; Peo- ple v. Orjran. 27 111. 27, 79 Am. Dec. 391; Gage v. Chicago, 2 111. App. 332. But see infra, V, C, 9, b. Vol. II 168 ALTERATIONS OF INSTRUMENTS (b) Instrument Evidence under Statute op Frauds. Notwithstanding this doc- trine, however, where the deed is considered as void because the name of the grantee is left blank therein, and therefore cannot operate as a deed, it may still be a good contract for the sale of land and may be specifically enforced between the parties. 27 (c) Sufficient Adoption op Instrument after Filling. While, as has been indicated, some of the cases which adhere to the strict rule that parol authority to alter a deed is not sufficient require stronger evidence of redelivery than such as merely signifies absence of objection when the alteration is not done in the presence of the maker of the instrument, 28 and the same strictness is applied to tilling blanks after delivery, 29 yet if, after a blank is filled, an instrument is pre- sented to the maker, and he ratines the act or authorizes its delivery, it will be a valid deed. 30 (b) Where Parol Authority Sufficient. On the other hand, and what would seem to be the modern rule, parol authority to fill a deed is regarded as sufficient, and therefore not only may a deed be delivered to an agent by the maker to be tilled and delivered, both in the case of specialties and conveyances of land, 81 but, in the former, parol authority is sufficient to fill after delivery, 33 upon the princi- Kansas. — See Ayres v. Probasco, 14 Kan. 175. Massachusetts. — Basford v. Pearson, 9 Al- len (Mass.) 387, 85 Am. Dec. 764; Burns v. Lynde, 6 Allen (Mass.) 305. Mississippi. — Williams v. Cruteher, 5 How. (Miss.) 71, 35 Am. Dec. 422; Dickson v. Hamer, Freem. (Miss.) 284. 2\ T eu> York. — Chauncey v. Arnold, 24 N. Y. 330, holding that a paper intended to oper- ate as a. mortgage could not be delivered and put in circulation with blanks to be filled, limiting the doctrine permitting such a prac- tice to mercantile paper. North Carolina. — Barden v. Southerland, 70 N. C. 528; Bland v. O'Hagan, 64 N". 0. 471; Blacknall v. Parish, 59 N. C. 70, 78 Am. Dec. 239; Graham i. Holt, 25 N. C. 300, 40 Am. Dec. 408; Davenport P. Sleight, 19 N. C. 381, 31 Am. Dec. 420; McKee v. Hicks, 13 N. C. 379. Ohio.— Famulener v. Anderson, 15 Ohio St. 473; State v. Boring, 15 Ohio St. 507 (in- volving the insertion of the penalty in an official bond) ; Ayres v. Harness, 1 Ohio 368, 13 Am. Dec. 629. But in St. Clairsville Bank v. Smith, 5 Ohio 222, it was held that mere money bonds, executed with blanks filled be- fore negotiation and received in good faith, are to be treated as commercial or business paper, and on delivery in blank to a party he has authority to fill it. See also Spencer v. Buchanan, Wright (Ohio) 583. Tennessee. — Mosby v. Arkansas, 4 Sneed (Tenn.) 324; Gilbert v. Anthony, 1 Yerg. (Tenn.) 69, 24 Am. Dec. 439. Texas. — Viser v. Rice, 33 Tex. 139; Mc- Cown v. Wheeler, 20 Tex. 372. Virginia. — Penn v. Hamlett, 27 Gratt. (Va.) 337; Harrison v. Tiernans, 4 Band. (Va.) 177. Washington. — Walla Walla County J'. Ping, 1 Wash. Terr. 339. England. — Hibblewhite v. McMorine, 6 M. & W. 200. See also Enthoven v. Hoyle, 9 Eng. L. & Eq. 434. Vol. II 27. Blacknall v. Parish, 59 N. C. 70, 78 Am. Dee. 239; Viser v. Bice, 33 Tex. 139; McCown v. Wheeler, 20 Tex. 372. 28. See supra, V, B, 2. 29. Verbal assent to the grantee by the grantor, upon being informed of what had been done after delivery, and an agreement by the grantor that the instrument should be taken to be her deed, will not make the instrument valid. Burns v. Lynde, 6 Allen (Mass.) 305. 30. Tucker v. Allen, 16 Kan. 312 (holding that while a deed executed in blank as to the name of the grantee, with the understanding that it should be filled and delivered to some person as grantee, may be assumed to be void when afterward so filled and delivered, yet, as a, deed may be good by constructive delivery, any word or act showing an in- tention on the part of the grantor after such filling will be considered as completely exe- cuting the deed) ; Byers v. McClanahan, 6 Gill & J. (Md.) 250; Wester v. Bailey, 118 N. C. 193, 24 S. E. 9 (holding that, if the maker of a note under seal acknowledges the note as his after the filling of blanks, he will be liable) ; Bland v. O'Hagan, 64 N. C. 471 [citing Davenport v. Sleight, 19 N. C. 381, 31 Am. Dec. 420] ; Blackwell v. Lane, 20 N. C. 205, 32 Am. Dec. 675. 31. See supra, V, C, 9, a, (in), (b). 32. In Drury v. Foster, 2 Wall. (U. S.) 24, 17 L. ed. 780, the rule was recognized that a deed of conveyance might be executed with a material blank to be filled by the agent of the grantor before delivery, as a blank for the name of the grantee. This case has been relied upon as authority for the rule that a deed thus left blank and de- livered to the grantee will be good under parol authority to fill the blank. In Allen v. Withrow, lio U. S. 119, 3 S. Ct. 517, 28 L. ed. 90, it was held that in order to make a deed operate as a conveyance when the name of the payee is left blank, two conditions are essential: (1), the blank must be filled by ALTERATIONS OF INSTRUMENTS 169 pie sometimes announced that after a deed has been executed it may be altered in a material part with the consent of the parties without affecting its validity. 38 (c) Actual or Implied Authority. From the cases last cited it would seem that the authority to fill a blank in a bond may be express, or implied from facts which fairly justify the inference, and this has been expressly held in some of them. 34 And under the doctrine that an agent of the maker may, by parol authority, fill blanks before delivery, such authority to fill a blank with the name of the mortgagee or grantee in a deed will be implied from the fact of the exe- cution of the deed. 35 On the other hand, it is held that in such cases the consent of the obligor must be established, and that if an agent transcends his author- ity in filling a blank in a bond the instrument will be avoided ; S6 and that to per- the party authorized to fill it, and ( 2 ) , this must be done before or at the time of the de- livery of the deed to the grantee named. In the ease of bonds it was held, in U. S. v. Nelson, 2 Brock. (U. S.) 64, 27 Fed. Cas. No. 15,862, that a blank bond signed and deliv- ered was void as to sureties after the blanks had been filled, Marshall, C. J., hesitating, however, to reach this conclusion. The rea- son for this, under the English authorities, was that the authority of an agent to make the deed must be by deed, and also that to admit parol authority to fill the blank would in effect make a bond transferable or nego- tiable like a bill of exchange or exchequer bill. Hibblewhite v. McMorine. 6 M. & W. 200. See also Enthoven v. Hoyle, 9 Eng. L. & Eq. 434. But the law as otherwise held by Lord Mansfield in Texira v. Evans [cited in Master v. Miller, 1 Anstr. 228] has been fol- lowed by courts of the highest authority in this country, which met the fear expressed by Park, B., that the effect of parol author- ity would be to make bonds negotiable, by admitting the consequence. White v. Ver- mont, etc., R. Co., 21 How. (U. S.) 575, 16 L. ed. 221. The following eases support this view: Alabama. — Boardman v. Gore, 1 Stew. (Ala.) 517, 18 Am. Dec. 73. Connecticut. — Bridgeport Bank v. New York, etc., R. Co., 30 Conn. 231. Geomia. — Dedge v. Branch, 94 Ga. 37, 20 S. E. 657 ; Brown v. Colquitt, 73 Ga. 59, 54 Am. Rep. 867. Maine. — South Berwick v. Huntress, 53 Me. 89, 87 Am. Dec. 535. Massachusetts. — Smith v. Crooker, 5 Mass. 538. This case was afterward distinguished in Burns v. Lynde, 6 Allen (Mass.) 305, in that the blank was immaterial, the latter case being a deed of conveyance, and the court holding strictly to the view that if the blanks render the instrument invalid they cannot be filled after delivery in the absence of the grantor. But it was also held in this state that when a bond is intrusted to a principal for his use it is good when filled, if the obligee had no notice. White v. Dug- gan, 140 Mass. 18, 2 N. E. 110, 54 Am. Rep. 437. Minnesota. — State V. Young, 23 Minn. 551. Missouri. — State v. Dean. 40 Mo. 464 ; Greene County v. Wilhite, 29 Mo. App. 459. New Jersey. — Camden Bank v. Hall, 14 N. J. L. 583.' New York. — Forster v. Moore, 79 Hun (N. Y.) 472, 29 N. Y. Suppl. 1032, 61 N. Y. St. 628. See also Commercial Bank v. Kort- right, 22 Wend. (N. Y.) 348, 34 Am. Dec. 317; Woolley v. Constant, 4 Johns. (N. Y.) 54, 4 Am. Dec. 246. Pennsylvania. — Bugger v. Cresswell, ( Pa. 1888) 12 Atl. 829; Costen's Appeal, 13 Pa. St. 292 [citing Stahl v. Berger, 10 Serg. & R. (Pa.) 170, 13 Am. Dec. 666; Sigfried v. Levan, 6 Serg. & R. (Pa.) 308, 9 Am. Dec. 427]; Wiley v. Moor, 17 Serg. & R. (Pa.) 438, 17 Am. Dec. 696. Wisconsin. — Vliet v. Camp, 13 Wis. 198. See also infra, V, C, 9, b. 33. Woolley v. Constant, 4 Johns. (N. Y.) 54, 4 Am. Dec. 246 [citing Markham v. Gon- aston, Moore P. C. 547, and Zouch v. Claye, 2 Lev. 35, the first of which seems like Eagle- ton v. Gutteridge, 11 M. & W. 465]. See also Camden Bank v. Hall, 14 N. J. L. 583. 34. Georgia. — Dedge v. Branch, 94 Ga. 37, 20 S. E. 657, holding that where a tax-col- lector's bond was delivered in blank the plain inference as to the penalty was that the or- dinary was expected to fill the blank, he be- ing authorized to fix the penalty of such bonds. Maine. — South Berwick v. Huntress, 53 Me. 89, 87 Am. Dec. 535. Minnesota. — State v. Young, 23 Minn. 551, upon the broad principle that there is no dis- tinction between sealed and unsealed instru- ments. Missouri. — Greene County v. Wilhite, 29 Mo. App. 459. Pennsylvania. — Bugger v. Cresswell, (Pa. 1888) 12 Atl. 829. Wisconsin. — Vliet v. Camp, 13 Wis. 198. 35. Garland v. Wells, 15 Nebr. 298, 18 N. W. 132: Van Etta v. Evenson, 28 Wis. 33, 9 Am. Rep. 486. See infra, V, C, 9, b. 36. Richmond Mfg. Co. v. Davis, 7 Blackf. (Ind.) 412 [distinguishing St. Clairsville Bank v. Smith, 5 Ohio 222, as turning upon the construction of a statute relative to the negotiability of sealed bills]. See also White v. Duggan, 140 Mass. 18, 2 N. E. 110, 54 Am. Rep. 437. And in Clendaniel v. Hastings, 5 Harr. (Del.) 408, it was held that the exe- cution of a bond in blank does not import au- thority to the holder to fill it and deliver it at pleasure. Revocation of authority. — See Gibbs v. Frost, 4 Ala. 720 (holding that parol author- ity to fill blanks in a bond may be revoked Vol. II 170 ALTERATIONS OF INSTRUMENTS feet a conveyance of land there must be actual authority. 87 Authority to fill a blank with the name of a particular grantee is no authority to insert the name of another and different grantee, 38 and the fraudulent filling of such a blank passes no title. 89 (d) Formalities in Conveyance of Land. Notwithstanding the doctrine may be recognized that parol authority to fill a blank in a deed is sufficient, a distinc- tion is made in the case of instruments which purport to convey land, 40 by reason of the statute of frauds or requirements appertaining to the formal execution of such instrument. 41 in the same manner, and if revoked before the bond is perfected the authority to per- fect it is at an end). But where a deed of conveyance may be delivered in blank to the grantee, and his name may be filled in by him after delivery, it is held that the power, be- ing coupled with an interest, is irrevocable. Threadgill v. Butler, GO Tex. 599. 37. Allen v. Withrow, 110 U. S. 119, 3 S. Ct. 517, 28 L. ed. 90. See also Lindsley v. Lamb, 34 Mich. 509, holding that a deed exe- cuted in a foreign state, without the name of the grantee and containing other blanks, and sent into Michigan in that condition, and af- terward filled by some one not shown to have had authority, in writing or otherwise, is void in the hands of one having notice of these facts. 38. Schintz v. McManamy, 33 Wis. 299. See also Truroby v. Erkenbrack, 8 Alb. L. J. 10, wherein the husband of a mortgagor pur- posely caused the mortgage to be executed with the space for the name of the mortgagee left blank, and afterward filled in the name of his own father. 39. Cooper v. Page, 62 Me. 192, wherein a deed was executed except as to the name of the grantee, and sent by the grantor to his mother with authority to fill in the blank when the occasion for use of the deed de- manded it. The blank was afterward filled by another person than the mother, and with- out any authority from her or the grantor, and in the presence of the person whose name was inserted as grantee. To the same effect, Van Amringe v. Morton, 4 Whart. (Pa.) 382, 34 Am. Dec. 517, holding that a bona fide purchaser from the person holding such a deed stands in no better situation than the fraudulent holder," especially if the original grantor remains in possession. 40. See, for example, White v. Vermont, etc., R. Co., 21 How. (U. S.) 575, 16 L. ed. 221, holding that a blank for the name of the payee in a negotiable bond may be filled in after delivery, and Allen v. Withrow, 110 U. S. 119, 3 S. Ct. 517, 28 L. ed. 90, holding that, while parol authority to alter or add to a sealed instrument is sufficient, there are two essential conditions to make a deed exe- cuted in blank operate as a conveyance. The blank must be filled by the party authorized to fill it, and this must be done before or at the time of the delivery of the deed to the grantee. See also supra. V, B. 2. The rule is recognized, however, that such a deed may be executed with material blanks to be filled by an agent of the grantor before delivery, Vol. II pursuant to a parol authority. Drury v. Foster, 2 Wall. ( U. S.) 24, 17 L. ed. 780. 41. Drury r. Foster, 2 Wall. (U. S.) 24, 17 L. ed. 780, in relation to a provision un- der which a married woman is required by statute to acknowledge a deed separately and apart from her husband, and is not capable of making a power of attorney, holding that there can be no acknowledgment of the deed until the blanks are filled and the instru- ment is complete. So it is held in California that a delivery of a bond as security for the charter of a steamboat, with blanks for the date, name of steamer, and name of payee, authorized the filling of the blanks. Dalbeer v. Livingston, 100 Cal. 617, 35 Pac. 328. The court distinguished two other cases in this state, Upton v. Archer, 41 Cal. 85, 10 Am. Rep. 266 (which held that where an agent, with whom is left » deed with blanks for the names of the purchasers, fills in the names of other purchasers, the grantor may refuse to recognize the sale, and that, under the stat- ute of frauds, the agent had no power to fill the blanks without authority in writing), and De Arguello v. Bours, 67 Cal. 447, 8 Pac. 49 (holding that a deed with the name of the grantee left blank, which name was after- ward inserted without the grantor's author- ity, conveys no title, and that the abolition of all distinctions between sealed and un- sealed instruments was not material to the question ) . See also Wunderlin v. Cadogan, 50 Cal. 613. So, also, in Iowa it was held that, notwithstanding sealing was dispensed with by statute as one of the requisites of a conveyance of land, the other essential com- mon-law requisites were not abrogated, and regularly a deed should still, as before, be perfect before delivery, though it was said that Texira v. Evans [cited in Master v. Miller, 1 Anstr. 228] would undoubtedly be sound law in a like case or a case not involv- ing the conveyance of land. Simms v. Her- vey, 19 Iowa 273. As far as concerns the conclusions reached in this case it would seem to be of doubtful authority. It has been distinguished in several respects. Swartz v. Ballou, 47 Iowa 188, 29 Am. Rep. 470 (see infra, note 42) refers to this case as resting largely, if not entirely, on the common-law doctrine in relation to instruments under seal. See also Devin r, Himer, 29 Iowa 297, infra, note 43. Alienation of homestead. — Under the con- stitutional provision that an alienation of a homestead could not be effected except by the joint consent of the husband and wife, where ALTERATIONS 01 INSTRUMENTS 171 • i^^. ere Smls Are Abolished. In some cases the sufficiency of parol author- ity to til in blanks in deeds in accordance with the intention of the parties is good because of the abolition of seals or of the distinction between sealed and unsealed instruments, 42 and this authority is carried even to the extent of per- mitting the grantee to insert his own name after delivery. 43 b. Estoppel. Where one delivers a deed, fully executed, with parol authority to nil blanks therein, he is estopped from denying the validity of the deed, after the blanks are filled, as against a subsequent purchaser for value without notice of the manner of the original execution of the deed. 44 So, even if blanks are filled in a deed after delivery, yet if the grantor or obligor claims the benefit of the contract growing out of it he thereby makes the deed as completed his own and a mortgage was executed in blank by a hus- band and wife, with the understanding that the blanks should be filled so as to cover the land owned by the wife, in order to secure one thousand dollars, and the mortgage was filled in the presence and with the consent of the husband so as to secure a larger sum, it was held that the mortgage was void as to both the husband and the wife. Ayres v. Probaseo, 14 Kan. 175. 42. Swartz v. Ballou, 47 Iowa 188, 29 Am. Rep. 470; Owen v. Perry, 25 Iowa 412, 96 Am. Dec. 49; Threadgill v. Butler, 60 Tex. 599. See also Lockwood v. Bassett, 49 Mich. 546, 14 N. W. 492. In Louisiana the addition of a seal only confirmed the signature and added nothing to the obligatory force of the instrument, and therefore it was held that an instrument under seal may be executed in blank. Bell v. Keefe, 13 La. Ann. 524. See also Breedlove v. Johnston, 2 Mart. N. S. (La.) 517. So, in Minnesota, the holding that where sureties sign a bond, intending thereby to bind themselves, and deliver the same with the amount of the bond left blank, this is an implied authority to fill the blank, is upon the theory that at the present day the dis- tinction between sealed and unsealed instru- ments is arbitrary, meaningless, and unsus- tained by reason. State v. Young, 23 Minn. 551. 43. McCleery v. Wakefield, 76 Iowa 529, 41 N. W. 210, 2 L. R. A. 529 ; McClain v. Mc- Clain, 52 Iowa 272, 3 N. W. 60; Devin v. Himer, 29 Iowa 297 (where the deed was de- livered to the grantee with a blank expressly intended to be filled with the name of the grantee, in which the case was distinguished from Simms v. Hervey, 19 Iowa 273, in that it was indicated in the latter case that no specific grantee was intended and there was no express authority from the owner to fill the blank and deliver the instrument, and no subsequent adoption of what had been done ) ; Threadgill v. Butler, 60 Tex. 599. See also Clark v. Allen, 34 Iowa 190. 44. McCleery v. Wakefield, 76 Iowa 529, 41 N. W. 210, 2 L. R. A. 529 (wherein the deed was executed and delivered to the ven- dee, and by agreement the name of the grantee was left blank in order that the vendee might insert the name of the person to whom he might sell. The vendee after- ward inserted the name of another and deliv- ered the deed to him as security for a debt, and, upon paying the debt, took the deed back from such person, erased his name, and inserted the name of another person, to whom the deed was finally delivered. It was held that the title of this last person was good as against the maker of the deed in a, suit to set aside the deed on account of the fail- ure on the part of the vendee to perform his contract. The court cited Swartz v. Ballou, 47 Iowa 188, 29 Am. Rep. 470; Clark v. Al- len, 34 Iowa 190; Owen v. Perry, 25 Iowa 412, 96 Am. Dee. 49, in each of which eases defendant was a subsequent grantee claim- ing under the one whose name was inserted in the deed after it passed from the hands of the grantor, and he was protected on the ground that he was an innocent purchaser from one who was apparently clbthed with title as a consequence of the grantor's act; but in a case like the present one, where there is an express authority to insert the name of a, subsequent purchaser and deliver the instrument to him, the equities in favor of such purchaser without notice are equally strong); Pence v. Arbuckle, 22 Minn. 417; Garland v. Wells, 15 Nebr. 298, 18 N. W. 132 (holding that a deed may be executed with a blank for the name of the grantee, the blank to be filled by the agent of the grantor pur- suant to parol authority; and in such a case, even if the agent so violates his authority that as between the grantor and the person whose name is filled in the blank as grantee the deed would be voidable, a good title would pass to an innocent purchaser from such grantee) ; Ragsdale v. Robinson, 48 Tex. 379. See also Putnam v. Clark, 29 N. J. Eq. 412. Fraud by husband. — Where a husband and wife join in a blank form of a deed designed to be thereafter filled so as to convey a cer- tain piece of ground as a site for a school- house, and afterward the husband, without the knowledge or consent of his wife, fills such blank deed so as to make the same a mortgage on a large tract of land in order to secure a person for a loan, such person re- ceiving the deed in good faith, without knowl- edge of any defect, the husband and all sub- sequent judgment creditors and lienors under him are estopped from denying the validity of the mortgage, but the wife not being a party to the intended fraud, and not having joined with her husband in the execution of the instrument for the conveyance or encum- brance of her right of dower in the premises Vol. II 172 ALTERATIONS OF INSTRUMENTS precludes himself from objecting to its validity. 45 And, where a deed is executed in blank and delivered to an agent to be filled and finally delivered, it will be good in favor of a grantee or obligee having no knowledge of the manner of execution. 46 VI. RATIFICATION. 47 A. In General. Subsequent assent to a material change of a written instru- ment is a waiver of the right to rely upou the alteration as a defense to an action brought upon the instrument. 48 But a ratification by one of several who are parties to the instrument as originally written binds him only, and not those who do not assent. 49 B. New Consideration. In several instances it has been held that where one is discharged by an alteration his liability cannot be revived except upon a new consideration, as in the case of a surety. 50 But the better rule seems to be that ostensibly mortgaged, her inchoate right of dower is unaffected. Conover v. Porter, 14 Ohio St. 450. Compare Quinn v. Brown, 71 Iowa 376, 34 N. W. 13. 45. Devin v. Himer, 29 Iowa 297; Lock- wood v. Bassett, 49 Mich. 546, 14 N. W. 492 ; Reed v. Morton, 24 Nebr. 760, 40 N. W. 282, 8 Am. St. Rep. 247, 1 L. R. A. 736 (holding that where a wife executed a deed in blank as to the name of the grantee and in other respects, and delivered it to her husband for the purpose of selling the land described, and the husband afterward sold the land, filled the blanks, and delivered the deed to the grantee, the wife will be deemed to have ratified the acts of the husband by using the consideration received) ; Duncan v. Hodges, 4 McCord (S. C.) 239, 17 Am. Dec. 734. 46. Chicago v. Gage, 95 111. 593, 35 Am. Rep. 182; Donnell Mfg. Co. v. Jones, 49 111. App. 327; Phelps v. Sullivan, 140 Mass. 36, 2 N. E. 121, 54 Am. Rep. 442. See also Wright v. Harris, 31 Iowa 272. 47. See 2 Cent. Dig. tit. "Alteration of Instruments," § 93 et seq. 48. Delaware. — Hollis v. Vandergrift, 5 Houst. (Del.) 521. Indiana. — Feeney v. Mazelin, 87 Ind. 226. Michigan. — Stewart v. Port Huron First Nat. Bank, 40 Mich. 348. Minnesota. — Janney v. Goehringer, 52 Minn. 428, 54 N. W. 481. Missouri. — Workman v. Campbell, 57 Mo. 53; King v. Hunt, 13 Mo. 97. New Hampshire. — Humphreys v. Guillow, 13 N. H. 385, 38 Am. Dee. 499. Pennsylvania. — Wilson v. Jamieson, 7 Pa. St. 126. South Carolina. — Jacobs v. Gilreath, 45 S. C. 46, 22 S. B. 757. Tennessee. — The acceptor, in writing his name under the word " accept " on the face of the bill, by a stroke or flourish of his pen ran over and nearly obliterated the right- hand lower part of the figure " 6," the date of the bill, so as to make it look like the figure " 1 " except upon very close inspec- tion. The action was by the bank which dis- counted the bill, being an innocent purchaser, against the drawers, the bank having dis- counted the bill as of the apparently changed date, and the principle was applied that where the acceptor alters the date before he Vol. II accepts, and this is concurred in by the other parties, it is a ratification which will bind them. Ratcliff v. Planters' Bank, 2 Sneed (Tenn.) 424. Wisconsin. — North v. Henneberry, 44 Wis. 306 ; Kilkelly v. Martin, 34 Wis. 525. United States. — Washington Bank v. Way, 2 Cranch C. C. (U. S.) 249, 2 Fed. Cas. No. 957. England. — Tarleton v. Shingler, 7 C. B. 812, 62 E. C. L. 812 (assent by acceptor af- ter alteration by treating the bill as one of the time as altered) ; Paton v. Winter, 1 Taunt. 420 (which appears to be distinguish- able from Campbell v. Christie, 2 Stark 64, 3 E. C. L. 318, holding otherwise by reason of the stamp act ) . Canada.— Fitch v. Kelly, 44 U. C. Q. B. 578. See supra, V, B, 2, and V, C, 9. 49. Inglish v. Breneman, 9 Ark. 122, 47 Am. Dec. 735 (surety not bound by ratifica- tion of maker of note) ; Davis v. Bauer, 41 Ohio St. 257 (holding that where one of sev- eral parties to a promissory note, given for the accommodation of the payee, voluntarily pays the same after knowledge of an altera- tion, he cannot recover on it against another maker who has not consented to or ratified the alteration) ; Matlock v. Wheeler, 29 Oreg. 04, 40 Pac. 5, 43 Pac. 867. Ratification by executor. — Where a testa- tor authorized his executors to sell his real estate to pay debts, and a contract was en- tered into between the executors and defend- ant for the sale of the same, which contract contained interlineations made by one ex- ecutor in the absence of the other, and after- ward one executor died, and the other be- came sole executor, and ratified the agree- ment as entered into, in an action of eject- ment by the heirs to recover the land it was held that the contract was binding. Shippen v. Clapp, 29 Pa. St. 265. 50. Mulkey v. Long, (Ida. 1897) 47 Pac. 949; Warren v. Fant, 79 Ky. 1 (upon the principle, stated in Blakey v. Johnson, 13 Bush (Ky.) 197, 26 Am. Rep. 254, that where a surety is released he is no more bound than if he had never signed the obligation, and that one who has never signed and whose name had been forged could not be bound by a subsequent ratification without considera- ALTERATIONS OF INSTRUMENTS 173 any one of the parties to an instrument who may have become discharged because of an alteration therein may ratify the unauthorized act so as to make himself liable without any new consideration, 51 upon the principle that he who may authorize in the beginning may ratify in the end. 52 C. Sufficiency of Ratification — 1. Acquiescence. Mere acquiescence, with- out objecting until the enforcement of the instrument is sought, is held to be a sufficient ratification in favor of one who had no knowledge of the alteration, 53 and, where the character of the obligation is changed before it is signed, and with- out the knowledge of the party signing it, acquiescence after subsequently acquired knowledge will be deemed a ratification of the contract as changed. 54 It is different, however, as against an indorser where the holder takes the instrument with knowledge that it was changed without authority. 55 So acquiescence is taken as a ratification when, after knowledge of the change, the party causes or permits action to be taken with reference to the instrument which necessarily imports a recognition by him of the validity of the instrument, or which should estop him from denying such liability. 56 Where one has received property under a contract tion) ; Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 12 Am. St. Rep. 754, 4 L. R. A. 196. 51. Alabama. — Payne v. Long, 121 Ala. 385, 25 So. 780 ; Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 24 Am. St. Eep. 832, 12 L. R. A. 140. Illinois. — Goodspeed v. Cutler, 75 111. 534; Gardiner v. Harbeck, 21 111. 129; Scott v. Bibo, 48 111. App. 657. Iowa. — Pelton v. Preseott, 13 Iowa 567. Massachusetts. — Prouty v. Wilson, 123 Mass. 297. Michigan. — Stewart v. Port Huron First Nat. Bank, 40 Mich. 348. North Carolina. — Wester v. Bailey, 118 N. C. 193, 24 S. E. 9. Cases distinguished. — In Westloh v. Brown, 43 U. C. Q. B. 402, it is held that where a note, after execution, is altered by the maker, without the consent of an indorser who sub- sequently comes to pay it without knowledge of the alteration, the note is void and a sub- sequent promise did not have the effect of ratifying it, the court in one sentence ap- parently going upon the principle that the note so altered is altogether incapable of be- ing ratified, upon the authority of Brook v. Hook, L. R. 6 Exch. 89, though, in the next paragraph, the court further said that in or- der to ratify such a note actual knowledge of the alteration is necessary, upon .the au- thority of Bell v. Gardiner, 4 M. & G. 11, 43 E. C. L. 16. Brook v. Hook, L. R. 6 Exch. 89, was a case in which defendant's name was forged, and thereafter, while the note was current, he signed a memorandum holding himself responsible in order to prevent the prosecution for the forgery, and it was held that such memorandum could not be con- strued as a ratification, inasmuch as the act it professed to ratify was illegal and void, and that as an agreement to treat the note as the defendant's own act it was void, be- cause founded upon an illegal consideration. The principle of this case is the foundation of the cases cited supra, note 50. See also Shisler v. Vandike, 92 Pa. St. 447, 37 Am. St. Rep. 702; and Fobgeby. 52. Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 24 Am. St. Rep. 832, 12 L. R. A. 140, adopting the language and conclu- sions in Trenton First Nat. Bank v. Gay, 63 Mo. 33, 39, 21 Am. Rep. 430, wherein it is said that " No independent consideration is required in the case of an accommodation in- dorser, surety, etc., in the first instance, and it is difficult to see why anything more should be required on subsequent sanction than on original assent." 53. Yocum v. Smith, 63 111. 321, 14 Am. Rep. 120; Pulliam v. Withers, 8 Dana (Ky.) 98, 33 Am. Dec. 479 (wherein it is held that where there is no change in the body of an instrument, and no interlineation or erasure, very slight evidence of the original prom- isor's assent will be sufficient) ; Stewart v. Port Huron First Nat. Bank, 40 Mich. 348 ; Renville County v. Gray, 61 Minn. 242, 63 N. W. 635. 54. Linington v. Strong, 107 111. 295; Tilt v. La Salle Silk Mfg. Co., 5 Daly (N. Y.) 19, where the contract was retained without objection after the change, and goods, deliv- ered in accordance with the change inserted in the contract, were received by defendant. 55. Conklin v. Wilson, 5 Ind. 209, holding that under such circumstances an attempt to procure indemnity did not deprive the in- dorser of his legal defense, and that he was under no obligation to object before suit as between these particular parties. 56. Grimsted v. Briggs, 4 Iowa 559 (where it appeared, in an action by an indorsee against the maker and indorser of a note, that the instrument had been altered, and that after knowledge of the alteration the maker recommended plaintiff to buy it) ; Sanders v. Bagwell, 37 S. C. 145, 15 S. E. 714, 16 S. E. 770 ; Janes v. Ferd Heim Brewing Co., (Tex. Civ. App. 1897) 44 S. W. 896; Davis, etc., Bldg., etc., Co. v. Dix, 64 Fed. 406 ; Davis v. Shafer, 50 Fed. 764. But where the sureties on an official bond first learned of an alteration af- ter the default of the principal, and then for a few days procured control of certain money to the credit of their principal, but, upon taking legal advice, became satisfied that Vol. II 174 ALTEEATIOXS OF IXHTRUMEXTS at the time his attention is called to an alteration, he must rescind the contract and return the property within a reasonable time, or be held to have ratified the alteration. 57 2. New Promise. "Where one, after full knowledge of an alteration, uncondi- tionally promises to pay, this is a sufficient ratification. 03 3. Waiver of Protest and Notice. If, after knowledge of an alteration, an indorser waives protest and notice this will be considered a sufficient ratification. 69 4. Obtaining Extension of Time. Where a party with knowledge of an altera- tion obtains an extension of the time of payment, this will be considered a ratification. 60 5. Giving Other Security. "Where an indorser, with full knowledge of an alteration, executes other security for the payment of the debt evidenced by the note, he will be taken to have assented to the change. 61 6. Payment. By making payment of principal or interest with knowledge of an alteration a party is held to ratify and adopt the instrument as altered ; ffi but the mere payment of a prior note containing similar alterations will not con- stitute a ratification of alterations in the particular notes in controversy. 63 7. Bringing Suit on Altered Instrument. Ordinarily a plaintiff cannot avoid the effect of an alteration of which he is chargeable with knowledge after he has brought suit upon the instrument in its altered form, since by suing upon the altered instrument he is deemed to have ratified the alteration ; M but if the they were not bound by the bond, whereupon they relinquished all claim to the money and denied their liability, it was held that they could not be taken to have ratified the al- teration. Fairhaven v. Cowgill, 8 Wash. 686, 36 Pac. 1093. Permitting discharge of maker by indorser. — Where the indorser of a note agreed with the maker and holder that the former should be discharged from all liability on payment of a certain sum, without affecting the in- dorsees liability, it was held that he would be estopped to insist on his own discharge by reason of an alteration, made after indorse- ment, where the above agreement contained a copy of the note with the alleged alteration. Conable v. Keener, 61 Hun (X, Y.) G24, 16 N. Y. Suppl. 719,' 40 X. Y. St. 939. Trial of appeal. — A subsequent trial of an appeal at the instance of a part of the ob- ligors on an appeal bond will be taken as a ratification of an alteration of the bond. Os- wego v. Kellogg, 99 111. 590. 57. Rescission. — See VII, D, 4, g. 58. Promise by maker. — Goodspeed r. Cut- ler, 75 111. 534; Scott 1'. Bibo. 48 111. App. 657; Emerson v. Opp, 9 Ind. App. 581. 34 X. E. 840. 37 X. E. 24 : Browning v, Gosnell, 94 Iowa 448, 59 X. W. 340. Promise by indorser. — National State Bank v. Rising, 4 Hun (X. Y.) 793; Marks v. Schram, (Wis. 1901) 84 X. W. 830. Promise by signer of subscription contract. — Landwerlen .v. Wheeler, 106 Ind. 523, 5 N". E. 888. 59. Montgomery r. Crossthwait, 90 Ala. 553, 8 So. 498, 24 Am. St. Rep. 832, 12 L. R. A. 140. 60. Bell v. Mahin, 69 Iowa 408, 29 X. W. 331. Where the obligors in a bond, with full knowledge of an alteration, offer to pay a part of the bond and ask for an extension of time in which to pay the balance, such offer Vol. II and request will constitute a sufficient rati- fication or an assent to the alteration. Dick- son r, Bamberger, 107 Ala. 293, 18 So. 290. 61. Fanning v. Farmers, etc., Bank, 8 Sm. & M. (Miss.) 139 (execution of trust deed to holder of note to secure its payment, by indorser after full knowledge of the altera- tion) ; Wright v. Buck, 62 X. H. 656 (execut- ing a new note) : Bradford Nat. Bank v. Taylor, 75 Hun (X. Y.) 297, 27 X. Y. Suppl. 96, 56 X. Y. St. 754 (execution of renewal note bv indorser) ; Ohio Valley Bank v. Lock- wood, '13 W. Va. 392, 31 Am. Rep. 768. Conditional offer of renewal. — But an offer by the maker to renew a note on conditions which the payee would not accept was held not to be a waiver of an alteration. McDan- iel f. Whitsett, 96 Tenn. 10, 33 S. W. 567. 62. Alabama. — Payne r. Long, 121 Ala. 385. 25 So. 780. Illinois. — Richardson v. Mather, 77 111. App. 626 [affirmed in 178 111. 449, 53 N. E. 321]. Massachusetts. — Prouty v. Wilson, 123 Mass. 297. Michigan. — Johnson t. Johnson, 66 Mich. 525, 33 X. W. 413. Missouri. — Evans v. Foreman, 60 Mo. 449. South Carolina. — And where, after mak- ing a payment within the statutory period, the maker of a note acquiesces in its altera- tion, the new promise implied from such pay- ment will be regarded as a promise to pay the note as altered. Jacobs v. Gilreath, 45 S. C. 46. 22 S. E. 757. 63. McDaniel v. Whitsett, 96 Tenn. 10, 33 S. W. 567. 64. Maine. — Dover v. Robinson, 64 Me. 183. Missouri. — Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300: Springfield First Nat. Bank v. Fricke. 75 Mo. 17S, 42 Am. Rep. 397; Bre- men Bank v. Umrath, 42 Mo. App. 525. ALTERATIONS OF INSTRUMENTS 175 suit is brought without knowledge of the alteration this will not amount to a ratification. 65 8. Necessity for Full Knowledge of Facts. In order that the foregoing or any acts may be construed as a ratification of an alteration, the particular act mast be doue with full knowledge of the alteration, 66 and if a payment is not made upon the instrument under these conditions it cannot be considered as evi- dencing a ratification ; 67 so, if an indorser makes a payment in ignorance of an alteration he may recover back the money so paid in an action for money had and received. 68 The party must have knowledge in fact, and it is no answer to say that he had means of knowledge. 69 VII. NATURE AND EFFECT OF MATERIAL AND IMMATERIAL CHANGES. A. Early Doctrine Applied to Deeds. The rules with regard to the altera- tion of instruments were first applied to deeds, because anciently most transactions which were reduced to writing were evidenced by instruments under seal, 70 and by the law as it originally stood any change in a deed after execution, even in an immaterial point, if made by the obligee himself, or in a material point if made by a stranger, avoided it. 71 A change by a stranger in an immaterial part of the deed, however, was never considered as vitiating. 73 B. Doctrine Extended to Other Instruments. Afterward, the law with regard to alterations was considered in connection with changes in written con- tracts generally, especially commercial paper, 73 and, leaving out of view the par- Nebraska. — Perkins Windmill, etc., Co. v. Tillman, 55 Nebr. 652, 75 X". W. 1098. Pennsylvania. — Fulmer v. Seitz, 68 Pa. St. 237, 8 Am. Rep. 172. South Dakota. — Wyckoff v. Johnson, 2 S. D. 91, 48 N. W. 837, holding that where plaintiff insisted that the act was the unau- thorized act of an agent the defendant might show by the books of plaintiff that the note had been carried on the books as a discount for the amount to which it had been so al- tered, such evidence tending to show an adop- tion or ratincation by plaintiff of the altera- tion. Texas. — Bowser v. Cole, 74 Tex. 222, 11 S. W. 1131. 65. Orlando v. Gooding, 34 Fla. 244, 15 So. 770; Bigelow v. Stilphen, 35 Vt. 521. 66. Arkansas. — State v. Churchill, 48 Ark. 426, 3 S. W. 352, 880, wherein the governor of the state approved a bond upon which he was a surety and actually observed the era- sure therein, but, his mind being engrossed with other matters at the time, it escaped a closer scrutiny, and it was held that his offi- cial approval was not a ratincation of an erasure made without his consent, being with- out full knowledge of the facts. Indiana. — Koons v. Davis, 84 Ind. 387; Bucklen v. Huff, 53 Ind. 474. Iowa. — Cutler v. Rose, 35 Iowa 456. Michigan. — Pearson v. Hardin, 95 Mich. 360, 54 ST. W. 904. Missouri.— State v. Chick, 146 Mo. 645, 48 S. W. 829 (where the only knowledge imput- able to the obligors on a bond was that to be derived from reading in a newspaper that the bond was for a smaller amount than that which they had executed) : State r. MeGon- igle, 101 Mo. 353, 13 S. W. 758, 20 Am. St. Rep. 609, .8 L. R. A. 735; German Bank v. Dunn, 62 Mo. 79 (where the maker afterward saw the note, but his attention was directed only to the signature ) . Montana. — McMillan v. Hefferlin, 18 Mont. 385, 45 Pac. 548. Wisconsin. — Kilkelly v. Martin, 34 Wis. 525. United States. — Washington Bank v. Way, 2 Cranch C. C. (U. S.) 249, 2 Fed. Cas. No. 957. England. — Where a maker was discharged by an alteration, and upon application by letter for payment he answered that he would give his earliest attention to the matter, this does not show assent, because giving atten- tion is different from giving an assent. Per- ring v. Hone, 4 Bing. 28, 13 E. C. L. 384. 67. Benedict v. Miner, 58 111. 19. 68. Fraker v. Little, 24 Kan. 598, 36 Am. Rep. 262; Sheridan v. Carpenter, 61 Me. 83 69. Bell r. Gardiner, 4 M. & G. 11, 43 E. C. L. 16; Westloh p. Brown, 43 U. C. Q. B. 402. 70. Master v. Miller, 4 T. R. 320 ; 1 Green- leaf Ev. § 565. 71. Figot's Case, 11 Coke 27a (which is the ease upon which this doctrine seems to be founded) ; Cospey v. Turner, Cro. Eliz. 800 ; Comyns Dig. tit. Fait F, 1. See also Brown v. Jones, 3 Port. (Ala.) 420; Barrett v. Thorndike, 1 Me. 73 [citing 1 Sheppard Abr. 541; Marckham v. Gonaston, Cro. Eliz. 626, as to change by obligee] ; Chessman v. Whit- temore, 23 Pick. (Mass.) 231; Fuller v. Green, 64 Wis. 159, 24 N. W. 907, 54 Am. Rep. 600. 72. Pigot's Case, 11 Coke 27a; Waugh v. Bussell, 5 Taunt. 707, 1 E. C. L. 362. 73. Master v. Miller, 4 T. R. 320, 1 Smith Lead. Cas. 796, extended the doctrine of Pigot's Case, 11 Coke 27a, as regards ma- terial alterations to bills of exchange. Sub- sequent cases have applied the doctrine of Vol. II 176 ALTERATIONS OF INSTRUMENTS ticular circumstances which will render a change vitiating, it may be stated that the rules are not now peculiar to deeds, but apply equally to deeds, bills and notes, and other writings containing the evidence of the parties' rights and contracts. 74 C. Abandonment of Early Doctrine. The doctrine that an immaterial change by the obligee or a material change by a stranger vitiated the deed seems founded upon an early English case, which was not authority to the full extent to which it is often cited. 75 This case was afterward recognized both in England 76 and America, 77 but may be said now to be entirely exploded, and to be superseded by the more reasonable doctrine that an immaterial change, by whomsoever made, at least when unaccompanied by fraudulent design, will not invalidate the deed, 78 Pigot's Case, 11 Coke 27a, as regards material alterations indiscriminately to all written in- struments, whether under seal or not. Al- dous v. Cornwell, L. R. 3 Q. B. 573 [citing Davidson v. Cooper, 11 M. & W. 778, 13 M. & W. 343]. 74. Alabama. — Brown v. Jones, 3 Port. (Ala.) 420. Connecticut. — Starr v. Lyon, 5 Conn. 538. New Jersey. — Vanauken v. Hornbeck, 14 N. J. L. 178, 25 Am. Dec. 509. New York. — Chappell v. Spencer, 23 Barb. (N. Y.) 584. Pennsylvania. — U. S. Bank v. Russel, 3 Yeates (Pa.) 391, wherein it was said that the rule that a material alteration will ren- der a deed of no effect is equally applicable to bills of exchange and promissory notes; that more dangerous consequences would re- sult from permitting alterations of the lat- ter than of the former, because bills and notes are more readily susceptible to altera- tion than deeds, to which the names of wit- nesses are uniformly subscribed. Rhode Island. — Arnold v. Jones, 2 R. I. 345. Virginia. — Xewell t-. Mayberrv, 3 Leigh (Va.) 250, 23 Am. Dec. 261. England. — Aldous v. Cornwell, L. R. 3 Q. B. 573; Mollett v. Wackerbarth, 5 C. B. 181, 57 E. C. L. 181. 75. Aldous v. Cornwell, L. R. 3 Q. B. 573, wherein it was said that the fact found in Pigot's Case, 11 Coke 27a, was that the al- teration, which was not a material one, was made by a stranger, and judgment was given for plaintiff, so that the case itself was not a decision upon the point that an immaterial change by the obligee will vitiate the instru- ment. 76. Davidson v. Cooper, 11 M. & W. 778, 13 M. & W. 343; Sanderson v. Symons, 1 B. & B. 426, recognizing the authority of Pigot's Case, 11 Coke 27a, but holding that the case of an insurance policy stands upon its own circumstances. 77. Extent of application. — In several Amer- ican cases the doctrine of the dictum in Pig- ot's Case, 11 Coke 27a, seems to be fully recognized as sound law. Herdman v. Brat- ten, 2 Harr. (Del.) 396 (which, however, in- volved a change by the obligee) ; Den v. Wright, 7 N. J. L. 175, 11 Am. Dec. 546 (in a charge to the jury) ; White v. Williams, 3 N. J. Eq. 376. In other cases in Xew Jer- sey the same principle is recognized, though Vol. II the actual point as to the effect of a material change by a stranger was not involved. Jones v. Crowley, 57 N. J. L. 222, 30 Atl. 871; Hunt v. Gray, 35 X. J. L. 227, 10 Am. Rep. 232. In West Virginia the doctrine of that case seems to have been followed as to an im- material alteration by a party. Piercy r. Piercy, 5 W. Ya. 199. So also in Pennsyl- vania. Smith v. Weld, 2 Pa. St. 54; Morris v. Vanderen, 1 Dall. (Pa.) 64. In North Carolina the doctrine of Pigot's Case, 11 Coke 27a, applied to a change made by the party claiming under the deed, especially if done with fraudulent design. Nunnery v. Cotton, 8 N. C. 222. Though in this state the full doctrine of Pigot's Case, 11 Coke 27a, both as to an immaterial change by a party and a material change by a stranger, has been recognized. Pullen r. Shaw, 14 X. C. 213. In other cases the doctrine of Pigot's Case, 11 Coke 27a, is confined to changes made by a party claiming under the instru- ment, but it is not followed to the extent of making a material change by a stranger of vitiating effect as an alteration. Powell r. Banks, 146 Mo. 620, 48 S. W. 664; State r. Scott, 104 Mo. 26, 15 S. W. 987, 17 S. W. 11 ; Hord v. Taubman, 79 Mo. 101 ; Lewis r. Payn, 8 Cow. (X. Y.) 71, 18 Am. Dee. 427; Rees v. Overbaugh, 6 Cow. (X. Y.) 746; Van Brunt V. Van Brunt, 3 Edw. (X. Y.) 14. 78. Connecticut. — Murray v. Klinzing, 64 Conn. 78, 29 Atl. 244. Illinois. — MeKibben t. Newell, 41 111. 461. Kentucky. — Shelton r. Deering, 10 B. Mon. (Ky.) 405. Louisiana. — Barrabine r. Bradshears, 5 Mart. .(La.) 190. Maine. — Barrett v. Thorndike, 1 Me. 73, especially in the absence of fraud. Massachusetts. — Vose r. Dolan, 108 Mass. 155, 11 Am. Rep. 331 [citing Com. v. Emi- grant Industrial Sav. Bank, 98 Mass. 12. 93 Am. Dec. 126; Adams v. Frye, 3 Mete. (Mass.) 103 ; Chessman v. Whittemore, 23 Pick. (Mass.) 231; Brown v. Finkham, 18 Pick. (Mass.) 172]; Hatch v. Hatch, 9 Mass. 307, 6 Am. Dee. 67. Mississippi. — Gordon v. Sizer, 39 Miss. 805. England. — Aldous r. Cornwell, L. R. 3 Q. B. 573; Trapp v. Spearman, 3 Esp. 5"; Doe v. Bingham, 4 B. & Aid. 672, 6 E. C. L. 648. In Aldous v. Cornwell, L. R. 3 Q. B. 573, which is the leading case opposed to the doctrine above referred to in Pigot's Case, 11 Coke 27a, Lush, J., in delivering the opinion ALTERATIONS OF INSTRUMENTS 111 and that a material change in a deed by a stranger will not operate to avoid it. 79 D. Nature and Effect of Material Changes, Generally — 1. Statement of Rule. 80 As a general rule the effect of any alleged change in an instrument depends, first, upon the character of the change — that is, whether it is material or immaterial. 81 Any change in an instrument which causes it to speak a differ- ent language in legal effect from that which it originally spoke — which changes the legal identity or character of the instrument, either in its terms or the rela- tion of the parties to it — is a material change or technical alteration, and such a change will invalidate the instrument against all parties not consenting to the change. 82 Not only will an alteration vitiate the instrument as between the of the court, said that no authority was cited, nor could any be found, in which the doctrine that an immaterial alteration avoided the instrument had been acted upon. He adverted to cases in which the contrary had been held, though they could not be re- garded as entirely satisfactory. Thus in Darcy's Case, 1 Leon. 282, an immaterial al- teration in a bond, made by the executor of the obligee, was held not to vitiate the bond, but the court laid stress upon the fact that the alteration was in favor of the obligor. In Sanderson v. Symons, 1 B. & B. 426, the court held that the words added to a policy of insurance expressed no more than was al- ready contained in the policy as signed by defendant, and that therefore he was not dis- charged, the real ground of the decision ap- pearing to be that defendant was not and could not be prejudiced by the alteration, the conclusion of the court apparently limiting the doctrine to policies of insurance; but Lush, J., said that no reason could be discov- ered for making a distinction between that and any other species of contract. 79. Alabama. — Brown v. Jones, 3 Port. (Ala.) 420. Florida. — Orlando v. Gooding, 34 Fla. 244, 15 So. 770. Georgia. — Banks v. Lee, 73 Ga. 25. Indiana. — John v. Hatfield, 84 Ind. 75. Kentucky. — Lee v. Alexander, 9 B. Mon. (Ivy.) 25, 48 Am. Dec. 412. Minnesota. — Ames v. Brown, 22 Minn. 257. Mississippi. — Croft v. White, 36 Miss. 455. Neio York. — Gleason v. Hamilton, 138 N. Y. 353, 34 N. E. 283, 52 N. Y. St. 882, 21 L. R. A. 210; Waring v. Smyth, 2 Barb. Ch. (N. Y.) 119, 47 Am. Dec. 299. North Carolina. — Evans v. Williamson, 79 N. C. 86. For modern rule embodied in statute see Hall v. Weaver, 13 Sawy. (TJ. S.) 188, 34 Fed. 104, referring to statutes in New York and Oregon. For modern rule applied to bonds see: California. — Turner v. Billagram, 2 Cal. 520. Idaho. — Dangell v. Levy, 1 Ida. 722. Illinois.— Beed v. Kemp, 16 111. 445. See also Kellv v. Trumble, 74 111. 428. Indiana.— Shuck v. State, 136 Ind. 63, 35 ST. E. 993. Kentucky. — Terry v. Hazlewood, 1 Duv. (Ky.) 104. [12] Maryland. — State v. Miller, 3 Gill (Md.) 335. Massachusetts. — Smith v. Crooker, 5 Mass. 538. Nebraska. — Schlageck v. Widhalm, 59 Nebr. 541, 81 N. W. 448. Virginia. — Keen v. Monroe, 75 Va. 424. United States. — Crawford v. Dexter, 5 Sawy. (TJ. S.) 201, 6 Fed. Cas. No. 3,368. For modern rule applied to mortgages see Ames v. Brown, 22 Minn. 257 ; Foote v. Ham- brick, 70 Miss. 157, 11 So. 564, 35 Am. St. Rep. 631; Robertson v. Hay, 91 Pa. St. 242. 80. See 2 Cent. Dig. tit. "Alteration of Instruments," §§ 1 et seq., 114 et seq. 81. In this view the great bulk of the cases which treat of the materiality or im- materiality of a change, and the effect of the change as depending upon its character as material or immaterial, cannot be placed logically in two places. For, generally, to say that a change of a particular character is material is but to say that it is vitiating, or that it is not material is but to say that it is not vitiating. See infra, note 82. 82. Alabama. — White Sewing Mach. Co. c. Saxton, 121 Ala. 399, 25 So. 784; Payne t. Long, 121 Ala. 385, 25 So. 780; Jordan v. Long, 109 Ala. 414, 19 So. 843; Alabama State Land Co. v. Thompson, 104 Ala. 570, 16 So. 440, 53 Am. St. Rep. 80 [citing Hollis v. Harris, 96 Ala. 288, 11 So. 377; Saint v. Wheeler, etc., Mfg. Co., 95 Ala. 362, 10 So. 539, 36 Am. St. Rep. 210; Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 24 Am. St. Rep. 832, 12 L. R. A. 140; Anderson v. Bellenger, 87 Ala. 334, 6 So. 82, 13 Am. St. Rep. 46, 4 L. R. A. 680; Hill v. Nelms, 86 Ala. 442, 5 So. 796; Sharpe v. Orme, 61 Ala. 263] ; Green v. Sneed, 101 Ala. 205, 13 So. 277, 46 Am. St. Rep. 119; Lesser v. Scholze, 93 Ala. 338, 9 So. 273; Toomer v. Rutland, 57 Ala. 379, 29 Am. Rep. 722. Arkansas. — Little Rock Trust Co. v. Mar- tin, 57 Ark. 277, 21 S. W. 468; Overton v. Matthews, 35 Ark. 146, 37 Am. Rep. 9; Chism t>. Toomer, 27 Ark. 108. California. — Pelton v. San Jacinto Lum- ber Co., 113 Cal. 21, 45 Pac. 12. Connecticut. — Murray v. Klinzing, 64 Conn. 78, 29 Atl. 244; ^Etna Nat. Bank v. Win- chester, 43 Conn. 391. Delaware. — Warder v. Stewart, 2 Marv. (Del.) 275, 36 Atl. 88; Sudler v. Collins, 2 Vol. II 178 ALTERATIONS OF INSTRUMENTS immediate parties, but also as against a bona fide holder or indorsee without Houst. (Del.) 538; Newark Bank v. Craw- ford, 2 Houst. (Del.) 282. Georgia. — Seott c. Walker, Dudley (Ga.) 243. Illinois. — Merritt v. Boyden, (111. 1901) 60 N. E. 907 ; Ryan v. Springfield First Nat. Bank, 148 111. 349, 35 N. E. 1120; Burwell v. Orr, 84 111. 465; Gardiner v. Harback, 21 111. 129; Gillett p. Sweat, 6 111. 475; Pankey v. Mitchell, 1 111. 383; Soaps v. Eichberg, 42 111. App. 375. Indiana. — Weir Plow Co. v. Walmsley, 110 Ind. 242, 11 N. E. 232; Nicholson v. Combs, 90 Ind. 515, 46 Am. Rep. 229; Hert v. Oehler, 80 Ind. 83; Bowman v. Mitchell, 79 Ind. 84; Grimes v. Piersol, 25 Ind. 246; Holland v. Hatch, 11 Ind. 497, 71 Am. Dec. 363. Indian Territory. — Taylor v. Acom, 1 In- dian Terr. 436, 45 S. W. 130. Iowa. — Charlton v. Reed, 61 Iowa 166, 16 N. W. 64, 47 Am. Rep. 808 ; Eckert v. Pickel, 59 Iowa 545, 13 N. W. 708 ; Adair v. Egland, 58 Iowa 314, 12 N. W. 277; Dickerman v. Miner, 43 Iowa 508. Kansas. — Davis v. Eppler, 38 Kan. 629, 16 Pac. 793 ; Horn v. Newton City Bank, 32 Kan. 518, 4 Pac. 1022. Kentucky. — Phoenix Ins. Co. r. McKernan, 100 Ky. 97, 18 Ky. L. Rep. 617, 37 S. W. 490; Warren v. Fant, 79 Ky. 1 ; Blakey v. Johnson, 13 Bush (Ky.) 197, 26 Am. Rep. 254; Lock- nane v. Emmerson, 11 Bush (Ky.1 69; Jones r. Shelbyville F., etc., Ins. Co., 1 Mete. (Ky.) 58; Lisle v. Rogers, 18 B. Mon. (Ky.) 528; Shelton v. Deering, 10 B. Mon. (Ky.) 405; Commonwealth Bank r. McChord, 4 Dana (Ky.) 191, 29 Am. Dec. 398; Cotton v. Ed- wards, 2 Dana (Ky.) 106; Miles f. Major, 2 J. J. Marsh. (Ky.)" 153: Rucker v. Howard, 2 Bibb (Ky.) 166. Maine. — Lee v. Starbird, 55 Me. 491 ; Chad- wick v. Eastman, 53 Me. 12; Waterman v. Vose, 43 Me. 504; Buck v. Appleton, 14 Me. 284. Maryland. — Owen i. Hall, 70 Md. 97, 16 Atl. 376. Massachusetts. — Osgood f. Stevenson, 143 Mass. 399, 9 N. E. 825 ; Cape Ann Nat. Bank v. Burns, 129 Mass. 596; Draper r. Wood, 112 Mass. 315, 17 Am. Rep. 92; Stoddard v. Penniman, 108 Mass. 36G, 11 Am. Rep. 363; Fay v. Smith, 1 Allen (Mass.) 477, 79 Am. Dec. 752; Wade v. Withington, 1 Allen (Mass.) 561: Boston r. Benson, 12 Cush. (Mass.) 61; Chessman v. Whittemore, 23 Pick. (Mass.) 231; Wheeloek v. Freeman, 13 Pick. (Mass.) 165, 23 Am. Dec. 674; War- ring v. Williams, 8 Pick. (Mass.) 322. Michigan. — Aldrich r. Smith, 37 Mich. 468, 26 Am. Rep. 536 ; Bradley r. Mann, 37 Mich. 1; Wait v. Pomeroy, 20 Mieh. 425, 4 Am. Rep. 395; Longwell v. Day, 1 Mich. N. P. 286. Mississippi. — Henderson v. Wilson, 6 How. (Miss.) 65; Love r. Shoape, Walk. (Miss.) 508. Missouri. — Capital Bank v. Armstrong, 62 Mo. 59 ; Evans v. Foreman, 60 Mo. 449 ; Pres- Vol. II bury v. Michael, 33 Mo. 542; Ivory v. Mi- chael, 33 Mo. 398; Haskell v. Champion, 30 Mo. 136; Trigg v. Taylor, 27 Mo. 245, 72 Am. Dee. 263; King v. Hunt, 13 Mo. 97; Mc- Murtrey v. Sparks, 71 Mo. App. 126; Law v. Crawford, 67 Mo. App. 150; Barnett v. Nolte, 55 Mo. App. 184. Nebraska. — Erickson v. Oakland First Nat. Bank, 44 Nebr. 622, 62 N. W. 1078, 48 Am. St. Rep. 753, 28 L. R. A. 577; Hurlbut v. Hall, 39 Nebr. 889, 58 N. W. 538; Walton Plow Co. v. Campbell, 35 Nebr. 173, 52 N. W. 883, 16 L. R. A. 468; Townsend v. Star Wagon Co., 10 Nebr. 615, 7 N. W. 274, 35 Am. Rep. 493; St. Joseph State Sav. Bank v. Shaffer, 9 Nebr. 1, 1 N. W. 980, 31 Am. Rep. 394; Oliver v. Hawley, 5 Nebr. 439. New Hampshire. — Gerrish v. Glines, 56 N. H. 9; Burnham v. Ayer, 35 N. H. 351; Humphreys v. Guillow, 13 N. H. 385, 38 Am. Dec. 499; Haines v. Dennett, 11 N. H. 180; Martendale v. Follett, 1 N. H. 95. New York.— Colson v. Arnot, 57 N. Y. 253, 15 Am. Rep. 496; Booth v. Powers, 56 N. Y. 22 ; Brownell v. Winnie, 29 N. Y. 400, 86 Am. Dec. 314; Bradford Nat. Bank v. Taylor, 75v Hun (N. Y.) 297, 27 N. Y. Suppl. 96, 56, N. Y. St. 754; Pease v. Barnett, 27 Hun (N. Y.) 378: Bruce v. Westcott, 3 Barb. (N. Y.) 374; Mt. Morris Bank v. Lamson, 10 Misc. (N. Y.) 359, 31 N. Y. Suppl. 18, 63 N. Y. St. 432; Flannagan v. National Union Bank, 2 N. Y. Suppl. 488, 18 N. Y. St. 826. North Carolina. — Davis v. Coleman, 29 N. C. 424; Sharpe v. Bagwell, 16 N. C. 115. In ascertaining whether an instrument was intended to operate as a bond or will, words which may not change its legal effect and may therefore be considered as immaterial, supposing its character to have been estab- lished, may be necessary in ascertaining its character, and their alteration or erasure, though of no importance in the former point of view, will be material in the latter. Thus: '• I give and bequeath to A B my sorrel horse," signed, sealed, and delivered, is - tes- tamentary instrument. Expunge the word " bequeath " and it becomes a deed of gift. Smith v. Eason, 49 N. C. 34, 40. North Dakota. — Decorah First Nat. Bank v. Laughlin, 4 N. D. 391, 61 N. W. 473. Oklahoma. — Richardson v. Fellner, 9 Okla. 513, 60 Pac. 270. Ohio. — Newman v. King, 54 Ohio St. 273, 43 N. E. 683, 56 Am. St. Rep. 705, 35 L. R. A. 471; Thompson v. Massie, 41 Ohio St. 307; Davis v. Bauer, 41 Ohio St. 257; Jones r. Bangs, 40 Ohio St. 139, 48 Am. Rep. 664; Harsh v. Klepper, 28 Ohio St. 200; Sturgee v. Williams, 9 Ohio St. 443, 75 Am. Dec. 473. Pennsylvania. — Gettysburg Nat. Bank v. Chisolm, 169 Pa. St. 564, 32 Atl. 730, 47 Am. St. Rep. 929 ; Bensinger r. Wren, 100 Pa. St. 500; Struthers v. Kendall, 41 Pa. St. 214, 80 Am. Dee. 610 : Miller v. Reed, 27 Pa. St. 244, 67 Am. Dec. 459 ; Getty v. Shearer, 20 Pa. St. 12; Kennedy r. Lancaster County Bank, 18 Pa. St. 347 ; Simpson v. Stackhouse. 9 Pa. St. ALTERATIONS OF INSTRUMENTS 179 notice, 83 as the latter can acquire no right or title other than that of the person under whom he claims. 2. Reason of Rule. The rule that a material alteration avoids the instru- ment is founded upon two reasons : First (and what is said to be the true founda- tion of the doctrine), 84 that no man shall be permitted, on grounds of public policy, to take the chance of committing a fraud without running any risk of loss by the event when it is detected ; 85 and, second, because the identity of the instrument is destroyed, and to hold one under such circumstances would be to make for him a contract to which he never agreed, which is especially true in the case of a surety. 86 186, 49 Am. Dee. 554; Smith v. Weld, 2 Pa. St. 54; U. S. Bank v. Russel, 3 Yeates (Pa.) 391; Lancaster v. Barrett, 1 Pa. Super. Ct. 9, 37 Wkly. Notes Cas. (Pa.) 251. Rhode Island. — Keene v. Weeks, 19 R. I. 309, 33 Atl. 446; Manufacturers', etc., Bank v. Follett, 11 R. I. 92, 23 Am. Rep. 418. South Carolina. — Burton v. Pressly Cheves Eq. (S. C.) 1. Tennessee. — MeDaniel v. Whitsett, 96 Tenn. 10, 33 S. W. 567; Taylor v. Taylor, 12 Lea (Tenn.) 714; McVey v. Ely, 5 Lea (Tenn.) 438; Morgan v. Cooper, 1 Head (Tenn.) 430; Crockett v. Thomason, 5 Sneed (Tenn.) 341. Texas. — Bowser v. Cole, 74 Tex. 222, 11 S. W. 1131; Bogarth v. Breedlove, 39 Tex. 561; Park v. Glover, 23 Tex. 469; Heath v. State, 14 Tex. App. 213; Meade v. Sandige, 9 Tex. Civ. App. 360, 30 S. W. 245. Utah. — American Pub. Co. v. Fisher, 10 Utah 147, 37 Pae. 259. Virginia. — Batcheider r. White, 80 Va. 103; Dobyns v. Rawley, 76 Va. 537. West Virginia. — Yeager v. Musgrave, 28 W. Va. 90; Morehead v. Parkersburg Nat. Bank, 5 W. Va. 74, 13 Am. Rep. 636. Wisconsin. — Matteson v. Ellsworth, 33 Wis. 488, 14 Am. Rep. 766; Low v. Merrill, 1 Pinn. (Wis.) 340. United States. — Mersman v. Werges, 112 U. S. 139, 5 S. Ct. 65, 28 L. ed. 641 ; Sneed v. Sabinal Min., etc., Co., 73 Fed. 925, 34 U. S. App. 688, 20 C. C. A. 230; Pew v. Laughlin, 3 Fed. 39. England. — Burchfleld v. Moore, 3 E. & B. 683, 77 E. C. L. 683; Powell v. Divett, 15 East 29; Cowie v. Halsall, 4 B. & Aid. 197, 6 E. C. L. 449 ; Mollett v. Wackerbarth, 5 C. B. 181, 57 E. C. L. 181; Vance v. Lowther, 1 Ex. D. 176; Macintosh v. Haydon, R. & M. 362, 21 E. C. L. 767 ; Long v. Moore, 3 Esp. 155 note; Master v. Miller, 1 Anstr. 225. Canada. — Swaisland v. Davidson, 3 Ont. 320. 83. See, generally, cases supra, note 82. See also Bills and Notes. Issue joined on defense of bona fide pur- chaser. — In Winter v. Pool, 100 Ala. 503, 14 So. 411, the plaintiff replied to a plea of non est factum that he was a oona fide pur- chaser, and an issue was joined on this repli- cation. Under this state of the pleadings it was held that whether or not there was a material jil^eration of the note by the payee after delivery to defeat a recovery was im- material; that an instruction upon this point would have no application to the issue raised, and that whether the issue was material or not the judgment would be binding unless a repleader should be moved for, as the parties chose to go to trial upon that issue. 84. Getty v. Shearer, 20 Fa. St. 12, wherein it is said to be a mistaken notion to suppose that the principle rests solely upon the rule in pleading that the instrument after the al- teration is no longer the same, and is no longer the deed of the party so as to main- tain the issue of non est factum. 85. Delaware. — Sudler v. Collins, 2 Houst. (Del.) 538. Georgia. — McCauley v. Gordon, 64 Ga. 221, 37 Am. Rep. 68. Massachusetts. — Lee v. Butler, 167 Mass. 426, 46 N. E. 52, 57 Am. St. Rep. 466; Com. v. Emigrant Industrial Sav. Bank, 98 Mass. 12, 93 Am. Dec. 126. New Hampshire. — Humphreys v. Guillow, 13 N. H. 3.85, 38 Am. Dec. 499. North Carolina. — Sharpe v. Bagwell, 16 N. C. 115. Pennsylvania. — Gettysburg Nat. Bank v. Chisolmi 109 Pa. St. 564, 32 Atl. 730, 47 Am. St. Rep. 929; Neff v. Horner, 63 Pa. St. 327, 3 Am. Rep. 555; Getty v. Shearer, 20 Pa. St. 12. Tennessee. — MeDaniel v. Whitsett, 96 Tenn. 10, 33 S. W. 567. Virginia. — Newell v. Mayberry, 3 Leigh (Va.) 250, 23 Am. Dec. 261. England. — Master v. Miller, 4 T. R. 320 (per Lord Kenyon). 86. Delaware. — Sudler v. Collins, 2 Houst. (Del.) 538. Georgia. — Broughton v. West, 8 Ga. 248. The principle is that the contract remains the same in order that the rights of the parties remain the same. Indian Territory. — Taylor v. Acorn, 1 In- dian Terr. 436, 45 S. W. 130. Massachusetts. — Lee v. Butler, 167 Mass. 426, 46 N. E. 52, 57 Am. St. Rep. 466; Com. v. Emigrant Industrial Sav. Bank, 98 Mass. 12, 93 Am. Dec. 126; Wade v. Withington, 1 Allen (Mass.) 561; Doane v. Eldridge, 16 Gray (Mass.) 254. New York. — Woodworth v. Bank of Amer- ica, 19 Johns. (N. Y.) 391, 10 Am. Dec. 239. Virginia. — Batcheider v. White, 80 Va. 103; Dobyns v. Rawley, 76 Va. 537. Wisconsin. — Low v. Merrill, 1 Pinn. (Wis.) 340. United States. — Mersman v. Werges, 112 U. S. 139, 5 S. Ct. 65, 28 L. ed. 641. Vol. II 180 ALTERATIONS OF INSTRUMENTS 3. Extent of Change — a. In General. To what extent the identity of the instrument must be changed in order that its legal effect will be altered so as to bring the case within the terms of a material alteration vitiating the instrument the adjudications are not always in accord. 87 True, if the change is one by which the party not consenting thereto would be prejudiced, 88 or which would enlarge or increase the liability of such party, 89 or is to the advantage of the party making it, it is material in the sense of a vitiating alteration. 90 b. Liability Increased or Enlarged. In some cases, however, it seems that changes might be considered immaterial because they are not prejudicial or the liability of the party complaining would not be increased or enlarged by it. 91 This would apparently ignore the principle that any change which in the slightest degree alters the legal identity of the contract is material. e. Change Not Prejudicial. But, on the other hand, it is undoubtedly the rule that if the legal import and effect of the instrument is in fact changed it does not matter how trivial the change may be — • 92 that is material which may become material. 93 The test is not necessarily whether the pecuniary liability is increased, for in these respects the party may be no worse, yet if his rights and remedies may be seriously affected or the tampering imposes upon him a burden or peril which he would not else have incurred, the change is material. 94 The rule first England.— Gardner r. Walsh, 5 E. & B. 83, 85 E. C. L. 83. 87. •• It would be a hopeless task to en- deavor to reconcile, and a fruitless one to even compare, the numerous conflicting de- cisions and oftentimes fine-spun distinctions of which the alteration of promissory notes, and the legal consequences flowing therefrom, have been the prolific theme." Per Sher- wood, -J., in Evans e. Foreman, 60 Mo. 449, 450. See similar expressions in Taylor v. Acom, 1 Indian Terr. 436, 45 S. W. 130; Hor- ton r. Horton, 71 Iowa 448, 32 X. W. 452; Craighead r. McLoney, 99 Pa. St. 211. 88. Glover r. Eobb'ins, 49 Ala. 219, 20 Am. Rep. 272 : Gillett v. Sweat, 6 111. 475; Pankey v. Mitchell, 1 111. 383; Booth i. Powers, 56 X. Y. 22. 89. Illinois. — Black v. Bowman, 15 HI. App. 166. Indiana. — Weir Plow Co. r. Walmsley, 110 Ind. 242. 11 X. E. 232; Schnewind v. Hacket, 54 Ind. 248. Kansas. — Johnson r. Moore, 33 Kan. 90, 5 Pac. 406. Kentucky. — Locknane r. Emmerson, 11 Bush (Kv.) 69; Smith v. Lockridge, 8 Bush (Ky.) 423. Massachusetts. — Ossood v. Stevenson, 143 Mass. 399, 9 X. E. 825. Minnesota. — Coles r. Y'orks. 28 Minn. 464, 10 X. W. 775 (holding that it is not neces- sary that the liability should be a personal one, but it is sufficient if it be in respect to, or on account of, any of the property, rights, or interests of the partv affected) ; White v. Johns, 24 Minn. 387. Missouri. — Law v. Crawford, 67 Mo. App. 150. Tennessee. — Morgan r. Cooper, 1 Head (Term.) 430. United States. — Miller r. Stewart. Wheat. (TJ. S.) 680, 6 L. ed. 189, holding that where the instrument of appointment of a deputy collector of direct taxes is extended to an- other township, it is a material alteration. Vol. II 90. Warren v. Fant, 79 Ky. 1; Arnold v. Jones, 2 R. I. 345. 91. Montgomery R. Co. v. Hurst, 9 Ala. 513; State v. Miller, 3 Gill (Md.) 335; Ma- jor r. Hansen. 2 Biss. (TJ. S.) 195, 16 Fed. Cas. Xo. 8,982. 92. Little Rock Trust Co. v. Martin, 57 Ark. 277, 21 S. W. 468 (holding that in such cases the maxim de minimis non curat lex is not applicable) : Winkles v. Guenther, 98 Ga. 472, 25 S. E. 527 ; Broughton v. West. 8 Ga. 248: Gardiner v. Harback, 21 111. 129; American Pub. Co. v. Fisher, 10 Utah 147, 37 Pac. 259. But compare Sayre v. Reynolds, 5 X. J. L. 862. 93. Townsend v. Star Wagon Co., lOXebr. 615, 7 X. W. 274, 35 Am. Rep. 493. 94. Sharswood, C. J., in Craighead v. Mc- Loney, 99 Pa. St. 211. To the same point see Soaps r. Eichberg, 42 111. App. 375; Coles v. Yorks, 28 Minn. 464, 10 X. W. 775; Quin- zel r. Schmidt, (X. J. 1897) 38 Atl. 665. So in Yance r. Lowther, 1 Ex. D. 176, it was said that one of the tests of materiality is, does the change materially alter the obligation of the party, and in this case, the change being the date of a cheek to a later date, another test was that if the drawer of the cheek had money at the bank at the time of drawing it, and the bank should fail before the check was pre- sented, the question of liability would turn on the diligence used in presenting the check, which conclusively shows that the date is a material part of the check. Affecting proof. — The addition of a pro- vision to a contract is material where, not- withstanding, the rights of the parties would be the same as if no contract had been made on the subject covered by the provision, yet its incorporation in the writing would have rendered parol proof of a different agreement inadmissible which would be competent as the contract was originally written. Brady r. Berwind-White Coal-Min. Co.. 94 Fed. 2S. See also Quinzel v. Schmidt, (X. J. 1S97) 38 Atl. 665. ALTERATIONS OF INSTRUMENTS 181 stated as to the character and effect of a material change generally contemplates a change of the legal identity of the instrument — one which goes to the identity of the obligation without reference to the particular nature of the change itself. 95 For it is of no consequence whether the alteration would be beneficial or detri- mental to the party sought to be charged on the contract. The important ques- tion is whether the integrity and identity of the contract have been changed. 96 The character of the alteration may, however, become important upon the question of evidence, when the instrument is introduced, as influencing the presumptions as to when the change was made. 97 4. Extent of Vitiating Effect — a. In General. The general rule is that, when the right of action depends upon the instrument, an alteration works the destruction of the paper in such sort as that no rights can be asserted under or proved by it ; if there can be a recovery at all it must be upon other evidence. 98 b. No Right or Title Conferred. An unauthorized change in an instru- ment, whether it be a mere spoliation or an alteration, will not deprive the party against whom it is made of any rights nor confer upon any other person any title. 99 95. Burchfield v. Moore, 3 E. & B. 683, 77 E. C. L. 683, 25 Eng. L. & Eq. 123. 96. Alabama. — Lesser v. Scholtze, 93 Ala. 338, 9 So. 273; Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 24 Am. St. Rep. 832, 12 L. R. A. 140, wherein it is said that while in Toomer v. Rutland, 57 Ala. 379, 29 Am. Rep. 722, reference was made to the preju- dicial character of the alteration, the con- clusion might better have been based solely on the change of the legal identity of the contract. Arkansas. — Chism v. Toomer, 27 Ark. 108. Indiana. — Coburn v. Webb, 56 Ind. 96, 26 Am. Rep. 15. Iowa.— Dickerman v. Miner, 43 Iowa 508. Kansas. — McCormick Harvesting Mach. Co. v. Lauber, 7 Kan. App. 730, 52 Pac. 577. Kentucky. — Phoenix Ins. Co. v. McKernan, 100 Ky. 97, 18 Ky. L. -Rep. 617, 37 S. W. 490. Maine. — Hewins v. Cargill, 67 Me. 554. Massachusetts. — Doane v. Eldridge, 16 Gray (Mass.) 254. Missouri. — Moore v. Hutchinson, 69 Mo. 429. Nebraska. — St. Joseph State Sav. Bank v. Shaffer, 9 Nebr. 1, 1 N. W. 980, 31 Am. Rep. 394. New Hampshire. — Humphreys v. Guillow, 13 N. H. 385, 38 Am. Dec. 499. New York.— MoCaughey v. Smith, 27 N. Y. 39; Church v. Howard, 17 Hun (N. Y.) 5. Pennsylvania. — Heffner v. Wenrich, 32 Pa. St. 423; Smith v. Weld, 2 Pa. St. 54. Rhode Island. — Keene v. Weeks, 19 R. I. 309, 33 Atl. 446. Tennessee. — Organ v. Allison, 9 Baxt. (Tenn.) 459, notwithstanding the holding in Blair v. State Bank, 11 Humphr. (Tenn.) 83, that the alteration of a. note which does not affect the rights or responsibilities of the parties will not render the instrument void in the absence of a fraudulent intent. United States. — Wood v. Steele, 6 Wall. (U. S.) 80, 18 L. ed. 725. Contra, see Union Bank v. Cook, 2 Cranch C. C. (U. S.) 218, 24 Eed. Cas. No. 14,349. England. — Gardner v. Walsh, 5 E. & B. 83, 85 E. C. L. 83. 97. See infra, IX, A, 3, b, (n), (h). 98. Alabama. — Alabama State Land Co. v. Thompson, 104 Ala. 570, 16 So. 440, 53 Am. St. Rep. 80. Georgia. — Low v. Argrove, 30 Ga. 129. Illinois. — Hayes v. Wagner, 89 111. App. 390. Indiana. — Monroe c. Paddock, 75 Ind. 422. Nebraska. — ■ Erickson v. Oakland First Nat. Bank, 44 Nebr. 622, 62 N. W. 1078, 28 L. R. A. 577, 48 Am. St. Rep. 753, holding that, where a note is vitiated by reason of an al- teration, equity has no jurisdiction to enjoin its collection, since the maker has a perfect remedy at law. New Jersey. — Quinzel v. Schmidt, (N. J. 1897) 38 Atl. 665; York v. Jones, 43 N. J. L. 332. New York. — Tillon v. Clinton, etc., Mut. Ins. Co., 7 Barb. (N. Y.) 564; Waring v. Smith, 2 Barb. Ch. (N. Y.) 119, 47 Am. Dee. 299. Pennsylvania. — Babb v. Clemson, 10 Serg. & R. (Pa.) 419, 13 Am. Dec. 684. Texas. — Park v. Glover, 23 Tex. 469. See infra, VII, D, 4, j ; and for altered in- struments as evidence, generally, see Evi- dence. In tort independently of contract. — In an action of tort for not delivering cargo, the fact that plaintiff made an alteration in the bill of lading cannot affect the rights of the parties on the question of tort. The action is not on the contract, and plaintiff might recover independently of the bill of lading. Benbury v. Hathaway, 28 N. C. 303. 99. Alabama. — Burgess v. Blake, (Ala. 1900) 28 So. 963; Hollis v. Harris, 96 Ala. 288, 11 So. 377. , District of Columbia. — Peugh v. Mitchell, 3 App. Cas. (D. C.) 321. Indiana. — John v. Hatfield. 84 Ind. 75; Fletcher r. Mansur, 5 Ind. 267. Nebraska. — Pereau v. Frederick, 17 Nebr. 117, 22 N. W. 235. Nev 1 Jersey. — Havens v. Osborn, 36 N. J. Eq. 426. Vol. II 182 ALTERATIONS OF INSTRUMENTS c. No Recovery on Altered ar Original Terms of Instrument. An altered instrument is so far vitiated that no recovery can be had either on its original or altered terms. It cannot be considered as void for the unauthorized change and valid in other respects, but is void altogether. 1 d. Restoration of Instrument — (i) In General. The vitiating effect of an alteration cannot be obviated by afterward attempting to restore the instrument, as by erasing words unauthorizedly inserted, 2 especially after an attempt to recover upon the instrument in its altered form. 3 This rule seems especially 1. Alabama. — Green v. Sneed, 101 Ala. 205, 13 So. 277, 46 Am. St. Rep. 119. Indiana. — Dietz v. Harder, 72 Ind. 208; Sehnewind v. Haeket, 54 Ind. 248; Holland v. Hatch, 11 Ind. 497, 71 Am. Dee. 363. Com- pare Jones v. Julian, 12 Ind. 274. Iowa. — Murray v. Graham, 29 Iowa 520. Kentucky. — Phoenix Ins. Co. v. McKernan, 100 Ky. 97, 18 Ky. L. Rep. 617, 37 S. W. 490; Locknane v. Emmerson, 11 Bush (Ky.) 69. Maine. — Lee v. Starbird, 55 Me. 491. Massachusetts. — Fay v. Smith, 1 Allen (Mass.) 477, 79 Am. Dec. 752. New York. — Flannagan v. National Union Bank, 2 N. Y. Suppl. 488, 18 N. Y. St. 826. Ohio. — Thompson v. Massie, 41 Ohio St. 307 ; Harsh v. Klepper, 28 Ohio St. 200. But see McAlpin v. Clark, 11 Ohio Cir. Ct. 524. Pennsylvania. — Gettysburg Nat. Bank v. Chisolm, 169 Pa. St. 564, 32 Atl. 730, 47 Am. St. Rep. 929; Citizens Nat. Bank v. Wil- liams, 74 Fa. St. 66, 35 Atl. 303, 25 L. R. A. 464 [distinguishing Kountz v. Kennedy, 63 Pa. St. 187, 3 Am. Rep. 541, which seems to lie contrary to the text in that the decision was put upon the express ground that the al- teration in the first instance was made with perfect innocence and in order to make the contract as it was intended to be, and was quickly restored without the slightest evi- dence of fraud, and pointing out that the ease was not free from doubt, was very close, and was undoubtedly decided on its own pe- culiar circumstances, as indicated in Fulmer r. Seitz, 68 Pa. St. 237, 8 Am. Rep. 172]; Neff v. Horner, 63 Pa. St. 327, 3 Am. Rep. 555 [distinguishing Worrall v. Green, 39 Pa. St. 3S8, which was considered as involving exceptional circumstances]. Tennessee. — Crockett v. Thomason, 5 Sneed (Tenn.) 341. Texas. — In Skelton v. Tillman, (Tex. 1892) 20 S. W. 71, the court seems to follow Kountz v. Kennedy, 63 Pa. St. 187, 3 Am. Rep. 541, supra. But see Otto )'. Halff, (Tex. Civ. App. 1895) 32 S. W. 1052, in" accordance with the text. United States. — Sneed v. Sabinal Min., etc., Co., 73 Fed. 925, 34 U. S. App. 688, 20 C. C. A. 230, holding that all remedy on an altered instrument is gone notwithstanding the statute of limitation has run against the original cause of action. England. — Powell v. Divett, 15 East 29; French v. Patton, 9 East 351 (under the pol- icy of the stamp act) ; Gardner v. Walsh, 5 ~E. & B. 83, 85 E. C. L. 83. Contra. — In a number of eases a contrary doctrine prevails, some of them being based upon reasons which in turn would not be recognized elsewhere. Fisher v. Dennis, 6 Vol. II Cal. 577, 65 Am. Dec. 534; Murray v. Gra- ham, 29 Iowa 520 (which involved a ma- terial change by one of several makers, for the honest purpose of making it conform to the original intention of the parties, with the implied assent of the payee, the court at- tempting to distinguish between such a case and one in which the change was made by the payee in person) ; Foote v. Hambrick, 70 Miss. 157, 11 So. 567, 35 Am. St. Rep. 631, and McRaven v. Crisler, 53 Miss. 542 (upon the ground that the change was made in an honest effort to correct a mistake and to con- form the instrument to the real intention of the parties) ; Goss v. Whitehead, 33 Miss. 213; Goad v. Hart, 8 Sm. & M. (Miss.) 787; Hemphill v. Alabama Bank, 6 Sm. & M. (Miss.) 44; Johnson v. Blasdale, 1 Sm. & M. (Miss.) 17, 40 Am. Dec. 85 (in which cases it is held, upon principles relating to the law of agency, that when an agent exceeds his authority in filling a blank note executed by the principal the note is void only as to the excess in the hands of a party who received it with knowledge of the limited authority of the agent) : Kountz v. Kennedy, 63 Pa. St. 187, 3 Am. Rep. 541 (already referred to in this note) ; Worrall v. Green, 39 Pa. St. 388. 2. Delaware. — Warpole v. Ellison, 4 Houst. (Del.) 322. Illinois. — Hayes v. Wagner, 89 111. App. 390. Iowa. — Shepard v. Whetstone, 51 Iowa 457, 1 N. W. 753, 33 Am. Rep. 143. Kentucky. — Cotton r. Edwards, 2 Dana (Ky.) 106. Missouri. — McMurtrey v. Sparks, 71 Mo. App. 126. New Mexico. — Ruby v. Talbott, 5 N. M. 251, 21 Pac. 72, 3 L. R. A. 724. Pennsylvania. — Citizens Nat. Bank i\ Wil- liams, 174 Pa. St. 66, 34 Atl. 303, 35 L. R. A. 464; Fulmer v. Seitz, 68 Pa. St. 237, 8 Am. Rep. 172. Tennessee. — McDaniel v. Whitsett, 96 Tenn. 10, 33 S. W. 567; Crockett v. Thomason, 5 Sneed (Tenn.) 341. See 2 Cent. Dig. tit. "Alteration of In- struments," § 112 et seq. 3. One who makes a voluntary and un- authorized alteration of a written contract, and insists upon it by going to trial to re- cover on the altered state of the instrument, has no locus penitentice which, on his failure to establish his right to recover, will enable him to undo the wrong at the trial and to stand as one who has made an innocent mis- take and never has insisted upon his right to enforce it. Fulmer v. Seitz, 68 Pa. St. 237, 8 Am. Rep. 172. ALTERATIONS OF INSTRUMENTS 183 applicable in favor of one who is subject to no liability but that created by the instrument. 4 (n) Exceptions — Before Delivery. There are exceptions to this rule, however. Thus, where the instrument is changed and afterward restored, both before delivery, especially when it is in the hands of one having authority to deliver only, 5 and the change was one which would perhaps not vitiate the instrument in the first instance, 6 and in other cases (some of which would seem rather contrary to the general rule as to the vitiating effect of an alteration than exceptions thereto) it is held the instrument is not destroyed. 7 e. Effect as to Original Consideration — (i) Extinguishment of Debt. It has been considered in some cases that where a party by his own act alters an instrument so that it cannot be the foundation of any legal remedy, he will not be permitted to prove the promise contained in it by any other evidence, and this principle prevents a resort to the common counts or a recovery on the original consideration, 8 and that irrespective of actual fraud, it being considered that the debt is merged in the instrument, and hence the destruction of the latter leaves nothing upon which to sue. 9 (n) Debt Not Extinguished in Absence of Fraud — (a) In General. But where a note is not a satisfaction or extinguishment of the debt, and no actual fraud is perpetrated, a recovery may be had on the original demand, 10 and the general rule seems firmly established that in the absence of fraud the instru- ment only, and not the original debt, is destroyed. 11 This principle is applied to 4. Robinson v. Reed, 46 Iowa 219; Citizens' Nat. Bank v. Richmond, 121 Mass. 110. 5. Osborne v. Andrees, 37 Kan. 301, 15 Pae. 153. Correction of change made in ignorance. — In Horst v. Wagner, 43 Iowa 373, 22 Am. Rep. 255, the payee of a note, desiring to transfer it and being ignorant of the appro- priate method, erased his own name and in- serted that of the transferee, but afterward, and before delivery, restored the instrument to its original form and transferred it by in- dorsement. It was held that the maker was not discharged and the indorsee was per- mitted to recover. 6. Acme Harvester Co. v. Butterfield, 12 S. D. 91, 80 N. W. 170 (which was the era- sure of an unauthorized change in a note by the payee's clerk) ; Newton v. Bramlett, 55 111. App. 661, 663 (holding that where plain- tiff's attorney, on a former trial, in open court, believing it was the contract between the parties, added over the signature of de- fendant, an indorser in blank, "And for value received I guarantee the payment of the within note," the subsequent erasure of the words, on proof that such was not the con- tract, is not a material alteration ) . 7. See Shepard v. Whetstone, 51 Iowa 457, 1 N. W. 753, 33 Am. Rep. 143; Kountz v. Kennedy, 63 Pa. St. 187, 3 Am. Rep. 541, which case is doubtful, however, as indicated supra, note 1. In Busjahn v. McLean, 3 Ind. App. 281, 29 N. E. 494, it was held that a surety would not be released, in a court hav- ing both law and equity powers, on account of a change by the maker at the request of the payee of a note, by raising the amount thereof to make it conform to the real inten- tion of the parties, as the court would have power to reform the instrument and give judgment upon it as corrected. 8. Alabama. — Toomer v. Rutland, 57 Ala. 379, 29 Am. Rep. 722; Glover v. Robbins, 49 Ala. 219, 20 Am. Rep. 272; White v. Hass, 32 Ala. 430, 70 Am. Dec. 548. Massachusetts. — Draper v. Wood, 112 Mass. 315; 17 Am. Rep. 92; Wheelock v. Freeman, 13 Pick. (Mass.) 165, 23 Am. Dec. 674. Missouri. — Whitmer v. Frye, 10 Mo. 348. New Hampshire. — Smith v. Mace, 44 N. H. 553; Martendale v. Follet, 1 N. H. 95. North Carolina. — Ledford v. Vandyke, 44 N. C. 480 (holding that where » guardian settled with his ward by giving a bond for the sum found due, which was afterward rendered void by an alteration, the ward can- not recover on the guardian's bond) ; Sharpe v. Bagwell, 16 N. C. 115 (wherein the payee of a note tore from it the name of the sub- scribing witness, and it was held that the note was thereby avoided and could not be enforced in equity ) . South Carolina. — Mills v. Starr, 2 Bailey (S. C. ) 359, holding that the acceptance of a specialty in satisfaction extinguishes a. sim- ple-contract debt, and the latter is not re- vived if the specialty is rendered void by an alteration. Vermont. — Bigelow v. Stilphen, 35 Vt. 521. Virginia. — Newell v. Mayberry, 3 Leigh (Va.) 250, 23 Am. Dec. 261. United States. — Wood v. Steele, 6 Wall. (U. S.) 80, 18 L. ed. 725. See 2 Cent. Dig. tit. "Alteration of Instru- ments," § 192 et seq. 9. See supra, note 8. 10. Matteson v. Ellsworth, 33 Wis. 488, 14 Am. Rep. 766. 11. Delaware. — Warren v. Layton, 3 Harr. (Del.) 404, holding that if a note given for money loaned is altered so that recovery thereon cannot be had, plaintiff may recover on the common counts the money actually loaned. Vol. II 184 ALTERATIONS OF IXSTEU2IEXTS make a mortgage available though the note which it secures has been destroyed by an alteration. 13 (b) As between Particular Parties. The common counts are not available, however, where the relation of defendant is not such as to imply any such lia- bility. 13 And where the liability can exist only by virtue of the instrument, of Georgia. — Hotel Lanier Co. r. Johnson, 103 Ga. 604, 30 S. E. 558; Gwin v. Anderson, 91 Ga. 827, 18 S. E. 43. Illinois.— Elliott r. Blair, 47 111. 342; Vogle v. Ripper, 34 111. 100, 85 Am. Dee. 298 ; Hayes v. Wagner, 89 111. App. 390; Soaps v. Eichberg, 42 111. App. 375; Yost v. Minne- apolis Harvester Works, 41 111. App. 556; Springfield First Xat. Bank r. Ryan, 31 111. App. 271, 38 111. App. 268; Wallace v. Wal- lace, 8 111. App. 69. Indian Territory. — Hampton r. Mayes, (In- dian Terr. 1899) 53 S. W. 483. Iowa. — Sullivan ( . Rudisill, 63 Iowa 158, 18 K. W. 856 ; Eckert i\ Pickel, 59 Iowa 545, 13 N. W. 708 ; Morrison v. Huggins, 53 Iowa 76, 4 N. W. 854; Clough v. Seay, 49 Iowa 111; Krause r. Meyer, 32 Iowa 566. Maryland. — Owen i\ Hal], 70 Md. 97, 16 Atl. 376; Morrison v. Welty, 18 Md. 169; Lewis r. Kramer, 3 Md. 265. Michigan. — An account stated, which was the foundation of the note altered without fraud, would form a new basis of indebted- ness and, if this was all that the court al- lowed, is a good basis for a recovery. John- son v. Johnson, 66 Mich. 525, 33 N. W. 413. Minnesota. — Wilson r. Hayes, 40 Minn. 531, 42 N. W. 467, 12 Am. St. Rep. 754, 4 L. R. A. 196. Missouri. — Where a note executed to a bank is canceled by the cashier, through mis- take, this will not affect the right of the bank to recover on the original indebtedness. Boulware v. State Bank, 12 Mo. 542. Nebraska. — St. Joseph State Sav. Bank v. Shaffer, 9 Nebr. 1, 1 N. W. 980, 31 Am. Rep. 394. jVcto Jersey. — Hunt r. Gray, 35 X. J. L. 227, 10 Am. Rep. 232; Lewis r. Schenck, 18 N. J. Eq. 459, 90 Am. Dec. 631. New York. — Booth r. Powers, 56 X. Y. 22; Meyer v. Huneke, 55 N. Y. 412; Trow v. Glen Cove Starch Co., 1 Daly (N. Y.) 280. So, where a debtor certifies a balance as owing him, and then draws a note stating the amount in the margin in figures, but in the body inserting an amount less than the true sum, the creditor may, without any ex- press authority, insert the omitted words, to make the note conform to the original intent, and at all events he may recover in such a case upon an insimul computassent. Clute r. Small, 17 Wend. (N. Y.) 238. Ohio. — Merrick v. Boury, 4 Ohio St. 60. Oregon. — Savage v. Savage, 36 Oreg. 268, 59 Pac. 461. Pennsylvania.- — Miller v. Stark, 148 Pa. St. 164, 23 Atl. 1058. Rhode Island. — Keene v. Weeks, 19 R. I. 309, 33 Atl. 446. South Dakota. — Wvckoff r. Johnson, 2 S. D. 91, 48 N. W. 837. Vol. II Texas.— Otto v. Halff, (Tex. Civ. App. 1895) 32 S. W. 1052. Wisconsin. — Gorden c. Robertson, 48 Wis. 493, 4 1ST. W. 579; Matteson v. Ellsworth, 33 Wis. 488, 14 Am. Rep. 766. England. — Sloman v. Cox, 1 C. M. & R. 471 (holding that where a party was liable as the drawer of a bill, and in a suit upon that bill attempted to prove payment by showing a cash payment of a part of the amount and the drawing of another bill for the balance, and the latter bill turned out to have been altered by the acceptor in a material respect so that it was vitiated, the defendant re- mained liable upon the first bill ) ; Atkinson v. Hawdon, 2 A. & E. 628, 29 E. C. L. 293 [dis- tinguishing Alderson v. Langdale, 3 B. & Ad. 660, 23 E. C. L. 291, in that there defendant was the drawer, and plaintiff, who had altered the bill, was an indorsee, and- by such altera- tion had deprived the drawer of his remedy against the acceptor and could not therefore sue the drawer upon the original considera- tion] . See 2 Cent. Dig. tit. "Alteration of Instru- ments," § 195. 12. See VII, F, 24, b. 13. Samson v. Yager, 4 U. C. Q. B. O. S. 3 (holding that where a note originally joint was altered to a joint and several note with- out the consent of one of the makers, who was afterward sued alone upon the note by an in- dorser, the plaintiff could not recover on the note because of the alteration, nor on the money counts because there was no privity between the maker and him) ; Gladstone v. Dew, 9 U. C. C. P. 439. Indorser. — Lewis r. Shepherd, 1 Mackey (D. C.) 46, holding that where a note is avoided as against an indorser by reason of a material alteration there could be no re- covery against him on the common counts, because the liability of an indorser does not imply further liability than that springing from the indorsement by reason of the money that was advanced upon the note. See also Burchfield v. Moore, 3 E. & B. 683, 77 E. C. L. 683. Assignee. — Where the payee assigns an altered note the assignment transfers to the assignee the assignor's rights to the original consideration. St. Joseph State Sav. Bank v. Shaffer,. 9 Nebr. 1, 1 N. W. 980, 31 Am. Rep. 394. But where the original consideration of a note, with which a power of attorney was executed for the purpose of confessing judg- ment, was money loaned, in a suit by an in- nocent holder against the maker it was held that upon declaring the note and power of at- torney vitiated by a material alteration, and therefore the judgment void, still this did not necessarily extinguish the liability for the bor- rowed money, yet if the liability existed, it ALTERATIONS OF INSTRUMENTS 185 course the destruction of the instrument discharges all liability — as in the case of a surety. 14 (c) Production of Note. In order to recover upon the original indebtedness, after the destruction of a note by an alteration, the note must be produced and surrendered, 15 or it must be shown to have been lost. 16 (in) Fraudulent Alteration — (a) In General. As indicated, the fore- going rule permitting a resort to the original indebtedness is confined to cases in which the alterations are made without fraud in fact. If, on the other hand, one voluntarily and fraudulently thus destroys the evidence of his debt, he cannot resort to the original consideration, because he cannot supply the destroyed evidence. 17 (b) Effect of Judgment in Action on Note. Where the record of a judgment in an action on a note shows that the note was vitiated by a fraudulent alteration, and that it was for that cause that the judgment was for defendant, the question as to the character of the alteration, as fraudulent or otherwise, can never again be raised, and plaintiff cannot go back and maintain his suit for the original debt. 18 But, on the other hand, it is held that the mere fact that a fraudulent alteration is pleaded to an action on a note in which there is a general verdict for defend- ant does not sufficiently import an adjudication of the question of fraud when the note itself would be destroyed without regard to any actual fraud in the alteration. 19 f. Equitable Relief. It is clearly within the power of a court of equity to correct a contract so as to make it agree with the intention of the parties, to was to the lender of the money, and not to his assignee; that the relation of the assignee with the matter of the borrowing could only be tried in an action in which the lender was a partv. Burwell v. Orr, 84 111. 465. 14. killer v. Stark, 148 Pa. St. 164, 23 Atl. 1058. An acceptor of a bill is liable only by vir- , tue of the instrument, and if that is vitiated by an alteration after acceptance his liability is at an end. Long v. Moore, 3 Esp. 155 note. But an alteration will not, of itself, re- lease an acceptor from the claims of the holders against him, on the common counts, for money received and retained by him, knowing it to have been the proceeds of the draft. Lewis v. Kramer, 3 Md. 265. And as between the drawer and acceptor it was held that although the bill was vitiated by the alteration, yet, as it was still in the drawer's hands, he might recover on the original con- sideration. Atkinson v. Hawdon, 2 A. & E. 628, 29 E. C. L. 293. 15. Owen v. Hall, 70 Md. 97, 16 Atl. 376; Morrison v. Welty, 18 Md. 169 ; Booth v. Pow- ers, 56 N. Y. 22. 16. Owen v. Hall, 70 Md. 97, 16 Atl. 376. 17. Illinois. — Vogle v. Ripper, 34 111. 100, 85 Am. Dee. 298; Yost v. Minneapolis Har- vester Works, 41 III. App. 556. Indiana. — Ballard v. Franklin L. Ins. Co., 81 Ind. 239. Iowa. — Maguire v. Eichmeier, 109 Iowa 301, 80 N. W. 395; Woodworth v. Anderson, 63 Iowa 503, 19 N. W. 296, which was also on the ground that the account was merged in the certificate fraudulently altered. Minnesota. — Warder v. Willyard, 46 Minn. 531, 49 N. W. 300, 24 Am. St. Rep. 250; Wil- son v. Hayes, 40 Minn. 531, 42 N. W. 467, 12 Am. St. Rep. 754, 4 L. R. A. 196. Missouri. — Trigg v. Taylor, 27 Mo. 248; Law v. Crawford, 67 Mo. App. 150. Nebraska. — Walton Plow Co. v. Campbell, 35 Nebr. 173, 52 N. W. 883, 16 L. R. A. 468. New Hampshire. — Gerrish v. Glines, 56 N. H. 9. New York. — Trow v. Glen Cove Starch Co., 1 Daly (N. Y.) 280. North Dakota. — Decorah First Nat. Bank v. Laughlin, 4 N. D. 391, 61 N. W. 473. Pennsylvania. — Gettysburg Nat. Bank v. Chisolm, 109 Pa. St. 564, 32 Atl. 730, 47 Am. St. Rep. 929 ; Miller v. Stark, 148 Pa. St. 164, 23 Atl. 1058; Sykes v. Gerber, 98 Pa. St. 179. See 2 Cent. Dig. tit. "Alteration of Instru- ments," § 192 et seq. 18. Ballard v. Franklin L. Ins. Co., 81 Ind. 239 (holding that where a note is declared void for a fraudulent alteration, and subse- quently suit is brought on the original con- sideration, a plea setting up the fraudulent alteration and former judgment cannot be answered by reply alleging the alteration to have been by a stranger, as that is concluded by former judgment ) ; Sykes v. Gerber, 98 Pa. St. 179. 19. Eckert v. Piekel, 59 Iowa 545, 13 N. W. 708. 20. Day v. Ft. Scott Invest., etc., Co., 53 111. App. 165, wherein the principle seems to be applied on behalf of a complainant in an action for the specific performance of a con- tract for the purchase of land which had been changed by complainant's attorney merely for the purpose of correction, without fraud and without the complainant's knowledge, the court holding that if the corrective words were essential it had the power to correct the contract. Bill by assignee of lease. — In Rose Clare Lead Co. v. Madden, 54 111. 260, it was held Vol. II 186 ALTERATIONS OF INSTRUMENTS restore a deed on behalf of one against whom an alteration therein operates, 21 or to annul it at the instance of such party so as to defeat it as a conveyance of prop- erty fraudulently inserted, 22 or to enjoin a judgment on a note entered upon a fraudulently altered power of attorney. 23 But equity will not aid one who has fraudulently altered a deed to restore the instrument, 24 and where the instrument is destroyed by an alteration, and the party is under no liability except that created by the instrument, equity cannot restore the instrument. 2 -' On the other hand, it has been held that the debtor cannot come into equity for affirmative relief against a just debt merely because the creditor has precluded himself from enforcing his security at law according to its terms, 26 and when a bond is not suable at law, for any cause except complainant's misconduct, equity may give him relief. 27 So, when an instrument has been altered without fraudulent intent, courts of equity have exercised jurisdiction both to restore the instrument and to enforce its original terms, 28 and to enforce the original debt, assuming the instru- that the assignee of a lease may maintain » bill to correct a mistake in the description of the premises, notwithstanding an alteration has been improperly made in the terms of the lease without his complicity. The court said that defendant could raise the question of fraudulent alteration and it would be deter- mined upon proof instead of upon uncertain inferences upon the face of the bill. 21. Removal of cloud. — The erasure of the description of a part of lands conveyed, both from the deed and the record thereof after delivery, does not divest the title of the grantee, and a subsequent voluntary convey- ance of the land by the grantor may be an- nulled, the mutilated deed and record re- stored, and the land subjected to the payment of claims against the estate of the grantee. These are proper subjects of equitable cog- nizance, the gravamen of the suit being to remove cloud upon title to land and alleged frauds. Wheeler v. Single, 62 Wis. 380, 22 X. W. 569. 22. Peugh v. Mitchell, 3 App. Cas. (D. C.) 321 ; Pereau v. Frederick, 17 Xebr. 117, 22 N. W. 235; Havens v. Osborn, 36 X. J. Eq. 426. See also Russell v. Reed, 36 Minn. 376, 31 X. W. 452; Deem v. Phillips, 5 W. Va. 168. 23. Hodge v. Gilman, 20 111. 437. 24. Respass v. Jones, 102 X. C. 5, 8 S. E. 770. See also Marcy v. Dunlap, 5 Lans. (X. Y.) 365. 25. Ruby v. Talbott, 5 X. M. 251, 21 Pac. 72, 3 L. R. A. 724. Bond of third person received in payment. — If the vendor of land receive in payment the bond of a third person, made payable to himself, which is afterward altered with his consent, by changing the name of the payee, the bond is destroyed, and he cannot recover on the bond or have equitable relief against the obligor. Neither he nor his assignee who purchased the bond with full knowledge of the objection to it can come into equity against the vendee of the land who gave the bond in payment, although such vendee made the al- teration in the bond and represented it to be good, because if the demand can be sustained at all it is a plain, legal demand against the purchaser of the land to recover the unpaid purchase price of the land, or for deceit. The Vol. n fact that an action at law is barred by the statute of limitations is no reason for com- ing into equity when there is no new equity since the discovery of the fraud. Ryan v. Parker, 36 N. C. 89. 26. Goodenow r. Curtis, 33 Mich. 505. 27. Harrison v. Turbeville, 2 Humphr. (Tenn.) 241, holding that the words "fraud" and " accident " cover all erasures and alter- ations except those made by the obligee him- self, or with his knowledge or consent. When it is necessary for a party to a bond which by statute has the force and effect of a judg- ment to resort to a court of chancery for re- lief against the bond, on the ground that it is not binding on him, the question will be considered in chancery upon the appropriate pleas as if it had arisen at law, and in such a case chancery is the appropriate forum. Gibbs r. Frost, 4 Ala. 720. 28. Wallace v. Tiee, 32 Oreg. 283, 51 Pac. 733, upon the authority of Lewis v. Schenck, 18 N. J. Eq. 459, 90 Am. Dec. 631, holding that a court of equity has jurisdiction to re- store the original conditions when the suit involves a discovery which is in some de- gree necessary to show the agreement and the mistake. But, where a mortgage has been fraudulently altered to embrace other land, it cannot be foreclosed as to such land, and where the suit was not brought upon the theory that parties intended that the land in- cluded in the mortgage was misdescribed by mistake, but was on the ground that the mortgage was actually executed on that land and was incorrectly recorded by mistake, a decree for foreclosure cannot be sustained. Daub v. Englebach, 9 111. App. 99. Restraining negotiation.— In such a case a court of equity has refused to restrain the payee from negotiating the note at the in- stance of the surety, who was not prejudiced; and, on the other hand, has held it proper to enter a decree ordering the cancellation of the words unauthorizedlv inserted. Xicker- son r. Swett, 135 Mass. 5*14. Mutilation. — An alteration by a mere stranger will not prevent its reformation by a court of equity on the ground of mistake. Thus, where a broker negotiated a loan to plaintiff, and, acting as plaintiff's scrivener, drew a mortgage to secure the loan, and a ALTERATIONS OF INSTRUMENTS 187 raent itself to be destroyed, 29 for mistake and discovery are matters peculiarly within the jurisdiction of such courts. g. Rescission. If a party has received benefits under a contract which is subsequently altered he will not be permitted to relieve himself from all liability and at the same time retain the benefits derived. He must rescind the contract in toto and return what he has received if he wishes to be entirely discharged on account of the alteration. 80 h. Recovery for Conversion of Altered Instrument. The fact that a note which plaintiff has delivered to a third person as collateral security had been altered will not preclude him from suing in trover for its conversion upon a refusal to surrender it after payment of the debt. 31 i. Recovery of Possession of Altered Instrument. If an instrument is void by reason of an alteration the maker may recover possession of it in replevin. 32 j. Distinction between Executed and Executory Instruments — (i) In Gen- eral. There is a well-recognized distinction between the effect of an alteration of an executory contract and an alteration of a contract which is fully executed. In the first case the rights under the instrument are gone ; in the latter, as in the case of a deed of conveyance of land or a bill of sale of personalty, the title vested by the executed instrument and delivery of possession remains unaffected by any subsequent alteration. 33 (n) As to Vested Titles and Covenants. In the case of a deed of con- veyance of real property, generally, following the rule that the cancellation or destruction of the deed cannot destroy the title which has passed, 34 it is firmly mistake in the description of the property was made in drafting the instrument which was not discovered until after it was recorded, and which the broker, without the consent or knowledge of any of the parties, corrected, his act was that of a mere stranger, and would not prevent its reformation by the court. Ames v. Brown, 22 Minn. 257. 29. Little v. Fowler, 1 Root (Conn.) 9#; Hampton v. Mayes, (Indian Terr. 1899) 53 S. W. 483, also upon the authority of Lewis v. Sehenck, 18 N. J. Eq. 459, 90 Am. Dec. 631, in which case the instrument is regarded as avoided. 30. Glover v. Green, 96 Ga. 126, 22 S. E. C64 (holding that where default was made in the payment of interest on a note given for the price of land, in a suit by the vendor to recover the land defendant could not defeat the action, on the ground that the note was void for an alteration, without offering to pay the amount due on the note as executed) ; Lowe v. Craig, 36 Ga. 117; Singleton v. Mc- Querry, 85 Ky. 41, 8 Ky. L. Rep. 710, 2 S. W. 652 (holding that, where a note for the pur- chase price of land is vitiated by an altera- tion, the purchaser cannot in equity escape liability for the purchase-money because of the alteration, and at the same time retain the land, but is put to his election to rescind the contract upon equitable terms, or submit to the enforcement of the lien ) . Ratification will be sufficiently shown by a jailure to rescind and return property, re- ceived under a contract, within a reasonable time after attention is called to an alteration. Canon v. Grigsby, 116 111. 151, 5 N. E. 362, 56 Am. Rep. 769; Emerson v. Opp, 9 Ind. App. 581, 34 N. E. 840, 37 N. E. 24. See VI. 31. Booth v. Powers, 56 N. Y. 22, which was upon the principle that the note was of its face value, because, if innocently altered, a resort could be had to the original consider- ation, in which event it would be necessary for plaintiff to surrender the note. 32. Smith v. Eals, 81 Iowa 235, 46 N. W. 1110, 25 Am. St. Rep. 486; Sigler v. Hidy, 56 Iowa 504, 9 N. W. 374, holding that defend- ant in an action on a note may attack its va- lidity by counter-claim in the nature of a peti- tion in replevin, contemplating that the note shall remain in the hands of plaintiff until rendition of judgment; and a dismissal of the action by plaintiff will not entitle him to a dismissal of defendant's counter-claim. 33. Alabama. — Alabama State Land Co. v. Thompson, 104 Ala. 570, 16 So. 440, 53 Am. St. Rep. 80. Indiana. — Cochran v. Nebeker, 48 Ind. 459. Iowa. — Hollingsworth v. Holbrook, 80 Iowa 151, 45 N. W. 561, 20 Am. St. Rep. 411; Ran- sier v. Vanorsdol, 50 Iowa 130. Massachusetts. — Chessman v. Whittemore, 23 Pick. (Mass.) 231. Ohio.— Williams v. Van Tuyl, 2 Ohio St. 336, holding that an alteration in a material part, made by a party beneficially interested in a bond, given by a trustee to evidence the interest of his cestui que trust, without the knowledge of the trustee, and subsequently to its execution, will destroy the bond, but will not operate to destroy an estate which existed before and independently of the bond. Where a written instrument is not neces- sary to pass title, as in the case of a sale of a slave, an alteration of the bill of sale by the vendor will not affect a subsequent pur- chaser without notice. Davis v. Lof tin, 6 Tex. 489. 34. Alabama. — Mallory v. Stodder, 6 Ala. 801. Arkansas. — Strawn v. Norris, 21 Ark. 80. Vol. II 188 ALTERATIONS OF INSTRUMENTS established that an alteration utterly destroys the deed in so far as any new rights might have been set up thereunder — the executory provisions are rendered null and the covenants discharged — but the title which has vested by transmutation of possession remains unimpaired. 35 Therefore it is not proper to say that the altered deed is rendered void from the beginning. 36 And it is held that where plaintiff may recover the possession of land upon an equitable title, an altered deed, forming a link in the chain of his legal title, will not preclude such recovery. 37 (in) Mortgages. Though, if a mortgage is found canceled in the possession of the mortgagee, it is held to be a release, but not a reconveyance so as_ to revest the estate of the mortgagor, 38 and, upon the principle that a vested title cannot be divested except by deed, it has been held that the mortgage is not destroyed by an alteration, 39 the better rule seems to be that an alteration of Maine. — Barnett v. Thorndike, 1 Me. 73. Massachusetts. — Chessman v. Whittemore, 23 Pick. (Mass.) 231. Xew York. — Parshall v. Shirts, 54 Barb. (N. Y.) 99; Fonda v. Sage, 46 Barb. (N. Y.) 109; Ravnor v. Wilson, 6 Hill (X. Y.) 469; Frost v. Peacock, 4 Edw. (N. Y.) 678. Tennessee. — Morgan v. Elam, 4 Yerg. (Tenn.) 374. Wisconsin— Wilke v. Wilke, 28 Wis. 296; Parker v. Kane, 4 Wis. 1, 65 Am. Dec. 283. United States. — Parker e. Kane, 22 How. (U. S.) 1, 16 L. ed. 286. England. — Bolton v. Carlisle, 2 H. Bl. 259. Canada. — Fraser v. Fraliek, 21 U. C. Q. B. 343 ; Fraser v. Fraser, 14 U. C. C. P. 70. 35. Alabama. — Sharpe v. Orme, 61 Ala. 263. Delaware. — Herdman y. Bratten, 2 Harr. (Del.) 396. District of Columbia. — Fitzgerald v. Wynne, 1 App. Cas. (D. C.) 107. Indiana. — Robbins v. Magee, 76 Ind. 381 (holding that no affirmative defense can be maintained on a deed by one who has altered it) ; Wilds v. Bogan, 55 Ind. 331 (as to rights of original grantee's creditors where another is fraudulently substituted as grantee) ; Fletcher v. Mansur, 5 Ind. 207 (no rights ac- quired by substituted grantee or his credit- ors) . Maine. — Bird v. Bird, 40 Me. 398 ; Barrett v. Thorndike, 1 Me. 73, wherein it is said that, without determining the effect of a material alteration of a deed by a stranger or an im- material alteration thereof by a party, and whether such alteration avoids the deed or not, where the deed is one conveying land the ease does not depend upon the principles ap- plicable to those cases, but upon another prin- ciple — namely, that a vested title cannot be divested by the destruction of the deed. Massachusetts. — Kendall v. Kendall, 12 Allen (Mass.) 92; Chessman v. Whittemore, 23 Pick. (Mass.) 231; Hatch v. Hatch, 9 Mass. 307, 6 Am. Dec. 67. Missouri. — Woods v. Hilderbrand, 46 Mo. 284, 2 Am. Rep. 513; Alexander v. Hickox, 34 Mo. 496, 86 Am. Dec. 118; Tibeau v. Ti- beau, 19 Mo. 78, 59 Am. Dec. 329. New York. — Smith v. McGowan, 3 Barb. (N. Y.) 404; Herrick v. Malin, 22 Wend. (N. Y.) 388; Jackson v. Gould, 7 Wend. (N. Y.) 364; Jackson v. Jacoby, 9 Cow. (N. Y.) 125; Lewis v. Payn, 8 Cow. (N. Y.) 71, 18 Vol. II Am. Dec. 427 ; Waring v. Smyth, 2 Barb. Ch. (N. Y.) 119, 47 Am. Dec. 299. Pennsylvania. — Rifener v. Bowman, 53 Pa. St. 313; Withers v. Atkinson, 1 Watts (Pa.) 236. Texas. — Stanley v. Epperson, 45 Tex. 644 (whether the deed is recorded or not is not material) ; Van Hook v. Simmons, 25 Tex. Suppl. 323, 78 Am. Dec. 573. Wisconsin. — Wheeler v. Single, 62 Wis. 380, 22 N. W. 569 (as against creditors of the grantee) ; North v. Henneberry, 44 Wis. 306. United States. — U. S. v. West, 22 How. (U. S.) 315, 16 L. ed. 317, which was a pub- lie grant. England. — Doe v. Bingham, 4 B. & Aid. 672, 6 E. C. L. 648. Canada. — Fraser v. Fraser, 14 U. C. C. P. 70. Contra, in North Carolina, it being there held that, where the grantee in a deed, in order to put his property beyond the reach of his creditors, without the knowledge of the grantor, erased his own name wherever it appeared in the deed and inserted that of his wife, and as thus altered had the deed registered, inasmuch as before probate and registration or the intervening of other rights, legal or equitable, a deed may be surrendered to the grantor or canceled or changed in any manner agreed upon by the grantor and grantee, this deed was inoperative, the title remained in the grantor, and equity would not render the grantee assistance to restore the title. Respass v. Jones, 102 N. C. 5, 8 S. E. 770. Alteration not affecting particular land. — Where an alteration is in the description of one tract it will not affect the validity of the deed as to other tracts embraced therein. Burnett v. McCluey, 78 Mo. 676; Woods v. Hilderbrand, 46 Mo. 284, 2 Am. Rep. 513. So a deed in which the words " minerals re- served " were erased is held to be valid to convey title to the land, exclusive of the minerals. Alabama State Land Co. v. Thomp- son, 104 Ala. 570, 16 So. 440, 53 Am. St. Rep. 80. 36. Agricultural Cattle Ins. Co. v. Fitz- gerald, 15 Jur. 489. 37. Thorne v. Williams, 13 Ont. 577. 38. Harrison v. Owen, 1 Atk. 520. See also Van Riswick v. Goodhue, 50 Md. 57. 39. Kendall v. Kendall, 12 Allen (Mass.) 92. ALTERATIONS OF INSTRUMENTS 189 a mortgage destroys it, 40 as it remains executory until its enforcement, thus com- ing under the rule applying to executory contracts ; and especially is this true where the mortgage itself is considered as a mere lien or incidental security for the debt. 41 So the alteration of a chattel mortgage may destroy it as security. 42 (iv) Estate Dependent xjpon Deed or Otherwise. Where an estate cannot have existence but by deed, as where the subject-matter of the deed lies iu grant, an alteration of the deed creating the estate avoids the deed and the estate derived under it ; but where the estate may exist without deed, as a fee- simple estate in land, the fraudulent alteration of the deed destroys the deed but not the estate. 43 (v) Lease. A lessor who has altered the lease destroys his right to recover under the executory clauses or the rents reserved, 44 and it has been held that if a lessee fraudulently alters a lease he cannot retain possession under it, or preclude the lessor from reentering. 45 k. Who May Complain. If the parties affected by a change in an instru- ment do not complain thereof, others who are not parties to the instrument or affected by the change cannot, ordinarily, set up the change, 46 unless there is evi- 40. Georgia. — Murphy v. Purifoy, 52 Ga. 480, in which ease the mortgage was set aside and judgment rendered for the debt, without foreclosure. Iowa. — Cutler v. Rose, 35 Iowa 456. Kansas.— Johnson v. Moore, 33 Kan. 90, 5 Pac. 406, holding that, where the consider- ation of a mortgage is changed by increasing it, the security is avoided and it is not en- forceable for any part of the debt therein described; that where a mortgage is given to secure the payment .of money advanced by the mortgagee to pay off and discharge a prior mortgage-debt upon the same premises, and the instrument fails by reason of an irregu- larity in its execution, or an alteration in- advertently made by the mortgagee without fault, he is entitled to be subrogated to the rights of the prior mortgage discharged and paid off by the money which he had advanced ; but where the second mortgage was materially altered by such mortgagee after its execu- tion, acknowledgment, and delivery, without the consent of the mortgagors, which alter- ation injuriously affects the liability of the mortgagors, he is not entitled to the appli- cation of the equitable doctrine of subroga- tion. Minnesota. — Coles v. Yorks, 28 Minn. 464, 10 N. W. 775. Missouri. — Powell v. Banks, 146 Mo. 620, 48 S. W. 664, an alteration of deed of trust. New York. — Marcy v. Dunlap, 5 Lans. (N. Y.) 365. South Carolina. — Powell v. Pearlstine, 43 S. C. 403, 21 S. E. 328. 41. Russell v. Reed, 36 Minn. 376, 31 N. W. 452; Kime v. Jesse, 52 Nebr. 606, 72 N. W. 1050 [citing Pereau v. Frederick, 17 Nebr. 117, 22 N. W. 235]; Melntyre v. Velte, 153 Pa. St. 350, 25 Atl. 739. 42. Carlisle v. Peoples Bank, 122 Ala. 446, 26 So. 115; Green v. Smeed, 101 Ala. 205, 13 So. 277, 46 Am. St. Rep. 119 (holding that a mortgage altered as to the amount is not good as security even for the true amount) ; Hollingsworth v. Holbrook, 80 Iowa 151, 45 N. W. 561, 20 Am. St. Rep. 411 (upon the principle that a fraudulent and material al- teration of an instrument of conveyance will destroy the right of recovery upon executory covenants, as applied in the case of a mort- gage conveying an interest in the property described and the right to possession thereon, where the possession of the property was not taken until after the alleged alteration, and therefore an alteration destroyed the right to take possession) ; Bowser v. Cole, 74 Tex. 222, 11 S. W. 1131. 43. Lewis v. Payn, 8 Cow. (N. Y.) 71, 18 Am. Dec. 427 [citing Miller v. Manwaring, Cro. Jac. 399; 1 Nelson Abr. 635]. In Bol- ton v. Carlisle, 2 H. Bl. 259, it was held that canceling a deed would not divest property which had once vested by transmutation of possession, and that the law was the same with respect to things which lie in grant. But this case supposes the deed lost, not fraudulently altered by a party to be bene- fited by the alteration. Deed reserving rents. — An alteration of a deed reserving ground-rents avoids the cove- nants reserving rent in favor of the fraudu- lent grantor, but preserves the fee simple to the innocent grantee discharged from the covenants in the deed. Wallace v. Harmstad, 44 Pa. St. 492; Arrison v. Harmstead, 2 Pa. St. 191. 44. See Lewis v. Payn, 8 Cow. (N. Y.) 71, 18 Am. Dec. 427; Acker v. Ledyard, 8 Barb. (N. Y.) 514. 45. Bliss v. Melntyre, 18 Vt. 466, 46 Am. Dec. 165, upon the ground that though such an act by the lessee might not operate upon his acts committed before the alteration, all future rights were destroyed, as he had de- stroyed all evidence of his title. See also Jones v. Hoard, 59 Ark. 42, 26 S. W. 193, 43 Am. St. Rep. 17. 46. Hochmark v. Richler, 16 Colo. 263, 26 Pac. 818. By subcontractor after performance of con- tract by original parties. — Where a builder's contract is changed and the original parties thereto perform the contract in its altered condition, a subcontractor cannot set up the Vol. II 190 ALTERATIONS OF INSTRUMENTS deuce of fraud between the parties, to the injury of the creditors. 47 The altera- tion must relate to the parties to the particular instrument altered. 48 The altera- tion of an assignment or indorsement does not affect the claim of the assignee or indorsee on the instrument itself against the maker. 49 E. Nature and Effect of Immaterial Changes — 1. General Rule. It is not every change which will invalidate an instrument, but only a change which is material, according to the principles above stated. In other words, any change in words or form merely, even if made by an interested party, which leaves the legal effect and identity of the instrument unimpaired and unaltered, which in no man- ner affects the rights, duties, or obligations of the parties, and leaves the sense and meaning of the instrument as it originally stood, is not material and will not destroy the instrument or discharge the parties from liability thereon. 50 "Where change for the purpose of enlarging his right to a lien. Andrews v. Burdick, 62 Iowa 714, 16 N. W. 275. Holder of collateral security. — The assignee of a note as collateral security cannot set up, as -a, defense to an action of trover on the note after the loan secured by the assign- ment has been paid, that the note was altered by the payee without the knowledge of the maker. Flint v. Craig, 59 Barb. (N. Y.) 319. As between senior and junior mortgagees. — In Tate v. Fletcher, 77 Ind. 102, a senior mortgagee obtained a judgment of foreclos- ure in a suit in which the junior mortgagee was a party, and, the mortgagor having filed a complaint for review of the judgment and made the junior mortgagee a party, the latter was allowed to set up by cross-comp'laint a material alteration in the note of the senior mortgagee on which judgment of foreclosure had been obtained. But see otherwise in Gunter v. Addy, 58 S. C. 178, 36 S. E. 553, where the insertion in the mortgage was made with the consent of the mortgagor, without fraudulent intent, for the purpose of making the mortgage conform to the note which it secured and to make the description of the mortgaged premises more certain, this being done after the execution of the second mortgage. Discharge of guarantor. — The discharge of a joint obligor not having the effect of dis- charging the others in the absence of a show- ing that such discharge was without the con- sent of the latter, an insistence by defendant in a suit to foreclose a, mortgage that plain- tiff was discharged from liability on his guar- anty of the original debt by reason of the erasure of the name of one of the joint ob- ligors, neither of the others claiming to be released, is without merit. Blewett v. Bash, 22 Wash. 536, 61 Pac. 770. 47. Ravisies v. Alston, 5 Ala. 297. 48. Loque v. Smith, Wright (Ohio) 10. For erasure of name of guarantor or prior indorsers see Bills and Notes. Separate contracts — Insurance policy. — A contract in a policy of insurance will not be avoided by a material alteration of another contract between the company and another party indorsed upon the same policy. Robin- son v. Phoenix Ins. Co., 25 Iowa 430. 49. Howe v. Thompson, 11 Me. 152; Grif- fith v. Cox, 1 Overt. (Tenn.) 210; Minert v. Emerick, 6 Wis. 355, holding that the ques- Vol. II tion of an alteration in an assignment of a contract concerns the parties to the instru- ment rather than the parties to the contract, and that, as between the assignee and the contractor, the material question is whether a valid assignment exists to give him a right to enforce the contract assigned. 50. Alabama. — Winter v. Pool, 100 Ala. 503, 14 So. 411. California. — Humphreys v. Crane, 5 Cal. 173. Colorado.— King v. Eea, 13 Colo. 69, 21 Pac. 1084. Connecticut. — Nichols v. Johnson, 10 Conn. 192. Delaware. — Warder v. Stewart, 2 Marv. (Del.) 275, 36 Atl. 88. Georgia. — Broughton v. West, 8 Ga. 248. Idaho. — Mulkey v. Long, (Ida. 1897) 47 Pac. 949. Illinois. — Ryan v. Springfield First Nat. Bank, 148 111. 349, 35 N. E. 1120; Rudesill v. Jefferson County, 85 111. 446; McKibben v. Newell, 41 111. 461; Vogle v. Ripper, 34 111. 100, 85 Am. Dec. 298; Gardiner v. Harback, 21 111. 129; Magers v. Dunlap, 39 111. App. 618; Gill v. Hopkins, 19 111. App. 74. Indiana. — Shuck v. State, 136 Ind. 63, 35 N. E. 993; Kline v. Raymond, 70 Ind. 271; Harris v. State, 54 Ind. 2; State v. Berg, 50 Ind. 496; Cochran v. Nebeker, 48 Ind. 459; Foote v. Bragg, 5 Blackf. (Ind.) 363; Casto v. Evinger, 17 Ind. App. 298, 46 N. E. 648; Kingan v. Silvers, 13 Ind. App. 80, 37 N. E. 413. Indian Territory. — Taylor v. Acorn, 1 In- dian Terr. 436, 45 S. W. 130. Ioiva. — James v. Dalbey, 107 Iowa 463, 78 N. W. 51; Iowa Valley State Bank v. Sig- stad, 96 Iowa 491, 65 N. W. 407; Starr v. Blatner, 76 Iowa 356, 41 N. W. 41; Horton i. Horton, 71 Iowa 448, 32 N. W. 452; Jack- son v. Boyles, 64 Iowa 428, 20 N. W. 746; Rowley v. Jewett, 56 Iowa 492, 9 N. W. 353 ; Briscoe v. Reynolds, 51 Iowa 673, 2 N. W. 529. Kentucky. — Phillips v. Breck, 79 Ky. 465 ; Terry v. Hazlewood, 1 Duv. (Ky.) 104 [over- ruling in effect Johnson v. U. S. Bank, 2 B. Mon. (Ky.) 310]; Jones v. Shelbyville F., etc., Ins. Co., 1 Mete. (Ky.) 58; Brown v. Warnock, 5 Dana (Ky.) 492; Tranter v. Hibberd, 21 Ky. L. Rep. 1710, 56 S. W. 169. Louisiana. — Martin v. McMasters, 14 La. 420. ALTERATIONS OF INSTRUMENTS 191 the words inserted, if taken with the original words and as an addition to them, would be wholly senseless and inoperative, or the addition is a mere nullity, it cannot affect the terms or identity of the contract. 51 2. Cases Recognizing Ancient Rule. In two jurisdictions the ancient rule of the common law which was applicable to deeds, and which at one time was extended to bills and notes, is still applied to all instruments — namely, that even an immaterial change by the holder of, or party claiming under, the instrument, will vitiate it. 52 A qualification of this rule has been recognized, however, and it has Maine. — Cushing v. Field, 70 Me. 50, 35 Am. Rep. 293. Massachusetts. — Brown v. Pinkham, 18 Pick. (Mass.) 172; Smith v. Crooker, 5 Mass. 538. Michigan. — Prudden v. Nester, 103 Mich. 540, 61 N. W. 777 ; White Sewing Mach. Co. v. Dakin, 86 Mich. 581, 49 N. W. 583, 13 L. R. A. 313; Weaver v. Bromley, 65 Mich. 212, 31 N. W. 839; Port Huron First Nat. Bank v. Carson, 60 Mich. 432, 27 N. W. 589 ; Leonard v. Phillips, 39 Mich. 182, 33 Am. Rep. 370; Gano p. Heath, 36 Mich. 441; Goodenow v. Curtis, 33 Mich. 505; Miller v. Finley, 26 Mich. 249, 12 Am. Rep. 306. Minnesota. — Herrick v. Baldwin, 17 Minn. 209, 10 Am. Rep. 161. Mississippi. — Bridges v. Winters, 42 Miss. 135, 97 Am. Dec. 443, 2 Am. Rep. 598; Gor- don v. Sizer, 39 Miss. 805 ; Moye v. Herndon, 30 Miss. 110. Missouri. — American Nat. Bank v. Bangs, 42 Mo. 450, 97 Am. Dec. 349. Nebraska. — Fisherdick v. Hutton, 44 Nebr. 122, 62 N. XV. 488 ; Barnes v. Van Keuren, 31 Nebr. 165, 47 N. W. 848; Townsend v. Star Wagon Co. 10 Nebr. 615, 7 N. W. 274, 35 Am. Rep. 493; Palmer v. Largent, 5 Nebr. 223, 25 Am. Rep. 479; Oliver v. Hawley, 5 Nebr. 439. New Hampshire. — Cole v. Hills, 44 N. H. 227; Burnham v. Ayer, 35 N. H. 351; Fe- quawket Bridge v. Mathes, 8 N. H. 139 ; Bow- ers v. Jewell, 2 N. H. 543; State v. Cilley [cited in Martendale v. Follet, 1 N. H. 95]. New York. — Casoni v. Jerome, 58 N. Y. 315; Ludekens v. Pscherhofer, 76 Hun (N. Y.) 548, 28 N. Y. Suppl. 230, 58 N. Y. St. 241; Kinney v. Schmitt, 12 Hun (N. Y.) 521; Peo- ple v. Muzzy, 1 Den. (N. Y.) 239. Ohio. — Sturges v. Williams, 9 Ohio St. 443, 75 Am. Dec. 473; Huntington v. Finch, 3 Ohio St. 445; Carlile v. Lamb, 16 Ohio Cir. Ct. 578; Hayes v. Dumont, 2 Ohio Cir. Ct. 229. Pennsylvania. — Express Pub. Co. v. Aldine Press Co., 126 Pa. St. 347, 17 Atl. 608 ; Rob- ertson v'. Hay, 91 Pa. St. 242; Kountz v. Ken- nedy, 63 Pa. St. 187, 3 Am. Rep. 541 ; Clark v. Eckstein, 22 Pa. St. 507, 62 Am. Dec. 307 (holding that the mere removal of a blot on a note after execution will not avoid it) ; Miller v. Gilleland, 19 Pa. St. 119; Gardinier v. Sisk, 2 Pa. St. 326 ; Latshaw v. Hiltebeitel, 2 Fennyp. (Pa.) 257. Rhode Island. — Arnold v. Jones, 2 R. I. 345. Tennessee. — Blair v. State Bank, 11 Humphr. (Tenn.) 83. Tewas — Tutt v. Thornton, 57 Tex. 35; Marx v. Luling Co-Operative Assoc, 17 Tex. Civ. App. 408, 45 S. W. 596; Chamberlain v. Wright, (Tex. Civ. App. 1896) 35 S. W. 707; Churchill v. Bielstein, 9 Tex. Civ. App. 445, 29 S. W. 392 ; Yost v. Watertown Steam-En- gine Co., (Tex. Civ. App. 1894) 24 S. W. 657; Gragg v. State, 18 Tex. App. 295. Vermont.— Derby v. Thrall, 44 Vt. 413, 8 Am. Rep. 389; Langdon v. Paul, 20 Vt. 217. West Virginia. — Yeager v. Musgrave, 28 W. Va. 90. Wisconsin. — Fuller v. Green, 64 Wis. 159, 24 N. W. 907, 54 Am. Rep. 600 (holding that in determining the materiality of a particular change the court will be governed entirely by the effect of the change according to the laws of the state where the question is raised) ; Krouskop v. Shontz, 51 Wis. 204, 8 N. W. 241, 37 Am. Rep. 817. Wyoming. — McLaughlin v. Venine, 2 Wyo. 1. United States. — Gordon v. Chattanooga Third Nat. Bank, 144 U. S. 97, 12 S. Ct. 657, 36 L. ed. 360 ; Butte First Nat. Bank v. Wei- denbeck, 97 Fed. 896, 38 C. C. A. 131; U. S. v. Hatch, 1 Paine (U. S.) 336, 26 Fed. Cas. No. 15,325; Crawford v. Dexter, 5 Sawy. (TJ. S.) 201, 6 Fed. Cas. No. 3,368. England. — Suffell v. Bank of England, 7 Q. B. D. 270 [reversed, on the ruling as to the materiality of the particular change, in 9 Q. B. D. 555] ; London, etc., Bank v. Roberts, 22 Wkly. Rep. 402; Lowe v. Fox, 12 App. Cas. 206 ; Trapp v . Spearman, 3 Esp. 57 ; Waugh v. Bussell, 5 Taunt. 707, 1 E. C. L. 362; Catton v. Simpson, 8 A. & E. 136, 35 E. C. L. 518 [overruled afterward in Gardner v. Walsh, 5 E. & B. 83, 85 E. C. L. 83, 24 L. J. Q. B. 285, not, however, on the ground that an immaterial change affected the instrument, but on the ground that the particular change was a material one]. 51. Cole v. Pennington, 33 Md. 476; Gran- ite R. Co. v. Bacon, 15 Pick. (Mass.) 239. Idle and unnecessary interlineations do not affect the contract and are immaterial. Yea- ger v. Musgrave, 28 W. Va. 90. 52. Missouri. — Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300; Hord v. Taubman, 79 Mo. 101 ; Morrison v. Garth, 78 Mo. 434 ; Spring- field First Nat. Bank v. Fricke, 75 Mo. 178, 42 Am. Rep. 397; Moore v. Hutchinson, 69 Mo. 429; German Bank v. Dunn, 62 Mo. 79; Allen v. Dornan, 57 Mo. App. 288; Kingston Sav. Bank v. Bosserman, 52 Mo. App. 269; Farmers' Bank v. Myers, 50 Mo. App. 157; Moore v. Macon Sav. Bank, 22 Mo. App. 684. In this state the court has not been consist- ent with itself on all occasions, and, aside from its arbitrary adoption of the common- law rule which applied originally to deeds Vol. II 192 ALTERATIONS OF INSTRUMENTS been held that the principle conld not be applied to an executory contract which is not for the payment of money nor to affect title to real estate. 53 3. Supplying What the Law Implies. Any change, made in an instrument after its execution, which merely expresses what would otherwise be supplied by intendment is immaterial even as to parties not assenting to the change, for they would be liable to the same extent without the change, and the contract is not altered by it. 54 only, seems without strong support. Side by side with Springfield First Nat. Bank v. Fricke, 75 Mo. 178, 42 Am. Rep. 397 [re- ferred to in Morrison v. Garth, 78 Mo. 434, as putting the question to rest] stands Wil- liams v. Jensen, 75 Mo. 681, which held that the particular change under consideration did not constitute an alteration because it did not change the legal liabilities of the parties to the instrument, or, in other words, because the legal effect of the instrument was not altered, which is the very distinguishing fea- ture between a material and an immaterial change which will or will not vitiate an in- strument, according to the modern rule. Has- kell v. Champion, 30 Mo. 136, is taken as the controlling adjudication on this subject, but it is apprehended that the decision in this case did not turn on the point that the change was made by the holder of the instrument any more than upon the point that the change was of an immaterial character. The court cites 1 Greenleaf Ev. § 565, upon the reason of the rule that an alteration of an instru- ment vitiates it. The last sentence of this section would seem to indicate that the author referred to the effect of a material change. Furthermore, in section 568 of the same work the vitiating effect accorded to an immaterial change is confined to cases in which the change is made fraudulently, whereas, in Missouri, the intent with which- an alteration is made is altogether an immaterial consider- ation. See supra, III, C. In Evans v. Foreman, 60 Mo. 449, the court relies upon several authorities from Pennsylvania which do not seem to support the view contended for. In addition to this, as pointed out by Barclay, J., in Kelly v. Thuey, (Mo. 1S96) 37 S. W. 516 [citing Morrison v. Garth, 78 Mo. 434; Springfield First Xat. Bank v. Fricke, 75 Mo. 178, 42 Am. Rep. 397; Moore r. Hutchinson, 69 Mo. 429 ; German Bank v. Dunn, 62 Mo. 79 ; Evans v. Foreman, 60 Mo. 449], in a number of de- cisions in that state the changes before the court were distinctly of a material character and were held so to be, so that any observa- tions in those cases of wider reach should not be properly considered as overturning the rule that an immaterial change will not vitiate the instrument. He further points out that in many other cases in this state the mate- riality of the change entered into the con- sideration of its effect [Woods v. Hilder- brand, 46 Mo. 284, 2 Am. Rep. 513; State v. Dean, 40 Mo. 464; Patterson v. Fagan, 38 Mo. 70; Owings r. Arnot, 33 Mo. 406; Ivory v. Michael, 33 Mo. 398; Trigg r. Taylor, 27 Mo. 245, 72 Am. Dec. 263 ; Whitmer v. Frye, 10 Mo. 348; Aubuchon v. McKnight, 1 Mo. Vol. II 312, 13 Am. Dec. 502]. When this case was referred to the court in banc, however (Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300), Judge Barclay's opinion was not adhered to. New Jersey. — York v. Janes, 43 1ST. J. L. 332; Hunt v. Gray, 35 X. J. L. 227, 10 Am. Rep. 232; Vanauken v. Hornbeek, 14 X. J. L. 178, 25 Am. Dec. 509, holding that the prin- ciple upon which a deed is avoided, if changed by the party to whom it belongs even in an immaterial particular, applies with equal force to all written contracts, and with greater propriety to bills of exchange and promissory notes. But in this state, too, it has been held in a late ease that the alteration in question considerably enlarged the scope of the in- strument as a means of evidence, and there- fore was a material one, and that, having been made by the other party to the instru- ment, it was annulled as a contract, or as evidence of a contract, in his favor. The in- strument involved was a memorandum of sale of land. Quinzel r. Schmidt, (X. J. 1897) 38 Atl. 665 [citing Jones v. Crowley, 57 X. J. L. 222, 30 Atl. 871, and Hunt v. Gray, 35 X. J. L. 227, 10 Am. Rep. 232, the former, however, involving a change in a deed by the party to whom it belonged, and in which case it was held that, even though the change was in an immaterial part of the instrument, it would be avoided as a conveyance]. 53. New England L. & T. Co. v. Brown, 59 Mo. App. 461. 54. Alabama. — Anderson v. Bellenger, 87 Ala. 334, 6 So. 82, 13 Am. St. Rep. 46, 4 L. R. A. 680. Illinois. — Kelly r. Trumble, 74 111. 428; Swigart v. Weare, 37 111. App. 258. Indiana. — Harris v. State, 54 Ind. 2 ; State v. Berg, 50 Ind. 496. Iowa. — James v. Dalbey, 107 Iowa 463, 78 X. W. 51 : Briscoe v. Reynolds, 51 Iowa 673, 2 X. W. 529. Massachusetts. — Hunt v. Adams, 6 Mass. 519. Mississippi. — Bridges r. Winters, 42 Miss. 135, 97 Am. Dec. 443, 2 Am. Rep. 598. Missouri. — Western Bldg., etc., Assoc, v. Fitzmaurice, 7 Mo. App. 283. But see supra, VII, E, 2. Nebraska. — Consaul v. Sheldon, 35 Nebr. 247, 52 N. W. 1104. Xeu- Hampshire. — Cole r. Hills, 44 X. H. 227 ; Burnham v. Aver, 35 X. H. 351 : State v. Cilley [cited in Martendale v. Follet, 1 X. H. 95]. Veiv York. — Kinney v. Schmitt, 12 Hun (X. Y.) 521. ~Korth Carolina. — Houston v. Potts. 64 K". C. 33. ALTERATIONS OF INSTRUMENTS 193 4. Intent. In many cases the vitiating effect of an immaterial change is made to depend in part upon the intent with which the act is done, at least to the extent of holding that such a change will not vitiate in the absence of a fraudulent design ; 55 but the better rule, especially in view of the doctrine generally announced that the intent with, which an alteration is made is immaterial, 56 would seem to be that if the change is immaterial the motive will be immaterial, as the motive becomes a pertinent inquiry only when the act itself affects the rights of the parties. 57 F. Character and Effect of Particular Changes — l. Adding, Changing, or Destroying Covenants and Conditions in General. Any change which makes a new stipulation or condition in the contract of the parties is material, 58 as a stipula- Tennessee. — Blair v. State Bank, 11 Humphr. (Tenn.) 83. Washington. — Kleeb v. Bard, 12 Wash. 140, 40 Pao, 733. England. — Waugh v. Bussell, 5 Taunt. 707, 1 E. C. L. 362; Sanderson v. Symons, 1 B. & B. 426; Aldous v. Cornwell, L. R. 3 Q. B. 573. 55. California. — Oakland First Nat. Bank v. Wolff, 79 Cal. 69, 21 Pac. 551, 748; Turner v. Billagram, 2 Cal. 520. Massachusetts. — Ford v. Ford, 17 Pick. (Mass.) 418. North Carolina. — Dunn v. Clements, 52 N. C. 58. Rhode Island. — Arnold v. Jones, 2 R. I. 345. Tennessee. — McDaniel v. Whitsett, 96 Tenn. 10, 33 S. W. 567; Blair v. State Bank, 11 Humphr. (Tenn.) 83. Virginia. — Keen v. Monroe, 75 Va. 424. United States. — Crawford v. Dexter, 5 Sawy. (U. S.) 201, 6 Fed. Cas. No. 3,368. 56. See supra, III, C. 57. Illinois.— Vogle v. Ripper, 34 111. 100, 85 Am. Dee. 298. Iowa. — Robinson v. Fhosnix Ins. Co., 25 Iowa 430. Kentucky. — Tranter v. Hibbard, 21 Ky. L. Rep. 1710, 56 S. W. 169. Mississippi. — Moye v. Herndon, 30 Miss. 110. Pennsylvania. — Miller v. Reed, 27 Pa. St. 244, 67 Am. Dee. 459. Wisconsin. — Fuller v. Green, 64 Wis. 159, 24 N. W. 907, 54 Am. Rep. 600. Wyoming. — McLaughlin v. Venine, 2 Wyo. 1. 58. Alabama. — Payne v. Long, 121 Ala. 385, 25 So. 780, which involved the incor- poration into a note of the words " subject to settlement between us." Georgia. — Johnson v. Brown, 51 Ga. 498, which involved the extension of the terms of a, letter of credit guaranteeing the payment of purchases by the holder in a certain state so as to authorize purchases in another and different place. Illinois.— Kelly v. Trumble, 74 111. 428, which involved the interlining, into a bond for title, of a provision granting and surren- dering immediate possession to the purchaser. Indiana. — Weir Plow Co. v. Walmsley, 110 Ind. 242, 11 N. E. 232, extending guaranty of the performance of a contract. But in State v. Berg, 50 Ind. 496, it was held that where [13] the conditions of a bond of a township trustee recited that the officer should account to the board of commissioners at its March term in 1868, the insertion of the figures " 1869 " and " 1870 " after the figures "1868" was immaterial, because without them it was still the officer's duty to account for those years. Massachusetts. — Osgood v. Stevenson, 143 Mass. 399, 9 N. E. 825, holding that the in- sertion into a book subscription of the word " cloth," indicating the binding, and the fig- ures " $6.25," indicating the price for each volume, is material where the subscriber un- derstood that the whole work was sold to him for six dollars and twenty-five cents. Pennsylvania. — Mclntyre v. Velte, 153 Pa. St. 350, 25 Atl. 739, involving the insertion into a mortgage, by the mortgagee, of a clause to the effect that scire facias may is- sue in case of twenty days' default in pay- ment. Texas. — Alteration of bail-bond by chang- ing time of appearance. Wegner v. State, 28 Tex. App. 419, 13 S. W. 608 ; Heath v. State, 14 Tex. App. 213; Butler v. State, 31 Tex. Crim. 63, 19 S. W. 676. Utah. — American Pub. Co. v. Fisher, 10 Utah 147, 37 Pac. 259, involving a change, in a written offer to manufacture goods at a specified price, by interlining the words " all terms and conditions included in above, ap- proved, read and agreed." England. — Powell v. Divett, 15 East 29, wherein a, sale note in its original form read " Sold for your account to Messrs. Divett & Co. the following parcels of Spanish wool, (a few bags more or less,) of each mark, viz. (specifying them and the rates of price) cus- tomary tear and allowance. To be paid for by acceptances at two, four, six, and eight months," and was changed by the broker by inserting a memorandum : " such part as may be deemed to be taken at such allowance as shall be settled by two experienced brokers." Immaterial changes. — Insertion of a, mere clerical omission, by the scrivener of a bond, to make it conform to his notion of the re- quirements of the statute, and which in no way varies the meaning of the instrument or its operation, is immaterial, as held where, upon the execution of a new bond by an offi- cer in pursuance of a notice by the surety on a former bond that the latter did not wish longer to be bound, the county clerk, on the return of the bond to him, and without the Vol. II 194 ALTERATIONS OF INSTRUMENTS tion waiving the benefit of a legal defense or exemption, 59 or a stipulation in a note retaining a lien upon land. 60 So of the erasure by a covenantor of one of his covenants, 61 or of a condition affecting the operation of the instrument, 62 as by changing a conditional into an absolute liability. 63 2. Character or Quality of Goods. The addition to a contract for the delivery of goods of words qualifying the character or quality thereof, is material, 64 unless the words inserted convey no meaning other than the original terms of the con- tract import. 65 3. As to Separate Estate. Where the separate estate of a married woman can be bound only by express authority, a change in a note, executed by a mar- ried woman, by adding a clause charging her separate estate, is material and vitiates the instrument. 66 4. Risk in Insurance Policy. A change in a policy of insurance which alters the risk is material, and avoids the policy. 67 knowledge or consent of the sureties, inserted a recital that the surety had given up the former bond and that the officer was required to file this as a new one. Rudesill v. Jefferson County, 85 111. 446. Martin v. McMasters, 14 La. 420 ( holding that the words " without recourse," written at the end of a transfer of a note, had no effect, because under the code a transferee has no recourse on the transfer- rer when the debt existed at the time of the transfer) : Prudden t'.Nester, 103 Mich. 540, 542, 61 N. W. 777 (where the words "I do not, however, guarantee its payment," were added to an assignment of a debt which did not contain a guaranty, and afterward re- moved by cutting them out, and it was held that the addition did not change the effect of the assignment, and cutting them out was not material) : Krouskop v. Shontz, 51 Wis. 204, 8 N. W. 241, 37 Am. Rep. 817 (where the indorsement on a note that it was to be extended " if desired by makers " was held to have no legal significance, and the unau- thorized addition of the words " on payment of the interest, as expressed until " a day named, being equally without significance, constituted no alteration). 59. Jordan v. Long, 109 Ala. 414, 19 So. 843 (the unauthorized insertion of a waiver of exemption) ; Davis v. Carlisle, 6 Ala. 707 (the addition of the words "without defalca- tion or set-off"). But the addition to a mortgage of a clause waiving the benefit of a specific act of assembly which had been re- pealed prior to the execution of the mortgage is immaterial, as the legal effect of the mort- gage remains the same. Robertson v. Hay, 91 Pa. St. 242. 60. McDaniel v. Whitsett. 96 Tenn. 10, 33 S. W. 567. 61. Burgwin v. Bishop, 91 Pa. St. 336. 62. Johnson v. Heagan, 23 Me. 329; Marr v. Hobson, 22 Me. 321 (which was an altera- tion by erasing a condition in a deed which had become void by reason of the non-per- formance of the condition erased) ; Campbell v. McKinnon, 18 U. C. Q. B. 612 (erasure or obliteration of a condition in a note so as to render it negotiable). 63. Tate v. Fletcher, 77 Ind. 102; Long- well v. Day, 1 Mich. N. P. 286. 64. Mar'tendale v. Follet, 1 N. H. 95 (the Vol. II insertion of the word " young " before the word " merchantable " in a note payable in " merchantable neat stock " ) ; Schwalm f. Mclntyre, 17 Wis. 232 (adding "it is to be good, hard wood " in a, contract for the de- livery of a certain quantity of wood) ; Mol- lett v. Wackerbarth, 5 C. B. 181, 57 E. C. L. 181 (wherein a sold-note in the following form : " Sold for Messrs. Wackerbarths & Coling, one hundred tons of crushed sugar (as per sample), in hogsheads," was changed by the buyer, without the privity of the seller, by adding at the foot of the paper " of their own manufacture," with an aster- isk as a mark of reference and a correspond- ing asterisk in the body of the note after the word " sample," and it was held that the words inserted purported that the sample was of the manufacture of Wackerbarths & Col- ing and constituted a material change, avoid- ing the contract as against the buyer). 65. State v. Cilley [.cited in Martendale t;. Follet, 1 N. H. 95, 97], writing the word " good " before " merchantable " in a con- tract for " merchantable wool." 66. Taddiken v. Cantrell, 69 N. Y. 597, 25 Am. Rep. 253; Pease v. Barnett, 27 Hun (N. Y.) 378; Reeves v. Pierson, 23 Hun (N. Y.) 185. But, under a later statute pro- viding that a separate estate of a married woman shall be liable for her contracts with- out expressly charging such estate, it is held that the insertion of a stipulation over a married woman's indorsement charging her separate estate is not material. Cla/pp v. Collins, 7 N. Y. Suppl. 98, 26 N. Y. St. 95. In Missouri, however, it was held, over the objection that the addition of a stipulation charging the separate estate of the signer of the note could in no way be a material modi- fication of the contract, unless the instru- ment was executed by a married woman, that the note was avoided, without reference to the material or immaterial character of the change. Kingston Sav. Bank r, Bosserman, 52 Mo. App. 269. 67. Campbell v. Christie, 2 Stark. 64, 3 E. C. L. 318. Insertion of property after loss is material. Phoenix Ins. Co. v. McKernan, 100 Ky. 97, 18 Ky. L. Rep. 617, 37 S. W. 490. Warranty of time of sailing, in a policy of ALTERATIONS OF INSTRUMENTS 195 5. Consideration. If an instrument is changed in respect of the considera- tion, which appears only as a recital to show the basis of the instrument, it would seem to be immaterial; 68 but if such a change relates to the liability of the party, as by enlarging the security, changing the penalty of a bond, or otherwise alter- ing the ultimate responsibility of a party, 69 or the instrument as evidence of a fact, it is material and constitutes an alteration of the contract. 70 6. Amount. The amount representing the pecuniary liability as expressed in a bill, note, or other written instrument is a material part thereof, the changing of which will constitute an alteration so as to discharge the party not consenting thereto. 71 It does not matter how trivial the change may be where the amount is insurance, is a material part thereof, and a change therein is material. Fairlie v. Chris- tie, 7 Taunt. 416, 2 E. C. L. 425. Permission of call ofi a port not contem- plated in the original terms of the contract is material. Forshaw v. Chabert, 3 B. & B. 158 [distinguishing Sanderson v. Symons, 1 B. & B. 426]. 68. Westmoreland v. Westmoreland, 92 Ga. 233, 17 S. E. 1033; Gardiner v. Harback, 21 111. 129 (holding that the addition of " $10 dollars and fifty interest " after the words " value received " in a note did not change the legal import of the instrument, but may be considered to mean that the portion of the value received by the makers consisted of ten dollars and fifty cents interest) ; Reed v. Kemp, 16 111. 445 (a change in the amount expressed as the consideration inducing one to enter into a bond to secure the faithful performance of a particular act) ; Magers v. Dunlap, 39 111. App. 618 (holding that the insertion of the words " for labor " into a note executed for physician's services did not import wages due as a laborer, or services within the meaning of the exemption act) ; Bridges v. Winters, 42 Miss. 135, 97 Am. Dec. 443, 2 Am. Rep. 598 (wherein a note was executed for " loaned money " and after- ward the words " in gold " were inserted af- ter the words above mentioned, and it was held that the legal liability of the maker was not changed, and therefore the insertion was immaterial ) . Indorsement of basis of credit. — Where a statement as a, basis of credit was indorsed upon a note of a husband and wife, which statement showed that the wife owned a farm worth four thousand dollars and personalty worth six hundred dollars, a subsequent un- authorized change of the last amount to one thousand dollars was held to be immaterial, because the farm and six hundred dollars were as good as a basis of credit as the farm and one thousand dollars. Krouskop v. Shontz, 51 Wis. 204, 8 N. W. 241, 37 Am. Rep. 817. 69. Consideration of mortgage. — Change by increasing it is material. Johnson v. Moore, 33 Kan. 90, 5 Pac. 406; Russell v. Reed, 36 Minn. 376, 31 N. W. 452. So where a recital is inserted into a mortgage so as to make it secure additional notes. Carlisle v. People's Bank, 122 Ala. 446, 26 So. 115. See also VII, D, 4, j. Consideration of note changed by inserting a statement that it is for a tract of land, and thus making it apparently a lien on the land, is material. Low v. Argrove, 30 Ga. 129. See also Richardson v. Fellner, 9 Okla. 513, 60 Pac. 270. 70. Benjamin v. McConnell, 9 111. 536, 46 Am. Dec. 474'. 71. Alabama. — Green v. Sneed, 101 Ala. 205, 13 So. 277, 46 Am. St. Rep. 119, chang- ing the amount secured by mortgage. Arkansas. — Fordyce v. Kosminski, 49 Ark. 40, 3 S. W. 892, 4 Am. St. Rep. 18; Chism v. Toomer, 27 Ark. 108. California. — People v. Kneeland, 31 Cal. 288, increasing the penalty of an official bond. Connecticut. — Mtna, Nat. Bank v. Win- chester, 43 Conn. 391. Delaware. — Newark Bank v. Crawford, 2 Houst. (Del.) 282. Idaho. — Mulkey v. Long, (Ida. 1897) 47 Pac. 949. Illinois. — Sans v. People, 8 111. 327 (chang- ing the penalty of a. bond); Pankey v. Mitch- ell, 1 111. 383. Indiana. — Collier v. Waugh, 64 Ind. 456 ; Schneider v. Rapp, 33 Ind. 270. lovja. — Maguire v. Eichmeier, 109 Iowa 301, 80 N. W. 395; Knoxville Nat. Bank v. Clark, 51 Iowa 264, 1 N. W. 491, 33 Am. Rep. 129. Maryland. — Burrows v. Klunk, 70 Md. 451, 17 Atl. 378, 14 Am. St. Rep. 371, 3 L. R. A. 576. Massachusetts. — Greenfield Sav. Bank v. Stowell, 123 Mass. 196, 25 Am. Rep. 67; Citizens' Nat. Bank v. Richmond, 121 Mass. 110; Agawam Bank v. Sears, 4 Gray (Mass.) 95; Wade v. Withington, 1 Allen (Mass.) 561; Doane.c. Eldridge, 16 Gray (Mass.) 254, where a bond was given for the collection of a tax or assessment, and thereafter the as- sessor reduced the amount of the assessment and altered the amount of the bond to cor- respond. Minnesota. — Renville County p. Gray, 61 Minn. 242, 63 N. W. 635, changing the pen- alty of a bond. Missouri. — State v. Chick, 146 Mo. 645, 48 S. W. 829, changing penalty of bond. New Mexico. — Ruby v. 'Talbott, 5 N. M. 251, 21 Pac. 72, 3 L. R. A. 724. New York. — Flannagan v. National Union Bank, 2 N. Y. Suppl. 488, 18 N. Y. St. 826. North Carolina.— Cheek v. Nail, 112 N. C. 370, 17 S. E. 80. South Carolina. — Mills v. Starr, 2 Bailey (S. C.) 359. Vol. II 196 ALTERATIONS OF INSTRUMENTS increased, 72 nor does it matter that the amount is reduced instead of increased, because the identity of the contract may be effectually destroyed in this manner. 73 The general rule applies, however, that changes in this regard which in no man- ner alter the identity or legal effect of the instrument are not material, as where the change is in the marginal numerals, which form no part of the instrument, leaving the amount expressed in the body of the instrument intact, 74 or where the insertion merely makes the instrument conform with itself and supplies nothing further than that which would be implied without it. 75 7. Costs and Attorney's Fees. Increasing the fees in a power of attorney to confess judgment, 76 or inserting a provision into a note for the payment of attor- ney's fees, is material and constitutes an alteration. 77 In like manner, erasing such a provision, 78 or a condition annexed to such a provision, will constitute an alteration. 79 But where costs are by operation of law included in the conditions of a bond, 80 or by statute a recovery on a penal bond is limited to the penalty fixed, the insertion of a provision for costs in the first case, or for the payment of attorney's fees in the latter, will be immaterial. 81 8. Interest. An interest clause is a material part of a bill, note, or other instrument, and any change of the instrument which alters the terms of the con- South Dakota. — Searles v. Seipp, 6 S. D. 472, 61 N". W. 804. Virginia.— Batchelder v. White, 80 Va. 103. England. — Taylor v. Mosely, 6 C. & P. 273, 25 E. C. L. 429. 72. Winkles v. Guenther, 98 Ga. 472, 25 S. E. 527. 73. Arkansas. — Chism v. Toomer, 27 Ark. 108. Indiana. — Johnston v. May, 76 Ind. 293, re- ferring to the identity of contract of surety. Maine. — Hewins v. Cargill, 67 Me. 554, holding that the indorser or signer is re- leased by such a change. Nebraska. — St. Joseph State Sav. Bank v. Shaffer, 9 Nebr. 1, 1 N. W. 980, 31 Am. Rep. 394. England. — Gardner v. Walsh, 5 E. & B. 83, 85 E. C. L. 83. 74. Illinois. — Merritt v. Boyden, (111. 1901) 60 N. E. 907. Iowa. — Horton v. Horton, 71 Iowa 448, 32 N. W. 452. Kentucky. — Woolfolk v. Bank of America, 10 Bush (Ky.) 504. Rhode Island. — Smith v. Smith, 1 R. I. 398, 53 Am. Dec. 652. Wisconsin. — Johnston Harvester Co. v. Mc- Lean, 57 Wis. 258, 15 N. W. 177, 46 Am. Rep. 39. England. — Garrard v. Lewis, 10 Q. B. D. 30. Where no marginal figures. — It may be otherwise, however, where there are no mar- ginal figures, and an amount in figures is placed in the margin inconsistent with the amount written in the body of the instru- ment, and an addition made to the latter so as to make it conform to the altered amount in the margin. Searles v. Seipp, 6 S. D. 472, 61 N. W. 804. 75. Houghton v. Francis, 29 111, 244 (which involved the insertion of a dollar mark in the body of the note before the figures cor- responding with the written amount) ; Boyd v. Brotherson, 10 Wend. (N. Y.) 93 (where Vol. II a note was intended to be made for eight hun- dred dollars and was indorsed by the payee for the accommodation of the maker and de- livered to him, and by mistake the words " hundred dollars " were omitted, so that the note purported to be for " eight ," and the maker, without the assent of the indorser, inserted the words " hundred dollars," the in- dorser will not be discharged) ; Waugh v. Bussell, 5 Taunt. 707, 1 E. C. L. 362 (which was a bond to pay one hundred pounds in six equal instalments, and the change consisted in inserting the word " hundred " between the word " one " and the word " pounds " and it was held that the sense was sufficiently manifest before the change, and therefore the insertion was immaterial ) . 76. Burwell v. Orr, 84 111. 465. 77. Monroe v. Paddock, 75 Ind. 422. 78. Decorah First Nat. Bank v. Laughlin, 4 N. D. 391, 61 N. W. 473, holding that the erasure of an agreement to pay the expenses incurred in the collection of a note, including attorney's fees, was an alteration of the in- strument, because without those words it was negotiable, and the erasure thus converted a non-negotiable into a negotiable instrument. 79. Koons v. Davis, 84 Ind. 387, holding that the erasure of a condition limiting lia- bility for attorney's fees was material, be- cause, under the statute in that state, where such a condition is expressly annexed the provision itself for the payment of attorney's fees is void, and thus the erasure creates a liability which the provision with the con- dition annexed precluded. 80. Kleeb v. Bard, 12 Wash. 140, 40 Pac. 733. 81. White Sewing Mach. Co. v. Dakin, 86 Mich. 581, 49 N. W. 583, 13 L. R. A. 313, holding that the penalty of the bond was for a fixed amount and no recovery could be had exceeding that amount : that the promise was no part of the penalty and could in no pos- sible event affect the judgment to be ren- dered. ALTERATIONS OF INSTRUMENTS 197 tract in this regard, is material and vitiates it — as where a word or clause is added or inserted to make the instrument bear interest ® — unless the addition is a mere memorandum of an independent agreement of one of the parties. 83 Thus, such consequence attends changes which increase M or reduce the rate ; 85 which alter the legal rate ; 86 which affect the time from which the instrument is to begin to bear interest, though it be by making it bear interest after maturity instead of 82. Alabama. — Lamar v. Brown, 56 Ala. 157; Glover v. Robbing, 40 Ala. 219, 20 Am. Rep. 272; Brown v. Jones, 3 Port. (Ala.) 420. California. — In this state the unauthor- ized insertion of a rate of interest avoids the instrument as to the excess over the legal rate which the instrument otherwise would have borne, but not as to the latter, if the change was innocently made. Oakland First Nat. Bank v. Wolff, 79 Cal. 69, 21 Pac. 551, 748; Fisher v. Dennis, 6 Cal. 577, 65 Am. Dec. 534. Delaware. — Warpole v. Ellison, 4 Houst. (Del.) 322, though the words inserted were erased before maturity. District of Columbia. — Lewis v. Shepherd, 1 Mackey (D. C.) 46. Georgia. — Gwin v. Anderson, 91 Ga. 827, 18 S. E. 43. Illinois. — Yost v. Minneapolis Harvester Works, 41 111. App. 556. Indiana.— Hert v. Oehler, 80 Ind. 83 (hold- ing that striking out words in an instru- ment, indicating that interest on the note had been paid to maturity, discharged the accommodation indorser) ; Hart v. Clouser, 30 Ind. 210; Kountz v. Hart, 17 Ind. 329. Iowa. — Derr v. Keaough, 96 Iowa 397, 65 N. W. 339 ; Grand Haven First Nat. Bank v. Hall, 83 Iowa 645, 50 N. W. 944; Smith v. Eals, 81 Iowa 235, 46 N. W. 1110, 25 Am. St. Rep. 486; Woodworth v. Anderson, 63 Iowa 503, 19 N. W. 296. Kentucky. — Locknane v. Emmerson, 11 Bush (Ky.) 69. Maine. — Waterman v. Vose, 43 Me. 504. Maryland.— Owen v. Hall, 70 Md. 96, 16 Atl. 376. Massachusetts. — Fay v. Smith, 1 Allen (Mass.) 477, 79 Am. Dec. 752. Michigan. — Bradley v. Mann, 37 Mich. 1 ; Swift v. Barber, 28 Mich. 503; Holmes v. Trumper, 22 Mich. 427, 7 Am. Rep. 661. Missouri. — Capital Bank v. Armstrong, 62 Mo. 59; Washington Sav. Bank v. Ecky, 51 Mo. 272. Nebraska. — Hurlbut v. Hall, 39 Nebr. 889, 58 N. W. 538; Davis v. Henry, 13 Nebr. 497, 14 N. W. 523. New York. — Schmafz v. Oppold, 74 N. Y. 307; McGrath v. Clark, 56 N. Y. 34, 15 Am. Rep. 372; Meyer v. Huneke, 55 N. Y. 412; Kennedy v. Crandell, 3 Lans. (N. Y.) 1; Mt. Morris Bank v. Lawson, 10 Misc. (N. Y.) 359, 31 N. Y. Suppl. 18, 63 N. Y. St. 432. North Carolina. — Long v. Mason, 84 N. C. 15. Ohio.— Jones v. Bangs, 40 Ohio St. 139, 48 Am. Rep. 664. Pennsylvania. — Gettysburg Nat. Bank v. Chisolm, 169 Pa. St. 564, 32 Atl. 730, 47 Am. St. Rep. 929; Boustead v. Cuyler, 116 Pa. St. 551, 8 Atl. 848; Winters v. Mowrer, 1 Pa. Super. Ct. 47. Tennessee. — McVey v. Ely, 5 Lea (Tenn. ) 438. Texas. — Farmers, etc., Nat. Bank v. No- vich, 89 Tex. 381, 34 S. W. 914. Canada.— Halcrow v. Kelly, 28 U. C. C. P. 551. 83. See VII, F, 20. 84. Indiana. — Palmer v. Poor, 121 Ind. 135, 22 N. E. 984, 6 L. R. A. 469; Bowman v. Mitchell, 79 Ind. 84 ; Schnewind v. Haeket, 54 Ind. 248 ; Shanks v. Albert, 47 Ind. 461. Maine. — Lee v. Starbird, 55 Me. 491. Massachusetts. — Draper v. Wood, 112 Mass. 315, 17 Am. Rep. 92. Missouri. — Presbury v. Michael, 33 Mo. 542; Ivory v. Michael, 33 Mo. 398. Ohio. — Thompson v. Massie, 41 Ohio St. 307; Harsh v. Klepper, 28 Ohio St. 200. South Carolina. — Heath v. Blake, 28 S. C. 406, 5 S. E. 642. Virginia. — Dobyns v. Rawley, 76 Va. 537. England. — Warrington v. Early, 2 E. & B. 763, 75 E. C. L. 763. Overdue bond. — Where the rate of interest in a bond was increased from four and one half per cent to four and three quarters per cent per annum, but when the change was made the bond was overdue, and therefore bore six per cent, and the first year's interest had been paid, the change was held imma- terial. Burkholder v. Lapp, 31 Pa. St. 322. 85. Fillmore County v. Greenleaf , 80 Minn. 242, 83 N. W. 157 (as to sureties in bond) ; Moore v. Hutchinson, 69 Mo. 429; Whitmer v. Frye, 10 Mo. 348; Keene v. Weeks, 19 R. I. 309, 33 Atl. 446. 86. Hoopes v. Collingwood, 10 Colo. 107, 13 Pac. 909, 3 Am. St. Rep. 565; Craighead v. McLoney, 99 Pa. St. 211 ; Sanders v. Bag- well, 32 S. C. 238, 10 S. E. 946, 7 L. R. A. 743, 37 S. C. 145, 15 S. E. 714, 16 S. E. 770; Kilkelly v. Martin, 34 Wis. 525. Contra. — But where a note bore six per cent, interest before the change, and was changed to an illegal rate, it was held that, as the note still bore a legal rate of interest and was void as to the illegal rate, the legal effect of the instrument was not changed. Keene v. Miller, 103 Ky. 628, 20 Ky. L. Rep. 279, 45 S. W. 1041. Addition of place of execution. — In Hous- ton v. Potts, 64 N. C. 33, where a note was actually made in South Carolina, it was held that it would have borne the South Carolina rate of interest, and therefore the addition to the note of its place of execution would not constitute a material change, though plain- tiff and surety lived in North Carolina, where the rate of interest was smaller. Vol. II 198 ALTERATIONS OF INSTRUMENTS from date, 87 or to make it bear interest from an earlier date M — as where the instrument originally bore interest from maturity, and that word is stricken out so as to make it bear interest generally ; m which add stipulations as to the time of payment, as that interest is to be paid annually, 90 or semiannually, 91 unless the original terms of the instrument are such that the addition can be considered to mean nothing more than the rate of interest already provided for, and not to change the time of payment. 92 But, where a note by its terms draws interest at a certain rate, it is not affected by the insertion of that rate after execution. 93 9. Time of Performance or Payment. The time for the performance of a contract or the doing of a particular act under stipulations of a written contract, 9 * or for the payment of money thereunder, 95 is a material part of the instrument, 87. Coburn v. Webb, 56 Ind. 96, 26 Am. Rep. 15, holding that the instrument is not the one executed by the party under these conditions, and it does not matter that the change is not, in fact, to his prejudice. This is especially true as against a surety, as where a note is signed by a maker and surety and intrusted by the latter to the for- mer to negotiate. Franklin L. Ins. Co. r. Courtney, 60 Ind. 134, and the case first above cited, which is of the same kind. 88. Benedict v. Miner, 58 111. 19, where a note dated March 3d, and payable May 1st, was changed so as to bear interest after April 1st, intervening between the two dates above men- tioned. During period of grace. — By causing it to bear interest during the period of grace, when, by its terms, it would not have borne inter- est during that time. Little Bock Trust Co. r. Martin, 5" Ark. 277, 21 S. W. 468. 89. Illinois. — Black v. Bowman, 15 111. App. 166. Indiana. — Dietz v. Harder, 72 Ind. 208; Brooks v. Allen, 62 Ind. 401. Iowa. — Murray v. Graham, 29 Iowa 520 which case, however, was distinguishable, on account of its peculiar facts, from others holding that a recovery could not be had on the original terms of the instrument. Kansas. — Shely v. Sampson, 5 Kan. App. 465, 46 Pae. 994, erasing " from maturity " and inserting " from date." Michigan.- — Nelson v. Dutton, 51 Mich. 416, 1GEW. 791. Nebraska. — Coureamp v. Weber, 39 Nebr. 533, 58 N. W. 187, changing a note bearing interest at ten per cent, from maturity to one bearing interest at seven per cent, from date. Wisconsin. — Page v. Danaher, 43 Wis. 221. 90. Marsh v. Griffin, 42 Iowa 403; Boalt v. Brown, 13 Ohio St. 364; Kennedy v. Moore, 17 S. C. 464 (which was the addition of ■words to a sealed note, converting it from a simple-interest into an annual-interest obli- gation) ; Gorden v. Robertson, 48 Wis. 493, 4 N. W. 579 (where the words added were " payable annually," which enabled a recov- ery before it became due ) . 91. Blakey v. Johnson, 13 Bush (Ky.) 197, 26 Am. Rep. 254; Dewey v. Reed, 40 Barb. (N. Y.) 16; Fulmer v. Seitz, 68 Pa. St. 237, 8 Am'. Rep. 172 ; Neff v. Horner, 63 Pa. St. 327, 3 Am. Rep. 555. Vol. n 92. Leonard v. Phillips, 39 Mich. 182, 33 Am. Rep. 370 ( where the word " annually " only was added to a stipulation for " interest at the rate of ten per cent.") ; Patterson v. McXeeley, 16 Ohio St. 348 (wherein it was held that in a clause, " the above to be at ten per cent, interest annually." the word " annually " would be understood as relating to and denning the rate of interest only as so much per annum, but that to insert the word " paid " before the word " annually " was material, and constituted an alteration ) . Words without legal effect to change the meaning of the instrument in regard to its provisions as to interest, are immaterial. Thus a bond was given to pay one hundred dollars, twenty-five dollars a year, the first payment to be made seventeen months after date, and it was held that the insertion of '" on the whole " after the word " interest " was not material. Gardinier v. Sisk, 3 Pa. St. 326. 93. James v. Dalbey, 107 Iowa 463, 78 X. W. 51; Port Huron First Nat. Bank v. Carson, 60 Mich. 432, 27 X. W. 589. 94. Hodge v. Gilman, 20 111. 437 (which involved a change in a power of attorney to enter up judgment at " any time after " the same became due, by inserting the words " be- fore or " between the words " time " and "after") : U. S. Glass Co. v. West Virginia Flint Bottle Co., 81 Fed. 993 (which was a license for the use of machines, providing that the lessee might call upon the licensor " for as many additional machines as the li- censee deemed expedient," without fixing the time of delivery, and the change consisted in the insertion of a provision limiting the time within which the machines should be shipped after notice given). Change not altering sense. — Where an or- der for goods was made subject to counter- mand "by a certain time," it was held that the legal effect of the instrument was not changed by adding the word " before " over the word " by," and therefore such a change was immaterial. Express Pub. Co. v. Aldine Press Co.. 126 Pa. St. 347. 17 Atl. 608, 24 Wkly. Notes Cas. (Pa.) 165. 95. Acker v. Ledyard, 8 Barb. (N. Y.) 514, holding that the insertion of the words " in advance," in a lease indicating time of payment of rent, is a material change. A mere memorandum in this connection is not material. Mente v. Townsend, 68 Ark. 391, 59 S. W. 41. ALTERATIONS OF INSTRUMENTS 199 the change of which will constitute an alteration, vitiating the instrument as against parties not consenting. 96 10. Medium of Payment. A change in the medium of payment of a note is material and will constitute an alteration, as by inserting a provision for pay- ment in gold, 97 or in specie, 98 or by otherwise changing the mode of payment already specified in the instrument. 99 11. Place of Payment — a. General Rule. A change of a place of payment of a bill or note is material, and, when not made with the consent of all parties, constitutes an alteration as against such as do not consent. 1 So a change, by fix- 96. Arkansas. — Gist v. Gans, 30 Ark. 285 ; Chism v. Toomer, 27 Ark. 108. Indiana. — Stayner v. Joiee, 82 Ind. 35 ; Bell v. State Bank, 7 Blackf. (Ind.) 456. Iowa. — Eekert v. Pickel, 59 Iowa 545, 13 N. W. 708. Kentucky. — Lisle v. Rogers, 18 B. Mon. (Ky.) 528; Ft. Worth First Nat. Bank v. Payne, 19 Ky. L. Rep. 839, 42 S. W. 736. Massachusetts. — Ives v. Farmers' Bank, 2 Allen (Mass.) 236. But mere insertion of the word " year " is immaterial in a clause indicating payment on a particular day and month in " the of our Lord 1805." Hunt v. Adams, 6 Mass. 519, 522. Minnesota. — Flanigan v. Phelps, 42 Minn. 180, 43 N". W. 1113, insertion of clause grant- ing privilege of extension for a certain num- ber of days. Mississippi. — Bay v. Shrader, 50 Miss. 326 ; Henderson v. Wilson, 6 How. (Miss.) 65. But where a word in the clause indicating the time of payment is omitted by mistake, its insertion to show the time intended is held to be immaterial, as the insertion of the word " months " in the clause " twenty-four after date." Conner v. Routh, 7 How. (Miss.) 176, 40 Am. Dec. 59. Missouri. — King v. Hunt, 1 3 Mo. 97. New York. — National Ulster County Bank v. Madden, 114 N. Y. 280, 21 N. E. 408, 23 N. Y. St. 220, 11 Am. St. Rep. 633 (change of time of payment of check so as to make it payable at a future day, without indorser's consent) ; Farmers' Nat. Bank v. Thomas, 79 Hun (N. Y.) 595, 29 N. Y. Suppl. 837, 61 N. Y. St. 518 (making a note payable on de- mand ) . Pennsylvania. — Hartley v. Corboy, 150 Pa. St. 23, 24 Atl. 295. Tennessee. — Crockett v. Thomason, 5 Sneed (Tenn.) 341. England. — Gardner v. Walsh, 5 E. & B. 83, 85 E. C. L. 83; Alderson v. Langdale, 3 B. & Ad. 660, 23 E. C. L. 291; Desbrow v. Weatherley, 6 C. & P. 758, 25 E. C. L. 675; Paton v. Winter, 1 Taunt. 420. But insert- ing " on demand " in a note which specifies no time of payment is not material, because the legal effect of the instrument is not changed. Aldous v. Cornwell, L. R. 3 Q. B. 573. Canada. — Westloh v. Brown, 43 TJ. C. Q. B. 402. Contra, Drexler v. Smith, 30 Fed. 754. As affecting grace. — Inserting the word " fixed " into a note, thereby making it pay- able absolutely without grace, whereas it originally carried grace, is material. Steinau i'. Moody, 100 Ga. 136, 28 S. E. 30. But, where days of grace are allowed on all bills of exchange or on promissory notes placed on the same footing, the insertion of the word " fixed " into a note is immaterial, for the note was never placed on a footing of the bill of exchange. Tranter v. Hibbard, 21 Ky. L. Rep. 1710, 56 S. W. 169. And the erasure of the words " and grace " is not material where, by the law prevailing, the note is entitled to grace without such words. Portsmouth Sav. Bank v. Wilson, 5 App. Cas. (D. C.) 8. Change as to date of instrument or inter- est. — The rule as to the effect of the change of the time of payment is also involved in the sections treating of the effect of the change in the date of an instrument as accel- erating or retarding the time of payment, and of changes respecting interest clauses. See infra, VII, F, 13; and supra, VII, F, 8. 97. Hanson v. Crawley, 41 Ga. 303; Wills v. Wilson, 3 Oreg. 308 ; Bogarth v. Breedlove, 39 Tex. 561. Where nothing but gold is legal tender the insertion of the words " in gold," indicating the medium of payment, is not material. Bridges v. Winters, 42 Miss. 135, 97 Am. Dec. 443, 2 Am. Rep. 598. 98. Darwin v. Rippey, 63 N. C. 318, be- cause an instrument payable in dollars gen- erally is payable in legal tender notes. 99. Angle v. Northwestern L. Ins. Co., 92 U. S. 330, 23 L. ed. 556, which was an altera- tion, of an application for a loan, by making the amount payable in " current funds " in- stead of by " drafts to the order of." See also supra, VII, F, 2. Erasure of gold clause. — The erasure of a provision for payment " in gold or its equiva- lent," by the direction of the maker and payee of the note, without the knowledge or con- sent of the surety thereon, discharges the surety. Church v. Howard, 17 Hun (N. Y.) 5. 1. Alabama. — Holmes v. Ft. Gaines Bank, 120 Ala. 493, 24 So. 959; White v. Hass, 32 Ala. 430, 70 Am. Dec. 548, erasure of place of payment as discharging maker. Iowa. — Adair v. Egland, 58 Iowa 314, 12 N. W. 277. New York. — Woodworth v. Bank of Amer- ica, 19 Johns. (N. Y.) 391, 10 Am. Dee. 239. West Virginia. — Ohio Valley Bank i\ Lock- wood, 13 W. Va. 392, 31 Am. Rep. 768. England. — Rex v. Treble, 2 Taunt. 328. Canada. — McQueen v. Mclntyre, 30 U. C. C. P. 426. Contra, Major v. Hansen, 2 Biss. (U. S.) 195, 16 Fed. Cas. No. 8,982, nonprejudicial effect upon maker of erasure of place of pay- ment. Vol. II 200 ALTERATIONS OF INSTRUMENTS ing a specific place of payment in a note which is made payable generally, is material, 2 as where the note is made payable at a bank and is thus converted into negotiable paper, subject to the law merchant. 3 So, changing the place of payment in a bill of exchange, or inserting a particular place of payment in a gen- eral acceptance, is material. 4 b. Qualification of Rule. These rules have been restricted to cases in which the place of payment added — to the acceptance of a bill, for instance — is differ- ent from that in which the bill is drawn, 5 and the same distinction has been applied to the addition of a place of payment in a note made payable generally. 6 e. Memorandum. The materiality of the addition of a place of payment further depends upon the question whether a change is made in the contract or is only the addition of a memorandum for convenience. In the former case the addition is material: 7 in the latter it is not. 8 2. California. — Felton v . San Jacinto Lum- ber Co., 113 Cal. 21, 45 Pac. 12. Delaware. — Sudler v. Collins, 2 Houst. (Del.) 538. Georgia. — Gwin v. Anderson, 91 Ga. 827, 18 S. E. 43. Illinois. — Pahlman v. Taylor, 75 111. 629. Iowa. — Black v. De Camp, 75 Iowa 105, 39 X. W. 215; Charlton v. Reed, 61 Iowa 166, 10 N. W. 64, 47 Am. Rep. 808. But where the payee of a note became the administratrix of the estate of the maker, and thereafter a place of payment was indorsed on the note, it was held that the addition was not mate- rial — the integrity of the maker's contract was not affected. Horton v. Horton, 71 Iowa 448, 32 X. W. 452. Mississippi. — Simmons v. Atkinson, 69 Miss. 862, 12 So. 263, 23 L. R. A. 599 ; Oakey v. Wilcox, 3 How. (Miss.) 330. Nebraska. — Townsend v. Star Wagon Co., 10 Xebr. 615, 7 X. W. 274, 35 Am. Rep. 493. New York. — Nazro v. Fuller, 24 Wend. (N. Y.) 374; Woodworth r. Bank of Amer- ica, 19 Johns. (X. Y.) 391, 10 Am. Dec. 239. Ohio. — Sturges v. Williams, 9 Ohio St. 443, 75 Am. Dec. 473. Pennsylvania. — Hill v. Cooley, 46 Pa. St. 259; Southwark Bank v. Gross, 35 Pa. St. 80; Simpson v. Stackhouse, 9 Pa. St. 186, 49 Am. Dec. 554. 3. Holmes v. Ft. Gaines Bank, 120 Ala. 493, 24 So. 959; Winter v. Pool, 100 Ala. 503, 14 So. 411; Toomer V. Rutland, 57 Ala. 379, 29 Am. Rep. 722; Ballard v. Franklin L. Ins. Co., SI Ind. 239; McCoy v. Loekwood, 71 Ind. 319; Shanks r. Albert, 47 Ind. 461; Morehead v. Parkersburg Nat. Bank, 5 W. Va. 74, 13 Am. Rep. 636. 4. Whitesides v. Northern Bank, 10 Bush (Ky.) 501, 19 Am. Bep. 74; Woolfolk v. Bank of America, 10 Bush (Ky. ) 504 (holding that, where the holder of a bill of exchange changes the acceptance by the addition of a place of payment, the instrument is avoided as to all parties not consenting) ; Desbrow v. Weatherlev. 6 C. & P. 758, 25 E. C. L. 675; Tavlor r. Moseley, 6 C. & P. 273, 25 E. C. L. 429; Cowie v. Halsall, 4 B. & Aid. 197, 6 E. C. L. 449; Burchfield p. Moore, 3 E. & B. G83, 77 E. C. L. 683, 25 Eng. L. & Eq. 123; Tidmarsh r. Grover, 1 M. & S. 735. 5. Thus, while the drawee of a bill may ac- cept it payable at a particular place in the Vol. n same town, an acceptance, making the bill payable at a different place from that in which the drawee resides, is material. Troy City Bank v. Lauman, 19 N. Y. 477; Niagara Dist. Bank v. Fairman, etc., Mach. Tool Mfg. Co., 31 Barb. (N. Y.) 403; Walker v. State Bank, 13 Barb. (N. Y.) 636; Myers v. Stand- art, 11 Ohio St. 29, wherein it is said that cases as to the alteration of a note or ac- cepted bill, by inserting or striking out words designating a place of payment, do not apply to the ease of a bill of exchange addressed generally to a drawee in a city, and accepted by him payable at a particular bank in the same city, the question in the latter case be- ing whether the contract of the acceptor was so made as to affect the rights of the drawer under the latter's contract with the payee. Accommodation bill — Implied authority. In Todd v. State Bank, 3 Bush (Ky.) 626, it was held that the acceptor of an accommoda- tion bill had an implied authority to appoint the place of payment if none were fixed in the bill, and this was a case of fixing the place of payment in another town. 6. Etz v. Place, 81 Hun (N. Y.) 203, 30 N. Y. Suppl. 765, 62 N. Y. St. 707; Shuler v. Gillette, 12 Hun (N. Y.) 278; Woodworth r. Bank of America, 19 Johns. (X. Y.) 391, 10 Am. Dee. 239. 7. Woodworth v. Bank of America, 19 Johns. (N. Y.) 391, 10 Am. Dec. 239, wherein a note %vas made payable in a particular city, and there was a marginal memorandum, signed by the maker, that it was payable in another city, which memorandum was made after the indorsement, and it was held that this was an alteration of the note itself, and discharged the indorser. In Tidmarsh v. Grover, 1 M. & S. 735, it was held that the substitution of one place for another for the payment of a bill of exchange, after accept- ance, was material, distinguishing Marson v. Petit, 1 Campb. 82 note, in that probably in the latter case the matter was not written im- mediately under the acceptance, but was only a memorandum as to where to find the money when the bill became due, while the ease in hand caused the bill to carry with it the ap- pearance of solvency by being directed to a solvent house instead of to the insolvent house to which it was originally directed. 8. Nugent v. Delhomm, 2 Mart. (La.) 307, 309 (holding that the memorandum at the ALTERATIONS OF INSTRUMENTS 201 12. Place of Execution. The insertion in a note, as the place of execution, of the place where the contract was actually made and in accordance with the laws of which the note is to be governed, is not material ; 9 but it is otherwise where the insertion of the place of execution is intended to change the legal operation and effect of the instrument. 10 13. Date of Instrument — a. General Rule. The date of an instrument is, in various aspects, a material part thereof. 11 It is material as contributing to the features of the instrument by which the particular contract of the party is identi- fied. 12 A change in the date may alter the apparent liability of a party, 13 or embarrass his remedies under the instrument, whether the time of payment be extended or accelerated, as by affecting the computation of interest, or by retard- ing or accelerating the operation of the statute of limitations, or the presump- tion of payment from the lapse of time. 14 It is material, as furnishing prima fade evidence of the time of the execution of the contract and of the relation in which the parties then stood, 15 and as fixing the period from which the parties foot of a note, " Payable at the domicile of Dukeilus," is not such an alteration as avoids the note, upon the authority of Trapp v. Spearman, 3 Esp. 57, wherein it was held that the insertion in a bill, after it is given, of these words, " when due, at the Cross- keys, Blackfriars road," was not a material change) ; American Nat. Bank v. Bangs, 42 Mo. 450, 97 Am. Dee. 349. So in Jacobs v. Hart, 2 Stark. 45, 3 E. C. L. 310, Lord Ellen- borough held that where the payee changes » general acceptance into a special one by in- serting the place of payment, after accept- ance and shortly before the draft is due, and without the knowledge of the acceptor, and then indorses it over, the objection on the ground of the alteration rested upon whether the place of payment was to be considered as a part of the contract, or merely as a direc- tion, and concluded that the objection was without foundation. See infra, VII, F, 20. 9. Houston v. Potts, 64 N. C. 33. 10. Commercial, etc., Bank v. Patterson, 2 Cranch C. C. (U. S.) 346, 6 Fed. Cas. No. 3,056, holding that where a note was made in Pennsylvania, an addition by plaintiff or the payee of the words " Washington, D. C," to the signature of the maker, with the in- tent to use the addition as a part of the date of the note in order to make it negotiable according to the laws of the District of Co- lumbia, is material, and discharges the maker. 11. Date of deed.— The date of a deed is material as between persons contesting the . title to the property embraced therein. In such cases the unauthorized change of the date of a deed is an alteration. Galland v. Jackman, 26 Cal. 79, 85 Am. Dec. 172 (hold- ing that, as between two persons claiming through or under the same grantor, the change in the date of the deed to one of such parties affects its admissibility in evidence) ; Alkire v. Kahle, 123 111. 496, 17 N. E. 693, 5 Am. St. Rep. 540 ; Den v. Wright, 7 N. J. L. 175, 11 Am. Dec. 546. 12. Heffner v. Wenrich, 32 Pa. St. 423; Lowe v. Merrill, 1 Pinn. (Wis.) 340; Vance v. Lowther, 1 Ex. D. 176. Immaterial changes. — The erasing of the number of the day of the month after the name of the month, and putting it before, does not constitute an alteration. Reed v. Kemp, 16 111. 445. In State v. Miller, 3 Gill (Md.) 335, it was held that the change in the date of a guardian's bond after execution from " day of December, 1823," to the " 3d day of May, 1824," was immaterial, as it did not tend to alter or enlarge the liability of de- fendant. A ruling to the same effect was made in Terry v. Hazlewood, 1 Duv. (Ky. ) 104, though this ease seems to be distinguished in Smith v. Lockridge, 8 Bush (Ky.) 423, upon the theory that the bond in question was not an instrument for the payment of money. Assignee's claim against maker. — Chang- ing the date of an assignment of a note is held not to affect the assignee's claim against the maker, as the date is not an essential part of the assignment. Griffith v. Cox, 1 Overt. (Tenn.) 210. 13. Owings v. Arnott, 33 Mo. 406, wherein the date, as altered, showed that defendant was chargeable as an indorser of a negotiable instrument, whereas, as the note originally stood, it was already past due, and defend- ant was chargeable as an assignor of a debt. Date of release. — Change of the date of a general release which purports to discharge the releasee from all claims " to the day of the date " is material. Maybee v. Sniffen, 2 E. D. Smith (N. Y.) 1. 14. Georgia. — Armstrong v. Penn, 105 Ga. 229, 31 S. E. 158. Indiana. — Hamilton v. Wood, 70 Ind. 306. Kansas. — See also Fraker v. Cullum, 21 Kan. 555. Pennsylvania. — Heffner v. Wenrich, 32 Pa. St. 423; Getty v. Shearer, 20 Fa. St. 12. England. — Vance v. Lowther, 1 Ex. D. 176, holding that, where the date of a check is changed to a later date, it is material, upon the ground, in addition to the change in the identity of the obligation, that if the drawer of a check had money in the bank at the time of drawing it, and the bank should fail be- fore the check is presented, the question of liability of the drawer might turn on the dili- gence used in presenting the check. 15. Getty v. Shearer, 20 Pa. St. 12, hold- ing that the legal effect of the change might Vol. II 202 ALTERATIONS O.F INSTRUMENTS are entitled to calculate the day of payment or performance, and therefore it is a well-recognized rule that a change in the date, whether it postpones or accelerates the time of payment or performance, is material, and constitutes an alteration which will vitiate the instrument. 16 b. When Time of Performance Is Fixed. Where the time for payment is fixed, and does not depend upon the lapse of a particular period from the date of the instrument, it is held that the change of a day in the date is not material. 17 14. Description of Property — As to Identity or Quantity. A change in the description of property conveyed, so as to give it an entirely different name and thus destroy its original identity 18 — so as to make the instrument cover property different from that originally conveyed — whether or not operating to destroy the validity of the instrument as a conveyance of the property originally described, 19 cannot, in any event, give to the instrument validity as a conveyance of that which is indicated by the changed or added description. In other words, such an embarrass a party in respect of payments or settlements made after the original date but before the substituted date. 16. Alabama. — Lesser v. Seholze, 93 Ala. 338, 9 So. 273. Arkansas. — Lemay !>. Williams, 32 Ark. 166; Inglish v. Breneman, 5 Ark. 377, 41 Am. Deo. 96, 9 Ark. 122, 47 Am. Dee. 735. Delaware. — Warren v. Layton, 3 Harr. (Del.) 404. Illinois. — Wyman v. Yeomans, 84 111. 403, which was the change of the date in a note and cognovit, held material, at least as to a surety. Kansas. — Fraker v. Cullum, 21 Kan. 555 ; McCormick Harvesting Mach. Co. v. Lauber, 7 Kan. App. 730, 52 Pac. 577. Kentucky. — Lisle v. Rogers, 18 B. Mon. (Ky.) 528; Miles v. Major, 2 J. J. Marsh. (Kv. ) 153; Limestone Bank v. Peniek, 5 T. B. Mon. (Ky.) 25; Stout v. Cloud, 5 Litt. (Ky.) 205. Maine. — Hervey v. Harvey, 15 Me. 357. Maryland. — Lewis v. Kramer, 3 Md. 265; Mitchell v. Ringgold, 3 Harr. & J. (Md.) 159, 5 Am. Dec. 433. Missouri. — Britton v. Dierker, 46 Mo. 591, 2 Am. Rep. 553; Aubuehon v. MeKnight, 1 Mo. 312, 13 Am. Dec. 502. Montana. — McMillan v. Hefferlin, 18 Mont. 385, 45 Pac. 548. Nebraska. — Brown v. Straw, 6 Nebr. 536, 29 Am. Rep. 369. New Hampshire. — Bowers v. Jewell, 2 N.H. 543. New Jersey. — In Sayre v. Reynolds, 5 N. J. L. 862, where a note was changed so as to make the difference of one day in the time of payment, it was said that the change, so slight in its effect as to save the defendant a few cents interest, might well be considered as insufficient to raise a presumption of forgery. New Mexico. — Rubv v. Talbott, 5 N. M. 251. 21 Pac. 72. 3 L. R. A. 724. New York. — Crawford v. West Side Bank, 100 N. Y. 50, 2 N. E. 881, 53 Am. Rep. 152; Rogers v. Vosburgh, 87 N. Y. 228. Ohio. — Newman v. King, 54 Ohio St. 273, 43 N. E. 683, 56 Am. St. Rep. 705, 35 L. R. A. 471. Pennsylvania. — Miller v. Stark, 148 Pa. Vol. II St. 164, 23 Atl. 1058; Heffner v. Wenrich, 32 Pa. St. 423; Clark v. Eckstein, 22 Pa. St. 507, 62 Am. Dec. 307: Getty v. Shearer, 20 Pa. St. 12; Paine v. Edsell, 19 Pa. St. 178; Miller v. Gilleland, 19 Pa. St. 119; Kennedy v. Lancaster County Bank, 18 Pa. St. 347; Hoeker v. Jamison, 2 Watts & S. (Pa.) 438; Stephens v. Graham, 7 Serg. & R. ( Pa. ) 505, 10 Am. Dec. 485; U. S. Bank v. Russel, 3 Yeates (Pa.) 391; Mechling v. Hartzell, 4 I 500. -Taylor v. Taylor, 12 Lea -Low v. Merrill, 1 Pinn. (Wis.) Pennyp. ( Pa. Tennessee.— (Tenn.) 714. Wisconsin.— 340. United States. — Wood v. Steele, 6 Wall. (U. S.) 80, 18 L. ed. 725. Contra, Union Bank v. Cook, 2 Cranch C. C. (U. S.) 218, 24 Fed. Cas. No. 14,349, holding that a change extending the time was a change for the ad- vantage of defendant, and was not material. England. — Hirsehman v. Budd, L. R. 8 Exch. 171 (holding that the change in the date of a bill of exchange, which change makes the bill payable at a different date, is material and avoids it as to the acceptor, which seems to be opposed to Parry v. Nichol- son, 13 M. & W. 778, though the court in the first case thought that the learned judge in the last case did not intend to lay down the principle that the date of a bill is not ma- terial, and that the decision in that case must have turned upon the particular facts thereof) ; Atkinson v. Hawdon, 2 A. & E. 628, 29 E. C. L. 293; Sloman v. Cox, 1 C. M. & R. 471 ; Master v. Miller, 4 T. R. 320, 1 Anstr. 225; Bell v. Gardiner, 4 M. & G. 11, 43 E. C. L. 16 : Clifford r. Parker, 2 M. & G. 909, 40 E. C. L. 917; Outhwaite v. Luntley, 4 Campb. 179. Canada. — Meredith v. Culver, 5 U. C. Q. B. 218; Gladstone v. Dew, 9 U. C. C. P. 439. 17. Prather v. Zulauf, 38 Ind. 155. See also Lee v. Lee, 83 Iowa 565, 50 N. W. 33, as to change of date of lease to begin at fixed day in future. 18. Marcy v. Dunlap, 5 Lans. (X. Y.) 365; Collins v. Ball, 82 Tex. 259, 17 S. W. 614, 27 Am. St. Rep. 877. 19. For altered deed as evidence see Evi- dence. ALTERATION'S OF INSTR TJMENTS 203 act will constitute an alteration of the instrument. 20 So of the addition of words affecting the quantity of land embraced in an agreement of sale, 21 or a change, in a description of property in a chattel mortgage, by inserting property not originally embraced therein. 22 Where, however, the change supplies nothing which would not be intended by law without it, or is altogether immaterial, neither changing the legal effect of the instrument nor operating to perfect an instrument which otherwise would be invalid — as by merely adding to the description of the identical property — it is not considered material. 23 20. Illinois. — Montag v. Linn, 23 111. 551 (holding that the alteration of the number of a section in a deed ia material, and is not rendered immaterial by reference to the land as that patented to a person for certain ser- vices during the late civil war, without proof that there was but one person answering such description; that the grantee has no more right to strike out and alter one part of a description of land than he has to strike out and alter another part of such description, unless the part retained completely fits the subject claimed, and the rejected part does not) ; Daub v. Englebach, 9 111. App. 99 (in- volving the fraudulent change of a mortgage by causing it to embrace other land ) . Iowa. — Cutler v. Rose, 35 Iowa 456, in- volving a change in a mortgage so as to give it the force of a lien upon the homestead, as well as upon other lands covered by the mort- gage. Missouri. — Smith v. Smith, 132 Mo. 681, 34 S. W. 471, which was a suit to remove a cloud from the title to land, the description of which was thus forged into a deed. New Hampshire. — Chesley v. Frost, 1 N.H. 145. New Jersey. — -Havens v. Osborn, 36 N. J. Eq. 426. Nebraska. — Pereau v. Frederick, 17 Nebr. 117, 22 N. W. 235, involving a change in a mortgage made by the notary who took the acknowledgment of the mortgagor, after ex- ecution and without the consent of the mort- gagor, by causing the mortgage to operate upon the homestead. South Carolina. — Powell v. Pearlstine, 43 S. C. 403, 21 S. E. 328. West Virginia. — Deem v. Phillips, 5 W. Va. 168. United States. — Moelle v. Sherwood, 148 U. S. 21, 13 S. Ct. 426, 37 L. ed. 350, holding that the old execution and acknowledgment are not continued in existence as to the prop- erty added, and that, even if it could be so between the original parties, such a deed, as to the added property, could not take effect and be enforced as against subsequent pur- chasers without notice whose deeds had al- ready been recorded. 21. Sherwood v. Merritt, 83 Wis. 233, 53 N. W. 512. 22. Hollingsworth v. Holbrook, 80 Iowa 151, 45 N. W. 561, 20 Am. St. Rep. 411; Bowser v. Cole, 74 Tex. 222, 11 S. W. 1131. Where property is so described in a, chattel mortgage as not to convey sufficient notice to a purchaser from the mortgagor, the addition of words of description — such as words show- ing the location of the property — is material and cannot operate to perfect the original de- scription as against purchasers from the mortgagor without notice. McKinney v. Ca- bell, 24 Ind. App. 676, 57 N. E. 598. 23. Illinois. — Chicago Sanitary Dist. v. Allen, 178 111. 330, 53 N. E. 109. See also Day v. Ft. Scott Invest., etc., Co., 53 111. App. 165. Iowa. — Rowley v. Jewett, 56 Iowa 492, 9 N. W. 353. Kentucky. — Shelton v. Deering, 10 B. Mon. (Ky. ) 405, which involved a. change, by de- scribing the number of acres conveyed, in a deed by the husband after it had been ac- knowledged by the wife. Louisiana. — Barrabine v. Bradshears, 5 Mart. (La.) 190. Massachusetts. — Where a deed of convey- ance of land, upon which there were situated a well and pump, was interlined with the words " with pump and well of water " after the description of the land by metes and bounds, the change was immaterial, because the effect of the deed was not altered. Brown v. Pinkham, 18 Pick. (Mass.) 172. Mississippi. — Gordon v. Sizer, 39 Miss. 805. Montana. — See Chicago Title, etc., Co. v. O'Marr, 18 Mont. 568, 46 Pac. 809, 47 Pac. 4. New York. — Domestic Sewing Mach. Co. v. Barry, 2 Misc. (N. Y.) 264, 21 N. Y. Suppl. 970, 51 N. Y. St. 219 (holding that where a lease of a machine, which contained a clause granting the privilege to purchase, was changed by the insertion of the number of a new machine which was delivered to the lessee in lieu of the first machine delivered under the lease, and returned by the lessee as un- satisfactory, the change is immaterial, because it merely conforms the lease to the facts and goes to the identity of the machine, without changing the terms of the contract) ; People v. Muzzy, 1 Den. (N. Y.) 239. South Carolina. — Gunter v. Addy, 58 S. C. 178, 183, 36 S. E. 553, adding a description of premises conveyed in a mortgage "contain- ing one hundred and sixty-five acres, more or less." Texas. — Churchill v. Bielstein, 9 Tex. Civ. App. 445, 29 S. W. 392, holding that a con- tract, by which a party was to erect a dwell- ing on a lot belonging to another and situ- ated on a designated street, is not altered by the addition of a further description by lot and block. Correction of mistake. — See Hatch v. Hatch, 9 Mass. 307, 6 Am. Dec. 67 (where it was held that a change in a deed, made by the cove- nantor at the grantee's suggestion, by correct- Vol. II 204 ALTERATIONS OF INSTRUMENTS 15. As to Serial Numbers. The change of the serial numbers of negotiable bonds or bank-bills is not material. Such numbers are extrinsic to the contract, and a change in them cannot affect the liability which the instrument represents. 34 16. Changes Affecting Negotiability — a. In General. Changes which affect the negotiability of commercial paper are material, as those which render negotiable that which before was non-negotiable. 25 b. Making Payable to Order or to Bearer. Thus where, after execution, the holder of a note, without the consent of a maker, changes its terms so as to make it payable to order instead of to bearer, the evident purpose of the alteration is to add to the negotiability of the note, and the change is material and renders the paper uncollectible. 26 So the insertion of words making a note payable to bearer, ing the christian name of one of the owners of land to which the land in the deed was described as adjoining, would not impair the credit of the deed) ; Burnham v. Ayer, 35 N. H. 351 (involving the changing of the word " southeasterly " to " southwesterly " in the description of land conveyed in a mort- gage, and it was held not to vitiate, on the ground that an immaterial change will not constitute a vitiating alteration, as well as upon the ground that a change which supplies nothing that would not be intended by law will not constitute an alteration, the latter ground being based upon the fact that, in this particular ease, the law would have sup- plied the word introduced, upon the principle of construction that in the description of land in a deed or will fixed monuments govern rather than courses and distances ) . 24. Alabama. — State v. Cobb, 64 Ala. 127. Massachusetts. — Com. r. Emigrant Indus- trial Sav. Bank, 98 Mass. 12, 93 Am. Dec. 126, which was a bill of interpleader, by the at- torney-general of the state, under a special statute, to determine whether certain bonds of the commonwealth had become void by reason of the alteration of their numbers. The bonds had been stolen, the numbers thereon changed, and thereafter purchased in good faith. To the argument that a number on a bond constituted a part of the identity of the instrument, the court said that this was an ambiguous use of the term " instru- ment," and that the number was a part of the identity of the paper, but not of the con- tract any more than other devices, as a pic- ture or impression, would be. New Jersey. — Elizabeth v. Force, 29 X. J. Eq. 587, which was a bill by the original owner to recover money due on bonds which had been stolen from her, the number of one of which had been altered before it was pre- sented for payment to the city, and which had been paid by the city, although a bond bear- ing the same number had been previously paid. It was held that the change was imma- terial and that the city was liable to the innocent holder of the bond. New York. — Birdsall v. Russell, 29 N. Y. 220, incidentally recognizing the rule stated in the text. Tennessee. — Tennessee Bank Note Holders v. Funding Board, 16 Lea (Tenn.) 46, 57 Am. Rep. 211, a ease of bank-bills. United States. — Wylie v. Missouri Fac. R. Co., 41 Fed. 623, 7 R. & Corp. L. J. 250; Vol. II Brown v. U. S., 20 Ct. CI. 416, applying to stolen bonds so changed the principle that the innocent holder of a negotiable security pay- able to bearer does not take his title from that of any previous holder, but under the original contract of the promisor. See also Morgan v. V. S., 113 U. S. 476, 5 S. Ct. 588, 28 L. ed. 1044. England. — Contra, Suffell v. Bank of Eng- land, 9 Q. B. D. 555 [.reversing 1 Q. B. D. 270], upon the ruling in favor of a bona fide holder of bank-notes fraudulently obtained by the person from whom he purchased them, and altered by erasing the numbers upon them. 25. Alabama. — Winter v. Pool, 100 Ala. 503, 14 So. 411. Indiana. — Ballard v. Franklin L. Ins. Co., 81 Ind. 239. Iowa. — State v. Stratton, 27 Iowa 420, 1 Am. Rep. 282. New Hampshire. — Gerrish v. Glines, 56 N. H. 9. North Dakota. — Decorah First Nat. Bank v. Laughlin, 4 N. D. 391, 61 N. W. 473. West Virginia. — Morehead v. Parkersburg Nat. Bank, 5 W. Va. 74, 13 Am. Rep. 636. Canada. — Campbell h. MeKinnon, 18 U. C. Q. B. 612 ; Swaisland v. Davidson, 3 Ont. 320. 26. Delaware. — Hollis v. Vandergrift, 5 Houst. (Del.) 521. Kentucky. — Johnson v. U. S. Bank, 2 B. Mon. (Ky.) 310. New Hampshire. — Haines v. Dennett, 11 N. H. 180, as against a surety in an action by a bona fide indorsee. New York. — Bruce v. Westcott, 3 Barb. (N. Y.) 374. Ohio. — But, where the note was sought to be enforced between the original parties, it was held that where the words " or order " were written " or oder," and were not placed in the proper position in the note, they might be held not to change the obligation in any manner. Carlile r. Lamb, 16 Ohio Cir. Ct. 578. South Carolina. — Pepoon v. Stagg, 1 Nott & M. (S. C.) 102. Texas.— Taylor v. Moore, (Tex. 1892) 20 S. W. 53. England. — In Kershaw v. Cox, 2 Esp. 246, an insertion of the words " or order " by the drawer of a bill was by consent of the par- ties; the instrument having actually passed by indorsement it was held that the indorser could hardly be said not to have consented ALTERATIONS OF INSTRUMENTS 205 or the erasure of the words "or order" and the substitution therefor of the words " or bearer," is material, upon the same principle. 37 But it seems that the inter- lineation of the words " or bearer " is not material if the note had been indorsed in blank before the change, and was thus payable to bearer at the time of the change. 28 17. As to Attesting Witnesses — a. General Rule. Where the addition of an attesting witness to an instrument has the effect of extending liability under the statute of limitations, or of facilitating or interfering in any manner with the proof of the execution of the instrument, the procuring of a witness to sign as an attesting witness after the execution of the instrument, and without the consent of the maker, is material and constitutes an alteration. 29 So an instrument may be vitiated by tearing from it the name of a subscribing witness. 80 But, where subscribing witnesses have no influence upon the operation of the statute of limi- to the change making the instrument nego- tiable, because by the indorsement he con- sidered it as negotiable. But in Knill v. Williams, 10 East 431, Le Blanc, J., said that the opinion in the first case above cited could only be supported on the ground that the change was made by consent to correct a mistake, and that there was strong evidence in that case to show this fact. 27. Georgia. — McCauley v. Gordon, 64 Ga. 221, 37 Am. Rep. 68; Scott v. Walker, Dud- ley (Ga.) 243. Iowa. — Needles v. Shaffer, 60 Iowa 65, 14 N. W. 129. Maine. — Croswell v. Labree, 81 Me. 44, 16 Atl. 331, 10 Am. St. Rep. 238, holding, however, that while the change is material it will not vitiate the note if done without fraudulent intent. Mississippi. — Simmons v. Atkinson, 69 Miss. 862, 12 So. 263, 23 L. R. A. 599. Nebraska. — Walton Plow Co. v. Campbell, 35 Nebr. 173, 52 N. W. 883, 16 L. R. A. 468. New York.— Booth v. Powers, 56 N. Y. 22. Tennessee. — McDaniel v. Whitsett, 96 Tenn. 10, 33 S. W. 567, involving a change in the terms of a note by making it payable to " holder " instead of to " order." Wisconsin. — Union Nat. Bank v. Roberts, 45 Wis. 373. Contra, McLaughlin v. Venine, 2 Wyo. 1. Conditional note. — In Goodenow v. Curtis, 33 Mich. 505, it was held that where a note was not payable absolutely, but only upon certain contingencies, it could not be affected as to its negotiability by the use of the words " bearer " or " order," and the inser- tion of the words " or bearer " was imma- terial. By stranger. — An interlineation of the words " or bearer " by a stranger will not affect the rights or liabilities of the parties. Andrews v. Calloway, 50 Ark. 358, 7 S. W. 449. 28. McCauley v. Gordon, 64 Ga. 221, 37 Am. Rep. 68, holding, however, that an in- dorsement of the payee's name, by a member of the firm of which the payee was a member, is not sufficient, even if the note was part- nership property, without special authority. So in Weaver v. Bromley, 65 Mich. 212, 31 N. W. 839, it was held, in an action by the holder of a note against the payee, who had indorsed the note in blank to plaintiff, that the insertion of the words " or order " after the name of the payee, the note being thus made payable to the order of the payee or bearer, was not material. 29. Alabama. — White Sewing Mach. Co. v. Saxon, 121 Ala. 399, 25 So. 784. Maine. — Milbery v. Storer, 75 Me. 69, 46 Am. Rep. 361 ; Thornton v. Appleton, 29 Me. 298; Braekett v. Mountfort, 11 Me. 115. Massachusetts. — Homer v. Wallis, 1 1 Mass. 309, 6 Am. Dec. 169. North Carolina. — Allen v. Jordan, 3 N. C. 298. Contra, see Blackwell v. Lane, 20 N. C. 205, 32 Am. Dec. 675, holding that the addi- tion of the name of a subscribing witness to a bond, without the knowledge or consent of the obligor, was immaterial, a subscribing witness not being material to the due mak- ing of a bond, upon which point the case was afterward approved in State v. Gherkin, 29 N. C. 206, which, however, was on the ques- tion of what constituted forgery of a bond, and the addition seemed to have been made by one of the obligors, who was defendant, before delivery. The first case was decided upon the principle of McCrow v. Gentry, 3 Campb. 232, which was an action against the maker of a note purporting to be attested by two witnesses who did not put their names to the instrument in the presence of defend- ant, and were never called upon by defendant to attest it, but saw defendant deliver the instrument as his note of hand to the payee, and afterward put their names thereto with- out defendant's knowledge, and it was held that the evidence of the witnesses could not be received as that of attesting witnesses, be- cause they were mere volunteers, but defend- ant's acknowledgment was considered suffi- cient to fix his liability. The cases would seem not to be entirely analogous. Pennsylvania. — Henning v. Werkheiser, 8 Pa. St. 518 ; Marshall v. Gougler, 10 Serg. & R. (Pa.) 164. 30. Sharpe v. Bagwell, 16 N. C. 115; Nun- nery v. Cotton, 8 N. C. 222, from which case it appears that even if no witnesses' names have been added to the attestation, and that parts of the letters which formed the word " test " were still remaining, the cutting of this word by the party claiming under the bond would avoid it. Vol. II 206 ALTERATIONS OF INSTRUMENTS tations or upon the proof of execution, such an addition does not change the legal effect of the instrument, and is immaterial, 31 and the fact that such considerations may have weight in the event the note is sued upon in another state, is of no importance. 32 So, if a note is attested by one witness, and this is sufficient to attract to it every incident of an attested paper, then the mere signing of another witness, adding nothing to the effect of the first attestation, is immaterial. 33 t». Qualifications of Rule — (i) Absence of Fbaud. On the other hand, the rule making the addition of an attesting witness material is subject to qualifica- tion. If the act is done fraudulently, with design to impair the rights of the par- ties, it is held to be material, but if done innocently it is held to be immaterial. 34 (n) Where Witness Saw Execution. So, if the attesting witnesses actually see the execution of the instrument, it will not be material n they sign subse- quently and in the absence of the makers, and these circumstances would seem to be sufficient to overcome any presumption of fraud arising' from the act itself. 35 (in) Before Delivery to Payee or Obligee. Further, assuming the materiality of such a change in general, an attestation made before the completion of the execution of the instrument by delivery to the payee or obligee, and without his procurement, is considered as not constituting an alteration of the contract. 36 (iv) Signature Placed by Mistake. If one, through inadvertence or mistake, signs in a place appropriate for the name of a witness, intending, how- ever, to sign for an entirely different purpose, the instrument will not be avoided, 87 31. Fuller v. Green, 64 Wis. 159, 24 N. W. 907, 54 Am. Rep. 600. 32. Fuller v. Green, 64 Wis. 159, 24 N. W. 907, 54 Am. Rep. 600. But where a note made in another state was sued upon in Illi- nois as an unwitnessed note, and defendant objected to the note upon the ground only that the declaration did not count on a witnessed note, and that by the laws of Vermont there was a material difference between a witnessed note and one not witnessed, the objection was properly overruled, because the law of Ver- mont was not in evidence, and the court could not judicially know that it was as stated in the objection. Richardson v. Mather, 178 111. 449, 53 N". E. 321 [affirming 77 111. App. 626]. 33. Ford v. Ford, 17 Pick. (Mass.) 418. But see Allen v. Jordan, 3 X. C. 298, wherein it seems to be held otherwise, because the second subscribing witness might know noth- ing of some condition upon which the note was given and which was known to the first subscribing witness, and therefore, if the sec- ond subscription should be held to be imma- terial, the plaintiff might thus be enabled to prove the note and recover, notwithstanding the condition upon which it was executed. 34. Milbery v. Storer, 75 Me. 69, 46 Am. Rep. 361 ; Thornton v. Appleton, 29 Me. 298 ; Eddy v. Bond, 19 Me. 461, 36 Am. Dee. 767; Adams v. Frye, 3 Mete. (Mass.) 103 (holding that such a change is prima facie evidence of a fraudulent intent on the part of the obligee, and that the inference of fraud may be re- butted by proof) ; Ford v. Ford, 17 Pick. (Mass.) 418; Smith v. Dunham, 8 Pick (Mass.) 246. 35. Governor v. Lagow, 43 111. 134; Mil- bery v. Storer, 75 Me. 69, 46 Am. Rep. 361 ; Thornton v. Appleton, 29 Me. 298; Rollins v. Bartlett, 20 Me. 319; Brackett v. Mount- fort, 11 Me. 115; Smith v. Dunham, 8 Pick. (Mass.) 246. In Adams v. Frye, 3 Mete. Vol. II (Mass.) 103, the usual qualification of the rule against the addition of attesting wit- nesses, that such an act innocently done is immaterial, is applied where the attesting witness procured was one who knew the sig- nature of the obligor, but was not present when the bond was signed. 36. Maine. — Eddy v. Bond, 19 Me. 461, 36 Am. Dec. 767. Massachusetts. — Church v. Fowle, 142 Mass. 12, 6 N. E. 764, holding that where an attestation is made before delivery, without the maker's knowledge and without the par- ties' procurement, and there was no fraudu- lent intent on the part of the witness, the attestation would be considered as unauthor- ized and as no part of the contract. New York. — Re-signing an instrument in the presence of attesting witnesses is not a material change. The signing and sealing of a covenant in a lease was held to be the original execution and delivery, and defend- ant, who was the surety, having signed it and delivered it to the lessee to deliver to the lessor, was held to have given authority to the lessee to complete the delivery, both of the lease and the guaranty. Dusenberry v. O'Sheil, 2 Hill (N. Y.) 410. Pennsylvania. — Fritz r. Montgomery County, 17 Pa. St. 130 (wherein the addition did not appear to have been made at the re- quest of the obligee, but, on the contrary, it appeared to have been done at the request of at least one of the obligors in the presence of the obligee, in this respect being distin- guished from other eases in this state above cited in this section) ; Beary v. Haines, 4 Whart. (Fa.) 17 (one promisor considered the agent of others ) . United States. — Hall v. Weaver, 13 Sawy. (U. S.) 188, 34 Fed. 104. 37. Fisher v. King, 153 Pa. St. 3, 25 Atl. 1029, 31 Wkly. Notes Cas. (Pa.) 515 (hold- ing that, where one attempts to indorse a note ALTERATIONS OF INSTRUMENTS 207 and the same is true if the attestation appears to be to all the signatures, instead of being confined to the execution of a particular party. 38 18. As to Signature. The mere change in, or addition to, a signature which in no manner changes the relation or number of the parties, or the character of their liability, is immaterial. 39 The affixing of a signature in an improper place, by mistake, is not material. 40 So an affix, or the erasure of an affix, which does not affect the liability of the parties is immaterial. 41 Where, however, a change of this kind does affect the character of the liability of the parties, it is material. 42 19. As to Seal — a. Addition. The addition of a seal is a material change. It converts a simple contract into a specialty, thereby making the contract of a different grade and character. Such a change avoids the instrument as to him whose signature is altered as well as to others who have signed with, or as sure- ties for, him on the simple undertaking. 48 and, through ignorance, writes his name as a "witness, the act does not come within the reason of the rule against alterations) ; Marshall v. Gougler, 10 Serg. & R. (Pa.) 164 (involving the signature, as an attesting wit- ness, by one who intended to witness the as- signment of the bill, and not the execution of the bill itself). 38. Richardson v. Mather, 178 111. 449, 53 N. E. 321 [affirming 77 111. App. 626] ; Hil- ton v. Houghton, 35 Me. 143 ; Rollins v. Bart- lett, 20 Me. 319; Foust v. Renno, 8 Pa. St. 378 39. Martin v. Good, 14 Md. 398, 74 Am. Dec. 545, holding that the insertion of the word " and " between the signatures of two parties in a sealed note does not change their liability, and is not material. See also Bur- rows v. Stoddard, 3 Conn. 160. 40. Fournier v. Cyr, 64 Me. 32 (holding that a mistake on the part of selectmen in placing their signatures of approval in the wrong place on an officer's bond cannot make the officer a trespasser) ; Fisher v. King, 153 Pa. St. 3, 25 Atl. 1029, 31 Wkly. Notes Cas. (Pa.) 515; Marshall v. Gougler, 10 Serg. & R. (Pa.) 164. See also Cason v. Wallace, 4 Bush (Ky.) 388; Wallace v. Jewell, 21 Ohio St. 163, 8 Am. Rep. 48. 41. Colorado. — King v. Rea, 13 Colo. 69, 21 Pac. 1084. Adding the letter "x" to a signature is an immaterial change. Illinois. — Burlingame v. Brewster, 79 111. 515, 22 Am. Rep. 177, wherein the words fol- lowing a blank for » signature were torn off by the payee before obtaining the signature of the person for whom the blank was left, but as they were such words as did not change the personal engagement of those who had signed before the. instrument was delivered to the payee the validity of the instrument was not affected. Indiana. — Hayes v. Matthews, 63 Ind. 412, 30 Am. Rep. 226, holding that the erasure of the addition of the words " trustees of the church " is immaterial, because the words themselves did not make the instru- ment the obligation of the church. Rhode Island. — Manufacturers', etc., Bank v. Follett, 11 R. I. 92, 23 Am. Rep. 418, hold- ing that the addition of the word " agent " to the signature of the maker of a note is immaterial as against an indorser, because the contract of the indorser was not changed. Texas. — Marx v. Luling Co-Operative As- soc, 17 Tex. Civ. App. 408, 43 S. W. 596, wherein one of the signers of a contract of guaranty affixed " Mgr." to his signature, and after the signing of the instrument by the other parties this affix was erased without their knowledge; it was held in legal effect that the guaranty was not changed, and there- fore the erasure was immaterial. 42. Sheriden v. Carpenter, 61 Me. 83 (in- volving the change of a maker's signature by altering the affix " Treasurer of St. Paul's Parish," which made the signer personally liable, so as to make it read " Treasurer for St. Paul's Parish," so as to bind the parish) ; Sharpe v. Bellis, 61 Pa. St. 69, 100 Am. Dec. 618. So, addition of " & Co." to the signa- ture of the maker is material. Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 24 Am. St. Rep. 832, 12 L. R. A. 140; Haskell v. Champion, 30 Mo. 136. See also infra, VII, F, 21, e. Where one signs a note expressly as agent for another, makes it payable to his own order and indorses it in his own name, and thereupon presents it to plaintiff for discount, the latter cannot strike out the words indi- cating for whom the maker was agent, erase the maker's name as payee and indorser, and substitute a new payee and indorser, without the maker's consent. Louisiana State Bank v. Fuselier, 9 Rob. (La.) 26. " Surety " erased from the name of a signer of a note by the payee before indorse- ment is material. Laub v. Paine, 46 Iowa 550, 26 Am. Rep. 163 ; Rogers v. Tapp, 1 Tex. App. Civ. Cas. § 1308. Contra, Humphreys v. Crane, 5 Cal. 173, upon the principle that the liability was the same whether the party signed as principal or surety. Correction of a clerical error in a note signed by officers of a corporation, by adding to the official signatures the name of the corporation, will not be material. Produce Exch. Trust Co. v. Bieberbach, 176 Mass. 577, 58 N. E. 162. 43. Delaware. — State v. Smith, 9 Houst. (Del.) 143, 31 Atl. 516, sureties on bond dis- charged by addition of seal to signature of maker. Maryland. — Morrison v. Welty, 18 Md. 169. Massachusetts'. — -Warring v. Williams, 8 Pick. (Mass.) 322. Michigan. — Rawson v. Davidson, 49 Mich. Vol. II 208 ALTERATIONS OF INSTRUMENTS b. Tearing Off. In like manner the tearing off of a seal changes the character of the contract and is material as against non-consenting parties. The instrument is void as to all, and not merely as to the party whose signature is changed, 44 unless the obligation is a several one, in which event tearing off a seal of one obligor will not destroy the bond as to the others. 45 20. Indorsements, Memoranda, and Marginal Writings — a. Materiality — (i) In Gmnebal. Prima facie, it has been held, words written on the back of a note are no part of the body thereof. 46 But upon the question of the materiality of matter added to or taken from an instrument, as constituting an alteration, the effect of the contract is to be gathered from all within the four corners (referring to its face), 47 or from all within its eight corners (referring both to its 607, 14 N. W. 565, holding that such a change destroyed the negotiability of the instrument by converting it into one simply in covenant, whereby the period of limitation to an ac- tion upon it had been enlarged. Missouri. — Fred Heim Brewing Co. v. Hazen, 55 Mo. App. 277, holding a surety discharged by affixing a seal to the signature of the maker, and referring to what is per- haps the strongest ease opposed to this rule [Fullerton v. Sturges, 4 Ohio St. 529], which seems to proceed upon the theory that such a change by a signer intrusted by other sign- ers with the paper to negotiate it is as the act of a stranger. New York. — Farmers' L. & T. Co. v. Siefke, 144 N. Y. 354, 39 N. E. 358, 63 N. Y. St. 662; Metropolitan L. Ins. Co. v. McCoy, 41 Hun (N. Y.) 142. Pennsylvania. — Biery v. Haines, 5 Whart. ( Pa. ) 563, holding that a note signed by three makers, and afterward changed by affixing a seal by one of the makers to his own sig- nature in the absence of the others, is void as to the latter because their obligation was no longer the same — that is to say, they were no longer bound jointly and severally with the first maker. South Carolina. — Vaughan v. Towler, 14 S. C. 355, 37 Am. Rep. 731, no plea of want of consideration can be made. Texas. — Muckleroy v. Bethany, 23 Tex. 163, because a payee cannot impeach the consider- ation otherwise than by a sworn plea. Vermont. — Barnet v. Abbott, 53 Vt. 120. England. — Davidson v. Cooper, 1 1 M. & W. 778. * Effect of sealing clause. — Where one sued on what purports to be a sealed bond sets up that the seal was added to the instrument after its delivery and without his assent, ex- cept as implied by the words " sealed with, our seals " on the bond before its delivery, it was held that he was entitled to go to the jury on this evidence, and that to direct a verdict for plaintiff was error. That the above clause raised no implication against the intention of defendant that the instru- ment was to remain unchanged as it left his hands. Metropolitan L. Ins. Co. v. McCoy, 41 Hun (N. Y.) 142. Barnet v. Abbott, 53 Vt. 120, was similar to this except it seems the court did consider the words above mentioned as indicating the intention that the bond was to be sealed, and the question turned upon Vol. II the finding and report of the master, which negatived this inference. Where seal unnecessary. — Where one signed a blank piece of paper and delivered it to his agent to have it filled as a power of attorney to confess judgment, and after it was so filled the agent affixed a scroll to the maker's signature, it was held that, as a seal was not necessary to the validity of a power of at- torney and defendant was properly in court, a judgment under the power of attorney would not be set aside. Truett v. Wain- wright, 9 111. 411. See also Solon v. Wil- liamsburgh Sav. Bank, 114 N. Y. 122, 21 N.E. 168, 23 N. Y. St. 138. 44. North Carolina. — Evans v. William- son, 79 N. C. 86. Pennsylvania. — Rittenhouse v. Levering, 6 Watts & S. (Pa.) 190. South Carolina. — Porter v. Dauby, 2 Rich. Eq. (S. C.) 49, upon the effect of the finding of a sealed note among the papers of the payee after his death, but having the seal carefully cut out. Tennessee. — Organ v. Allison, 9 Baxt. (Tenn.) 459, holding that without the seal the statute of limitations of six years would protect the party against a recovery, while with a seal he would have no such protection against his eo-sureties. Vermont. — Dewey v. Bradbury, 1 Tyler (Vt.) 186. West Virginia. — Piercy v. Piercy, 5 W. Va. 199. England. — Seaton v. Henson, 2 Show. 29 ; Mathewson v. Lydiate, 5 Coke 44. See supra, III, B. Immaterial change. — In Keen v. Monroe, 75 Va. 424, it was held that where a scroll on a paper had been erased and another scroll placed in juxtaposition to the name of the obligor, such a change was not material, did not alter the legal effect of the instrument, and, in the absence of fraud, did not vitiate it. 45. Rittenhouse v. Levering, 6 Watts & S. (Pa.) 190; Collins v. Prosser, 1 B. & C. 682, 8 E. C. L. 287; Mathewson v. Lydiate, 5 Coke 44. 46. Howe v. Thompson, 11 Me. 152; Com. v. Ward, 2 Mass. 397; Bay v. Shrader, 50 Miss. 326; Kimball v. Lamson, 2 Vt. 138; State v. McLearn, 1 Aik. (Vt.) 311. 47. Warrington v. Early, 2 E. & B. 763, 75 E. C. L. 763. ALTERATIONS OF INSTRUMENTS 209 face and its back). 48 And, while the general rule seems not to be applied alike in all cases, as when the memorandum refers to the place of payment, 49 or the rate of interest, 50 it may be stated to be that if a memorandum, either indorsed on the back of the instrument or written on the face and at the foot thereof, is made before or contemporaneously with the execution of the instrument, it is considered as a part of it ; 51 that if it affects the operation of the terms of the body of the instrument it is material, and the unauthorized addition of such matter, or its erasure or detachment, or the detachment of such matter annexed to the instrument, will constitute an alteration and avoid the instrument. 58 48. 1 Daniel Neg. Instr. § 151 j Johnston v. May, 76 Ind. 293; Meade v. Sandidge, 9 Tex. Civ. App. 360, 30 S. W. 245. See also Farmers' Bank v. Ewing, 78 Ky. 264, 39 Am. Rep. 231; Morris v. Cain, 39 La. Ann. 712, 1 So. 797, 2 So. 418. 49. Place of payment. — In Light v. Kill- inger, 16 Ind. App. 102, 44 N. E. 760, it was held that a memorandum in pencil of the name of a bank, inserted in a blank left for the words " payable at," made by an agent of the holder of the note left for collection, was -a, mere memorandum to remind the agent where 'it should be presented. In Wood- worth v. Bank of America, 19 Johns (N. Y. ) 391, 10 Am. Dec. 239, which was a marginal memorandum signed by the maker that a note made payable in a particular city was to be paid in another city, it was held that such memorandum was an alteration of the note and discharged the indorser. But in Mis- souri it was held that a statement designat- ing the place of payment, written at the foot of a note and to the left of the signature, was a mere memorandum, though the note, as copied in the reported statement of the case, seems to indicate that the matter com- plained of was in fact in the body of the in- strument and before the signature of the maker. The case seems to turn upon another point, however, namely, that as against the maker of the note such words would be im- material because the maker's liability is general in any event. American Nat. Bank v. Bangs, 42 Mo. 450, 97 Am. Dee. 349. Upon this last doctrine see, contra, Nazro v. Fuller, 24 Wend. (N. Y.) 374. And for the con- struction, generally, of particular words on a bill or note, as a part thereof or otherwise, as well as for the liability of a maker or acceptor to pay, generally, without regard to the place of payment designated, see Btxls and Notes. 50. Interest. — Thus an addendum provid- ing for a rate of interest, signed by one of the parties to the instrument, is held to be merely a memorandum of a collateral un- dertaking. Littlefield v. Coombs, 71 Me. 110; Tremper v. Hemphill, 8 Leigh (Va.) 623, 31 Am. Dec. 673. So in Carr v. Welch, 46 111. 88, a memorandum upon one of the lower corners on the face of a note, " ten per cent, after due," written in a different colored ink from that of the body of the instrument, was held to be merely a memorandum and not an alteration. But, on the other hand, War- rington v. Early, 2 E. & B. 763, 75 E. C. L. 763, holds that where a note was payable " with lawful interest " an addition of the [14] words " interest at 6% per annum " in the corner, the lawful rate pf interest being lower, was an alteration of the note. The court re- marked that when it is said that the naming of a place of payment in the corner (as in Exon v. Russell, 4 M. & S. 505) does not make it a part of the contract, it is not on the principle that the writing is in the corner, but because what is there written is from commercial usage a mere memorandum for the convenience of the parties. So, in San- ders v. Bagwell, 32 S. C. 238, 10 S. E. 946, 7 L. R. A. 743, 37 S. C. 145, 15 S. E. 714, 16 S. E. 770, a note which expressed no rate of interest had a memorandum added reciting that " the above note is to be accounted for with interest at 8 per cent, per annum," signed by the principal alone, and it was held to be an alteration of the original note and to discharge the surety. 51. Alabama. — Payne v. Long, 121 Ala. 385, 25 So. 780. Maine. — Johnson v. Heagan, 23 Me. 329; Tuckerman v. Hartwell, 3 Me. 147, 14 Am. Dec. 225. Massachusetts. — Wheelock v. Freeman, 13 Pick. (Mass.) 165, 23 Am. Dec. 674. Mississippi. — Bay v. Shrader, 50 Miss. 326, holding, however, that, being disconnected from the body of the instrument to which the maker's name is signed, it forms no par,t of it until shown to have been upon it when ex- ecuted. New York. — Benedict v. Cowden, 49 N. Y. 396, 10 Am. Rep. 382. England.— Fitch v. Jones, 5 E. & B. 238, 85 E. C. L. 238. Canada. — Swaisland v. Davidson, 3 Ont. 320. 52. Alabama. — Payne v. Long, 121 Ala. 385, 25 So. 780. Illinois. — Benjamin v. McConnell, 9 111. 536, 46 Am. Dec. 474. Indiana. — Cochran v. Nebeker, 18 Ind. 459. Iowa. — Scofield v. Ford, 56 Iowa 370, 9 N. W. 309; State v. Stratton, 27 Iowa 420, 1 Am. Rep. 282. Kentucky. — Warren v. Fant, 79 Ky. 1, where the words were written on the face of the paper containing the obligations and above the signatures of the obligors. Maine. — Johnson v. Heagan, 23 Me. 329, holding that such words will be presumed to have been a, material part of the instrument, and. could not be taken from it without ren- dering it void, unless the holder clearly shows the immateriality thereof. Massachusetts. — Wheelock v. Freeman, 13 Pick. (Mass.) 165, 168, 23 Am. Dec. 674, Vol. II 210 ALTERATIONS OF INSTRUMENTS (n) Immaterial or Collateral Matter. On the other hand, if the con- dition is immaterial, tearing it off will be immaterial, 53 and if what is written upon an instrument is altogether collateral to the body thereof, and does not restrict or alter its operation, it will be considered as a mere memorandum and without effect, 54 wherein it is said : " There is no magic in the word ' memorandum.' " Michigan. — Wait v. Pomeroy, 20 Mich. 425, 4 Am. Rep. 395; Longwell v. Day, 1 Mich. N. P. 286. Missouri. — Law v. Crawford, 67 Mo. App. 150. Nebraska. — Davis v. Henry, 13 Nebr. 497, 14 N. W. 523; Palmer v. Largent, 5 Nebr. 223, 25 Am. Rep. 479. New Hampshire. — G-errish v. Glines, 56 N. H. 9. New Jersey. — The cutting off of a receipt written on the margin of the bond by the obligee is not an alteration of the bond. The strongest presumptions may be raised against the party touching the instrument mutilated or destroyed, but it is no mutilation or alter- ation of the bond itself, and cannot vitiate that instrument. Goodfellow v. Inslee, 12 1ST. J. Eq. 355. But in Price v. Tallman, 1 N. J. L. 511, it was held that, where one has mutilated a bond by tearing off a writing at- tached to it, he cannot prove by parol testi- mony the nature of the contents of the part torn off. The court divided upon the question whether the bond should be admitted, and the evidence was accordingly rejected. New York. — Benedict v. Cowden, 49 N. Y. 396, 10 Am. Rep. 382, holding that it is in all cases a question to be determined upon the circumstances whether a memorandum or in- dorsement is intended as a part of the con- tract and a modification of the instrument, or whether it is merely an earmark for the purposes of identification. Tennessee. — Stephens v. Davis, 85 Tenn. 271, 2 S. W. 382, which held that, where a condition was written on a stub to which a note was attached in a book of blank notes, tearing off the note from the stub by the payee constituted an alteration. Texas. — Meade v. Sandidge, 9 Tex. Civ. App. 360, 30 S. W. 245. XJnited States. — Winnipisiogee Paper Co. v. New Hampshire Land Co., 59 Fed. 542 (hold- ing that the addition of a map or plan to a copy of a deed for the purpose of making the claim of the grantee more specific, and with- out any fraudulent intent to make it appear as a part of the original deed, would not make the grant inoperative) ; Davis v. Shafer, 50 Fed. 764. England. — Mollett v. Wackerbarth, 5 C. B. 181, 57 E. C. L. 181 (wherein material words were written at the bottom of the paper con- taining the contract, and an asterisk was in- serted in the body of the paper referring to the words at the bottom) : Crookewit v. Fletcher, 1 H. & N. 893, 26 L. J. Exch. 153 (holding that a material change in a charter- party, by writing words in the margin, will avoid the contract if done without the con- sent of the owner after he had executed it). So, by striking out with a pen the time of Vol. II warranty of sailing as it stood in the body of a policy, and inserting a memorandum in the margiD of a different time, the policy is destroyed. Fairlie v. Christie, 7 Taunt. 416 2 E. C. L. 425. Where a schedule is material to show what passed by the deed the deed was held to be avoided by proof that the schedule referred to in the deed was annexed after its execution. Weeks v. Maillardet, 14 East 568. Canada. — Campbell v. McKinnon, 18 U. C. Q. B. 612 (which was the obliteration of a condition on the back of a note by pasting over it a piece of paper) ; Swaisland v. David- son, 3 Ont. 320. 53. Palmer v. Largent, 5 Nebr. 223, 25 Am. Rep. 479 (which involved the removal of the words : " This note is given upon condi- tion," but not showing what the condition was ) . So, tearing off a memorandum of a privilege, after the time for exercising the option granted has expired, does not affect the validity of the note. Hater v. American Nat. Bank, 8 Colo. App. 325, 46 Pac. 221. 54. Alabama. — Maness v. Henry, 96 Ala. 454, 11 So. 410 (which was a pencil indorse- ment on a note, reciting that the note was on an indebtedness of a particular person, and it was held that this was a mere memo- randum and did not render the instrument inadmissible in evidence) ; Manning v. Ma- roney, 87 Ala. 563, 6 So. 343, 13 Am. St. Rep. 67 (which was a memorandum indorsed on a bill, by an officer who took depositions in the case, for the purpose of identification). Arkansas. — Mente v. Townsend, 68 Ark. 391, 59 S. W. 41, involving the addition, in an assignment of a policy of insurance, of a statement that the loan which was the con- sideration of the assignment was to be repaid by the assignee upon a certain notice. Massachusetts. — Bachellor r. Priest, 12 Pick. (Mass.) 399, " left with A as collateral," written by the drawer under his name on a bill of exchange indorsed in blank and left with the drawer and by him transferred to A, was held to be a mere memorandum of a collateral agreement between the maker and the indorsee, having no more effect than if written upon a separate paper. Minnesota. — White v. Johns, 24 Minn. 387. Nebraska. — Oliver v. Hawley, 5 Nebr. 439, 443, wherein, after the execution of a written contract for the sale of flaxseed in which the vendee agreed to sow the seed and sell the entire crop, less fifty bushels, at a fixed price to the vendor, the vendor privately added to the contract, below the signature, " $5 com- mission to be charged on the fifty bushels reserved," and it was held that this was a memorandum and no part of the contract. New Hampshire. — Morrill v. Otis, 12 N. H. 466, which involved a memorandum upon a plan that certain persons desired to pur- chase one of the lots, showing to whom and ALTERATIONS OF INSTRUMENTS 211 and in such a case the general rule as to immaterial changes is applied, and the tearing off of such matter is not an alteration which is material. 65 (in) Marginal Figures. Unless not supplied by words in the body of a bill or note, 66 the marginal notation constitutes no part of it, but is simply a mem- orandum or abridgement for the convenience of reference, the contract being perfect without it. 5 ' b. As to Indorsements in Particular — (i) Immaterial Changes in Gen- eral. A mere verbal change in, or addition to, an indorsement which in no way affects the meaning of the indorsement or the operation of the instrument is not material. 58 (11) As to Character or Extent of Liability. "While the holder of a note may fill a blank indorsement with any matter not inconsistent with the liability of the indorser, 69 he cannot change the character or extent of the indorser's liability, or deprive the latter of any defense, and any change made in the indorse- ment which will have this effect will amount to an alteration. Thus, vitiating effect has been given to the filling out of a blank indorsement by writing in the consideration therefor, 60 converting the liability into an absolute one — as by the addition of a waiver of demand, notice, and protest 61 — writing the word " security " over an indorser's name, 62 inserting a waiver of exemptions, 63 erasing the condition " without recourse," M and writing over the indorsement a contract of guaranty. 65 "Where such changes as the foregoing do not affect the liability which the indorse- when other lots were sold, without varying the courses and distances of the lines of the lots, or the relative situations thereof. New York. — Chase v. Washington Mut. Ins. Co., 12 Barb. (N. Y.) 595, being pencil memoranda of suggested corrections in in- surance policy. North Carolina. — Hubbard v. Williamson, 27 N. C. 397, which was a direction at the foot of an accommodation bill, signed by the last indorser, and directing the proceeds to be credited to the drawer, and it was held that it was no more than a memorandum to enable the bank to pay the proper person, as be- tween plaintiff and the drawer, and did not amount to an alteration. South Carolina. — Kinard v. Glenn, 29 S. C. 590, 8 S. E. 203, notation to call attention to a mistake. Texas. — -Yost v. Watertown Steam-Engine Co., (Tex. Civ. App. 1894) 24 S. W. 657, memorandum on a note that it was secured by a mortgage. 55. Humphreys v. Crane, 5 Cal. 173; Vandervoort v. Rockford Ins. Co., 49 111. App. 457, holding that the application for insur- ance is no part of the note executed for such insurance at the time of the making of the application, though written on the same sheet of paper, and the detachment of such application is no defense in an action on the note. Schedule. — Under a statute requiring a bill of sale and every schedule or inventory an- nexed thereto to be registered, it was held that where, on account of the emergency of the ease, a schedule of a bill of sale was roughly drawn and was afterward disannexed and a fair copy appended, this did not affect the title to the goods which passed under the bill of sale. Green v. Attenborough, 3 H. & C. 468. 56. See Bills and Notes. 57. See supra, VII, F, 6. 58. Cushing v. Field, 70 Me. 50, 35 Am. Rep. 293 (changing an indorsement "This note is subject to a contract," to " This note is subject of contract") ; Howe v. Thompson, 11 Me. 152 (holding that, in an action by an indorsee against the promisor in a note, the addition of a date to an indorsement of a par- tial payment on the back of the note is not an alteration of the instrument) ; Struthers v. Kendall, 41 Pa. St. 214, 80 Am. Dee. 610 ( noting the residences of indorsers after their names) ; Krouskop v. Shontz, 51 Wis. 204, 8 N. W. 241, 37 Am. Rep. 817 (which was an unauthorized addition, having no significance, to an indorsement which was itself without legal significance ) . 59. See Bills and Notes. 60. Hood v. Robbins, 98 Ala. 484, 13 So. 574. But the insertion of " value received " after an indorsement has been held to be im- material unless done with the privity of plaintiff. Riggs v. St. Clair, 1 Cranch C. C. (U. S.) 606, 20 Fed. Cas. No. 11,829. 61. Hill v. Martin, 12 Mart. (La.) 177, 13 Am. Dec. 372; Clawson v. Gustin, 5 N. J. L. 964; Comparree v. Brockway, 11 Humphr. (Tenn.) 355; Catlin v. Jones, 1 Pinn. (Wis.) 130. 62. Andrews v. Simms, 33 Ark. 771 ; Rob- inson v. Reed. 46 Iowa 219; Davis v. Eppler, 38 Kan. 629, 16 Pac. 793; Farmer v. Rand, 16 Me. 453 ; Buck v. Appleton, 14 Me. 284. 63. Jordan v. Long, 109 Ala. 414, 19 So. 843. 64. Howlett v. Bell, 52 Minn. 257, 53 N. W. 1154. 65. Newlan v. Harrington, 24 111. 206 (dis- tinguishing between a guaranty of a note and a guaranty of its collection) ; Belden v. Hann, 61 Iowa 42, 15 N. W. 591 ; Needhams v. Page, 3 B. Mon. (Ky.) 465; Smith v. Frye, 14 Me. 457. Vol. II 212 ALTERATIONS OF INSTRUMENTS ment imports in law or by reason of the nature of the instrument, in this event, of course, they will not constitute an alteration. 66 (ni) Independent Memoranda. Where the indorsement on the back of a note is merely a memorandum of an independent collateral agreement by one of the parties, it will not be an alteration of the body of the instrument affecting the agreement of other parties thereto. 67 (iv) Indorsement of Payment or Performance of Condition. Though the holder of an instrument has no right to defraud the debtor by erasing credits which have been fairly entered, he may erase credits entered by mistake, and if an instrument appears with credits erased it is held that this will not "vitiate the whole paper, and the most that the party can claim is that he should be restored to the benefit of the indorsement as originally made. 69 So indorse- ments upon a note of an admission of the performance of one of the conditions on the face thereof is not an alteration of the note.™ But the indorsement of a fictitious credit on a note, for the purpose of reducing the amount and perverting its use, under an arrangement between the maker and the payee, is an alteration which will discharge the surety. 71 21. As to Number, Character, and Relation of Parties — a. In General. Any change in the personality, number, or relations of the parties to an instrument is material. 72 b. Correction of Name without Changing Identity of Person. The mere change of a name as it is written in an instrument is not necessarily material, however, as where the christian name of the person actually intended is wrongly written, and afterward changed to correct the clerical error. 73 So it has been held 66. Iowa Valley State Bank t. Sigstad, 96 Iowa 491, 65 X. W, 407; Levi v. Mendell, 1 Duv. (Ky.) 77. 67. Cambridge Sav. Bank f. Hyde, 131 Mass. 77, 41 Am. Rep. 193, which was a mem- orandum that after a certain day the rate of interest would be less than that stated in the body of the note. To the same effect see Huff 1). Cole. 45 Ind. 300: Moore v. Macon Sav. Bank, 22 Mo. App. 684. But in Post r. Losey, 111 Ind. 74, 12 X. E. 121, 60 Am. Rep. 677, it was held that the indorsement of an agree- ment between the payee and the principal debtor, to extend the time upon a different rate of interest, substituted an entirely new agreement for the original one and discharged the surety, and in Bucklen p. Huff, 53 Ind. 474, which was an indorsement of an agree- ment by the maker to pay an increased rate of interest after maturity, it was held not to discharge the surety, the act being considered a mere spoliation, one of the grounds of the decision appearing to be that the indorsement was not such a valid agreement to extend the time of payment as to affect the liability of the surety. 68. Tubb v. Madding, Minor (Ala.) 129; Burtch r. Dent, 13 Ind. 542. 69. Illinois. — Bryan v. Dyer, 28 111. 188. See also Chamberlin v. White. 79 111. 549. Minnesota. — Theopold i. Deike, 76 Minn. 121, 78 X. TV. 977. Xortli Carolina. — Simms r. Paschall, 27 N. C. 276. Vermont. — Kimball r. Lamson, 2 Tt, 138, holding that, in an action on a note contain- ing an indorsement of a credit of a small pay- ment which had been erased, the note may be read without explanation of the erasure, one of the grounds being that the indorsement it- Vol. II self was no part of the note, though it fur- ther appeared in the case that the erasure was fairly made. But as to the first ground mentioned it was held, in McElroy v. Cald- well, 7 Mo. 587, that the payee suing upon a note containing an erased indorsement of a payment had the burden of explaining the erasure. Erasure of unauthorized indorsement. — Where a sale agent has authority to sell only for a fixed amount, and the purchaser has no- tice of this limited authority from the printed terms of the contract of sale, an era- sure of a credit, entered by the agent on the note executed by the purchaser, to make the note represent a less amount than that at which the agent had authority to sell, is not an alteration. Waldorf r. Simpson, 15 N. Y. App. Div. 297, 44 X. Y. Suppl. 921. 70. Jackson r. Bovles, 64 Iowa 428, 20 X. W. 746. 71. Johnston r. May, 76 Ind. 293. 72. Mackay r. Dodge, 5 Ala. 388: Ford t'. Cameron First Xat. Bank. (Tex. Civ. App. 1896) 34 S. W. 684; Texas Printing, etc., Co. r. Smith, (Tex. App. 1889) 14 S. W. 1074 [citing 2 Daniel Xeg. Instr. § 1367]. 73. See Hanrick "r. Patrick, 119 U. S. 156, 7 S. Ct. 147, 30 L. ed. 396, name of grantor. Names descriptive of subject-matter. — Par- dee v. Lindley, 31 111. 174, 83 Am. Dec. 219; Outtoun r. Dulin, 72 Md. 536, 20 Atl. 134. Correction of immaterial part of instru- ment. — Where an award by an umpire mis- takenly recited the christian name of one of the original arbitrators it was held that the award was not vitiated, as the mistake was in an immaterial part, and therefore a change subsequent to the publication of the award, by striking out the mistaken name and in- ALTERATIONS OF INSTRUMENTS 213 that the change of the name of a payee in a note, without changing the identity of the person intended, or to correct a mere clerical error, is not material. 74 c. Change of Name of Payee, Obligee, or Grantee. The change of a payee by substituting a different payee from that originally in the instrument is a mate- rial change and vitiates the instrument as against the parties not consenting thereto, 75 unless it can be justified under some other principle — as where plain- tiffs (the original payee) name was erased and the name of another inserted for the purpose of furnishing plaintiff with an indorser 76 — or the change is to correct a mistake, 77 or words inserted after the name are merely descriptio persona™ So, serting the correct christian name, did not vitiate the award. Trew v. Burton, 1 Cr. & M. 533. But a mere clerical change, as by scratch- ing out a dot over the letter " i," in the name of the grantee in a patent, is not material. Morgan v. Curtenius, 4 McLean (U. S.) 366, 17 Fed. Cas. No. 9,799. 74. Oakland First Nat. Bank v. Wolff, 79 Cal. 69, 21 Pac. 551, 748, holding that the in- sertion in a note payable to the " First Na- tional Bank of this city " of the words " of Oak'd " after the words " First National Bank " is immaterial, the note being dated at Oakland. Christian or surname. — Cole v. Hills, 44 N. H. 227 (holding that where both parties in- tended a note to be payable to Benjamin Cole, whose name was accidentally written " Ben- jamin R. Cole," the erasure of the middle initial would not affect the validity of the note); Derby v. Thrall, 44 Vt. 413, 8 Am. Rep. 389 (wherein a note was by mistake drawn payable to Franklin Derby instead of Francis E. Derby, and upon delivery the payee, with the consent of the maker, made the change so as to conform to the fact, and it was held that the surety on the note was not discharged, distinguishing Broughton v. Fuller, 9 Vt. 373, which was an alteration by adding the word •' junior " to the name of the payee, thus making the instrument payable to another and different person) ; Mouchet v. Cason, 1 Brev. (S. C.) 307 (surname of payee supplied ) . Name of partnership. — Where a note pay- able to a partnership was indorsed by a surety and afterward altered by the maker and payee, without t>e knowledge of the surety, by changing the name of the payee so as to make the note payable to the same partner- ship under a different name, it was held that the surety was not discharged, as the change was immaterial. Arnold v. Jones, 2 R. I. 345. 75. Idaho. — Mulkey v. Long, (Ida. 1897) 47 Pac. 940. Iowa. — Bell v. Mahin, 69 Iowa 408, 29 N. W. 331. Kansas. — Horn v. Newton City Bank, 32 Kan. 518, 4 Pac. 1022. Massachusetts. — Stoddard v. Penniman, 108 Mass. 366, 11 Am. Rep. 363. But where a note recited " I promise to pay to Quincy Railway Company or order," it was held that the insertion of the words " the order of Ed- ward Prescott " over the words " Quincy Rail- way Company or order," without erasing the latter words, was not material, because the words inserted, if taken with the original words as an addition to them, would be wholly senseless and inoperative. Granite R. Co. v. Bacon, 15 Pick. (Mass.) 239. Missouri. — German Bank v. Dunn, 62 Mo. 79 (holding, however, in accordance with the general rule in that state, that the change was vitiating, whether material or not, hav- ing been made by payee) ; Robinson v. Berry- man, 22 Mo. App. 509 (holding the change material, but recognizing same principle an- nounced in the last preceding case) . Nebraska. — Erickson v. Oakland First Nat. Bank, 44 Nebr. 622, 62 N. W. 1078, 48 Am. St. Rep. 753, 28 L. R. A. 577. Ohio. — Davjs v. Bauer, 41 Ohio St. 257. Vermont. — Broughton v. Fuller, 9 Vt. 373, wherein the note was originally drawn to Ebenezer Broughton, the father, and was sub- sequently changed by adding the word " jun- ior " to the name of the payee, thus making it payable to another and different person. United States. — Sneed v. Sabinal Min., etc., Co., 73 Fed. 925, 34 U. S. App. 688, 20 C. C. A. 230. 76. See Levois v. Burguieres, 10 La. Ann. 111. So, in Illinois, it was held that where a note was payable to a bank, and the bank required a guaranty of a third person, who signed his name below the signature of the makers, and the note was delivered in that condition to the bank, but thereafter such third person had his name erased as one of the makers and written in the body of the note as the payee, and then assigned the note to the bank with a guaranty of payment, the change did not affect the validity of the note. Ryan v. Springfield First Nat. Bank, 148 111. 349, 35 N. E. 1120. But, on the other hand, where a note payable to the maker's order was indorsed by him and, after its accommo- dation indorsement, the payee is changed by inserting the name of the person with whom the note is negotiated, the accommodation in- dorser will be discharged. Stoddard v. Pen- niman, 108 Mass. 366, 11 Am. Rep. 363. See also VII, F, 21, j. 77. Latshaw v. Hiltebeitel, 2 Pennyp. (Pa.) 257. To make note conform to trust deed. — See Cook v. Moulton, 59 111. App. 428, holding that after a note and trust deed have been executed and tendered to the officer of a bank, changing the payee in the note by making it payable to the officer upon his demand be- cause the trust deed ran to him, instead of to the bank as trustee, was not material. 78. Casto v. Evinger, 17 Ind. App. 298, 46 N. E. 648. But the insertion of the word Vol. II 214 ALTERATIONS OF INSTRUMENTS to strike out the name of an indorsee in a special indorsement and substitute another without the consent of the indorser, is a material change in a contract and releases the indorser. 79 Where the obligee in a bond is changed by the sub- stitution of another obligee, obligors not consenting to the change will not be bound thereby. 80 So the unauthorized substitution of a grantee in a deed is mate- rial so as to avoid it ; 8I it can confer no rights upon the inserted grantee as against the original grantee or his creditors, 82 and cannot bind the grantor when made before delivery by one having no authority to make it. 88 d. Changes to Conform Different Parts of Instrument. The mere insertion into the body of an instrument of the name of an obligor or maker who has signed as such is not material. His liability would be the same in the absence of the insertion. 84 e. Change of Maker, Grantor, etc. A change in the name of the maker of the instrument is material. 85 " cashier " after the name of a payee was held to be material because of previous decisions that as to banks the act of a cashier is the act of the bank, and that the bank may sue upon a note payable to its cashier as such. Hodge v. Farmers' Bank, 7 Ind. Ajpp. 94, 34 N. E. 123. And where a note, payable to an individual and signed by him and a co-maker, was altered by the former by adding the ab- breviation, " Pres'd't. 0. F. B. Ass'n.," where his name appeared as maker, and "Pres'd't." where his name appeared as payee, it was held that the change was material and avoided the note as to the co-maker not con- senting. Springfield First Nat. Bank v. Fricke, 75 Mo. 178, 42 Am. Rep. 397. 79. Grimes v. Piersol, 25 Ind. 246, holding that the change was a material one because, as the assignment purported to be directly to plaintiff, it deprived defendant, the indorser, of any defense he might have under the stat- ute as against the person to whom the as- signment was in fact made. 80. Dolbier v. Norton, 17 Me. 307; Smith v. Weld, 2 Pa. St. 54. Mistake. — But where a bond was made by mistake to the acting sheriff instead of to the party who was to be protected by it, it was held that the correction of the mistake by erasing the name of the sheriff as obligee and inserting that of the proper officer would not vitiate the bond. Turner v. Billagram, 2 Cal. 520. So, in Maine, it was held that where the principal in a bail-bond erased the name of the sheriff as obligee and inserted that of the constable who had served the writ, before delivery of the bond and after it had been signed by the surety, the consent of the surety would be presumed, without deciding whether the change was material or imma- terial, as the surety when he signed the bond intended to become bail, and it did not ap- pear that he ever knew who was the obligee named in the bond, which was to him a mat- ter of no consequence. Hale v. Buss, 1 Me. 334. 81. Simpkins v. Windsor, 21 Oreg. 382, 28 Pac. 72. In New Jersey it was held that the erasure, by the owner of a deed, of the mid- dle initial of the name of the grantee therein rendered the deed void, but in this state any change in a deed made by the owner thereof Vol. II without the consent of other parties, whether the change is material or immaterial, is vitiat- ing! Jones v. Crowley, 57 N. J. L. 222, 30 Atl. 871. 82. Hollis v. Harris, 96 Ala. 228, 11 So. 377 ; John v. Hatfield, 84 Ind. 75 ; Goodwin v. Norton, 92 Me. 532, 43 Atl. Ill, holding that, where a grantor in a deed is not present, a change therein by consent of another who joined in the deed, but who was not the owner of the land, by substituting another grantee, does not take the title out of the grantee whose name was originally written in the deed, even if this could be done by consent of the real grantor. 83. Hollis v. Harris, 96 Ala. 288, 11 So. 377. 84. Illinois.— Reed v. Kemp, 16 111. 445, which was a change by inserting the name of the obligor in the beginning of an instrument as " I, J. G. Reed," etc. Indiana. — State v. Pepper, 31 Ind. 76. Maine. — Fournier v. Cyr, 64 Me. 32 ; Bird v. Bird, 40 Me. 398, insertion in the body of deed of names of grantors who had executed. Massachusetts.- — Smith v. Crooker 5 Mass. 538. United States. — Davis, etc., Bldg., etc., Co. v. Dix, 64 Fed. 406. Address of bill to conform to acceptance. — If the bill is addressed to "A and B " by the name of "A B & Co.," and they accept it by the name of "A and B " and the address of the bill is afterward altered to "A and B," the change is immaterial and will not dis- charge the acceptor. Farquhar p. Southey, M. & M. 14, 22 E. C. L. 460. 85. Maine. — Chadwick v. Eastman, 53 Me. 12, holding that even though a note for a partnership debt began : " We, or either of us, promise jointly and severally to pay," and was signed by one of the partners alone, a subsequent change, without the knowledge of either defendant, by the payee, by inserting immediately above the signature the words " for Enos & Wm. Eastman," the names of the firm, was material and available as a de- fense to both defendants. Missouri.— Springfield First Nat. Bank v. Fricke, 75 Mo. 178. North Carolina. — Davis v. Coleman, 29 N. C. 424. ALTERATIONS OF INSTRUMENTS 215 f. Joint and Several Obligations. If an instrument is changed in character by the insertion of words which convert it into a joint and several obligation, 86 or which convert a joint and several liability into one which is merely joint, the change is a material one and discharges the parties not consenting. 87 But, under a statute extinguishing the common-law distinction between instruments joint and those joint and several, the insertion of words into an instrument making it joint and several is not material. 88 g. Erasure of Names — (i) In General. The erasure of names in an instru- ment, so as to affect its identity or make it speak of a different character of liability, is material, 89 as where the instrument is thus converted into one with different parties. 90 The erasure of the name of one of the obligors on a bond will avoid it as to other obligors not consenting thereto. 91 Where a note is executed by several, erasing or cutting off the name of one, without the consent of the other, is material, and discharges the latter. 92 So cutting off or erasing the signa- Teacas. — Texas Printing, etc., Co. v. Smith, (Tex. App. 1889) 14 S. W. 1074. Wisconsin. — North v. Henneberry, 44 Wis. 306, wherein a change in a deed, actually exe- cuted by an attorney in fact but in such man- ner as to make it his own personal deed, by converting it into the deed of the principal, was material. See also supra, VII, F, 18. Principal in recognizance. — A change in a recognizance by a justice before it is taken, by striking out the principal's name and sub- stituting the name of another, will release the cognizor. Vincent v. People, 25 111. 500. Erasure of middle initial. — The erasure of the middle initial of the grantor's name in a deed was held to be immaterial where there was no conflict as to the identity of the grantor. Banks v. Lee, 73 Ga. 25. 86. Warring v. Williams, 8 Pick. (Mass.) 322 ; Perring v. Hone, 4 Bing. 28, 13 E. C. L. 384; Samson v. Yager, 4 U. C. Q. B. 0. S. 3. See also Landauer v. Sioux Falls Imp. Co., 10 S. D. 205, 72 N. W. 467. Changing " we guarantee " to " I guaran- tee " is immaterial where the obligation is .several. Kline v. Raymond, 70 Ind. 271. 87. Humphreys v. Guillow, 13 N. H. 385, 38 Am. Dec. 499, changing " I promise to pay " into " we promise to pay," thereby con- verting a joint and several note into a joint one [citing Hemmeniway v. Stone, 7 Mass. 58, 5 Am. Dec. 27; March v. Ward, Peake 177; Clerk v. Blackstock, Holt N. P. 474, 3 E. C. L. 188]. See also infra, VII, F, 21, g. A surety on a joint note is discharged by a change, made after it was executed by him, jso as to make the note a joint and several one. Eckert v. Louis, 84 Ind. 99. 88. Miller v. Reed, 27 Pa. St. 244, 67 Am. Dec. 459, holding that the terms of the stat- ute, though limited to undertakings that were joint and several, were applicable to contracts that were joint and not several. 89. Hindustan, etc., Bank v. Smith, 36 L. J. C. P. 241. But in Justus v. Cooper, 7 Blackf. (Ind.) 7, the partial erasure of the name of a payee in a note so as to make it il- legible was held not to release the maker when it appeared that the note was executed by him and was payable and delivered to plaintiff, that the latter had possession of the note when the suit was begun, and his name had been erased under circumstances show- ing the validity of the note not to be affected by the erasure. See also supra, III, B. 90. See supra, VII, F, 21, e; and VII, F, 18. 91. Indiana. — State v. Blair, 32 Ind. 313. Iowa. — State v. Craig, 58 Iowa 238, 12 N. W. 301. Kentucky. — Bracken County v. Daum, 80 Ky. 388. Delaware. — Herman v. Bratten, 2 Harr. v (Del.) 396, holding that where sureties sign a bond upon condition that others named therein as sureties shall sign, and thereafter those names are erased, the first surety is discharged. Mississippi. — Love v. Shoape, Walk. (Miss.) 508. Missouri. — State v. Findley, 101 Mo. 217, 14 S. W. 185 ; Briggs v. Glenn, 7 Mo. 572. Pennsylvania. — Rittenhouse v. Levering, 6 Watts & S. (Pa.) 190; Barrington v. Wash- ington Bank, 14 Serg. & R. (Pa.) 405. Texas. — Bail-bond. Collins v. State, 16 Tex. App. 274; Kiser v. State, 13 Tex. App. 201. Vermont. — Dewey v. Bradbury, 1 Tyler (Vt.) 186. ' United Stores.— Smith v. U. S., 2 Wall. (U. S.) 219, 17 L. ed. 788. See also infra, VII, F, 21, h, i. Suit by obligor after discharge of co-obli- gors. — But, since a discharge of one joint obligor does not discharge the others, in the absence of a showing that such discharge was without their consent, defendant's contention, in a suit to foreclose a mortgage, brought by a guarantor who has paid the debt and be- come subrogated to the rights of the guaran- tee, that plaintiff was discharged from liabil- ity on his guaranty of the original debt by reason of the erasure of the name of one of his co-obligors, is not tenable. Blewett v. Bash, 22 Wash. 536, 61 Pae. 770. 92. Gillett v. Sweat, 6 111. 475; Davis v. Coleman, 29 N. C. 424. Where a note is signed by three persons payable to one of them, and the latter's signature as maker is Vol. II 216 ALTERATIONS OF INSTRUMENTS ture or name of a surety will discharge another surety not consenting thereto ; "* but it is held that, as the release of a surety in this manner does not affect the maker's liability or the identity of his contract, it will not invalidate a note against the principal. 94 (n) Of Minor Who Repudiates Contract. Where one of the makers of a note was a minor and, after arriving at majority, repudiated the contract, an erasure of his name is not material. 95 (in) Rescission Not Effected by. But after the complete execution and delivery of the contract one of the parties thereto cannot rescind it by obtaining possession of the paper and erasing his name therefrom. 96 (iv) Several undertakings in One Instrument. If the signing of an instrument by more than one party evidences entirely separate and several under- takings, the erasure of the name of one does not affect the liability of the other — as in the case of contracts for the subscription of corporate stock — 97 and, in such cases, a change in the separate contract of one, aside from questions of fraud, will not affect the liabilities of the others. 98 h. Effect on Relation of Suretyship — (i) In General. A surety has a right to stand upon the precise terms of the contract into which he has entered, and the rule that any change in the instrument which affects the legal identity of the contract destroys the instrument is applied with especial strictness to such cases. 9 * afterward erased, and he indorses the note, the other two makers are discharged. Mor- rison v. Garth, 78 Mo. 434. Custom of erasing names upon taking up draft. — Where it is shown to be the custom to erase all names upon a draft after it is taken up by the acceptors, the erasure of the name of a drawer on the bill paid by the ac- ceptor for the drawer's accommodation will not destroy the acceptor's right of recovery. Matter of O'Flaherty, 7 La. Ann. G40. 93. MeCramer v. Thompson, 21 Iowa 244; Hall v. MeHenry, 19 Iowa 521, 87 Am. Dec. 451. Forged signature. — York County Mut. F. Ins. Co. v. Brooks, 51 Me. 506, where a surety signed a bond on file, with the signature of another surety which had been forged- by the principal, who, before delivery to the obligee, erased the forged name, it was held that the surety so signing was bound, apparently upon the ground that he was negligent in relying upon the genuineness of the forged signature. 94. Broughton v. West, 8 Ga. 248; People v. Call, 1 Den. (N. Y.) 120, 43 Am. Dec. 655 (holding that the instrument was one of value, so as to be the subject of larceny) ; Huntington v. Finch, 3 Ohio St. 445; Tutt v. Thornton, 57 Tex. 35 (holding that the erasure of the name of one who had indorsed a note at its inception, as surety for the maker, and who afterward took up the note and sued the maker upon it, was not mate- rial ) . See Bills and Notes. 95. Young v. Currier, 63 ST. H. 419. 96. Natchez v. Minor, 9 Sm. & M. (Miss.) 544, 48 Am. Dec. 727. To the same point see Burton v. Shotwell, 13 Bush (Ky.) 271, 97. Whittlesey v. Frantz, 74 N. Y. 456; Rensselaer, etc., Plank Road Co. v. Wetsel, 21 Barb. (N. Y.) 56. Contra, Texas Printing, etc., Co. v. Smith, (Tex. App. 1889) 14 S. W. 1074, holding that where a subscription was signed by " The Fort Worth Printing House. Vol. II J. K. Millican, Manager," and when the cor- poration was formed the contract was so changed as to make it the personal subscrip- tion of Millican, the change was material as making the contract speak a, different lan- guage, though the liabilities of the parties were several. Attaching signatures of different papers. — Where one signs a subscription paper and others sign another subscription paper for the same purpose, the papers being identical, except that the one signed by the latter eon- tains the words " the amounts set opposite our names," and the signatures to the latter are detached and appended to the first, it is not an alteration. Defendant, who signed the first subscription paper to which the lat- ter signatures were appended, is not dis- charged by such act. The contracts were identical, therefore there was no alteration. Davis u. Campbell, 93 Iowa 524, 61 N. W. 1053. To the same point see Sodus Bay, etc., R. Co. v. Hamlin, 24 Hun (N. Y.) 390. 98. Jewett v. Valley R. Co., 34 Ohio St. 601. 99. Alabama. — Brown v. Johnson, (Ala. 1900) 28 So. 579; Glover v. Robbins, 49 Ala. 219, 20 Am. Rep. 272; Mackay v. Dodge, 5 Ala. 388. Arkansas. — State v. Churchill 48 Ark. 426, 3 S. W. 352, 880. California. — People v. Kneeland, 31 Cal. 288. Delaware. — Herdman v. Bratten, 2 Harr. (Del.) 396. Georgia. — Hanson v. Crawley, 41 Ga. 303; Taylor v. Johnson, 17 Ga. 521. Illinois. — Benedict v. Miner, 58 111. 19; Newlan v. Harrington, 24 111. 206. Indiana. — Weir Plow Co. v. Walmsley, 110 Ind. 242, 11 N. E. 232; Stayner v. Joice, 82 Ind. 35 ; Hert v. Oehler, 80 Ind. 83 ; Hart v. Clouser, 30 Ind. 210. Iowa. — Berryman v. Manker, 56 Iowa 150, 9 N. W. 103; Marsh v. Griffin, 42 Iowa 403; ALTERATIONS OF INSTRUMENTS 217 Any alteration which, if made without the consent of the principal, will not bind him, will discharge the surety if made without the latter's consent. 1 The liability of an indorser cannot be extended beyond the stipulations of his original contract, and therefore it is no answer to an alteration of the instrument itself that the indorser's contract is distinct from that of the maker. 3 On the other hand, the general rule is that the alteration of a note discharges the indorser without regard to the effect as to the maker (as is particularly shown by the instances of altera- tions of accommodation paper made before negotiation). 3 (n) Character of Change. If, however, the change in no way affects the identity of the contract or the sureties' liabilities, then the general rule that an immaterial change is not vitiating will be applied, 4 and, in accordance with the McCramer v. Thompson, 21 Iowa 244; Hall v. McHenry, 19 Iowa 521, 87 Am. Dec. 451. Kentucky. — Blakey v. Johnson, 13 Bush (Ky.) 197, 26 Am. Rep. 254. Massachusetts. — Agawam Bank v. Sears, 4 Gray (Mass.) 95; Howe v. Peabody, 2 Gray (Mass.) 556. Michigan. — People v. Brown, 2 Dougl. (Mich.) 9. Minnesota. — Fillmore County v. Greenleaf, 80 Minn. 242, 83 N. W. 157 ; Renville County v. Gray, 61 Minn. 242, 63 N. W. 635. Missouri. — Britton v. Dierker, 46 Mo. 591, 2 Am. Rep. 553. Nebraska. — Townsend v. Star Wagon Co., 10 Nebr. 615, 7 N. W. 274, 35 Am. Rep. 493; Brown v. Straw, 6 Nebr. 536, 29 Am. Rep. 369. New Hampshire. — Haines v. Dennett, 11 N. H. 180. Neiv York. — Church v. Howard, 17 Hun (N. Y.) 5. Ohio. — Thompson v. Massie, 41 Ohio St. 307 ; Harsh v. Klepper, 28 Ohio St. 200. Pennsylvania. — Bensinger v. Wren, 100 Pa. St. 500; Fulmer v. Seitz, 68 Pa. St. 237, 8 Am. Rep. 172; Neff v. Horner, 63 Pa. St. 327, 3 Am. Rep. 555; Lancaster v. Barrett, 1 Pa. Super. Ct. 9, 37 Wkly. Notes Cas. (Pa.) 251. South Carolina. — Sanders v. Bagwell, 32 S. C. 238, 10 S. E. 946, 7 L. R. A. 743; 37 S. C. 145, 15 S. E. 714, 16 S. E. 770. Tennessee. — Organ v. Allison, 9 Baxt. (Tenn.) 459. Texas. — Bogarth v. Breedlove, 39 Tex. 561 West Virginia. — Ohio Valley Bank v. Lock wood, 13 W. Va. 392, 31 Am. Rep. 768. United States.— Wooi v. Steele, 6 Wall (U. S.) 80, 18 L. ed. 725; Martin v. Thomas 24 How. (U. S.) 315, 16 L. ed. 689. Canada. — Henderson v. Vermilyea, 27 U. C Q. B. 544; Halcrow v. Kelly, 28 U. C C. P. 551; Carrique v. Beaty, 24 Ont. App 302. 1. Mackay v. Dodge, 5 Ala. 388. 2. Reeves v. Fierson, 23 Hun (N. Y.) 185. The alteration of a note while in the hands of an indorsee discharges the indorser. Sher- idan v. Carpenter, 61 Me. 83. 3. Alabama. — Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 24 Am. St. Rep. 832, 12 L. R. A. 140. District of Columbia. — Lewis v. Shepherd, 1 Mackey (D. C.) 46. Indiana. — Bell v. State Bank, 7 Blackf. (Ind.) 4-56. Maine. — Sheridan v. Carpenter, 61 Me. 83 ; Waterman v. Vose, 43 Me. 504. Massachusetts. — Citizens' Nat. Bank v. Richmond, 121 Mass. 110; Stoddard v. Pen- niman, 108 Mass. 366, 11 Am. Rep. 363. Michigan. — Aldrich v. Smith, 37 Mich. 468, 26 Am. Rep. 536; Bradley v. Mann, 37 Mich. 1. Missouri. — Capital Bank v. Armstrong, 62 Mo. 59. Montana. — McMillan v. Hefferlin, 18 Mont. 385, 45 Pac. 548. New Mexico. — Ruby v. Talbott, 5 N. M. 251, 21 Pac. 72, 3 L. R. A. 724. New York. — Weyerhauser v. Dun, 100 N. Y. 150, 2 N. E. 274; Reeves v. Pierson, 23 Hun (N. Y.) 185. Pennsylvania. — Hartley v. Corboy, 150 Pa. St. 23, 24 Atl. 295. 4. Georgia. — Taylor v. Johnson, 17 Ga. 521, 534, wherein it was held that in the case of a surety it is no answer to say that the al- teration is not material, the court adding, however, that " no man can alter his engage- ment," from which it would seem that the case is not different from those holding that an immaterial change will not discharge a surety when it is considered that a change which does not alter the legal identity of the engagement is not a material one. See also U. S. Glass Co. v. West Virginia Flint Bottle Co., 81 Fed. 993, and supra, VII, D. Illinois. — Rudesill v. Jefferson County, 85 111. 446, wherein the insertion was regarded as the insertion of a mere clerical omission of the scrivener for the purpose of making the bond conform to a supposed requirement of the statute, and did not vary the meaning of the instrument or affect its operation, and for this reason it did not render the bond void as to the sureties. Indiana. — Shuck v. State, 136 Ind. 63, 35 N. E. 993, wherein, after a county officer had been duly elected and so declared by the county canvassing board, and after the sure- ties had signed his bond and in their absence, the principal struck out of the bond the word " commission," the governor having refused him a commission, and it was held that the word so stricken out was not necessary to the validity of the bond, and therefore the change was immaterial. Minnesota. — Herrick v. Baldwin, 17 Minn. 209, 10 Am. Rep. 161. Rhode Island. — Arnold v. Jones, 2 R. I. 345. United States. — Crawford v. Dexter, 5 Sawy. (U. S.) 201, 6 Fed. Cas. No. 3,368. Vol. II 218 ALTERATIONS OF INSTRUMENTS general rule hereinbefore stated, 5 applied especially to contracts of parties stand- ing in the relation of sureties, it is not necessary that the change in the instru- ment should do more than alter its legal identity, and it does not matter whether the particular change is to the advantage or detriment of the surety. 6 (in) Before Delivery. A surety may be discharged from liability not- withstanding the alteration is made before the instrument is delivered. 7 i. Alteration of Bond Before or After Acceptance. If a bond is altered by a co-obligor before delivery, it is avoided as against the non-assenting obligor. 8 So the alteration of a bond before approval or acceptance will discharge the sureties, 9 and where a recognizance is altered by the justice before whom it is taken the cognizor will be released, 10 though, after delivery of a bond to an officer, an alteration by the principal obligor, with the consent of the officer, may dis- charge the other obligors. 11 Usually, where the officer is the mere custodian of 5. See supra, VII, D, 3. 6. Alabama. — White Sewing Mach. Co. v. Saxon, 121 Ala. 399, 25 So. 784; Montgom- ery v. Crossthwait, 90 Ala. 553, 8 So. 498, 24 Am. St. Eep. 832, 12 L. R. A. 140; Anderson v. Bellenger, 87 Ala. 334, 6 So. 82, 13 Am. St. Rep. 46, 4 L. R. A. 680 ; Maekay v. Dodge, 5 Ala. 388. Georgia. — Taylor v. Johnson, 17 Ga. 521. Kentucky. — Limestone Bank v. Penick, 2 T. B. Mon. (Ky.) 98, 15 Am. Dee. 136. Michigan. — People r. Brown, 2 Dougl. (Mich.) 9. Minnesota. — Fillmore County v. Greenleaf, 80 Minn. 242, 83 N. W. 157. Missouri. — Fred Heim Brewing Co. v. Hazen, 55 Mo. App. 277. New York. — Reeves v. Pierson, 23 Hun (N Y.) 185; Church v. Howard, 17 Hun (N. Y.) 5. Ohio. — Sturges v. Williams, 9 Ohio St. 443, 75 Am. Dec. 473. Pennsylvania. — Bensinger v. Wren, 100 Pa. St. 500; Smith v. Weld, 2 Fa. St. 54; Lan- caster v. Barrett, 1 Pa. Super. Ct. 9, 37 Wkly. Notes Cas. (Pa.) 251. South Carolina. — Sanders r. Bagwell, 32 S. C. 238, 10 S. E. 946, 7 L. R. A. 743, 37 S. C. 145, 15 S. E. 714, 16 S. E. 770. Tennessee. — Organ v. Allison, 9 Baxt. (Tenn.) 459. United States. — Wood v. Steele, 6 Wall. (U. S.) 80, 18 L. ed. 725; Martin v. Thomas, 24 How. (TJ. S.) 315, 16 L. ed. 689. 7. Iowa. — Marsh v. Griffin, 42 Iowa 403. Michigan. — Aldrich v. Smith, 37 Mich. 468, 26 Am. Rep. 536; Bradley v. Mann, 37 Mich. 1. Missouri. — Capital Bank v. Armstrong, 62 Mo. 59 ; Britton v. Dierker, 46 Mo. 591, 2 Am. Eep. 553 ; Ivory v. Michael, 33 Mo. 398 ; Has- kell v. Champion, 30 Mo. 136; Trigg v. Tay- lor, 27 Mo. 245, 72 Am. Dec. 263. North Carolina. — Cheek v. Nail, 112 N. C. 370, 17 S. E. 80. Ohio. — Jones v. Bangs, 40 Ohio St. 139, 48 Am. Rep. 664; Sturges v. Williams, 9 Ohio St. 443, 75 Am. Dec. 473. Pennsylvania. — Neff v. Horner, 63 Pa. St. 327, 3 Am. Rep. 555. Tennessee. — Organ v. Allison, 9 Baxt. (Tenn.) 459. Texas. — Bogarth v. Breedlove, 39 Tex. 561. West Virginia. — Ohio Valley Bank v. Lock- wood, 13 W. Va. 392, 31 Am. Rep. 768. Vol. II United States. — Wood v. Steele, 6 Wall. (U. S.) 80, 18 L. ed. 725. 8. State v. Blair, 32 Ind. 313; State v. Craig, 58 Iowa 238, 12 N. W. 301; Renville County v. Gray, 61 Minn. 242, 63 N. W. 635 ; Cheek v. Nail, 112 N. C. 370, 17 S. E. 80. Contra, Orlando v. Gooding, 34 Fla. 244, 15 So. 770, which seems to proceed upon the theory that the unauthorized change by a principal in a bond, after it had been signed by the sureties and turned over to him for delivery, and without the knowledge of the obligee, is in the nature of a spoliation by a stranger. 9. Arkansas. — State v. Churchill, 48 Ark. 426, 3 S. W. 352, 880. California. — People v. Kneeland, 31 Cal. 288, holding that the liability of the sureties depends upon the bond itself, which must be delivered before liability is proved, and that therefore the bond which they executed was not delivered because the one approved was not the one signed; that no recovery could be had against the sureties on the original bond because it had never been delivered and approved, nor on the altered bond because it was not their deed. Georgia. — Taylor v. Johnson, 17 Ga. 521. Indiana. — State v. Polke, 7 Blackf . (Ind.) 27. Kentucky. — 'Bracken County v. Daum, 80 Ky. 388, wherein several persons signed a power of attorney authorizing the clerk of a court to sign their' names to the sheriff's levy bond, and, before the power was delivered to the clerk, the sheriff erased the name of one of the signers and the clerk affixed the names of the others as sureties upon the bond, and it was held that the change was material and discharged the sureties. Massachusetts. — Howe v. Peabody, 2 Gray (Mass.) 556, change by probate judge of penal sum in bond. Michigan. — People v. Brown, 2 Dougl. (Mich.) 9. Washington. — Fairhaven v. Cowgill, 8 Wash. 686, 36 Pac. 1093. United States. — Smith v. U. S., 2 Wall. (U. S.) 219, 17 L. ed. 788. See also Oneale v. Long, 4 Cranch (U. S.) 60, 2 L. ed. 550. 10. Vincent v. People, 25 111. 500. 11. Martin v. Thomas, 24 How. (U. S.) 315, 16 L. ed. 689, alteration of replevin bond by principal obligor, with the consent of the marshal. ALTERATIONS OF INSTRUMENTS 219 the bond, 13 or the change is made after approval, either by the approving officers or by parties thereto without the knowledge of such officers, the act is regarded as a spoliation by a stranger. 13 j. Adding Parties, Makers, Obligors, etc. — (i) Rule against Addition — Conflict of A jjthority. There is much confusion in the authorities upon the effect of the addition of new makers or obligors to an instrument after its original execution. In the first place, especially after the complete execution and delivery of the instrument — but not always so — such a change is material as rendering all the promisors apparently jointly and equally liable to the holder as well as between themselves, and so far tending to lessen the ultimate liability of the original maker or makers, as well as affecting the remedy on the instrument. 14 The addition of 12. State v. Berg, 50 Ind. 496. 13. Alabama. — Anderson v. Bellenger, 87 Ala. 334, 6 So. 82, 13 Am. St. Rep. 46, 4 L. R. A. 680; Harris v. Bradford, 4 Ala. 214. Indiana. — Robinson v. State, 60 Ind. 26, wherein defendant, who was a surety on the official bond of a township trustee, was also a member of the board of commissioners which had cognizance of such trustee's bond and reports, and, as a measure of public pol- icy, he erased his name from such bond and procured an additional surety thereon, with the consent of the county auditor, the trustee, and the board of commissioners, and it was held that such erasure was a mere spoliation, and defendant was not released thereby. Missouri. — State v. Scott, 104 Mo. 26, 15 S. W. 987, 17 S. W. 11. Nebraska. — Schlageck v. Widhalm, 59 Nebr. 541, 81 N. W. 448; Bingham v. Shadle, 45 Nebr. 82, 63 N. W. 143 [distinguishing Mar- tin v. Thomas, 24 How. (U. S.) 315, 16 L. ed. 689, supra, note 11, in that the signature to the bond there in question was erased with the consent of the obligee, and without the consent of the other obligors]. Tennessee. — Harrison v. Turbeville, 2 Humphr. (Tenn.) 241, holding that where the adminis- trator procured his bond from the clerk's of- fice, and struck out the name of an obligor and inserted the name of another, the person whose name was so stricken out was not discharged in equity, and that the words " fraud " and " accident," with regard to the jurisdiction of the chancery court to give relief in all cases where a bond has not been satisfied and the obligee is prevented from suing at common law by reason of its loss or defacement, cov- ered all erasures and alterations except those made by the obligee himself, or with his knowledge and consent. New York. — Casoni v. Jerome, 58 N. Y. 315. Texas. — Peveler v. Peveler, 54 Tex. 53. United States. — See also U. S. v. Hatch, 1 Paine (U. S.) 336, 26 Fed. Cas. No. 15,325. Act not spoliation. — But in Dover v. Robin- son, 64 Me. 183, it was held that where an official bond of a collector was changed by the principal, with consent of the selectmen of the town, after delivery and approval, and without the knowledge or consent of the sure- ties, the latter were discharged, as the act could not be deemed a spoliation. Alteration of bail-bond. — A material altera- tion in an obligation of record — as a bail- bond — without the consent of the obligors, at the instance of the officer of the state, will discharge the obligors. Wegner v. State, 28 Tex. App. 419, 13 S. W. 608 ; Gragg v. State, 18 Tex. App. 295; Collins v. State, 16 Tex. App. 274; Heath v. State, 14 Tex. App. 213; Grant v. State, 8 Tex. App. 432; Butler v. State, 31 Tex. Crim. Rep. 63, 19 S. W. 676. But the alteration must be a material one. Gragg v. State, 18 Tex. App. 295. 14. Alabama. — Brown v. Johnson, (Ala. 1900) 28 So. 579; Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 24 Am. St. Rep. 832, 12 L. R. A. 140, which involved the change by a maker of his signature by adding " & Co." after indorsement, the court holding that the indorser was discharged, upon the principle that the addition of a maker as such discharges parties already bound by the paper. The change was made by the maker before negotiating the note, at the instance of the plaintiff. Illinois. — One of the effects of the altera- tion is to destroy the identity of the note, and this, if another maker be a security and have indemnity, may greatly embarrass or possibly entirely defeat its enforcement. If the original makers have a demand against the payee which they could lawfully set off against the note, the addition of another maker would destroy that right. The place of residence of an additional maker may be such as to permit the payee or holder to in- stitute suit upon the note in a different county from that in which he otherwise could have brought it, and thus some of the makers may be required to go to a foreign county to pre- sent any defenses that may exist to the note, or if the name of the additional maker be so placed upon the note as to- indicate him as the principal maker, as it is claimed it does in this cage, then all makers who are merely sureties may be greatly, prejudiced and dam- aged, and doubtless such an alteration in a note might prejudice the makers in other ways which cannot be anticipated and sug- gested in advance. Soaps v. Bichberg, 42 111. App. 375. Indiana. — Houck v. Graham, 106 Ind. 195, 6 N. E. 594, 55 Am. Rep. 727; Nicholson v. Combs, 90 Ind. 515, 46 Am. Rep. 229; Bowers v. Briggs, 20 Ind. 139 (which was the addi- tion of a maker living in another county, thus affecting the venue of the action on the note) ; Henry v. Coats, 17 Ind. 161 (discharge of indorser by addition of maker) ; Emerson Voll. II 220 ALTERATIONS OF INSTRUMENTS a surety to a completed bond after execution and delivery by the original sureties is an alteration which will discharge the latter. 15 The substitution of one name for another as surety is an alteration which will avoid the instrument as to the first surety unless it is ratified by him. 16 v. Opp, 9 Ind. App. 581, 34 N. E. 840, 37 N. E. 24 (holding that the maker will be dis- charged by the addition of other makers with- out the former's knowledge ) . Iowa.- — Browning v. Gosnell, 91 Iowa 448, 59 N. W. 340 (holding that, if a second signa- ture is added by the payee, the original maker is discharged and the additional parties liable, and that if, subsequently, another signature is procured, then the first and additional signer are released and the last is liable) ; Sullivan v. Rudisill, 63 Iowa 158, 18 N. W. 856 (holding that the addition of the maker, though intended as a surety only, will dis- charge the original maker) ; Berryman v. Manker, 56 Iowa 150, 9 N. W. 103; Hamil- ton v. Hooper, 46 Iowa 515, 26 Am. Kep. 161 ; Hall v. McHenry, 19 Iowa 521, 87 Am. Dec. 451. Kentucky. — Singleton v. McQuerry, 85 Ky. 41, 8 Ky. L. Rep. 710, 2 S. W. 652 (holding that the reason of the rule is that the identity of the instrument is altered and its integrity affected by the change) ; Shipp v. Suggett, 9 B. Mon. (Ky. ) 5; Limestone Bank v. Penick, 5 T. B. Mon. (Ky.) 25. In Pulliam v. With- ers, 8 Dana (Ky.) 98, 33 Am. Dec. 479, the note, after issuance by the principal, was signed by a surety at the instance of the obligee but without the knowledge of the prin- cipal, and the doctrine of Limestone Bank v. Penick, 5 T. B. Mon. ( Ky. ) 25, was reaffirmed, but, it being unnecessary to do so, the court declined to decide whether the mere addition of another obligor would vitiate the paper in the absence of any change in the body of it. The question, however, was decided in the af- firmative in Shipp v. Suggett, 9 B. Mon. (Ky.) 5. Missouri. — Allen v. Dornan, 57 Mo. App. 288; Farmers' Bank v. Myers, 50 Mo. App. 157 (where it was held that the addition of a forged signature to a note after its execution and delivery was material) ; Lunt v. Silver, 5 Mo. App. 186. But in Williams v. Jensen, 75 Mo. 681, it was held, inconsistently with the general doctrine in this state, that any change by the party holding the instrument will viti- ate it, as well as with the subsequent holding in Farmers' Bank v. Myers, 50 Mo. App. 157, which was consistent with the doctrine re- ferred to, that the addition of the signature of a married woman to a note would not con- stitute an alteration unless it appeared that she had a separate estate. New York. — McVean v. Scott, 46 Barb. (N. Y.) 379 (involving the addition of names to a note as makers intended as sureties for the original maker, which was held to furnish a valid defense to the original surety on the note, the court following Chappell v. Spencer, 23 Barb. (N. Y.) 584, which involved the ad- dition, by the payee of a note, of his own name in order to negotiate it). So, on the Vol. II authority of the last case, it was held that where a lease was so changed by the landlord as to make other parties to it without the consent of those who were already parties, they were discharged. Wright v. Kelley, 4 Lans. (N. Y.) 57. Ohio. — Wallace v. Jewell, 21 Ohio St. 163, 8 Am. Rep. 48, recognizing the rule where the maker is added as such, but not where he is intended merely as a surety or guarantor — as where the new party so signed through in- advertence or mistake — the court saying that such a ease would fall within the prin- ciple decided in Ex p. Yates, 2 De G. & J. 191, 59 Eng. Ch. 191. Texas. — Harper v. Stroud, 41 Tex. 367; Ford v. Cameron First Nat. Bank, ( Tex. Civ. App. 1896) 34 S. W. 684, adhering to the rule stated in the text, even if the maker so sign- ing was intended as surety only. England. — Gardner v. Walsh, 5 E. & B. 83, 85 E. C. L. 83, 32 Eng. L. & Eq. 162 [overrul- ing Catton v. Simpson, 8 A. & E. 136, 35 E. C. L. 518]. So, in Clerk v. Blackstock, Holt N". P. 474, 3 E. C. L. 188, it was held that the signing of a surety as maker, after execution and delivery of a simple promissory note, without the assent of the maker and not in accordance with the original agree- ment, made a new contract, and as such re- quired a new stamp under the stamp act, and, as pointed out in Chappell v. Spencer, 23 Barb. (N. Y.) 584, this would have been the case if the change had not been material, or had been made to complete the instrument. Canada. — Carrique v. Beaty, 24 Ont. App. 302 (holding that the addition of another maker to a note which was made by two orig- inally, one for the accommodation of the other, discharged the original accommodation maker where the additional maker was not added as surety) ; Reid v. Humphrey, 6 Ont. App. 403 (from which it appears the added signature was not genuine). 15. Taylor v. Johnson, 17 Ga. 521 ; Harper v. State, 7 Blackf. (Ind.) 61; Oneale v. Long, 4 Cranch (U. S.) 60, 2 L. ed. 550. Sureties separately bound.- — The addition of two other sureties, separately bound, can- not affect the liability of other sureties who have already bound themselves severally at the time of the acceptance of the bond. State v. Dunn, 11 La. Ann. 549. 16. Indiana. — State v. Van Pelt, 1 Ind. 304; State v. Polke, 7 Blackf. (Ind.) 27. Missouri. — State v. Scott, 104 Mo. 26, 15 S. W. 987, 17 S. W. 11; State v. McGonigle, 101 Mo. 353, 13 S. W. 758, 20 Am. St. Rep. 609, 8 L. R. A. 735. New York. — Cobb v. Lackey, 6 Duer (N. Y.) 649. Washington. — Fairhaven v. Cowgill, 8 Wash. 686, 36 Pac. 1093 (notwithstanding the sureties were chargeable with separate ALTERATIONS OF INSTRUMENTS 221 (n) Rule Permitting Addition. On the other hand, the question is con- trolled by considerations of the character of the change, as whether it is in the body of the instrument or otherwise ; of the extent to which the instrument has been completed in its execution, and of authority to be implied from the condi- tion of the instrument, as to its state of completeness, in connection with the rela- tion of the parties. 17 Thus, upon the principle that the change must be made after the complete execution and delivery of the instrument, if a maker is added, whether as such or as surety only, before the note is fairly launched so as to become an available security for the purposes for which it was intended, as instanced by such a change while the instrument is in the hands of a principal in order to discount it, it is not considered an alteration. 18 The same principle is limited liabilities by statute) ; King County v. Ferry, 5 Wash. 536, 32 Pae. 538, 34 Am. St. Rep. 880, 19 L. R. A. 500. Canada. — Henderson v. Vermilyea, 27 U. C. Q. B. 544. 17. Illinois. — Trainor v. Adams, 54 111. App. 523. Indiana. — State v. Pepper, 31 Ind. 76 (wherein it was held that where a surety signs a bond before the names of other sure- ties have been inserted in the body thereof, and in this condition delivers it to the prin- cipal obligor, he would be held as agreeing that the names of additional sureties may be filled in and added to the bond, the court say- ing that other cases would seem to rest upon the fact that a perfect instrument had been executed by the original surety, and there- after the names of other sureties had been in- serted into the body of the instrument in dis- regard of the technical rule at common law concerning the alteration of sealed instru- ments, and that Harper v. State, 7 Rlackf. (Ind.) 61, and Oneale v. Long, 4 Cranch (U. S.) 60, 2 L. ed. 550, supra, note 15, if to be sustained, must rest upon this latter hy- pothesis) ; Bowser v. Rendell, 31 Ind. 128. Kentucky. — Jones v. Shelbyville F., etc., Ins. Co., 1 Mete. (Ky.) 58 (which involved the erasure of the name of a surety from the body of a note and the procurement of the signature of another surety, after signing by one also . named in the body of the note as surety, without his consent, and though the payee of the note (which was in renewal of another note) knew of the original arrange- ment for the execution thereof with the par- ties first written in the note as sureties) ; Commonwealth Bank v. McChord, 4 Dana (Ky.) 191, 29 Am. Dec. 398. Minnesota. — Ward v. Hackett, 30 Minn. 150, 14 N. W. 578, 44 Am. Rep. 187, wherein it is said that cases which hold, a material al- teration of a npte, made by one of the prom- isors before delivery, without the consent of the other promisor, to avoid it as against the latter are cases where the body of the con- tract itself was changed. Washington. — King County v. Ferry, 5 Wash. 536, 32 Pac. 538, 34 Am. St. Rep. 880, 19 L. R. A. 500 [in effect overruling Walla Walla County v. Ping, 1 Wash. Terr. 339] holding that the erasure of the name of a surety from the body of an official bond, and the substitution of another surety, would not release sureties who had already signed and delivered to the principal, and where the bond, when finally delivered by him to the obligee, was regular on its face, the principal obligor being considered the agent of the surety rather than the agent of the obligee. See also State v. Craig, 58 Iowa 238, 12 N. W. 301 (where the surety whose name was erased had actually signed the bond) ; McCramer v. Thompson, 21 Iowa 244 (where the signing had been actually done and the payee had notice) ; Hagler v. State, 31 Nebr. 144, 47 N. W. 692, 28 Am. St. Rep. 514, in all of which cases the character of the change would seem to distinguish it from King County v. Ferry, 5 Wash. 536, 32 Pac. 538, 34 Am. St. Rep. 880, 19 L. R. A. 500, though not necessarily a point of the decisions. United 8 tates.— Mersman v. Werges, 112 U. S. 139, 5 S. Ct. 65, 28 L. ed. 641, 642, wherein, speaking of the character of a change involving the effect of the addition of sig- natures, the court said : " The present case is not one of a change in the terms of the contract, as to amount or time of payment, but simply of the effect of adding another signature, without otherwise altering or de- facing the note. An erasure of the name of one of several obligors is a material altera- tion of the contract of the others, because it increases the amount which each of them may be held to contribute " [referring to Smith v. U. S., 2 Wall. (U. S.) 219, 17 L. ed. 788, and Martin v. Thomas, 24 How. (U. S.) 315, 16 L. ed. 689]. Canada. — Halcrow v. Kelly, 28 U. C. C. P. 551. 18. Indiana. — Bowser v. Rendell, 31 Ind. 128, signing by party into whose hands the instrument was placed to have it discounted, at the instance of the bank, before the latter would discount it, and with the understand- ing that the signing was as guarantor for both the original maker and his surety, and not as a joint maker with them. Iowa. — Graham v. Rush, 73 Iowa 451, 35 N. W. 518. Minnesota. — Babcock v. Murray, 58 Minn. 385, 59 N. W. 1038; Ward v. Hackett, 30 Minn. 150, 14 N. W. 578, 44 Am. Rep. 187. New York. — See Norton v. Coons, 3 Den. (N. Y.) 130; Warner v. Price, 3 Wend. (N. Y.) 397. Ohio. — In Tarbill v. Richmond City Mill Works, 2 Ohio Cir. Ct. 564, it was held that the forging of the name of a cosurety to a note by the principal, and without the knowl- Vol. II 222 ALTERATIONS OF INSTRUMENTS applied in the case of the addition of an obligor in a bond. 19 Going still further, it has been stated in general terms that the addition of a principal promisor is not a material change which will discharge the original maker ; x but the general current of authorities which permit such a change tends to this conclusion : that although the addition of a maker is in the form of a joint promisor, whether made before or after the negotiation of the instrument, it is not an alteration which will discharge the maker where the addition is in fact that of a surety or guarantor only. 21 So the indorsement of a bill of exchange by the individual members of edge of the first surety, was immaterial as to the latter. Compare State v. Pepper, 31 Ind. 76. Vermont. — Keith v. Goodwin, 31 Vt. 268, 73 Am. Dec. 345 ; Peake v. Dorwin, 25 Vt. 28. Virginia. — Stout v. Vause, 1 Rob. ( Va. ) 179. United States. — Bingham v. Reddy, 5 Ben. (U. S.) 266, 3 Fed. Cas. No. 1,414. England. — Deering v. Winehelsea, 1 White & T. Lead. Cas. 157 note [.cited in State v. Pepper, 31 Ind. 76]. Knowledge of payee. — Sometimes it seems that the fact that the payee had nc knowledge of the change has been given some effect. See Hall v. McHenry, 19 Iowa 521, 87 Am. Dec. 451; Gano v. Heath, 36 Mich. 441; Ward v. Haekett, 30 Minn. 150, 14 N. W. 578, 44 Am. Rep. 187. But from the other cases cited in this note it may be said that this considera- tion is not material under the conditions stated in the text. 19. Governor v. Lagow, 43 111. 134; State p. Pepper, 31 Ind. 76; Matson v. Booth, 5 M. & S. 223, holding that where a bond for release from arrest on mesne process was pre- sented by one of the attesting witnesses, con- taining a blank for another obligor, and be- fore acceptance by the sheriff another obligor is added, the addition is made with the con- currence of the obligors at a, time when the bond could be considered in no other light than as in the nature of an escrow, and is thus brought within the authority of Zouch v. Clay, 1 Vent. 185. 20. Rudulph v. Brewer, 96 Ala. 189, 11 So. 314: Montgomery R. Co. v. Hurst, 9 Ala. 513. The last case has been criticized by the ob- servation that the court admitted therein that the identity of the instrument might have been destroyed by the change (Chappell v. Spencer, 23 Barb. (N. Y.) 584; Harper p. Stoud, 41 Tex. 367) ; but both the first cases cited may be reconciled with those in note 21, infra, because it appears from them that the change was probably made to enable the holder to negotiate the paper by adding sure- ties thereto, and not by adding makers as such, though if not they may be said not to state the law ii_ Alabama. See Brown v. Johnson, (Ala. 1900) 28 So. 579. Collateral undertaking. — And an indorse- ment on a note guaranteeing payment is a collateral undertaking which does not affect the liability of the original parties. Burn- ham v. Gosnell, 47 Mo. App. 637 ; Hutches v. J. I. Case Threshing Mach. Co., (Tex. Civ. App. 1896) 35 S. W. 60. See PuiNcrPAr, and Surety. Vol. n 21. Alabama. — Rudulph v. Brewer, 96 Ala. 189, 11 So. 314; Montgomery R. Co. v. Hurst, 9 Ala. 513. Georgia. — Lynch v. Hicks, 80 Ga. 200, 4 S. E. 255, in which case defendant executed his note to his creditor and the latter signed it as security, but, failing to negotiate it, erased his name as security and indorsed it, and it was held that the change was not material. Illinois. — Ryan v. Springfield First Nat. Bank, 148 111. 349, 35 N. E. 1120; Ives v. Mc- Hard, 2 111. App. 176, where the additional signature was as surety, though the court ex- presses the opinion that the addition of a maker will not discharge the original maker. Indian Territory. — Taylor v. Acom, 1 In- dian Terr. 436, 45 S. W. 130. Kentucky. — Casson v. Wallace, 4 Bush (Ky.) 388, in which case the payee, with the inten- tion of becoming a guarantor, by mistake signed a note subscribing his name under that of the maker. Massachusetts. — Stone v. White, 8 Gray (Mass.) 589, holding that the signature by a third party added to a note payable on de- mand, after its execution and delivery by the original makers and for a new consideration, is an independent contract not requiring the consent of the original promisors. Xeoraska. — Royse v. St. Joseph State Nat. Bank, 50 Nebr. 16, 69 N. W. 301; Barnes v. Van Keuren, 31 Nebr. 165, 47 X. W. 848, in which case it was held that, where additional signatures were procured after the execution and delivery of the note, the original maker was not discharged, because his liability was neither increased nor lessened and, being added after the execution of the note, plain- tiff could not insist that the release of the original maker was sufficient consideration to support the action against the additional signers. Ye ir York. — Brownell v. Winnie, 29 N. Y. 400, 408, 86 Am. Dec. 314 (involving the ad- dition by a payee of his own name as original maker, distinguishing Gardner r. Walsh, 5 E. & B. 83, 85 E. C. L. 83, in that the ques- tion in that case involved the addition of a name to a. joint and several note signed by two makers, Mullin, J., saying : " I have found no case, and none has been cited, hold- ing that a name added to a several note is such a material alteration as avoids it) ; " McCaughey r. Smith, 27 N. Y. 39 (which rec- ognizes as the result of later authorities that the addition of another maker to a note made by one or more is an alteration of the con- tract, because, instead of being the several or the joint obligation of the original party oi ALTERATIONS OF INSTRUMENTS 223 the firm which drew it, after acceptance and without knowledge on the part of the acceptor, is not material. 82 k. Effect on Prior and Subsequent Signers. If a note is changed by one of several makers after it is signed by them, persons who subsequently sign the instrument will not be discharged unless the change is of such a character as to discharge those who have previously signed. 23 But if, on the other hand, after an instrument is executed by sureties, it is so altered as to discharge them, and sub- sequently it is executed by other sureties, the latter will be bound, 24 as where sureties execute an instrument after it has been altered by striking out the names of the other sureties who have previously signed so as to discharge others who had signed before the alteration. 25 But if sureties sign as co-obligors, without knowl- edge of the fact of an alteration which has discharged prior signers, they will not be bound. 26 So, while the addition of a maker as surety may discharge prior makers or sureties not assenting to the change, the subsequent signers will never- theless be liable. The rule that the addition of a party will discharge those previously signing applies only to non-consenting parties.* 7 parties, it becomes the joint or joint and sev- eral undertaking of different contractors, but distinguishes the principle from that involved in this case, which was a note transferred to plaintiff for goods sold, and afterward, at the request of plaintiff, for the purpose of adding the security of the name of a particular per- son, that person was procured to sign his name to the note, and it was held that this was not adding a joint maker, because the note had already been negotiated, but was subscribing to become security upon the note already made and negotiated) ; Denick v. Hubbard, 27 Hun (N. Y.) 347 (involving the addition of the name of a payee under that of the two original makers upon transferring it to another person, as well as the addition of the name of the last holder above the sig- natures of all the other parties upon his transferring it to still another person) ; Card v. Miller, 1 Hun (N. Y.) 504; Burton v. Baker, 31 Barb. (N. Y.) 241; Partridge v. Colby, 19 Barb. (N. Y.) 248; Cobb v. Titus, 13 Barb. (N. Y.) 45, 10 N. Y. 198. Ohio.— Wallace v. Jewell, 21 Ohio St. 163, 8 Am. Eep. 48, holding that the addition of a maker to a joint and several promissory note discharged the original signers; but the court was of the opinion that if the object of the signature had been to guarantee payment or furnish additional security otherwise than by becoming or assuming to become a joint maker, there could be no objection to the ac- complishment of such an object in this man- ner. The court refused to assent to the proposition that because the pronoun " I " was used in the body of the note it was the several note of each signer, and not the joint note of all, contrary to Brownell v. Winnie, 29 N. Y. 400, 86 Am. Dec. 314. Michigan. — Union Banking Co. v. Martin, 113 Mich. 521, 71 N. W. 867; Miller v. Fin- ley, 26 Mich. 249, 12 Am. Eep. 306, holding that the addition of a maker after delivery would not discharge the original maker, upon the authority of which case it was held in Gano v. Heath, 36 Mich. 441, that the procur- ing of an additional maker at the instance of one of two joint makers, without knowledge on the part of the payee, would not discharge the other original maker. United States. — Mersman v. Werges, 112 U. S. 139, 5 S. Ct. 65, 28 L. ed. 641; Butte First Nat. Bank v. Weidenbeck, 97 Fed. 896, 38 C. C. A. 131. England — Em p. Yates, 2 De G. & J. 191, 59 Eng. Ch. 191. This case has been under- stood as based upon some evidence that the name was in fact added as an indorser. See Eeid v. Humphrey, 6 Ont. App. 403. 22. Blair v. State Bank, 11 Humphr. (Tenn.) 83. 23. Burlingame v. Brewster, 79 111. 515, 22 Am. Eep. 177. 24. People v. Brown, 2 Dougl. (Mich.) 9, holding that where a joint and several bond for the faithful performance of the duties of a public officer was changed by the judge of the circuit court by reducing the penal sum therein after the officer and six co-obligors as sureties had signed, and thereafter the instru- ment was executed by a number of other sure- ties, and approved and filed according to the statute, the bond was void as to the sureties who signed before the change, but good as to those who signed after. 25. State v. Van Felt, 1 Ind. 304, holding that the fact that the substituted surety did not know, or believe, or suspect that the striking out of the particular surety's name was without the knowledge or consent of the other sureties would not affect his liability, because if he did not wish to be bound unless as co-obligor with the other sureties he should have ascertained before he executed the bond whether or not they had agreed to the altera- tion. 26. Howe v. Peabody, 2 Gray (Mass.) 556; State v. McGonigle, 101 Mo. 353, 13 S. W. 758, 20 Am. St. Eep. 609, 8 L. R. A. 735. 27. Hochmark v. Eichler, 16 Colo. 263, 26 Pac. 818; Thompson v. Williams, 1 Fla. 56; Cotten v. Williams, 1 Fla. 37 ; Houck v. Gra- ham, 106 Ind. 195, 6 N. E. 594, 55 Am. Eep. 727 ; Crandall v. Auburn First Nat. Bank, 61 Ind. 349; Ehoades v. Leach, 93 Iowa 337, 61 N. W. 988, 57 Am. St. Eep. 281; Browning v. Gosnell, 91 Iowa 448, 59 N. W. 340; Hamil- Vol. II 224 ALTERATIONS OF INSTRUMENTS 22. Retracing Original Writing. To retrace words already written is not of itself to vary the legal effect of the instrument — as where pencil writing is retraced with ink — and constitutes no alteration. 28 23. Instruments in Duplicate. Where an instrument is executed in duplicate, though an unauthorized change in one may destroy it, 29 this will not affect the estate under the contract or the duplicate instrument which remains intact. 30 24. Alteration of One of Several Dependent Instruments — a. In General. The alteration of any one of several writings, all of which are material to show the actual agreement of the parties, will invalidate all of the papers. 31 Changes in one of such instruments, however, may be authorized by the terms of the other. 38 b. Note and Mortgage. The authorities are not in accord as to the effect upon a mortgage of an alteration of a note or bond secured thereby. In some it is considered that both the note and mortgage are destroyed, though, if there is no actual fraud, the original consideration is not destroyed, and therefore the mortgage is enforceable. In others, while the note may be destroyed, it is con- ton v. Hooper, 46 Iowa 515, 26 Am. Rep. 161; Dickerman v. Miner, 43 Iowa 508. Who may object. — If the surety who might have been released by such a change does not take advantage of it, those who subsequently signed with knowledge of the change cannot escape liability to contribute to him by ob- jecting that the change discharged him from liability. Houck v. Graham, 106 Ind. 195, 6 N. E. 594, 55 Am. Rep. 727. So a surety can- not set up that he signed without the knowl- edge or consent of the principal, as the prin- cipal's relations or liabilities are not altered thereby. Hughes v. Littlefield, 18 Me. 400. Consideration. — If, after the complete exe- cution and delivery of a note, the payee pro- cures the signature of an additional prom- isor as surety only, the last signer is not bound in the absence of a new consideration. Favorite v. Stidham, 84 Ind. 423; Stone v. White, 8 Gray (Mass.) 589; Barnes v. Van Keuren, 31 Nebr. 165, 47 N. W. 848. But in Hughes v. Littlefield, 18 Me. 400, it was held that, where a note was signed, after its orig- inal execution and delivery, by another as surety, the contract between the original par- ties was a good consideration, and the last signer was liable as a joint promisor. 28. Reed v. Roark, 14 Tex. 329, 65 Am. Dec. 127. So where, in attempting to retrace a part of the obligor's name in a bond which had been blotted in ink, the obligee misspelled the name, but no fraud was imputed to him and the sound of the name was not changed, the act was held to be immaterial and not to avoid the instrument. Dunn v. Clements, 52 N. C. 58. 29. Jones v. Hoard, 59 Ark. 42, 26 S. W. 193, 43 Am. St. Rep. 17, holding that the un- authorized change by a lessee in his counter- part of duplicate leases, though it annuls his counterpart, does not affect his rights under the contract. 30. Lewis v. Payn, 8 Cow. (N. Y.) 71, 18 Am. Dec. 427. To the same effect see Day v. Ft. Scott Invest., etc., Co., 53 111. App. 165, which was an action for specific performance of a contract to purchase land, the complain- ant's copy having been changed by his attor- ney without any fraudulent intent and under Vol. II a misapprehension, the court holding that, as the matter added was not necessary to the efficiency of the instrument, it would not af- fect the validity of the original instrument, and that if material, then, under the circum- stances, equity could correct the contract. So in Rhoades v. Castner, 12 Allen (Mass.) 130, it was held that where a memorandum of a contract of sale was in duplicate, one only signed by the buyer and in possession of the seller, and the other accepted by the seller and given to the buyer, the subsequent addi- tion by the latter of his own signature to his part, without fraudulent intention, was not a material alteration affecting the character of the memorandum. See also Young v. Cohen, 42 S. C. 328, 20 S. E. 62 ; Young v. Wright, 4 Wis. 144, 65 Am. Dec. 303. But in Hayes v. Wagner, 89 111. App. 390, proof by a dupli- cate seems to be confined to cases where the alteration in the other copy is innocently made. 31. Meyer v. Huncke, 55 N. Y. 412; French v. Graves, 50 N. Y. App. Div. 522, 64 N. Y. Suppl. 74; Miller v. Stewart, 9 Wheat. (U. S.) 680, 6 L. ed. 189. Collateral note. — Where the holder of a note erased the names of the indorsers on a collateral note it was held that the maker on the principal note was released. Burgess v. Brooklyn Clock Co., 2 N. Y. City Ct. 168. 32. Consaul v. Sheldon, 35 Nebr. 247, 52 N. W. 1104, holding that, where specifications calling for glazed doors are expressly made a part of a building contract, the insertion of the word " glazed " in the contract as de- scriptive of the doors is immaterial. See also McLennan v. Wellington, 48 Kan. 756, 30 Pac. 183; Kretschmar v. Gross, (Wis. 1900) 84 N. W. 429. 33. Illinois.— Elliott v. Blair, 47 111. 342 ; Vogle v. Ripper, 34 111. 100, 85 Am. Dec. 298. Indiana. — Bowman v. Mitchell, 79 Ind. 84 ( on demurrer to an answer setting up the al- teration) ; Tate v. Fletcher, 77 Ind. 102 (upon the ground that a note payable sit a bank in that state was prima fade the payment of a debt, and the note being the only debt de- scribed in the mortgage and the mortgage and ALTERATIONS OF INSTRUMENTS 225 sidered that the security remains unimpaired for the original debt. 34 The latter cases have been assimilated to those which hold that a mortgage given to secure the same debt represented by a note remains an available security notwithstanding the note has become barred by the statute of limitations. 85 It does not follow, however, that a material alteration of a mortgage, and its consequent annulment, also renders the debt, the payment of which is secured by it, incapable of collec- tion, or any instrument by which the debt is evidenced, void. 36 25. Certificate of Acknowledgment. Where an acknowledgment is not essen- tial to the validity of a conveyance, 87 but merely dispenses with other proof of «xecution and delivery, an alteration in the acknowledgment does not affect the validity of the deed or its admissibility in evidence. 88 note being together only one transaction, whatever destroyed the note discharged the mortgage also). But when the first case above cited came up again on a replication to the answer (Bowman v. Mitchell, 97 Ind. 155), it was held that the change in the note complained of having been made with the con- sent of the husband, who was the sole maker of the note, the note was not destroyed thereby, and therefore the change complained of by the wife, who had joined with her hus- band in the mortgage to secure the note, <>ould not affect the validity of the mortgage as against the wife. To the last point also see Brock v. Brock, 29 111. App. 334. But in Crawford v. Hazelrigg, 117 Ind. 63, 18 N. E. 003, 2 L. R. A. 139, after the execution by man and wife of » mortgage to secure a note indorsed by the mortgagee for the husband and wife, the note was altered with the hus- band's consent, but without the consent of the wife, and it was held that the wife's inchoate interest in the land was fully discharged from the lien of the mortgage. Iowa. — Clough v. Seay, 49 Iowa 111. Nebraska. — Walton Plow Co. v. Campbell, 35 Nebr. 173, 52 N. W. 883, 16 L. R. A. 468, upon the ground that the fraudulent altera- tion of the note destroyed the right of action on the note, as well as for the original con- sideration. New York. — Gillette v. Smith, 18 Hun (N. Y.) 10. Wisconsin. — Gorden v. Robertson, 48 Wis. 493, 4 N. W. 579, holding that the mortgage is security for the debt and not merely for the note, and as an alteration of the note, not fraudulent, does not destroy the debt, the mortgage may be foreclosed in such a case. 34. Cheek v. Nail, 112 N. C. 370, 17 S. E. 80 (upon the ground that a mortgage is not regarded as merely subsidiary to the debt, but is » direct appropriation of property to its security and payment; that the remedies on a note or bond and on a mortgage are different and either may be resorted to, and that the loss of one does not cut off a resort to the other. This holding is apparently without reference to the doctrine that a fraudulent alteration destroys the original in- debtedness) ; Heath v. Blake, 28 S. C. 406, 5 S. E. 842; Smith v. Smith, 27 S. C. 166, S S. E. 78, 13 Am. St. Rep. 633; Plyler v. Elli- ott, 19 S. C. 257; Gillett v. Powell, Speers Eq. (S. C.) 142, 144, all of which cases go [15] upon the principle that the note is not the debt itself and that the alteration will not destroy the security of the mortgage, irre- spective of the intent with which the altera- tion was made. In the first case it is said . that there seems to be an idea that, in the event of the destruction of a note by an al- teration, " the act, being fraudulent, reaches beyond the security altered, and, as a sort of penalty, avoids the debt itself and all other securities. . . . Gillett v. Powell, Speers Eq. (S. C.) 142, is our leading case on the sub- ject, and it is suggested that, though a case of alteration, the alteration was ' innocent,' and therefore the punishment of avoiding the debt was not applied. I do not clearly see how it can be assumed that the alteration in that case was ' innocent.' " 35. Cheek v. Nail, 112 N. C. 370, 17 S. E. 80; Smith v. Smith, 27 S. C. 166, 3 S. E. 78, 13 Am. St. Rep. 633; Plyler v. Elliott, 19 S. C. 257. See also Gillette v. Smith, 18 Hun (N. Y.) 10, in which case, however, the change does not appear to have been made fraudulently. But, on the other hand, this position is combatted upon the ground that the statute of limitations only takes away the remedy, while the fraudulent alteration of a note goes further and reaches to the debt itself and extinguishes it. Walton Plow Co. v. Campbell, 35 Nebr. 173, 52 N. W. 883, 16 L. R. A. 468. 36. Kime r. Jesse, 52 Nebr. 606, 72 X. W. 1050. Sureties entitled to benefit of mortgage. — Where, by agreement between the principal and holder of a note, the description of a part of land conveyed in a mortgage to secure the note was erased in order to enable the mort- gagor to sell the land to an innocent pur- chaser, and the surety and indorser on the note defend on the ground of such erasure, it is error to say that because the land was sold by the mortgagor before the mortgage was recorded the consent of the indorser and surety to the erasure became immaterial. These parties had the right to expect the mortgage to be held for their protection, as well as for the protection of its holder. Wil- liams i'. Barrett, 52 Iowa 637, 3 N. W. 690. 37. See Acknowledgments. 38. Am v. Matthews, 39 Kan. 272, 18 Pac. 65. To the same effect see Devinney v. Rey- nolds, 1 Watts & S. (Fa.) 328. Vol. II 226 ALTERATIONS OF INSTRUMENTS VIII. PLEADING. A. Declaration on Altered or Original Instrument. Notwithstanding a mere spoliation does not affect the rights of the parties under the instrument, it does not follow that an action can be maintained on the instrument in its altered form ; ™ but in such a case the declaration should be framed as upon the instru- ment in its original form, 40 and, upon showing that the change is a mere spolia- tion, there would be no variance. 41 If the terms of the instrument are changed by consent so that the parties are bound by the new terms of the contract, it is proper to declare upon the instrument as changed ; & but if plaintiff alleges an alteration, without also showing that it was authorized, his pleading will be bad. 48. By suing on the instrument in its altered form the plaintiff will be taken to have ratitied the alteration, 44 and will not be permitted to go to trial in such a case and then fall back upon the original terms of the instrument by amendment. 45 So, in an action on a bond 46 which had been changed — as by the defendant tearing off the seal 47 — it is held that the instrument cannot be declared on with profert, but the facts should be stated as an excuse for not making a profert. 48 39. Cochran r. Xebeker, 48 Ind. 459. See 2 Cent. Dig. tit. "Alteration of Instruments," § 216 et seq. 40. Orlando r. Gooding, 34 Fla. 244, 15 So. 770; Drum r. Drum, 133 Mass. 566; Perkins Windmill, etc., Co. v. Tillman, 55 Nebr. 652, 75 X. W. 1098. Where matter in the printed form of a note is erased by drawing lines through it, it is proper in such a ease to declare upon the note in its changed form, and when produced with the erasures it will not constitute a variance. Corcoran r. Doll, 32 C'al. 82. 41. Drum v. Drum, 133 Mass. 566. See also Bledsoe v. Graves, 5 111. 382; Newell v. Mayberrv, 3 Leigh (fa.) 250, 23 Am. Dec. 261. 42. Tarleton e. Shingler, 7 C. B. 812, 62 E. C. L. 812. If a note be altered with the consent of one maker, but without the consent of the other maker, and is declared on as the joint note of both, a recovery may be had against the maker who consented. Broughton v. Fuller, 9 Vt. 373. Time of performance of condition. — A bond for performing an award which was dated Sept. 19, 1825, conditioned that the award should be made, etc., on or before the first day of December then next, and afterward the parties extended the time for the award twice, by erasure and interlineation, the last time to Jan. 18, 1826. It was held that plaintiff might declare on the bond as both dated and made on the nineteenth day of September, or as dated that day and made afterward ; that, though the legal effect of altering the time limited to do an act in the condition of a bond, leaving the original date to stand, is to destroy the bond as the preexisting one and to give it effect from the time of the al- teration, the bond may be declared on as bear- ing its original date, with or without aver- ment that it was changed after it was delivered. Tompkins v. Corwin, 9 Cow. (N. Y.) 255. 43. Allen v. Dornan, 57 Mo. App. 288. So though an alteration increasing the rate of Vol. II interest was made under such circumstances as to deprive the surety of the right to rely upon it as a defense, if the plaintiff's com- plaint does not seek to recover the interest according to the changed rate' and no amend- ment is asked he will be entitled to recover only the rate according to the original terms of the instrument. Sanders v. Bagwell, 37 S. C. 145, 15 S. E. 714, 16 S. E. 770. 44. See supra, VI, C, 7. 45. Perkins Windmill, etc., Co. v. Tillman, 55 Xebr. 652, 75 X. W. 1098 ; Fulmer v. Seitz, 68 Pa. St. 237, 8 Am. Rep. 172. But in Union Nat. Bank v. Roberts, 45 Wis. 373, where an alteration set up was made by a trespasser, it was held that a mere mistake in pleading the note as it was originally written would not be taken for the adoption or ratification of the alteration, as a variance founded on mistake is amendable on the trial, and that the court would consider the pleading as amended where the identity of the note as made was fully established by the findings of the trial court. See also Murray v. Peterson, 6 Wash. 418, 33 Pae. 969. 46. Form. — For count on bond against a. substituted surety by which other sureties were released, showing these facts, see State. !'. Van Pelt, 1 Ind. 304. 47. Powers r. Ware, 2 Pick. (Mass.) 451- So, in U. S. i: Spalding, 2 Mason (U. S.) 478, 27 Fed. Cas. No. 16,365, it is held that if the alteration is made by the obligee himself — as by tearing off a seal or canceling a. bond in consequence of fraud or imposition practised by the obligor — the obligee may still declare on the bond as the deed of the- party, and set forth the special facts in the profert. 48. Lee v. Alexander, 9 B. Mon. (Ky.) 25, 48 Am. Dec. 412 : Medlin r. Platte County, 8 Mo. 235, 40 Am. Dec. 135; Mathis v. Mathis, 20 X. C. 46; Waugh r. Bussell, 5 Taunt. 707, 1 E. C. L. 362, wherein plaintiff first de- clared on the bond and on oyer craved set out the condition as it appeared in the bond as changed, and, upon the plea of non est factum. ALTERATIONS OF INSTRUMENTS 227 B. Setting up Original Consideration. 49 In cases announcing the rule that an innocent alteration will not preclude a recovery on the original consideration, it appears that the pleading is generally framed with that view, as by adding the common counts ; m but plaintiff should be allowed to amend his declaration by setting up the original consideration of a note. 51 He should allege, how- ever, the absence of fraudulent intent, though a failure to do so will be cured by verdict if the answer alleges the intent, and plaintiff denies it in his reply. 52 C. Pleading 1 Alteration — 1. General Issue or Special Plea. The general rule, supported by the weight of authority, is that, when an instrument is declared/ on in its altered form, an alteration therein may be shown under non est factum, non assumpsit, non acceptavit, or that defendant did not indorse, etc., as the case may be appropriate, and need not be specially pleaded. 53 But where the defense and proof of a change by a stranger, plaintiff was nonsuited. Thereupon he brought an- other action and upon oyer craved set out the condition as it was originally executed, and there was a verdict for plaintiff on the issue of non est factum. The earlier doctrine that a deed altered in an immaterial point by a party, or by a stranger in a material part, etc., became void, " not without good reason, has been sup- posed to have been derived from the ancient technical forms of pleading in cases of deeds, and from principles applicable to proferts." Nichols v. Johnson, 10 Conn. 192, 197, fur- ther indicating that, whatever was the origin of the principle, it has been relaxed in modern times, and that in Read v. Brookman, 3 T. R. 151, it was for the first time settled that the loss or destruction of a deed would excuse a profert. 49. For form of petition setting up inno- cent change of note and to recover an original consideration see Krause v. Meyer, 32 Iowa 566. 50. See supra, VII, D, 4, e, ( n ) . 51. St. Joseph State Sav. Bank v. Shaffer, 9 Nebr. 1, 1 N. W. 980, 31 Am. Rep. 394. Pleadings taken as amended. — Though plaintiff may recover on the original contract if the alteration complained of is not shown to be. fraudulent, he does not recover on the original contract as . alleged in defendant's answer, but, when he abandons the note as a cause of action and proceeds on the original indebtedness, it will be taken as if he had amended the complaint, substituting that cause of action, and to meet this defendant is> entitled to amend his answer. Wyckoff v. Johnson, 2 S. D. 91, 48 N. W. 837. But see Bowser v. Cole, 74 Tex. 222, 11 S. W. 1131. 52. Savage v. Savage, 36 Oreg. 268, 59 Tac. 461. 53. Connecticut. — Mahaiwe Bank v. Doug- lass, 31 Conn. 170, general issue without notice. Delaware. — Herdman v. Bratten, 2 Harr. ( Del. ) 396, holding that where a surety signs a bond upon condition that others named in the body thereof should also sign, and the latter never sign, but the bond is presented with their names erased, the proper plea is non est factum. Illinois. — Conkling v. Olmstead, 63 111. App. 649 ; Soaps v. Eichberg, 42 111. App. 375 (wherein, however, it is said that a special plea would be more appropriate) ; Pankey v. Mitchell, 1 111. 383. Indiana. — McKinney v. Cabell, 24 Ind. App. 676, 57 N. E. 598, holding that, as an altera- tion is provable under non est factum, an answer setting up an alteration is bad, or, at least, that sustaining a demurrer to such an answer will be harmless error. See also Em- mons r. Meeker, 55 Ind. 321. Maryland. — Edlen v. Sanders, 8 Md. 118; Union Bank v. Ridgely, 1 Harr. & G. (Md.) 324. Mississippi. — Henderson v. Wilson, 6 How. (Miss.) 65. Missouri. — Whitmer v. Frye, 10 Mo. 348. But in Paris Nat. Bank v. Nickell, 34 Mo. App. 295, where a note was signed by a surety and indorsed by him to be delivered to a discounting bank, and was altered by the bank at the time of the delivery, it was held that the alteration could be shown under a general denial, because the change was made before the delivery, the court saying, how- ever, that if the change had been made after delivery to the bank it would have been mat- ter in avoidance, to be specially pleaded. Pennsylvania. — "Non est factum puts in is- sue not only the execution of the instrument, but its continuance as the deed of both par- ties, without material alteration, to the date of the plea. Burgwin v. Bishop, 91 Pa. St. 336 ; Smith v. Weld, 2 Pa. St. 54 ; Barrington v. Washington Bank, 14 Serg. & R. (Pa.) 405. United States. — Wood v. Steele, 6 Wall. (U. S.) 80, 18 L. ed. 725. England. — Hirschman v. Budd, L. R. 8 Exch. 171 ; Cock v. Coxwell, 2 C. M. & R. 291 ; Knight v. Clements, 8 A. & E. 215, 35 E. C. L. 559; Calvert v. Baker, 4 M. & W. 417. Canada. — Meredith v. Culver, 5 U. C. Q. B. 218 [citing Byles on Bills (ed. 1862), 303]. See 2 Cent. Dig. tit. "Alteration of Instru- ments," § 216 et seq. Amended bail-bond. — In Gragg v. State, 18 Tex. App. 295, a proceeding to forfeit a bail- bond, the court permitted the district attor- ney to amend the recital in the bond with- out the knowledge or consent of the obligor, and upon a plea of non est factum it was held that the plea had reference only to the bond as amended; that as defendant had actually executed the identical bond which had been amended, the proper practice was to plead Vol. II 223 ALTERATIONS OF INSTRUMENTS is not that defendant did not in fact make the contract charged in the declaration, but is that, by reason of some unlawful practice, the holder has disabled himself from suing upon that contract, the matter should be specially pleaded. The authorities, however, are not entirely harmonious on this subject. 54 2. Statutory Denials. Assimilating the statutory general denial to the general specially. See also Heath, v. State, 14 Tex. App. 213. 54. Chitty on Bills (ed. 1859), 381, quali- fies the rule laid down in Byles on Bills (ed. 1862), 302, that when plaintiff declares on an instrument in its altered state the alteration need not be pleaded specially, in this: that when plaintiff so declares he must prove the instrument in its altered state, but that the defense is open to the drawee on non ac- ceptavit, because then it may be said that he has pleaded specially by saying that he did not accept the bill declared on and produced in evidence, as observed by Alderson, B., in Cock v. Coxwell, 2 C. M. & R. 291. In Hirseh- man v. Budd, L. R. 8 Exch. 171, it was held that an alteration in the date of » bill of exchange, which was declared upon with its altered date, was available to the acceptor under a traverse of the acceptance. The dis- tinction is clearly pointed out between decla- rations on bills in their original and in their altered forms. In Hemming v. Trenery, 9 A. & E. 926, 36 E. C. L. 480, the instrument appeared to have been interlined ; without the interlineation it corresponded to the declara- tion, and it was held that plaintiff was enti- tled to a verdict upon finding that the inter- lineation was made after the instrument was executed whether he was privy to the altera- tion or not, because the effect of the altera- tion was only to discharge or modify the original contract, and therefore constituted a, defense, which under rule of Hil. T. 4 Wm. IV, was required to be shown by way of con- fession and avoidance. This case is distin- guished in Hirschman v. Budd, L. R. 8 Exch. 171, supra, in that there were two counts, one of which declared upon the instrument in its original form. In Parry v. Nicholson, 13 M. ■& W. 778, the court said that there had been no decision permitting evidence under such a plea as in the case of Calvert v. Baker, 4 M. & W. 417, and Knight i\ Clements, 8 A. & E. 215, 35 E. C. L. 559, since the decision of Hemming v. Trenery, 9 A. & E. 926, 36 E. C. Xi. 480, and that the latter case had been acted upon in Mason v. Bradley, 11 11. £ W. 590, and Davidson v. Cooper, 11 M. & W. 778. The court seems not to have noticed the de- cision in Cock v. Coxwell, 2 C. M. & R. 291, and apparently overrules Knight v. Clements, 8 A. & E. 215, 35 E. C. L. 559, and Calvert v. Baker, 4 M. & W. 417, by holding that if an alteration is made after acceptance it is not available under the plea that defendant did not accept the bill sued on, though the de- cision seems also to turn upon the materiality of the change in question. But in Mason v. Bradley, 11 M. & W. 590 {cited in Parry v. Nicholson, 13 M. & W. 778], defendant was sued as a maker of a note which he and six others had signed. The signature of one was Yol. II cut off, and he endeavored to set that up as a defense under a plea denying the making of the note declared on, and it was held that the defense should be specially pleaded, because the real defense was not that he did not make the note declared on, but that the one which he did make had been rendered void after- ward. So, in Davidson v. Cooper, 11 M. & W. 778, in assumpsit on a guaranty the defend- ant pleaded non assumpsit, and in proof of the agreement the plaintiff produced a writing and defendant proved that when he signed it it had no seal, but that a seal had been set opposite his name afterward, and the court held that the evidence did not show that de- fendant had not promised, but that the de- fense was in avoidance. So in Leslie v. Emmons, 25 U. C. Q. B. 243, the court said that, as long as Parry v. Nicholson, 13 M. & W. 778, stood unreversed, it would seem that, where a plaintiff declares upon a note made by defendant jointly and severally, in order to raise the issue that the words " jointly and severally " were inserted after the execution of the note, a special plea would be necessary, because a general-issue plea would put in issue only that defendant made the note declared on. But in Meredith v. Culver, 5 U. C. Q. B. 218, it was held that where the time of the payment of a bill had been altered after ac- ceptance, the evidence of the alteration was admissible under the plea of did not accept by the acceptor and did not indorse by the in- dorser. The court said that there could be no difference between this and the question whether non est factum to » bond admitted the proof of an alteration to sustain the is- sue for defendant, and cited Knight v. Clem- ents, 8 A. & E. 215, 35 E. C. L. 559 ; Calvert v. Baker, 4 M. & W. 417, and further indi- cated that Hemming v, Trenery, 9 A. & E. 926, 36 E. C. L. 480; Davidson v. Cooper, 11 M. & W. 778, and Mason r. Bradley, 11 M. & W. 590, while appearing opposed to this de- cision at first sight, were distinguished by the difference between such cases as this and cases where the instrument is sued upon as it originally stood, and the defense is that by tearing off a seal, cutting off a signature of a joint maker, or interlining something in order to change the effect of the instrument, the party precludes himself from recovering on the instrument. In Crotty v. Hodges, 4 M. & G. 561, 43 E. C. L. 292, under a plea of non acceptavit, the bill produced did not sup- port the issue for plaintiff; the court recog- nized a conflict between Calvert v. Baker, 4 M. & W. 417, and Hemming v. Trenery, 9 A. & E. 926, 36 E. C. L. 480, but held that in this case the defendant cannot be said to have accepted the bill which was produced at the trial, and thus got rid of the difficulty of reconciling those two cases. ALTERATIONS OF INSTRUMENTS 229 issue at common jaw, the defense of an alteration is available under a general denial of all the allegations of the complaint. Such a defense is not new matter under a provision requiring new matter to be pleaded affirmatively. 55 An answer specifically denying the execution of the instrument sued on is sufficient. 58 3. Necessity of Pleading — a. In General. When defendant has notice of an alteration of an instrument which is the foundation of the action, it is held that he should raise the issue by his pleading 5T — as where the note or bond is set out or annexed — if he wishes to cast the burden of proof upon plaintiff to explain the apparent change. 58 It is otherwise, however, where the question arises inciden- tally as one of evidence purely, 59 or the matter complained of is no part of the instrument in suit. 60 So, in a suit on a lost note, an offer to plead so as to raise the issue of an alteration is in time if made as soon as the evidence discloses the fact of the alteration. 61 On the other hand, if, in proving the execution of a note, the testimony discovers the fact that it was designedly changed by the payee, the court will exclude the instrument when it is offered in evidence. 62 b. Issue on Indorsements Only. In an action by an indorsee against a prior indorser, alleging the several indorsements before that of plaintiff, if the only issue tendered is on the indorsements the bill is admissible to prove the indorse- ments, notwithstanding an apparent change in the face of the bill. 63 55. Kansas. — J. I. Case Threshing Mach. Co. v. Peterson, 51 Kan. 713, 33 Pac. 470. Massachusetts. — Cape Ann Nat. Bank v. Burns, 129 Mass. 596. "Nebraska. — Walton Plow Co. v. Campbell, 35 Nebr. 173, 52 N. W. 883, 16 L. R. A. 468, answer, in an action to foreclose a, mortgage, denying each and every allegation of the pe- tition. New York.— Farmers' L.' & T. Co. v. Siefke, 144 N. Y. 354, 39 X. E. 358, 63 N. Y. St. 662; Boomer v. Koon, 6 Hun (N. Y.) 645 ; Schwarz v. Oppold, 7 Daly (N. Y.) 121, 74 N. Y. 307. Wisconsin. — Sehwalm v. Mclntyre, 17 Wis. 232. 56. Lincoln v. Lincoln, 12 Gray (Mass.) 45; Paris Nat. Bank v. Nickell, 34 Mo. App. 295. See also Conner v. Sharpe, 27 Ind. 41. Parol evidence is admissible to show that a bond sued on was executed in blank and filled up contrary to authority, under a de-. nial of execution and delivery. Richards v. Day, 137 N. Y. 183, 33 N. E. 146, 50 N. Y. St. 389, 33 Am. St. Rep. 704, 23 L. R. A. 601. Denial of subscription. — The defense that a subscription for shares was altered by in- creasing the number of shares may be raised by an answer denying that defendant sub- scribed or made the contract mentioned in the petitiori. Bery v. Marietta, etc., R. Co., 26 Ohio St. 673. 57. After admitting the execution of a bond pleaded in the complaint with the al- leged alteration, the defendant cannot avail himself as a defense of an interlineation ap- pearing in the bond. Kleeb v. Bard, 12 Wash. 140, 40 Pac. 733. 58. Zeigler v. Sprenkle, 7 Watts & S. (Pa.) 175 (holding that where a suit is on a bond, with the words or interlineations claimed by defendant to be alterations, and defendant wishes to cast upon plaintiff the burden of explaining such alterations, he must plead non est factum; otherwise the bond will be admissible without such explanation, as where the defendant pleads nil debet) ; Matossy v. Frosh, 9 Tex. 610 (wherein defendant pleaded certain payments and in reconvention with- out attacking the validity of the note sued on, and it was held that the objection could not be taken at the trial, there being no variance). Alteration not apparent on copy filed. — Where there is a manifest alteration on the face of a bond, which alteration does not ap- pear in the copy filed, a rule of court making it necessary for plaintiff to prove the execu- tion of a bond unless defendant, at or before the time of filing his plea, shall deny the exe- cution of the instrument, does not apply, and the burden of explaining the alteration is on plaintiff. Nesbitt v. Turner, 155 Pa. St. 429, 26 Atl. 750. 59. Instrument not part of pleading. — -In Moorman v. Barton, 16 Ind. 206, it was held, in an action on a note, that a general denial, not verified by affidavit, was insufficient to admit evidence of an alteration; but the court said that, had the alteration arisen upon an instrument offered in evidence which had not been made a part of the pleading, the point might have arisen as to the presump- tion touching erasures and interlineations. 60. Matter no part of bond. — Where there is a note preceding the signatures of the makers of a bond to the effect that certain words have been inserted in the bond before the signature thereto, such note is no part of the bond itself, but is simply a piece of evidence, and in order to set up an alteration of the bond it is not necessary to make any allegation with reference to the note. The note being available only as an admission or piece of evidence, it is competent for defend- ant to confront it by evidence going to show that he never made it, and to do this it is ob- viously unnecessary to plead that he never made it. White v. Johns, 24 Minn. 387. 61. Pankey v. Mitchell, 1 111. 383. 62. York v. Janes, 43 N. J. L. 332. 63. Sibley ti. Fisher, 7 A. & E. 444, 34 E. C. L. 243, because the making of the bill itself was admitted on the record. Vol. II 230 ALTERATIONS OF INSTRUMENTS 4. Denial of Signature or Execution under Oath. Statutes making proof of execution of an instrument unnecessary, and providing that the genuineness of the signature shall be deemed to be admitted unless such execution or signature shall be denied under oath, are sometimes applied to the defense of an alteration. 64 In other cases such statutes are not applied to so full an extent as in some of those last cited. The instrument, it seems, is admissible and only the original execution is admitted, but defendant is not precluded from showing that subsequent to the execution the instrument had been altered. 65 5. Affirmative Relief in Equity. If a defendant relies upon the avoidance of an instrument which is the foundation of the complaint in equity, he cannot have affirmative relief by cancellation unless he makes his answer a cross-bill, although the court will refuse to enforce the instrument and will dismiss the bill. 66 6. Plea as Admission of Execution. A plea which raises the issue of an altera- tion operates as an admission of the original execution of the instrument. 67 7. Special Plea — a. In General. Though an alteration since the execution of an instrument may be shown under a general-issue plea, this would seem to be no reason why it may not be pleaded specially. 68 b. Sufficiency 69 — (i) Ix Gexeral. It may be stated in general terms that 64. Alabama. — Lesser r, Scholze, 93 Ala. 338, 9 So. 273, holding, however, that if plaintiff's demurrer to the plea is overruled on the merits of the plea, and issue is joined and tried and found against defendant, and he appeals, the plea will be taken as pre- senting the defense as efficaciously as if veri- fied. Colorado. — Thackaray v. Hanson, 1 Colo. 365. Indiana. — Moorman v. Barton, 16 Ind. 206 (holding that the code restricts evidence un- der the general denial to that which tends to negative what the opposite party is bound to prove, and that evidence of an alteration is inadmissible under a plea which amounts merely to a non est factum and is not veri- fied) ; Riley v. Harkness, 2 Blackf. (Ind.) 34. Mississippi.— Hemphill v. Alabama Bank, 6 Sm. & M. (Miss.) 44, holding that a de- fendant could not, under a plea of non as- sumpsit, avail himself of the defense that the note on which he is sued had been changed from the note which he authorized to be executed for him ; that such a defense is admissible only when the pleadings are under oath, upon the authority of Green v. Robinson, 3 How. (Miss.) 105, holding that by pleading in chief defendant admits the execution of the note. But in Goss v. Whitehead, 33 Miss. 213, where the maker of a promissory note signed the same in blank, restricting his agent as to the amount to be inserted, it was held that the maker might prove under the general issue a violation of his instructions by the agent and notice of that fact in the holder, in avoidance of the excess so inserted; that in such a case, the note being valid as to some amount in- serted and only void as to an excess, its exe- cution could not be denied under oath. Virginia. — Archer v. Ward, 9 Gratt. (Va.) 622. under a statute providing in effect that in an action upon an indorsement, in which the indorsement is alleged, such indorsement shall be taken as genuine, without proof of the handwriting unless defendant shall file his affidavit denying the indorsement, hold- Vol. II ing that without such affidavit an alteration of the indorsement cannot be shown. Affidavit of fraud in procurement of sig- nature. — In Longwell v. Day, 1 Mich. N. P. 286, which was a suit on a promissory note, the defendant filed an affidavit setting forth circumstances under which he was induced to sign the instrument, amounting to a fraud in the execution of the note, by inducing de- fendant to sign a paper with a condition, whereas the paper presented was one without a. condition; and it was held that the lan- guage used in the affidavit must be taken as a denial of the execution of the note declared upon so as to cast upon plaintiff the burden of proving its execution. 65. Hewins v. Cargill, 67 Me. 554; Hen- derson v. Wilson, 6 How. (Miss.) 65; Bige- low v. Stilphen, 35 Vt. 521 (holding that » rule, requiring notice that upon the trial the defendant would deny the execution of the note, would not apply to a defense of an al- teration, but only to a denial of the genuine- ness of the signature) : Schwalm v. Mclntyre, 17 Wis. 232; Low t. Merrill, 1 Pinn. (Wis.) 340. 66. Bay v. Shrader, 50 Miss. 326. 67. Baielift r. Treece, 77 Ala. 528 (hold- ing that under such a plea proof of the orig- inal signature of defendant is not neces- sary) ; Winters v. Mowrer, 163 Pa. St. 239, 29 Atl. 916; Wells r. Moore, 15 Tex. 521; Crews v. Farmers Bank, 31 Gratt. (Va.) 348. 68. Langton v. Lazarus, 5 M. & W. 629. See also Daniel v. Daniel, Dudley (Ga.) 239; Soaps v. Eichberg, 42 111. App. 375; Davis r. Cole, 1 Tyler (Vt.) 262. Answer not frivolous. — In an action on a promissory note, an answer admitting the execution of the note, but alleging that it was materially altered by plaintiff after exe- cution by changing the date thereof, is not sham and frivolous, and cannot be stricken out as such. Rogers v. Vosburgh, 87 N. Y. 228. 69. For forms of pleas and answers in whole, in part, or in substance, see : ALTERATIONS OF INSTRUMENTS 231 the plea or answer which sets up substantially that the instrument relied upon by the opposite party has been altered in particular respects after execution, with the knowledge or consent of the other party and without the knowledge or consent of the pleader, is good.™ (ii) Character of Change — (a) In General. A plea setting up an altera- tion should aver in what way or manner the instrument has been changed, and not the mere conclusion of the pleader. 71 (b) Denial of Execution and Setting up Character of Instrument Actually Signed. Where a defendant denies the execution of the instrument sued on, but admits the execution of an instrument which he sets out, the plea is held to be good. 73 (m) Time of Change. A plea or answer setting up an alteration should allege that it was made after the execution and delivery of the instrument. 73 (iv) Knowledge or Privity of Parties. On the one hand it is held that a plea or answer setting up an alteration should allege that it was done Alabama. — Jordan v. Long, 109 Ala. 414, 19 So. 843; Lesser v. Scholze, 93 Ala. 338, 9 So. 273 (in which the plea was formally bad for want of verification) ; Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 24 Am. St. Eep. 832, 12 L. E. A. 140; Hill v. Nelms, 86 Ala. 442, 5 So. 796. Arkansas. — Overton v. Matthews, 35 Ark. 146, 37 Am. Eep. 9 (answer good as between maker and payee but not as between maker and innocent purchaser) ; Gist v. Gans, 30 Ark. 285. California. — Sherman v. Eollberg, 11 Cal. 38, answer held sufficient though loosely drawn. Colorado. — Hoopes v. Collingwood, 10 Colo. 107, 13 Pac. 909, 3 Am. St. Eep. 565. Georgia. — McCauley v. Gordon, 64 Ga. 221, 37 Am. Eep. 68; Johnson r. Brown, 51 Ga. 498 ; Wheat v. Arnold, 36 Ga. 479. Illinois. — Benjamin v. McConnell, 9 111. 536, 46 Am. Dec. 474. Indiana. — Monroe v. Paddock, 75 Ind. 422 (affidavit setting up alteration as basis for setting aside default judgment on note) ; Meikel v. State Sav. Inst., 36 Ind. 355; Eun- nion v. Crane, 4 Blackf. (Ind.) 466 (non as- sumpsit, with affidavit of alteration ap- pended ) . Iowa. — Maguire v. Eichmeier, 109 Iowa 301, 80 N. W. 395 (an answer substan- tially sufficient in absence of direct attack) ; Black v. De Camp, 75 Iowa 105, 39 N. W. 215. Kansas. — Horn v. Newton City Bank, 32 Kan. 518, 4 Pac. 1022. Massachusetts. — Draper v. Wood, 112 Mass. 315, 17 Am. Eep. 92, answer by one promisor first denying execution of note, and setting up in the event the signature is proved that a material alteration was made by his co- promisor without defendant's knowledge and before delivery to the payee. Missouri. — Paris Nat. Bank v. Nickell, 34 Mo. App. 295, answer in nature of non est factum. United States. — Speake v. U. S., 9 Cranch (U. S.) 28, 3 L. ed. 645. England.— Bell v. Gardiner, 4 M. & G. 11, 43 E. C. L. 16; Gardner v. Walsh, 5 E. & B. 83, 85 E. C. L. 83; Warrington v. Early, 2 E. & B. 763, 75 E. C. L. 763; Mollett v. Wack- erbarth, 5 C. B. 181, 57 E. C. L. 181; Atkin- son v. Hawdon, 2 A. & E. 028, 29 E. C. L. 293. Canada. — Campbell v. McKinnon, 18 U. C. Q. B. 612. 70. Collier v. Waugh, 64 Ind. 456. Language construed according to ordinary meaning. — In determining the effect of a plea its language should be taken in its plain and ordinary meaning. Law v. Crawford, 67 Mo. App. 150. Affidavit of forgery. — In Georgia, under » statute providing for an affidavit of forgery in order to require explanatory testimony of apparent alterations in a deed, it does not lie in the mouth of the party producing the in- strument to object that he is fully notified by the affidavit of the nature of the forgery. Hill v. Nisbet, 58 Ga. 586. 71. Hart v. Sharpton, 124 Ala. 638, 27 So. - 450; Payne v. Long, 121 Ala. 385, 25 So. 780 (holding a plea of non est factum bad which averred that the note was not executed by defendant or by his authority, because plain- tiff, without defendant's knowledge or con- sent, altered it by detaching therefrom a ma- terial memorandum, without setting out the memorandum) ; Brown v. Warnock, 5 Dana (Ky.) 492. 72. Muckleroy v. Bethany, 23 Tex. 163. So of an answer denying an indorsement sued on except that defendant indorsed " without recourse." Howlett r. Bell, 52 Minn. 257, 53 N. W. 1154. 73. Eichardson v. Mather, 178 111. 449, 53 N. E. 321 ; Emmons v. Meeker, 55 Ind. 321 ; Lockart v. Eoberts, 3 Bibb (Ky.) 361 (hold- ing that although a blank paper, sealed and delivered, cannot become a deed, a plea that the paper was blank when signed is not suf- ficient, because it is immaterial whether it was signed before or after filling, as the obligation takes effect from delivery) ; Lang- ton v. Lazarus, 5 M. & W. 629, holding that a plea, in an action of assumpsit by an in- dorsee against an acceptor, that, before the bill became due and while " it was in full force and effect," the date was materially al- tered by the drawer, whereby it became void. was bad for want of an allegation that the alteration was made after acceptance, but the court gave opportunity to amend. Vol. II 232 ALTERATIONS OF INSTRUMENTS by plaintiff, or with his privity or consent, 74 though an alternative allegation in this respect has been held sufficient, 75 as well as that it was done without the authority or consent of the pleader. 76 On the other hand, a plea setting up an alteration, after execution and delivery of the instrument, without defendant's knowledge or consent, is deemed sufficient without an allegation of knowledge or privity on the part of plaintiff. 77 (v) Fraud. Where a wilful change, irrespective of actual fraudulent pur- pose, is sufficient to defeat an instrument, fraud need not be alleged in the plea or answer setting up the alteration. 78 (vi) Ratification. An answer setting up an alteration need not aver that defendant had never ratified it, as this is matter to be pleaded in reply. 79 (vn) Notice of Excess of Authority. A plea by an accommodation indorser of a note left to be filled up by the maker should aver that the indorsee had knowledge at the time he received the note that the maker exceeded his authority in filling the blank. 80 8. Joinder of Defenses. The defendant may at the same time plead that he did not execute the instrument sued on, and that if his signature is in fact genu- ine it was obtained by fraud. These defenses are not contradictory. 81 D. In Avoidance of Alteration Alleged — 1. In General. Where a defend- ant sets up a defense of alteration the plaintiff should frame his pleadings so as to lay the foundation for testimony explanatory of apparent alterations ; m and so, if one wishes to avoid the effect of an alteration set up against an instrument under which he claims, he cannot do so if his pleadings are framed upon the theory that there is in fact no alteration. 83 A replication to a plea of non est factum, setting 74. California. — Humphreys e. Crane, 5 Cal. 173. But where an answer sets up an alteration and that defendant paid the note before assignment, and that the assignment was made to plaintiff after maturity, it was held that the defense was not that of altera- tion, over the objection that the answer did not allege the alteration to have been made with knowledge or by authority or direction of plaintiff. Sherman v. Eollberg, 11 Cal. 38. Florida. — Cotten r. Williams, 1 Fla. 37. Georgia. — By statute in Georgia, in order to have a vitiating effect, an alteration was required to be made by the party claiming a benefit under the instrument. Under such provision a plea is held to be bad unless it con- tains an allegation that the alteration was made by the person claiming a benefit under the instrument. Gwin v. Anderson, 91 Ga. 827, 18 S. E. 43. Mississippi. — Bridges v. Winters, 42 Miss. 135, 97 Am. Dec. 443, 2 Am. Bep. 598. Ohio.— Tarbill r. Biehmond City Mill Works, 2 Ohio Cir. Ct. 564. United States. — U. S. v. Linn, 1 How. (U. S.) 104, 11 L. ed. 64. 75. Hamblen v. Knight, 60 Tex. 36, which was a suit to enjoin judgment on a note, the allegation by the surety being that the note had been fraudulently altered " either by the administrator to whom it was executed, or by the principal in the note, and that this was done without the knowledge of the surety," and this was held to be sufficiently definite. 76. Cotten v. Williams, 1 Fla. 37 (holding that it does not follow that, because such an allegation is of a negative character, it is not essential to the validity of the plea) ; Beed v. Boark, 14 Tex. 329, 65 Am. Dec. 127. Vol. II 77. Hill v. Nelms, 86 Ala. 442. 5 So. 796; Palmer v. Poor, 121 Ind. 135, 22 X. E. 984, 6 L. E. A. 469 ; Bowman r. Mitchell, 79 Ind. 84 [citing Cochran v. Xebeker, 48 Ind. 459, upon the principle that, upon an alteration after execution, the presumption is that it was made by the party claiming under the instru- ment, and therefore it is not necessary that the answer should a'lege what is thus pre- sumed] ; McVey v. Ely, 5 Lea (Tenn.) 438 ( which was an answer to a suit by a creditor to set aside a conveyance of land, setting up an alteration in certain notes held by com- plainant). 78. Eckert v. Pickel, 59 Iowa 545, 13 X. W. 708. By statute in Georgia a special plea, al- leging an alteration in a note sued on, was required to set up that the alteration was made with intent to defraud defendant. Gwin r. Anderson, 91 Ga. 827, 18 S. E. 43. Com- pare Steinau v. Moody, 100 Ga. 136, 28 S. E. 30. 79. Whitesides v. Xorthern Bank, 10 Bush (Ky.) 501, 19 Am. Bep. 74. 80. Grissom v. Fite, 1 Head (Tenn.) 331. And should the holder of an instrument con- taining a blank as to date exceed his implied authority by inserting an improper date, a plea alleging such matter as a defense against a third person must allege that the note passed to him with notice. Overton v. Mat- thews, 35 Ark. 146, 37 Am. Reip. 9. 81. Citizens Bank v. Closson, 29 Ohio St. 78. 82. Bogarth v. Breedlove, 39 Tex. 561. 83. Russell r. Beed, 36 Minn. 376, 31 X. W. 452, holding that, in an action in equity to ALTERATIONS OF INSTRUMENTS 233 up that the plea is based upon the alleged material alteration, and averring facts in avoidance, is not an admission of an alteration. 84 2. Consent and Ratification — a. In General. To a plea setting up an altera- tion the plaintiff may reply consent by all of the parties, 85 though it would seem that such a reply would be necessary only where defendant is not required to allege in his plea that the alteration was without his consent ; 86 and when the con- sent is after the alteration, or, in other words, is a ratificatiqn or estoppel, it may be replied by the plaintiff, 87 and if not pleaded it will not be available. 88 b. Ratification and Denial of Alteration. There is no inconsistency in fact or law between a denial of an alleged alteration and an allegation that defendant has waived or ratified the act, or has created an estoppel. 89 IX. EVIDENCE. A. Presumption and Burden of Proof — 1. General Burden on Issue of Alteration — a. The Rule. The general rule is that the burden of establishing an alteration of an instrument is upon the party setting it up, if the instrument offered is fair on its face, 90 or where no presumption is indulged from the appear- ground of an alleged fraudulent alteration thereof, where the answer alleges the execu- tion of the notes specifically described in the mortgage, and that they and none others were inserted in the mortgage, and that the mort- gage was given to secure them and was not altered in any particular, the theory that de- fendant altered the mortgage through an hon- est mistake is not within the issues made by the pleadings. 84. Holmes v. Ft. Gaines Bank, 120 Ala. 493, 24 So. 959, which see for form of such replication, in substance. 85. See Speake v. U. S., 9 Cranch (U. S.) 28, 3 L. ed. 645. 86. See supra, VIII, C, 7, b, (rv). But where the rule prevails that, when the drawer of a bill or the maker of a note by his own negligence leaves the instrument in such condition as that an alteration may be made without defacing the instrument or ex- citing the suspicion of a careful man, he will be liable to a bona fide holder, it is held that a replication to a plea of non est factum need not set up that the alleged and admit- ted alteration has been made with the consent of the promisor, or that it was made by a stranger having no interest. Winter v. Pool, 104 Ala. 580, 16 So. 543. See also Bills and Notes. For form of replication showing the resto- ration of instrument by consent see Collins v. Makepeace, 13 Ind. 448. 87. Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 24 Am. St. Rep. 832, 12 L. R. A. 140; Davis v. Shafer, 50 Fed. 764 (which cases see for form of replication in sub- stance) ; Henderson v. Vermilyea, 27 U. C. Q. B. 544. 88. Capital Bank v. Armstrong, 62 Mo. 59; Erickson v. Oakland First Nat. Bank, 44 Nebr. 622, 62 N. W. 1078, 48 Am. St. Rep. 753, 28 L. R. A. 577. As to one defendant not verifying answer. — In Feeney v. Mazelin, 87 Ind. 226, it was held that, where two defendants answered jointly and alleged a material alteration af- ter the execution of a note, and only one of them swore to the answer, this would put plaintiff to prove only the execution of the note by the defendant who swore to the an- swer; that as to the other defendant the pro- duction of the note was sufficient, and a re- ply as to the defendant alone who verified the answer that he ratified the change is good. 89. Davis v. Shafer, 50 Fed. 764. See also Mattingly v. Riley, 20 Ky. L. Rep. 1621, 49 S. W. 799, construing the particular lan- guage of the pleading involved. 90. Alabama. — Glover v. Gentry, 104 Ala. 222, 16 So. 38; Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 24 Am. St. Rep. 832, 12 L. R. A. 140; Barclift v. Treece, 77 Ala. 528. Arkansas. — Chism v. Toomer, 27 Ark. 108. Florida. — Harris v. Jacksonville Bank, 22 Fla. 501, 1 So. 140, 1 Am. St. Rep. 201. Georgia. — Brown v. Colquitt, 73 Ga. 59, 54 Am. Rep. 867. Illinois. — Lowman v. Aubery, 72 111. 619. Indiana. — Insurance Co. of North America v. Brim, 111 Ind. 281, 12 N. E. 315; Brooks v. Allen, 62 Ind. 401; Meikel v. State Sav. Inst., 36 Ind. 355; Johns v. Harrison, 20 Ind. 317. Iowa. — McGee v. Allison, 94 Iowa 527, 63 N. W. 322 ; Farmers' L. & T. Co. v. Olson, 92 Iowa 770, 61 N. W. 199; Potter v. Kennelly, 81 Iowa 96, 46 N. W. 856; Wing v. Stewart, 68 Iowa 13, 25 N. W. 905; Odell v. Gallup, 62 Iowa 253, 17 N. W. 502. Kansas. — J. I. Case Threshing Mach. Co. v. Peterson, 51 Kan. 713, 33 Pac. 470. Kentucky. — Thacker v. Booth, 9 Ky. L. Rep. 745, 6 S. W. 460. Nebraska. — McClintoek v. Table Rock State Bank, 52 Nebr. 130, 71 N. W. 978. ~New York. — Conable v. Keeney, 61 Hun (N. Y.) 624, 16 N. Y. Suppl. 719, 40 N. Y. St. 939. See also Solon v. Williamsburgh Sav. Bank, 114 N. Y. 122, 21 N. E. 168, 23 N. Y. St. 138. Tennessee. — Douglas v. Brandon, 6 Baxt. (Tenn.) 58; Farnsworth v. Sharp, 4 Sneed (Tenn.) 54; Bumpas v. Timms, 3 Sneed (Tenn.) 459; Brown v. Phelon, 2 Swan (Tenn.) 628. Vol. II 234 ALTERATIONS OF INSTRUMENTS ance of the instrument that it has been altered (the whole question of the time when, by whom, etc., the change was made being left to the jury); 91 or where t the presumption is that a change appearing upon the face of an instrument was made at or before the execution of the instrument. 92 Where the question is as to the unauthorized filling of a bill signed and indorsed in blank, as between the receiver and the drawer and indorser the burden of proof that there was an agree- ment, and that it was violated, is upon defendant. 93 He must also show that the holder took it with notice of the particular fraud. 94 b. Burden Shifted When Alteration Shown. vWhen an alteration is once made to appear, either by reason of a suspicion raised from the appearance of the instrument, 95 or when such suspicion is raised or the alteration is proved by extraneous evidence, the party producing the instrument then has the burden of explaining the alteration — he must show that the change was made under circum- stances rendering it lawful. 96 In such cases the burden may be said to be shifted, Texas. — Wells r. Moore, 15 Tex. 521. United States. — Sturm r. Boker, 150 U. S, 312, 14 S. Ct. 99, 37 L. ed, 1093, holding that where the signature to a contract was ad- mitted the burden is upon the party attacking it to prove that the matter over the signature is a forgery. See 2 Cent. Dig. tit. "Alteration of Instru- ments," §§ 208 ct seq., 230 et seq. Order of proof. — In a suit for a. breach of warranty, while plaintiff is on the stand and before he has rested his case, it is not error to refuse to permit defendant to break in to prove an alteration iu the instrument con- taining the warranty. Huston r. Plato, 3 Colo. 402. 91. Hagan v. Merchants', etc., Ins. Co., 81 Iowa 321, 46 N. W. 1114, 25 Am. St. Rep. 493. 92. Wolferman v. Bell, 6 Wash. 84, 32 Pae. 1017, 36 Am. St. Rep. 126 (holding that an alteration is a fact in a case to be deter- mined by the jury, subject to the same rule of presumption as any other fact to be pre- sented in the ease) ; Yakima Nat. Bank v. Knipe, 6 Wash. 348, 33 Pac. 834. 93. Davidson v. Lanier, 4 Wall. (U. S.) 447, 18 L. ed. 377. But the burden is on the holder to show that a surety knew that blanks left in the instrument at the time of its exe- cution and delivery had been filled in excess of authority. Limestone Bank r. Penick, 2 T. B. Mon. (Ky.) 98, 15 Am. Dec. 136. 94. Torry v. Fisk, 10 Sm. & M. (Miss.) 590. 95. Glover v. Gentry, 104 Ala. 222, 16 So. 38; Smith v. U. S., 2 Wall. (U. S.) 219, 17 L. ed. 788. See also infra, IX, A, 3, b, (n), (H). Erasure of indorsement of payment. — 'In debt on a bond, under a plea of payment, the bond contained an indorsement of a payment which appeared to have been erased by draw- ing a pen through it, and it was held the burden was on plaintiff to prove to the jury that the indorsement was made without his consent, as the indorsement of payment is prima facie evidence of payment. McElroy v. Caldwell, 7 Mo. 587. 96. Alabama. — Winter i\ Pool, 100 Ala. 503, 14 So. 41L; Fontaine v. Gunter, 31 Ala. 258. Vol. II Arkansas. — Inglish v. Breneman, 5 Ark. 377, 41 Am. Dec. 96, 9 Ark. 122, 47 Am. Dec. 735. California. — Sheils r. West, 17 Cal. 324, where the testimony showed an alteration of an entry in an account-book. Indiana. — Emerson v. Opp, 9 Ind. App. 581, 34 X. E. 840, 37 X. E. 24. Iowa. — Maguire v. Eichmeier, 109 Iowa 301, 80 N. W. 395; Shroeder v. Webster, 88 Iowa 627, 55 N. W. 569; Robinson v. Reed, 46 Iowa 219; Van Horn v. Bell, 11 Iowa 465, 79 Am. Dec. 506. But in Warren v. Chickasaw County, 13 Iowa 588, it seems to be held that if, in a suit against a county upon a war- rant, the execution of the instrument not be- ing denied under oath, the defendant relies upon alteration the plaintiff has only to in- troduce the instrument, and defendant can- not stop by showing a mere change, but must show that the change was done without his consent. Maine. — Croswell v. Labree, 81 Me. 44, 16 Atl. 331, 10 Am. St. Rep. 238; Dolbier v. Norton, 17 Me. 307. But compare Martin v. Tuttle, 80 Me. 310, 14 Atl. 207. Michigan. — Von Eherenkrook r. Webber, 100 Mich. 314, 58 X. W. 665, 60 N. W. 761; Swift v. Barber, 28 Mich. 503. Mississippi. — Everman v. Robb, 52 Miss. 653, 24 Am. Rep. 682. New Hampshire. — Humphreys v. Guillow, 13 X. H. 385, 38 Am. Dec. 499. Xew Jersey. — Havens v. Osborn, 36 N. J. Eq. 426, holding that where the grantee in a deed admits that interlineations and altera- tions therein were made by him, but alleges that he did so with the knowledge and con- sent of the grantor, the former has the bur- den of proof. < New York.— Gleason r. Hamilton, 138 N.Y. 353, 34 N. E. 283. 52 X. Y. St. 882, 21 L. R. A. 210; Xational Ulster County Bank v. Mad- den, 114 X. Y. 280, 21 X. E. 408, 23 X. Y. St. 220. 11 Am. St. Rep. 633. See also Herrick r. Malin, 22 Wend. (X. Y.) 388; Waring v. Smyth, 2 Barb. Ch. (N. Y.) 119, 47 Am. Dec. 299. yorth Carolina. — Martin v. Buffaloe, 121 X. C. 34, 27 S. E. 995. Ohio. — Bery r. Marietta, etc., R. Co., 26 Ohio St. 673. ALTERATIONS OF INSTRUMENTS 235 or the opposite party is under the necessity of meeting a prima facie presump- tion raised against the instrument. Thus, if a change is shown to have been made after the execution of the instrument, it will be presumed to have been made by the party producing it, or with his privity and fraudulently in so far as legal fraud attaches to a wilful change of an instrument by one of the parties thereto. 97 2. Plaintiff's Burden to Prove Execution — a. In General. "When the execu- tion of an instrument is proved generally, this is all that is necessary, and the party producing it is not required to proceed further, upon a mere suggestion of an alteration, when there are no indications of forgery upon the paper, and after this general proof of execution the law presumes that the instrument is genuine in all its particulars, 98 though where the execution is not put in issue it need not be proved. 99 b. Under Verified Pleadings. So, where the statute requires a sworn plea of non est factum, or a sworn plea denying on oath the making of an alteration with the consent or by the authority of defendant, the instrument is admissible in evi- Texas. — Dewees v. Bluntzer, 70 Tex. 406, 7 S. W. 820; Davis v. State, 5 Tex. App. 48. Wisconsin. — Low v. Merrill, 1 Pinn. (Wis.) 340. United States. — Sneed v. Sabinal Min., etc., Co., 73 Fed. 925, 34 U. S. App. 688, 20 C. C. A. 230. 97. Alabama.— White v. Hass, 32 Ala. 430, 70 Am. Dee. 548. <- , Arkansas. — Inglish v. Breneman, 9 Ark. 122, 47 Am. Dec. 735. Illinois. — Burwell v. Orr, 84 111. 465. Indiana. — Eckert v. Louis, 84 Ind. 99 ; Cochran v. Nebeker, 48 Ind. 459; Green v. Beckner, 3 Ind. App. 39, 29 N. E. 172. Iowa. — Maguire v. Eichmeier, 109 Iowa 301, 80 N. W. 395; Shroeder v. Webster, 88 Iowa 627, 55 N. W. 569; Robinson v. Reed, 46 Iowa 219. Louisiana. — Martin v. His Creditors, 14 La. Ann. 393. Minnesota. — Warder v. Willyard, 46 Minn. 531, 49 N. W. 300, 24 Am. St. Rep. 250; Rus- sell ». Reed, 36 Mmn. 376, 31 N. W. 452. Mew Hampshire. — Bowers v. Jewell, 2 N. H. 543. North Carolina. — Long v. Mason, 84 N. C. 15; Dunn v. Clements, 52 N. C. 58. Missouri. — To raise an estoppel against a surety discharged by an alteration it de- volves on the obligee to prove knowledge on the part of the surety. State v. Findley, 101 Mo. 368, 14 S. W. 111. Pennsylvania. — Hartley v. Corboy, 150 Pa. St. 23, 24 Atl. 295, holding that the instru- ment will be excluded from evidence unless the presumption is rebutted. Texas.— Bowser v. Cole, 74 Tex. 222, 11 S. W. 1131. Correction of mistake. — In Houston v. Jordan, 82 Tex. 352, 18 S. W. 702, it appeared that after the execution of a conveyance by a husband and wife, and before the instru- ment was acknowledged by them, a material mistake in the description of property was discovered and the deed handed back to the husband, who promised to have it corrected, and that, prior to the delivery of the deed by the husband, the correction was made, and it was held that, in the absence of evidence to the contrary, it would be presumed that the correction was made prior to the acknowledg- ment by the wife rather than that the hus- band perpetrated, or intended to perpetrate, a fraud upon the wife or the purchaser. See also Gleason v. Hamilton, 64 Hun (N. Y.) 96, 19 N. Y. Suppl. 103, 45 N. Y. St. 491 [af- firmed in 138 N. Y. 353, 34 N. E. 283, 52 N. Y. St. 882, 21 L. R. A. 210]. ' 98. Georgia. — Gwin v. Anderson, 91 Ga. 827, 18 S. E. 43, holding that on a plea of non est factum the note is admissible in evi- dence on proof of defendant's admission that lie signed it without any explanation of its contents which do not appear as alterations on its face. Indiana. — Insurance Co. of North America v. Brien, 111 Ind. 281, 12 N\ E. 315; Brooks v. Allen, 62 Ind. 401; Johns v. Harrison, 20 Ind. 317. Maine. — Pullen v. Hutchinson, 25 Me. 249. Massachusetts. — Davis v. Jenney, 1 Mete. (Mass.) 221. New York. — Conable v. Keeney, 61 Hun (ST. Y.) 624, 16 N". Y. Suppl. 719, 40 N. Y. St. 939. South Dakota. — Cosgrove v. Fanebust, 10 S. D. 213, 72 N. W. 469 [citing Landauer v. Sioux Falls Imp. Co., 10 S. D. 205, 72 N. W. 467; Moddie v. Breiland, 9 S. D. 506, 70 N. W. 637]. Texas. — Wells v. Moore, 15 Tex. 521; Heath v. State, 14 Tex. App. 213. Special plea of non est factum assumes the genuineness of the signature, and therefore the burden of proving the alteration is on the party com- plaining. Muckleroy v. Bethany, 27 Tex. 551. 99. Crews v. Farmers Bank, 31 Gratt. (Va. ) 348. Under a statute providing that, when a copy of a note sued on is filed with the declaration, this will waive the necessity of all proof of execution, the defense of an alteration is still available as a defense, but cannot be raised as a mere matter of objec- tion to the introduction of the instrument in evidence. Mitchell v. Woodward, 2 Marv. (Del.) 311, 43 Atl. 165, upon the authority of Hollis v. Vandergrift, 5 Houst. (Del.) 521. Vol. II 236 ALTERATIONS OF INSTRUMENTS dence without explanation, in the absence of such plea, 1 for the purpose of prov- ing the bare execution of the instrument, 2 and it has been held that a special plea setting up merely an alteration is not such a plea as will cast the burden upon plaintiff to explain the alterations which do not appear upon the face of the instru- ment. 3 Where, however, the instrument shows upon its face evidences of changes therein, and defendant sets up the alteration by a sworn plea, the plaintiff has the burden of explaining the appearance of the instrument. 4 e. General Burden as in Other Cases. The burden of proof would seem to rest upon plaintiff in such cases as the foregoing in the same sense that plaintiff has the burden of proving his cause of action in all other cases, and this is true whenever the defense of an alteration puts in issue directly the cause of action, which plaintiff must establish j>?'ima facie in order to recover, even though the execution of the instrument is not denied on oath. 5 While proof of defendant's 1. Thompson v. Gowen, 79 Ga. 70, 3 S. E. 910; Tedlie v. Dill, 2 Ga. 128; Warren v. Chickasaw County, 13 Iowa 588. 2. Conkling v. Olmstead, 63 111. App. 649, holding that while a general plea denying the execution of an instrument is sufficient to ad- mit proof of an alteration, yet in such a state of the pleading the plaintift may, upon prov- ing the signature, introduce the instrument in evidence if the alteration does not appear upon its face; the burden of proof to sustain the instrument against the charge rests upon the whole evidence with plaintiff, and there- fore it is proper to allow the introduction of the note. 3. Brown v. Colquitt, 73 Ga. 59, 54 Am. Rep. 867. 4. Alabama. — Barclift r. Treeee, 77 Ala. 528, holding that a special plea of non est factum requires no proof of execution, but plaintiff must explain alterations which are disclosed by the face of the instrument. Georgia. — Wheat v. Arnold, 36 Ga. 479. Under the statute the presumption of altera- tion before execution arises unless there is a denial under oath of the execution of the in- strument sued on. Thrasher r. Anderson, 45 Ga. 538. Where there is such denial no pre- sumption is indulged, but the whole question is left to the jury on the evidence in the case. Winkles c. Guenther, 98 Ga. 472, 25 S. E. 527 ; Planters', etc., Bank v. Erwin, 31 Ga. 371. In the absence of the statutory affi- davit to attack the genuineness of a duly registered deed, the presumption is that it was executed as it is when offered in evi- dence; but if the affidavit is made the bur- den is shifted upon the other party to show what the law would otherwise presume. Col- lins r. Boring, 96 Ga. 360, 23 S. E. 401; Banks p. Lee, 73 Ga. 25 : Hill v. Xisbet, 58 Ga. 586 [distinguishing Matthews v. Castle- berry, 43 Ga. 346, in that the burden of proof was not shifted in that case, because the deed appeared on its face to be genuine and bore no marks of alteration]. See also Norton c. Conner, (Tex. 1890) 14 S. W. 193. Illinois. — Walters u. Short, 10 111. 252. Kansas. — Under a verified general denial it is incumbent upon plaintiff to prove the execution of just such an instrument as is set out in his pleading. J. I. Case Thresh- ing Mach. Co. v. Peterson, 51 Kan. 713, 33 Vol. II Pac. 470; State v. Roberts, 37 Kan. 437, 15 Pac. 593. Missouri. — Workman v. Campbell, 57 Mo. 53, holding that, in a suit on a subscription, an answer denying the execution of the sub- scription sued for, and setting up the altera- tion, throws on plaintiff the burden of prov- ing the amount subscribed. Pennsylvania. — Where there is a manifest alteration on the face of an instrument sued on which does not appear by the copy filed, a rule making it necessary for plaintiff to prove execution only when defendant denies the execution of the instrument does not ap- ply, and the burden of explaining the altera- tion is on plaintiff. Xesbitt v. Turner, 155 Pa. St. 429, 26 Atl. 750. 5. Maine.— Dodge r. Haskell, 69 Me. 429; Belfast Xat. Bank v. Harriman, 68 Me. 522. Massachusetts. — Cape Ann Xat. Bank r. Burns, 129 Mass. 596; Simpson v. Davis, 119 Mass. 269, 20 Am. Pep. 324; Lincoln r. Lin- coln, 12 Gray (Mass.) 45; Davis v. Jenney, 1 Mete. (Mass.) 221, holding that proof or admission of the signature of the party to an instrument is prima facie evidence that the whole of the instrument written over the sig- nature is the act of the party, and this prima facie case will stand unless defendant can re- but it by showing from the appearance of the instrument itself or otherwise that it has been altered. Michigan. — Willett v. Shepard, 34 Mich. 106 (holding that where the only controversy relates to whether an erasure of certain words was made before or after execution of a note, and there is evidence on both sides relating to the issue, it is error to charge that the burden of proof is upon defendant) ; Com- stock v. Smith, 26 Mich. 306. So, in Von Eherenkrook v. Webber, 100 Mich. 314. 58 X\ W. 665, 60 N. W. 761, plaintiff's denial raised an issue respecting a writing which defendant relied upon, and it was held that defendant had the affirmative of the issue. The alteration complained of was not an in- terlineation, but consisted of the addition of words over plaintiff's blank indorsement, such addition being in the handwriting of defend- ant, who relied upon the indorsement ■ and the words thus written over it, the existence of which words at the time of her signature the plaintiff denied. ALTERATIONS OF INSTRUMENTS 237 signature is prima facie evidence that the whole body of the note written over it is his act, still the burden of proof, on the whole evidence, is on plaintiff to show that the note declared on is defendant's act. 6 So, where the issue arises in a suit in which plaintiff is seeking relief against an alleged alteration in an instrument upon which he would otherwise be liable, it is held that plaintiff has the burden of proving the alteration. 7 3. Presumptions and Burden Arising from Apparent Changes — a. The Ancient Rule. Anciently it appears that the matter of interlineations and erasures appear- ing upon the face of a deed was tried by the judges on a view of the deed, 8 and the rule of the civil law seems to be that writings erased or interlined are pre- sumed to have been false. 9 b. Control of Extrinsic Faets under Modern Views — (i) General Rule. The practice last stated no longer prevails. The mere fact of a change in an instrument does not of itself constitute a vitiating alteration, nor does the mere fact that the instrument appears to contain interlineations or erasures destroy its evidentiary character, 10 even though such changes are not noted. 11 New York. — Where plaintiff alleges that defendant executed a sealed instrument, and the defense is that the seal was added after execution of the instrument, as the pleadings stand the fact of the execution of a, sealed in- strument is issuable, and as it was put in is- sue plaintiff is bound to establish it as a part of his case. Farmers' L. & T. Co. v. Siefke, 144 N. Y. 354, 39 N. E. 358, 63 N. Y. St. 662. Wisconsin. — Low v. Merrill, 1 Pinn. (Wis.) 340. See also Baxter v. Camp, 71 Conn. 245, 41 Atl. 803, 71 Am. St. Rep. 169, 42 L. R. A. 514. Instrument appearing to be vitiated. — Where an action is brought on an instrument which, when produced, shows that the name of defendant is erased, such erasure being a complete cancellation of the note, the defend- ant was not under the necessity of pleading •non est factum and the burden was still on plaintiff to show that the erasure was ef- fected by fraud or imposition on the part of the promisor. Daniel v. Daniel, Dudley (Ga.) 239. See also Stoner v. Ellis, 6 Ind. 152; Slocum v. Watkins, 1 Rob. (La.) 214; Por- ter v. Doby, 2 Rich. Eq. (S. C.) 49; Blewett r. Bash, 22 Wash. 536, 61 Pac. 770; Abbe v. Rood, 6 McLean (U. S.) 106, 1 Fed. Cas. No. 6. But the instrument is admissible in evidence when accompanied by other evidence explaining the erasure. Frazer v. Boss, 66 Ind. 1. See also Robinson v. State, 60 Ind. 26. 6. Belfast Nat. Bank v. Harriman, 68 Me. 522; Simpson v. Davis, 119 Mass. 269, 20 Am. Rep. 324 ; Longwell v. Day, 1 Mich. N. P. 286. In Stoner v. Ellis, 6 Ind. 152, it is said that the often-quoted language that plaintiff must prove an alteration to have been made before the instrument was executed means no more than that he must prove his case, and usually has no reference to the burden of proof between the parties as to who made the alteration. 7. Putnam v. Clark, 33 N. J. Eq. 338 (dis- tinguishing the rule as to the burden of proof in cases involving the validity of altered pa- pers where the actor grounds his right of ac- tion on the altered instrument, in which cases no presumption arises to invalidate the in- strument from a mere inspection of apparent changes, though it is said that it is probably equally true that the appearance of the al- teration itself, or slight circumstances con- nected therewith, may exhibit indicia of un- fairness, which, while falling short of proof thereof, would throw upon the propounder of the instrument the burden of showing that the alteration was fairly made, and that the failure of such proof on his part would sup- port a finding against the validity of the in- strument) ; Riley v. Riley, 9 N. D. 580, 84 N. W. 347. And in Harris v. Jacksonville Bank, 22 Fla. 501, 1 So. 140, 1 Am. St. Rep. 201, upon the last point suggested in Putnam v. Clark, 33 N. J. Eq. 338, it was held that if, upon the production of the bill which com- plainant sought to have canceled and deliv- ered up on the ground of an alteration, the alteration was apparent it would make out complainant's prima facie ease, and throw the burden on the holder to explain the altera- tion; but that if nothing appeared upon the bill to indicate that the change had been made complainant must prove his case by extrane- ous testimonv. See also Solon v. Williams- burgh Sav. Bank, 114 N. Y. 122, 21 N. E. 168, 23 N. Y. St. 138; O'Donnell v. Harmon, 3 Daly (N. Y.) 424. 8. Ravisies i\ Alston, 5 Ala. 297 [citing Sheppard Touch. 69]; Bailey v. Taylor, 11 Conn. 531, 29 Am. Dec. 321 ; Printup v. Mit- chell, 17 Ga. 558, 63 Am. Dec. 258 [dting Coke Litt. 35, note 7.] 9. Pipes v. Hardesty, 9 La. Ann. 152, 61 Am. Dec. 202 [citing Febrero, pt. II, bk. Ill, e. 1, No. 341]; Hanrick i\ Dodd, 62 Tex. 75. 10. Ward v. Cheney, 117 Ala. 238, 22 So. 996 ; Mayer v. Clark, 40 Ala. 259 ; Roberts v. Unger, 30 Cal. 676 ; Harlan v. Berry, 4 Greene (Iowa) 212; Tutt v. Morgan, 18 Tex. Civ. App. 627, 42 S. W. 578, 46 S. W. 122. See supra, II, A; IV, C, and V, A, B. 11. Sill v. Reese, 47 Cal. 294 (holding that a change in a word or words in a document, not noted before the signing, will not render Vol. II 238 ALTERATIONS OF INSTRUMENTS (n) Presumption of Alteration — Burden to Explain Appearance — (a) Conflict of Authority. While the question always depends upon extrinsic facts, stronger inferences may be drawn in some jurisdictions than in others from the appearance of the paper, and whether such extrinsic facts may be so far pre- sumed from the appearance of the instrument as to require explanatory testi- mony, and as to the effect of such appearance upon the burden of proof, the authorities are in conflict, and distinguished judges have recognized the utter futility of attempting to reconcile or extract a rule from them. 12 (b) Rule Requiring Explanation — (1) Ix General. In many cases the doctrine is recognized that changes apparent on the face of an instrument will raise a presumption that they were made after the execution of the instrument, and will require explanation, or, to the same purpose, that the production of an instrument bearing evidences of such a change throws upon the party producing it the burden of accounting for its appearance, 13 at least, if the appearance is sus- it void as evidence) ; Cairo, etc., R. Co. c, Parrott, 92 111. 194; White v. Williams, 3 K. J. Eq. 376. Propriety of noting changes. — But, in view of the rules with regard to the necessity for explaining interlineations apparent upon the face of an instrument, a party who receives such an instrument should see that the inter- lineation is noted ii he does not wish to as- sume the burden of explaining it. Hodge v. Gilman, 20 111. 437. See also Bailey v. Tay- lor, 11 Conn. 531, 29 Am. Dec. 321 '[citing 4 Cruise Dig. 388, tit. 32, c. 26, §S 10, 11]; Smith v. U. S., 2 Wall. (U. S.) 219, 17 L. ed. 788. And if the alteration is noted in the at- testation clause as having been made before the execution of the instrument, it is suffi- ciently accounted for, and the instrument is relieved of suspicion. 1 Greenleaf Ev. § 564; Crossman v. Crossman, 95 X. Y. 145; How- ell v. Hanrick. 88 Tex. 383, 29 S. W. 762, 30 S. W. 856, 31 S. W. 611. See also Wtlls. Refusal to receive instrument. — Britton v. Stanley, 4 Whart. (Pa.) 114, holding that one cannot refuse to receive a deed because erasures made before execution are not noted. So a registrar has no right to refuse to regis- ter a deed because alterations appear on its face. See also Graystock c. Barnhart, 26 Ont. App. 545. But on an application for a liquor license under statute, it was held that a bond might be rejected where the name of one of the sureties had been erased, as the state was entitled to a clear bond such as would not cast upon it the burden of showing how the apparent alteration was made. Xordstrom's Petition, 127 Pa. St. 542, 18 Atl. 601. See also Thorpe v. Keeler, 18 X. J. L. 251. For appeal bonds see Appeal axd Error. 12. " The question ... is one upon which there is a wilderness of authorities and much conflict of opinion. Any attempt to cite or consider the innumerable eases on this ques- tion would be both impracticable and use- less." Per Mitchell, J., in Wilson v. Hayes, 40 Minn. 531, 535, 42 ST. W. 467, 12 Am. St. Rep. 754, 4 L. R. A. 196. Among other eases in which such expressions may be encoun- tered see Comstoek v. Smith, 26 Mich. 306; Dorsev r. Conrad. 49 Xebr. 443, 68 ST. W. 645 ; Norfleet v. Edwards, 52 X. C. 455 ; Cass Vol. II Countv i". American Exeh. State Bank, 9 X. D. 263, 83 X. W. 12; Page v. Danaher, 43' Wis. 221. 13. Arkansas. — Chism v. Toomer, 27 Ark. 108. California. — Miller v. Luco, 80 Cal. 257, 22 Pac. 195; Roberts v. linger, 30 Cal. 676, un- der statutory provision that where a deed is produced by a party claiming under it, and it appears on its face to have been altered, the burden of explaining the alteration is on the party producing the instrument. But in Galland "r. Jackman, 26 Cal. 79, 85 Am. Dec. 172, it was held that where a deed is pro- duced in evidence by the party claiming un- der it, and it presents on its face evidence of having been altered in a material particular to the interest of the party producing it, he must explain the change by satisfactory evi- dence or the deed will be deemed to read as before the alteration. Delaware.-^ Herdman v. Bratten, 2 Harr. (Del.) 396. Hawaii. — Kahai v. Kamai, 8 Hawaii 694. Illinois.— Merritt v. Boyden, (111. 1901) 60 X. E. 907 ; Catlin Coal Co. v. Lloyd, 180 111. 398, 54 X. E. 214, 72 Am. St. Rep. 216; Pyle f. Oustatt. 92 111. 209 ; Hodge v. Gilman, 20 111. 437; Walters r. Short, 10 111. 252; Gillett v. Sweat, 6 111. 475 ; Sisson r. Pearson, 44 111. App. 81; McAllister v. Avery, 17 111. App. 568. Louisiana. — Pipes r. Hardesty, 9 La. Ann. 152, 61 Am. Dec. 202 (wherein it is said that the presumption is not juris et de jure; that it yields to contrary proof and even to such circumstances as create » strong presump- tion that the interlineation was made before the execution and delivery of the deed) ; Fletcher r. Cavelier, 4 La. Ann. 267 ; Union Bank r. Brewer, 2 La. Ann. 835; McMicken v. Beauchamp, 2 La. 290 (declaring the rule of the civil law to be in conformity with the law merchant ) . Mississippi. — Ellison v. Mobile, etc., R. Co., 36 Miss. 572; Wilson r. Henderson. 9 Sm. & M. (Miss.) 375, 48 Am. Dec. 716; Commer- cial, etc., Bank v. Lum, 7 How. (Miss.) 414. New York. — Kelly r. Indemnity F. Ins. Co.. 38 ST. Y. 322 (holding that where testi- mony is introduced in order to nuet a pre- ALTERATIONS OF INSTRUMENTS 239 picious; 14 but, where a party demands the production of a written contract men- tioned by a witness, it is held that it will not be incumbent upon the opposite party, who does not claim under the instrument, to explain its appearance. 15 (2) Accounts. An original entry in an account-book will be presumed, in the absence of explanation of an apparent alteration, to be in accordance with the facts at the time of its entry. 16 (3) Erasure of Special Indorsement. The holder of a note, having the right to erase a prior special indorsement, is not under the necessity to explain such erasure. 17 (c) Presumption of Change "before Execution. In other cases the general rule is adopted that, where an instrument presents the appearance of having sumption raised by interlineations of entries of purchases in books of accounts, the oppo- site party cannot complain that it was sub- mitted to the jury to determine whether or not the books were fraudulently altered, especially when he did not object to the ad- mission of the books) ; Pease v. Barnett, 27 Hun (N. Y.) 378; Acker v. Ledyard, 8 Barb. (N. Y.) 514; Smith v. McGowan, 3 Barb. (N. Y.) 404; Herrick v. Malin, 22 Wend.(N.Y.) 388; Jackson v. Osborn, 2 Wend. (N. Y.) 555, 20 Am. Dee. 649: Taylor v. Crownin- shield, 5 N. Y. Leg. Obs. 209. Oregon. — Hillsboro First Nat. Bank v. Mack, 35 Oreg. 122, 57 Pac. 326 (from which it appears that it was provided by statute that a writing which appears to have been al- tered after its execution in a part material to the question in dispute is not competent evidence unless the alteration is explained) ; Simpkins t\ Windsor, 21 Oreg. 382, 28 Pac. 72; Wren v. Fargo, 2 Oreg. 19. But where, even after the instrument is admitted over objection, it is shown that the alteration was made after execution, the statute referred to does not. apply. Nickum v. Gaston, 28 Oreg. 322, 42 Pac. 130. Pennsylvania. — Morris v. Vanderen, 1 Dall. (Pa.) 64, which case seems never to have been followed in Pennsylvania to its full ex- tent. South Carolina. — Kennedy v. Moore, 17 S. C. 464; Burton v. Pressly, Cheves Eq. (S. C.) 1. Tennessee. — Riseden v. Harrison, (Tenn. Ch. 1897) 42 S. W. 884. Texas. — Jacoby v. Brigman, (Tex. 1887) 7 S. W. 366 ; Miller v. Alexander, 13 Tex. 497, 65 Am. Dec. 73; Kansas Mut. L. Ins. Co. v. Coalson, (Tex. Civ. App. 1899) 54 S. W. 388; Davis v. State, 5 Tex. App. 48. Virginia. — Hodnett v. Pace, 84 Va. 873, 6 S. E. 217; Elgin v. Hall, 82 Va. 680, holding that, on a reference to take an account, one producing receipts which bear patent altera- tions in dates and amounts on the face thereof must explain such appearances. United States. — Prevost v. Gratz, Pet. C. C. (U. S.) 364, 19 Fed. Cas. No. 11,406. See also The Richard Vaux, 20 Fed. 654. England. — Johnson v. Marlborough, 2 Stark. 313, 3 E. C. L. 424, wherein plaintiff was required to prove that the alteration of a bill was made before acceptance, else the bill would be deemed void for want of a new stamp. See also Knight v. Clements, 8 A. & E. 215, 35 E. C. L. 559; Henman v. Dickin- son, 5 Bing. 183, 15 E. C. L. 533; Clifford v. Parker, 2 M. & G. 909, 40 E. C. L. 917 ; Des- brow v. Weatherley, 6 C. & P. 758, 25 E. C. L. 675; Thompson v. Mosely, 5 C. & P. 501, 24 E. C. L. 676. But in Tomlins v. Law- rence, 6 Bing. 376, 19 E. C. L. 175, which was an action by an indorsee against an acceptor on a bill of exchange, the defendant obtained a rule on plaintiff to show why the proceed- ings should not be stayed on payment of debt and costs, and why the bill should not be de- livered up to defendant, and upon an offer to deliver up the bill, which contained extraor- dinary erasures made upon it while in plain- tiff's hands, it was held that the delivery of the paper was a compliance with the requisi- tion of the rule, and that if defendant suf- ered injury he must resort to ulterior pro- ceedings. For wills containing alterations see Wills. For ancient deeds containing alterations see Evidence. 14. See infra, IX, A, 3, b, (n), (h). 15. Priest v. Whiteacre, 78 Va. 151, hold- ing that in such a case, in the absence of evi- dence tending to show that the contract had been altered, the jury are bound to take it as produced. See, generally, Evidence. 16. Adams v. Adams, 22 Vt. 50, wherein, on an appeal by the heirs of an estate against the administrators, it appeared that the dece- dent at the time of his death held a note for one thousand dollars against the administra- tors, and also had a, credit of one thousand dollars on the account-books of the adminis- trators, and it was held that the latter could not avail themselves of an alteration of the words in which the credit was written on their books without evidence of their right to make the alteration. See also Sheils v. West, 17 Cal. 324; Wilson v. O'Day, 5 Daly (N. Y.) 354, holding that, Where the books of a ware- house were altered to show that certain goods were received on a day different from that originally shown by the books, the possession, by the person storing the goods, of a ware- houseman's receipt corresponding with the al- tered books is no evidence that the holder of the receipt knew of the alteration. 17. Jones v. Berryhill, 25 Iowa 289; Fin- ney v. Turner, 10 Mo. 208. For the right to erase special indorsements see Bills and Notes. Vol. II 240 ALTERATIONS OF INSTRUMENTS been changed, the presumption is that the change was made before, or con- temporaneously with, the execution of the instrument, and it is for the party attacking the instrument to show otherwise, 18 for the reason that the presump- tion of law is always in favor of honesty and upright conduct, 19 and the whole question in such cases is for the jury, the usual proof of execution being all that is required. 20 This presumption does not apply, however, to an erasure of 18. Alabama. — Ward v. Cheney, 117 Ala. 238, 22 So. 996. Florida. — Kendrick v. Latham, 25 Fla. 819, 6 So. 871. Georgia. — Westmoreland v. Westmoreland, 92 Ga. 233, 17 S. E. 1033 (as to effect of an instrument as evidence, the alterations serv- ing to render the instrument consistent with itself) ; Thrasher v. Anderson, 45 Ga. 538 (holding that it would be absurd to say that prima facie the presumption is one way, but that the jury may treat that presumption as of no weight) ; Frintup v. Mitchell, 17 Ga. 558, 63 Am. Dec. 258. Idaho. — Fraud will not be presumed. Dan- gell t7. Levy, 1 Ida. 742, which, however, in any event, was an immaterial change. Minnesota. — Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 12 Am. St. Rep. 754, 4 L. R. A. 196. Missouri. — Stillwell v. Patton, 108 Mo. 352, 18 S. W. 1075; Burnett v. McCluey, 78 Mo. 676. Nebraska. — Dorsey v. Conrad, 49 Nebr. 443, 68 X. W. 645 [.following, upon the same point, Goodin v. Plugge, 47 Nebr. 284, 66 X. W. 407 ; Cass County Bank v. Morrison, 17 Nebr. 341, 22 N. W. 782, 52 Am. Rep. 417, and overrul- ing Courcamp v. Weber, 39 Nebr. 533, 58 N. W. 187 ; Johnson v. Plum Creek First Nat. Bank, 28 Nebr. 792, 45 N. W. 161]. New Jersey. — North River Meadow Co. v. Christ Church, 22 N. J. L. 424, 53 Am. Dec. 258. North Carolina. — In Norfleet !'. Edwards, 52 N. C. 455, the court distinguished the case in hand from those in which the contrariety • of opinion existed as to the burden and pre- sumptions arising from the appearance of changes in an instrument in that the latter generally dealt with deeds, negotiable securi- ties, and instruments whose nature and char- acter were fixed, while in the instant case the alteration was made for the very purpose of determining and fixing the character of the instrument ; and held that where a -note was on a paper in a form that had been prepared for a bond, but with the scroll containing the word " seal " scratched and cross'marked with ink, it was error to charge that plaintiff had the burden of showing that the obliteration took place before or at the time the instru- ment was executed. North Dakota.— Cass County v. American Exeh. State Bank, 9 N. D. 263, 83 N. W. 12; Decorah First Nat. Bank v. Laughlin, 4 N. D. 391, 61 N. W. 473. Ohio. — Franklin v. Baker, 48 Ohio St. 296, 27 N. E. 550, 29 Am. St. Rep. 547 [distinguish- ing Huntington v. Finch, 3 Ohio St. 445, in that while the observations of the court in that case may indicate an opinion that the Vol. II burden of explaining what are termed altera- tions of a suspicious character is on plaintiff, no such question was before the court]. Washington. — Blewett v. Bash, 22 Wash. 536, 61 Pac. 770; Kleeb v. Bard, 12 Wash. 140, 40 Pac. 733; Fairhaven v. Cowgill, 8 Wash. 686, 36 Pac. 1093; Yakima Nat. Bank v. Knipe, 6 Wash. 348, 33 Pac. 834 ; Wolferman r. Bell, 6 Wash. 84, 32 Pac. 1017, 36 Am. St. Rep. 126. United States. — Hanriek v. Patrick, 119 U. S. 156, 7 S. Ct. 147, 30 L. ed. 396, a case involving a deed. 19. Stillwell v. Patton, 108 Mo. 352, 18 S. W. 1075; Dorsey r. Conrad, 49 Nebr. 443, 68 N. W. 645 ; Cass County v. American Exch. State Bank, 9 X. D. 263, 83 X. W. 12 ; Wol- ferman v. Bell, 6 Wash. 84, 32 Pac. 1017, 36 Am. St. Rep. 126. See also cases generally in note 18, supra. 20. Georgia. — Printup v. Mitchell, 17 Ga. 558, 63 Am. Dec. 258. Indiana. — Stoner r. Ellis, 6 Ind. 152. See also Stayner v. Joyce, 120 Ind. 99, 22 X. E. 89. Minnesota. — Wilson r. Hayes, 40 Minn. 531, 42 N. W. 467, 12 Am. St. Rep. 754, 4 L. R. A. 196. Missouri. — McCormick c. Fitzmorris, 39 Mo. 24; Xoah v. German Ins. Co., 69 Mo. App. 332. Nebraska. — Dorsey v. Conrad, 49 Nebr. 443, 68 X. W. 645. New Jersey. — Without reference to the character of the apparent change the question is entirely one of fact and should be left to the jurv. Hoey v. Jarnian, 39 X. J. L. 523; Hunt r. Gray, 35 X. J. L. 227, 10 Am. Rep. 232. See also North River Meadow Co. v. Christ Church, 22 X. J. L. 424, 53 Am. Dec. 258 ; Den r. Farlee, 21 N. J. L. 279 ; Den v. Wright, 7 X. J. L. 175, 11 Am. Dec. 546; Cumberland Bank v. Hall, 6 N. J. L. 215; Sayre v. Reynolds, 5 X. J. L. 862. But while this is true, it is said to be probably equally true that the appearance of the alteration it- self, or slight circumstances connected there- with, may exhibit indicia of unfairness which, while falling short of proof thereof, would throw upon the propounder of the instrument the burden of showing that the alteration was fairly made, and that a failure upon his part to make such proof would support a finding against the validity of the instrument. Put- nam i'. Clark, 33 N. J. Eq. 338. South Dakota. — Where an instrument is at- tacked on the ground of an alteration, proof of due execution is all that is necessary to ad- mit it in evidence, and the question of altera- tion is then to be determined from the evi- dence in the ease, including the appearance of the instrument. Cosgrove v. Fanebust, 10 ALTERATIONS OF INSTRUMENTS 241 the signature of an obligor, since, in the nature of the case, such erasure must have occurred after execution. 21 (d) No Presumption. Again, it is held that the mere appearance of a change raises no presumption as to when or by whom the change was made, though it may be that the instrument presented would so tend to sustain the charge of alteration as to require the court to submit the issue to the jury. 23 (e) Distinction between Deeds and Other Instruments. The authorities sometimes make a distinction between deeds and other instruments, especially negotiable paper, in determining what inf erences should be drawn from changes appearing in the face of the instrument, some of them, while admitting the pre- sumption in favor of deeds, holding that it does not apply to negotiable instru- ments. 33 Others, however, recognize no such distinction, but consider the same reasons for the presumption which 'arises from the appearance of changes upon the face of a deed to apply to other instruments, where the presumption thus raised is in favor of, as well as where it is against, the instrument. 24 S. D. 213, 72 N. W. 469; Moddie v. Breiland, 9 S. D. 506, 70 N. W. 637. 21. Blewett v. Bash, 22 Wash. 536, 61 Pac. 770. See also Stoner"t\ Ellis, 6 Ind. 152. 22. Hagan v. Merchants', etc., Ins. Co., 81 Iowa 321, 46 N. W. 1114, 25 Am. St. Rep. 493. To the same point see Benton County Sav. Bank v. Strand, 106 Iowa 606, 76 N. W. 1001; MaGee v. Allison, 94 Iowa 527, 63 N. W. 322 ; In re Brown, 92 Iowa 379, 60 N. W. 659; Neil v. Case, 25 Kan. 510, 37 Am. Rep. 259. Compare Wing v. Stewart, 68 Iowa 13, 25 N. W. 905, wherein the court held that an objection to the admission in evidence of the contract, which appeared to have been altered or interlined, without first requiring an ex- planation of the alteration, could not be en- tertained by the appellate court unless the instrument itself was brought up and the court could thus be enabled to determine from an inspection whether any explanation was re- quired. See also infra, IX, A, 3, b, (n), (h). 23. Mississippi. — See Ellison v. Mobile, etc., R. Co., 36 Miss. 572. Pennsylvania. — Citizens Nat. Bank v. Wil- liams, 174 Pa. St. 66, 35 Atl. 303, 25 L. R. A. 464 [citing Gettysburg Nat. Bank v. Chisolm, 169 Fa. St. 564, 32 Atl. 730, 47 Am. St. Rep. 929; Hartley v. Corboy, 150 Pa. St. 23, 24 Atl. 2951 ; Nagle's Estate, 134 Pa. St. 31, 19 Atl. 434, 19 Am. St. Rep. 669 ; Neff v. Horner, 63 Pa. St. 327, 3 Am. Rep. 555; Hill v. Cooley, 46 Pa. St. 259 ; Heffner v. Wenrich, 32 Pa. St. 423; Miller v. Reed, 27 Pa. St. 244, 67 Am. Dec. 459; Clark v. Eckstein, 22 Pa. St. 507, 62 Am. Dec. 307; Simpson v. Staekhouse, 9 Pa. St. 186, 49 Am. Dec. 554; Mechling v. Hartzell, 4 Pennyp. (Pa.) 500. Generally it would seem from these cases that in the in- stance of commercial paper an apparent inter- lineation will raise in some degree a presump- tion against the instrument and requires explanation before the instrument can be ad- mitted. But it is also held in this state that the preliminary question, if doubtful, is for the jury. Clark v. Eckstein, 22 Pa. St. 507, 62 Am. Dec. 307. United States. — Hanrick v. Patrick, 119 U. S. 156, 7 S. Ct. 147, 30 L. ed. 396 ; Little v. Herndon, 10 Wall. (U. S.) 26, 19 L. ed. [16] 878 (holding that, in the absence of proof as to an erasure in a deed, the presumption is that it was made before execution of the deed) ; Smith v. U. S., 2 Wall. (U. S.) 219, 17 L. ed. 788, holding the general rule that where the suspicion is raised as to the gen- uineness of an altered instrument, whether by inspection of the instrument or by extraneous evidence, the party producing it is bound to remove the suspicion. The instrument in- volved in this case was a bond. England. — Doe v. Catomore, 16 Q. B. 745, 71 E. C. L. 745, 5 Eng. L. & Eq. 349, 15 Jur. 728 (presumption that deed was changed at the time of execution) ; Johnson v. Marlbor- ough, 2 Stark. 313, 3 E. C. L. 424, requiring explanation of apparent changes in negotiable paper. But see English cases distinguished in note 24, infra. Canada. — See Graystock v. Barnhart, 26 Ont. App. 545. 24. Kansas. — Neil v. Case, 25 Kan. 510, 37 Am. Rep. 259. Minnesota. — Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 12 Am. St. Rep. 754, 4 L. R. A. 196, presumption in favor of instruments without distinction. Missouri. — The principle that it will be pre- sumed that the change was made before the execution of the instrument, where there is nothing suspicious in the appearance of the change, applied to negotiable instruments as well as to deeds. Stillwell v. Patton, 108 Mo. 352, 18 S. W. 1075. See Holton v. Kemp, 81 Mo. 661, where the principle was applied to a deed, and Paramore v. Lindsey, 63 Mo. 63, where the principle was applied to a note. Nebraska. — Stough v. Ogden, 49 Nebr. 291, 68 N. W. 516; Goodin v. Plugge, 47 Nebr. 284, 66 N. W. 407. New Hampshire. — Presumption of change after execution applied to notes and deeds in- discriminately. Dow v. Jewell, 18 N. H. 340, 45 Am. Dec. 371 [citing Hills v. Barnes, 11 N. H. 395]. New Jersey. — Presumption in favor of notes and deeds indiscriminately. Hunt ?'. Gray, 35 N. J. L. 227, 10 Am. Rep. 232. See also Den v. Wright, 7 N. J. L. 175, 11 Am. Dec. 546. New York. — The rule that no presumption Vol. II 242 ALTERATIONS OF INSTRUMENTS (f) Changes in Official Documents or Those Coming from Official Custody. Interlineations or erasures cast less suspicion upon official acts or documents than upon mere private papers. 25 If an interlineation or erasure appears on the face of an officer's return, or an official document, or one coming from proper official cus- tody, and there is no evidence to show when it was done, it will be presumed to have been done when the officer had authority to do it. 28 So papers filed in court will not be presumed to have been fraudulently altered on account of interlinea- tions or erasures. 27 (g) Changes by Attesting or Authenticating Officer. Interlineations in a deed in the handwriting of the officer who attested it will be presumed to have been made at or before the execution of the deed, 28 and where an exemplification of a public record contains interlineations and alterations, marked and verified as such by the initials of the authenticating clerk, they will be presumed to have been noted by him at the time of authentication. 29 (h) Suspicious Appearance — (1) In General. The foregoing general views as to the burden of proof and presumption which attend an apparent alteration are subject, in many if not most of the cases, to the qualification as to the appear- ance of the instrument, as suspicious or otherwise. Thus the rule requiring a arises, but that the whole question is sub- mitted to the jury, applied where the instru- ment is under seal or otherwise, Maybee v. Sniff en, 2 E. D. Smith (N. Y.) 1. And the rule requiring explanation of an apparent change, first applied to the case of a simple contract in Johnson v. Marlborough, 2 Stark. 313, 3 E. C. L. 424, was applied to a deed in Jackson v. Osborn, 2 Wend. (N. Y.) 555, 20 Am. Dec. 649. Ohio. — See Eranklin v. Baker, 48 Ohio St. 296, 27 N. E. 550, 29 Am. St. Rep. 547, pre- sumption that change was made before execu- tion. Vermont. — Beaman v. Russell, 20 Vt. 205, 49 Am. Dec. 775. English cases distinguished. — In several cases (Bailey v. Taylor, 11 Conn. 531, 29 Am. Dec. 321 ; Franklin r. Baker, 48 Ohio St. 296, 27 X. E. 550, 29 Am. St. Rep. 547, and es- pecially in Beaman v. Russell, 20 Vt. 205, 49 Am. Dec. 775) the distinction is pointed out, between the rule of the early English author- ities, that an alteration appearing in the face of a deed would be presumed to have been made at the time of its execution, as in Trowel i'. Castle, 1 Keb. 22, and Fitzgerald v. Fauconberge, Fitzg. 207, and several later English authorities (Johnson v. Marlborough, 2 Stark. 313, 3 E. C. L. 424; Bishop v. Cham- bre, 3 C. & P. 55, 14 E. C. L. 448; Leykariff v. Ashford, 12 Moore C. P. 281, 22 E. C. L. 043 ; Taylor v. Mosely, 6 C. & P. 273, 25 E. C. L. 429; Knight v. Clements, 8 A. & E. 215, 35 E. C. L. 559 ; Sibley v. Fisher, 7 A. & E. 444, 34 E. C. L. 243 ; Clifford v. Parker, 2 M. & G. 909, 40 E. C. L. 917 ; Henman v. Dickinson, 5 Bing. 183, 15 E. C. L. 533), requiring explana- tion of apparent changes in negotiable instru- ments, in that the latter eases were decided solely with reference to the stamp act. 25. Tyree v. Rives, 57 Ala. 173. See also State v. Boisseau, 1 Rob. (La.) 388. 26. Georgia. — Collins v. Boring, 96 Ga. 360, 23 S. E. 401. Kentucky. — Welch v. Chandler, 13 B. Mon. (Ky.) 420. Vol. II Maine. — Boothby v. Stanley, 34 Me. 515. Sew York. — People v. Minck, 21 N. Y. 539 ; Devoy v. New York, 35 Barb. (N. Y.) 264, 22 How. Pr. (N. Y.) 226. JS T orth Carolina. — Sloan v. Stanly, 33 N. C. 627. Pennsylvania. — Stevens v. Martin, 18 Pa. St. 101, presumption that interlineation in patent was made by the clerk of the common- wealth before the patent was issued. Texas. — Miller v. Alexander, 13 Tex. 497, 65 Am. Dee. 73. So the burden of proving an alteration of the amount of an administra- tor's bond is upon defendant sued thereon, where the bond was executed on the day of the filing of the inventory and appraisement, and is in the amount required by law, and has remained in official custody from the date of its execution. Peveler v. Peveler, 54 Tex. 53. 27. Friedman v. Shamblin, 117 Ala. 454, 23 So. 821. An indictment is not bad because it eon- tains interlineations, and, in the absence of anything appearing upon the face thereof, or extrinsic, to show that the interlineations were made after it was completed, it will be presumed to have been made before. French v. State, 12 Ind. 670, 74 Am. Dec. 229, which, however, was upon the general principle that, in the absence of anything appearing upon the face of a, written instrument, or extrinsic proof tending to show that the interlinations were made subsequent to the execution of the instrument, the presumption is that they were made before or at the time of its exe- cution. An order of sale directed to " Carl Bradley, deputy sheriff," will not be invalidated by having a pen-stroke through the first three of said words, in the absence of proof of the time of alteration. Parsons First Nat. Bank v. Franklin, 20 Kan. 264. 28. Bedgood v. McLain, 89 Ga. 793, 15 S. E. 670. 29. Lazier v. Westcott, 26 N. Y. 146, 82 Am. Dec. 404. ALTERATIONS OF INSTRUMENTS 243 party to explain apparent changes is applied where those changes are of such a character as to raise a suspicion against the instrument. 30 This burden is some- times considered in the light of a presumption against the validity of the instru- ment, although the ultimate questions of the time when and by whom the change was made are for the jury. 31 But the rule which would seem to be the view best supported by the authorities is that the suspicious appearance of an instrument raises no presumption against it, but the entire question is left to the jury upon the evidence introduced, though the party producing the instrument has the burden of explaining the suspicious appearance ; 3 ?- the ultimate question as to when and by whom the change was made is one of fact. On the one hand, if the court considers the appearance of the instrument suspicious, the party producing it will be required to explain the appearance before the instrument is admitted, 30. Alabama. — Hart v. Sharpton, 124 Ala. 638, 27 So. 450; Hill v. Nelms, 86 Ala. 442, 5 So. 796; Barolift v. Treece, 77 Ala. 528; Mar- tin v. King, 72 Ala. 354; Fontaine v. Gunter, 31 Ala. 258. California. — Under statute requiring expla- nation of apparent alteration. Miller v. Luco, 80 Cal. 257, 22 Pac. 195. Delaware. — Warren v. Layton, 3 Harr. (Del.) 404. • Neiv York. — Jackson v. Osborn, 2 Wend. (N. Y.) 555, 20 Am. Dec. 649. Pennsylvania. — Hill v. Cooley, 46 Pa. St. 259. Texas.— Collins v. Ball, 82 Tex. 259, 17 S. W. 614, ?,7 Am. St. Rep. 877. South Carolina. — Wicker v. Pope, 12 Rich. (S. C.) 387, 75 Am. Dec. 732. Wisconsin. — Page v. Danaher, 43 Wis. 221. United States. — Cox v. Palmer, 1 McCrary (U. S.) 431, 3 Fed. 16. But where it is clear that no one having any interest under the instrument in question could have had a motive in altering it, but that others who had been in possession of the instrument would have been advanced by its destruction, it is fair to presume that if the alterations were made by anyone they were not made by those claiming under the instru- ment. Coulson v. Walton, 9 Pet. (U. S.) 62, 9 L. ed. 51. See 2 Cent. Dig. tit. "Alteration of Instru- ments," § 230 et seq. 31. Pipes v. Hardesty, 9 La. Ann. 152, 61 Am. Dec. 202. See also Scott v. Walker, Dud- ley (Ga.) 243; Ellison v. Mobile, etc., R. Co., 36 Miss. 572 (wherein it is held, however, that in order to raise the presumption it is not sufficient that it is probable an alteration was made, but it must be made manifest to the inspection of the jury, because if it were to be determined upon a mere probability it would be to found one presumption upon an- other, and to presume fraud upon a mere probability) ; Wilson v. Henderson, 9 Sm. & M. (Miss.) 375, 48 Am. Dec. 716; Commer- cial, etc., Bank v. Lum, 7 How. (Miss.) 414; Tillou v. Clinton, etc., Mut. Ins. Co., 7 Barb. (N. Y.) 564. 32. Arkansas. — Gist v. Gans, 30 Ark. 285. Connecticut. — Hayden v. Goodnow, 39 Conn. 164, holding that the burden of proof to ex- plain an alteration did not necessarily rest upon the party producing the instrument, but that each case depended upon its own circum- stances; that the triers must be satisfied that the alteration was fairly made. Delaware. — Welch v. Coulborn, 3 Houst. (Del.) 647 [followed in Hollis v. Vandergrift, 5 Houst. (Del.) 521]. Florida. — Harris v. Jacksonville Bank, 22 Fla. 501, 1 So. 140, 1 Am. St. Rep. 201. The rule adopted is that, in the absence of evi- dence to the contrary, an alteration will be presumed to have been made contemporane- ously with the execution of the instrument. But it is held that nothing in this rule oper- ates against the proposition that evidence necessary to destroy this prima facie pre- sumption may appear on the face of the in- strument itself, and thus require the party offering the instrument to explain its appear- ance in the first instance. Orlando v. Good- ing, 34 Fla. 244, 15 So. 770. Iowa. — Harlan v. Berry, 4 Greene (Iowa) 212. A demurrer to the evidence by defend- ant cannot withdraw the question of fact from the jury and permit the court to decide it as a presumption of law. Jones v. Ireland, 4 Iowa 63. Kansas. — J. I. Case Threshing Mach. Co. v. Peterson, 51 Kan. 713, 33 Pac. 470, holding that, while it may not be proper as an ab- stract proposition of law to instruct the jury that the burden is upon plaintiff to satisfac- torily explain the alteration, such instruction would not be erroneous where plaintiff has the general burden of proving such an instru- ment as he sets out in his pleading, as an al- teration of an instrument may be so obvious and suspicious as to bring discredit upon it and to require the party offering it to explain the apparent changes, notwithstanding that, in the absence of such suspicious circum- stances, no presumption could be indulged against its genuineness. See also State v. Roberts, 37 Kan. 437, 15 Pac. 593; Parsons First Nat. Bank v. Franklin, 20 Kan. 264. Maine.— Martin v. Tuttle, 80 Me. 310, 14 Atl. 207; Dodge v. Haskell, 69 Me. 429; Bel- fast Nat. Bank v. Harriman, 68 Me. 522; Crabtree v. Clark, 20 Me. 337 (holding it to be a question for the jury when no explanation is offered and that an instruction that the note would be void if the alteration was not accounted for was erroneous) ; Gooch v. Bry- ant. 13 Me. 386. New York. — Acker v. Ledyard, 8 Barb. Vol. II 244 ALTERATIONS OF INSTRUMENTS the court determining in the first instance whether the explanation is sufficient, 33 or determining only that explanatory evidence is necessary before admitting the instrument, leaving the whole question to the jury as soon as such explanatory evidence is offered. 34 In other cases, the instrument is admitted in the first (N. Y.) 514; Maybee v. Sniff en, 2 E. D. Smith (X. Y.) 1. Vermont. — Beaman v. Russell, 20 Vt. 205, 49 Am. Dee. 775. West Virginia. — Connor v. Fleshman, 4 W. Va. 693. 33. Ward v. Cheney, 117 Ala. 238, 22 So. 996. But in Hart v. Sharpton, 124 Ala. 638, 27 So. 450, it is held that if the instrument is introduced without explanatory evidence the introduction of such evidence thereafter will cure any error in the original admission. 50 in Niekum r. Gaston, 28 Oreg. 322, 42 Pac. 130, under the statute requiring an ap- parent change to be explained before the in- strument is admitted in evidence, a showing that the alleged change was made before exe- cution of the instrument is sufficient to cure any objection to the admission of the instru- ment without explanatory evidence. In Wis- consin it is held that, when an alteration appears on the face of a note, the question must be raised and the alteration explained when the instrument is offered, and before it is received in evidence. Austin t. Austin, 45 Wis. 523 {citing Low r. Merrill, 1 Pinn. (Wis.) 340; Schwalm v. Mclntyre, 17 Wis. 232] ; Page v. Danaher, 43 Wis. 221. 34. Illinois. — In the absence of explana- tory evidence of suspicious appearance by the party producing an instrument suspicion will become the conviction of fact in the mind of the court or jury that such alteration or appearance of alteration was subsequent to the execution and delivery; but the question is one of fact for the jury and not of law for the court. Catlin Coal Co. v. Lloyd, 180 111. 398, 54 X. E. 214, 72 Am. St. Rep. 216; Milli- ken r. Marlin, 66 111. 13; Reed v. Kemp, 16 111. 445. The court should instruct the jury that no presumption is raised as to when or by whom the apparent change was made, but that these are questions for them to deter- mine. DeLong v. Soucie, 45 111. App. 234. On the other hand, it seems that the question of the admissibility of the instrument in evi- dence in the first instance, in the absence of explanatory evidence as to suspicious appear- ance, is for the court. Merritt v. Boyden, (111. 1901) 60 X. E. 907; Russell v. Peyton, 4 111. App. 473. And in Montag v. Linn, 23 111. 551, it was held that material interlinea- tions in a deed were to be presumed to have been made after execution, unless explained by the party taking the benefit of the deed; but in this ease the question was for the con- sideration of the jury, and the instruction was that the deed which had been read in evi- dence was to be considered by them as worth- less unless they believed from the appearance of the instrument that the interlineations were made at the time of the execution, or before. Louisiana. — Dawson v. Dawson, 7 Rob. Vol. II (La.) 36, holding that where the court can- not say whether such erasures, apparent on the face of a note, are such as should author- ize its exclusion until explained, the note will be permitted to go to the jury. Massachusetts. — Ives v. Farmers' Bank, 2 Allen (Mass.) 236; Ely v. Ely, 6 Gray (Mass.) 439 ; Wilde r. Armsby, 6 Cush. (Mass.) 314. See also Newman v. Wallace, 121 Mass. 323. Michigan. — Pearson r. Harding, 95 Mich. 360, 54 X. W. 904; Wilson v. Hotchkiss, 81 Mich. 172, 45 X. W. 838; Brand v. Johnrowe, 60 Mich. 210, 26 X. W. 883; Willett V. Shep- ard, 34 Mich. 106: Sirrine v. Briggs, 31 Mich. 443; Munroe V. Eastman, 31 Mich. 283; Shel- don r. Hawes, 15 Mich. 519. Missouri.— Stillwell v. Patton, 108 Mo. 352, 18 S. W. 1075: Holton r. Kemp, 81 Mo. 661; Smith f. Ferry, 69 Mo. 142; Paramore V. Lindsey, 63 Mo! 63; McCormiek v. Fitzmorris, 39 Mo. 24; Lubbering v. Kohlbrecher, 22 Mo. 596 ; Matthews ('. Coalter, 9 Mo. 705. But see Patterson v. Fagan, 38 Mo. 70. The rule that in the absence of suspicious circumstances it will be presumed that the change was made before execution does not mean that when the interlineation or alteration is of a suspicious character the presumption stated is entirely removed or that one to the contrary obtains, but that if the alteration or interlineation is of a suspicious character the chancellor or jury will be authorized to decide against the presumption on the face of the paper, with- out additional proof. Xoah v. German Ins. Co., 69 Mo. App. 332; Grimes v. Whitesides, 65 Mo. App. 1. Neio Hampshire. — Cole r. Hills, 44 N. H. 227, holding that, after the instrument is ad- mitted, if there is an entire absence of evi- dence then the presumption arises that the al- teration was made after the execution of the instrument. See also Burnham r. Ayer, 35 X. H. 351 ; Hills r. Barnes, 11 X. H. 395. New York. — The court cannot decide, upon a mere inspection of the instrument, that it is void and cannot be introduced in evidence. Pringle r. Chambers, 1 Abb. Pr. (X. Y.) 58. It can only decide, upon an inspection of the instrument, that the party producing it shall be required to explain changes, and as soon as evidence is offered the question at once be- comes one for the jury. Tillou v. Clinton, etc., Mut. Ins. Co., 7 Barb. (X. Y.) 564; Smith e. McGowan, 3 Barb. (X. Y.) 404; Jackson t. Osborn, 2 Wend. (X. Y.) 555, 20 Am. Dec. 649. See also Pease r. Barnett, 27 Hun (X. Y.) 378 (holding that after explanatory evidence is given the question must be left to the jury, and the court cannot direct a ver- dict) ; Artisans' Bank r. Backus, 31 How. Pr. (X. Y.) 242. Pennsylvania. — Presumption of innocence on the face of a deed if the alteration is not ALTERATIONS OF INSTRUMENTS 245 instance, but the party producing it is required to offer explanatory evidence before the jury, who are to pass upon the whole question, under proper instruc- tions from the court. 85 (2) Different Uses of the Teem "Suspicious Appearance." It would of a suspicious character, but if it is of a suspicious character the law presumes noth- ing, but leaves the whole question to the jury. Jordan v. Stewart, 23 Pa. St. 244. To the same effect see Heffelfinger v. Shutz, 16 Serg. & R. (Pa.) 44; Stevens v. Martin, 18 Pa. St. 101 (wherein it was said to be proper to pre- sume that the interlineation in a patent was made before the patent was issued) ; Nesbitt v. Turner, 155 Pa. St. 429, 26 Atl. 750. But it is also held that where the party offers a deed which contains an apparent alteration beneficial to him the instrument should not be admitted in evidence without explanation. Burgwin v. Bishop, 91 Fa. St. 336; Robinson v. Myers, 67 Pa. St. 9. So in the case of a bond which the obligee makes a part of his case. Barrington v. Washington Bank, 14 Serg. & R. (Pa.) 405. The jury determine, under proper instructions, whether the ex- planation is sufficient. Burgwin v. Bishop, 91 Pa. St. 336. But see Robinson v. Myers, 67 Pa. St. 9 ; Gettysburg Nat. Bank v. Gage, 4 Pa. Super. Ct. 505, which hold that the ques- tion of the sufficiency of such testimony is for the court, the former case holding that, if the instrument is admitted and the ex- planatory evidence is not sufficient, the oppo- site party is entitled to an instruction that the jury must reject the instrument. See also Smith v. Weld, 2 Pa. St. 54, holding that the court may either exclude the instrument in the first instance or pronounce upon its effect after it is submitted to the jury. It is further held that while it may be true that if it is evident upon an inspection of the paper that it has been altered in a material part it should be withheld from the jury in the ab- sence of explanatory testimony, yet, if the fact is disputed and the question is in doubt, the supposed fraudulent action and intent must be left to the jury. Miller v. Stark, 148 Pa. St. 164, 23 Atl. 1058; Hudson v. Reel, 5 Pa. St. 279. A note bearing an apparent al- teration should not be admitted except in con- nection . with evidence tending to explain it, and then it should be referred to the jury to say whether the alteration, if any, was made before or after the delivery of the note. Hill v. Cooley, 46 Pa. St. 259 ; Heffner v. Wenrich, 32 Pa. St. 423; Winters v. Mowrer, 1 Pa. Super. Ct. 47. So a book of entries, mani- festly altered, was held not to be admissible to go to the jury unless the party offering it also offered explanatory evidence of the al- teration. Churchman v. Smith, 6 Whart. (Pa.) 146. If the apparent interlineation is not of a suspicious character the question will be submitted to the jury. Zimmerman v. Camp, 155 Pa. St. 152, 25 Atl. 1086; Win- ters v. Mowrer, 1 Pa. Super. Ct. 47. South Carolina. — Ordinarily the question is determined by the court in the first instance upon the preliminary objection to the admis- sion of the instrument in evidence, but it is again open to the jury, and is always so when the validity of the instrument is directly in- volved in the issue, and the party offering the instrument is not bound to offer other evi- dence in explanation than that furnished by the instrument itself. Wicker v. Pope, 12 Rich. (S. C.) 387, 75 Am. Dee. 732. 35. Delaware. — In Warren v. Layton, 3 Harr. (Del.) 404, the note in suit, which was much mutilated, was admitted and the court charged that plaintiff was under the burden of explaining the alteration, else he could not recover. Tennessee. — Organ v. Allison, 9 Baxt. (Tenn.) 459; Farnsworth v. Sharp, 4 Sneed (Tenn.) 54, announcing the rule that an apparent change, in the absence of suspicious circum- stances, will be presumed to have been made at the time of signing; but if the change is suspicious no presumption is indulged, but the whole question is left to be decided by the jury, the burden being on the party offering the instrument. Texas. — Rodriguez v. Haynes, 76 Tex. 225, 13 S. W. 296, holding that the burden of ex- plaining a suspicious change appearing in the face of an instrument is on the party produc- ing it, but the jury are to determine by whom, when, and the intent with which the change was made. See also Park v. Glover, 23 Tex. 469; Miller v. Alexander, 13 Tex. 497, 65 Am. Dee. 73. Vermont. — Upon the usual proof of execu- tion, the instrument must be submitted to the jury, and, upon the question whether expla- nation of apparent change should be first given to the court or at once to the jury, the rule would seem to be that as no testimony is to go to the jury but upon oath, some evi- dence must be given of the execution of the instrument, and in this aspect only the court determines upon the sufficiency of such proof. Beaman v. Russell, 20 Vt. 205, 49 Am. Dec. 775. West Virginia. — In Connor v. Fleshman, 4 W. Va. 693, it was held that, on a, plea of non est factum to avoid an instrument on the ground of an alteration, the question whether the instrument had been mutilated is for the jury, and the paper should be submitted to the jury without first requiring plaintiff to explain its appearance.' Canada. — Wherever a doubt exists whether an alteration has taken place nothing is to be presumed, but it is for the jury to decide, and for this purpose they may inspect the writ- ing ; the extrinsic evidence as to the time and circumstances under which a change was made is also for the jury. Domville v. Davies, 13 Nova Scotia 159. But see supra, IX, A, 3, b, (n), (c), (d). For inspection of instrument by jury see infra, IX, C, 5. Vol. II 246 ALTERATIONS OF INSTRUMENTS also seem that the authorities sometimes use the term " suspicious appearance" in different senses. On the one hand, the mere fact of an apparent change would seem to be contemplated by the expression, as is also to be gathered from some of the authorities which lay down a general rule requiring interlineations or erasures to be explained by the party producing the instrument. 36 On the other hand, the mere appearance of a change is not always of itself sufficient, but other intrinsic evidence must appear in order to raise a suspicion. 37 B. Admissibility and Competency — 1. Parol Evidence in General. Parol ■evidence is admissible to impeach an instrument for an alteration (the rule which excludes such evidence when offered to vary a written contract having no appli- cation), 38 or to prove that blanks have been filled contrary to directions. 39 And •so, also, parol evidence is admissible to explain an alteration or show that the change was made under such circumstances as not to vitiate the instrument. 40 36. Thus, in 1 Greenleaf Ev. § 564, upon stating the rule that a party producing an in- strument has the burden of explaining an apparent alteration, it is said that " every al- teration on the face of a written instrument detracts from its credit, and renders it sus- picious; and this suspicion the party claim- ing under it is ordinarily held bound to re- move." See Pipes v. Hardesty, 9 La. Ann. 152, 61 Am. Dec. 202 ; Park v. Glover, 23 Tex. 469; Miller v. Alexander, 13 Tex. 497, 65 Am. Dec. 73. 37. California. — Sedgwick v. Sedgwick, 56 Cal. 213, holding that under the statute re- quiring a party producing a writing as gen- uine, and which has been altered or appears to have been altered after its execution, etc., to account for the apparent alteration, a note which on its face appears to have been changed in the date thereof from 1871 to 1870 — for example, the figure " 1 " seemed at first to have been written and then changed to " 0," the instrument does not indicate that the change was made after execution. Massachusetts.— In Wilde v. Armsby, 6 Cush. (Mass.) 314, referring to the statement from 1 Greenleaf Ev. § 564, in note 36, supra, the court said that it was not prepared to de- cide that a material alteration, manifest on the face of an instrument, is in all cases such a suspicious circumstance as to throw the burden on the party claiming under the in- strument, because the effect of such a rule would be that, if no evidence were given by the party claiming under the instrument, the issue must always be found against him. Missouri. — Paramore v. Lindsey, 63 Mo. 63. Pennsylvania.— Zimmerman v. Camp, 155 Pa. St. 152, 25 Atl. 1086. Tennessee. — Organ v. Allison, 9 Baxt. (Tenn.) 459. Texas. — Rodriguez v. Haynes, 76 Tex. 225, 13 S. W. 296. Vermont. — Where the interlineation con- sists of words which are entirely immaterial no explanation as to the time when it was made is necessary. Langdon v. Paul, 20 Vt. 217. Wisconsin. — Maldaner v. Smith, 103 Wis. 30, 78 N. W. 140; Page v. Danaher, 43 Wis. 221. United States. — Cox v. Palmer, 1 McCrary (U. S.) 431, 3 Fed. 16. Vol. II See infra, IX, C, 6. 38. Illinois. — Johnson v. Pollock, 58 111. 181; Schwarz v. Herrenkind, 26 111. 208. Iowa.— Coit v. Churchill, 61 Iowa 296, 16 N. W. 147. Louisiana. — Perry v. Burton, 31 La. Ann. 262. Maine. — Goodwin v. Norton, 92 Me. 532, 43 Atl. Ill; Buck v. Appleton, 14 Me. 284. Mississippi. — Everman v. Robb, 52 Miss. 653, 24 Am. Rep. 682. Nebraska. — Courcamp v. Weber, 39 Nebr. 533, 58 N. W. 187. Oregon. — Wren v. Fargo, 2 Oreg. 19. Pennsylvania. — Grambs v. Lynch, 4 Pennyp. (Pa.) 243, 20 Wkly. Notes Cas. (Pa.) 376. See 2 Cent. Dig. tit. "Alteration of Instru- ments," § 248 et seq. 39. Richards v. Day, 137 N. Y. 183, 33 N. E. 146, 50 N. Y. St. 389, 33 Am. St. Rep. 704, 23 L. R. A. 601. 40. Georgia. — Williams v. Waters, 36 Ga. 454 ; Crawford v. Brady, 35 Ga. 184. Iowa. — Barlow v. Buckingham, 68 Iowa 169, 26 N. W. 58. Louisiana. — Bernstien v. Ricks, 20 La. Ann. 409. Maryland. — Edelin r. Sanders, 8 Md. 118; Burckmyer v. Whiteford, 6 Gill (Md.) 1. Massachusetts. — Austin v. Boyd, 24 Pick. (Mass.) 64. New Jersey. — Rape v. Westcott, 18 N. J. L. 244. South Carolina. — Mouehet v. Cason, 1 Brev. (S. C.) 307. Wisconsin. — Low v. Merrill, 1 Pinn. (Wis.) 340. So, in an action to annul certificates issued to defendant of tax-sales of plaintiff's property for a certain year, the defendant de- nied that the taxes had been paid, and upon this issue plaintiff offered in evidence a re- ceipt in which there was a column of figures purporting to be the taxes assessed upon the property for the improvements for a particu- lar year, and which figures had been erased, and it was held that the testimony of the officer who gave the receipt was admissible to show that the figures erased represented an official tax and were erased by him because the taxes had not been paid. Stringham V. Oshkosh, 22 Wis. 326. United States. — Speake v. U. S., 9 Cranch (U. S.) 28, 3 L. ed. 645. ALTERATIONS OF INSTRUMENTS 247 2. Any Testimony Bearing upon Transaction Involved. Upon the issue as to an alteration the door is thrown open to evidence bearing in any way upon the nature of the transaction or conducing to prove the fact; 41 but evidence of facts which can in no manner form the basis for a conclusion upon such an issue is inadmissible. 42 Even an immaterial alteration may be competent evidence to go to the jury to aid in an investigation of the main fact. 43 The inherent nature of the matter set up as an alteration may furnish such evidence of the probability •or improbability of the fact as to conclusively support the finding thereof. 44 3. Testimony of Witnesses as to Condition of Instrument — a. In General, The testimony of witnesses who have seen the instrument is admissible to show its condition at a particular time with reference to interlineations or erasures, 45 and the alleged or apparent change may in like manner be explained by such witnesses. 46 41. Connally v. Spragins, 66 Ala. 258 (wherein plaintiff was permitted to testify that it was his custom to write mortgages for customers, leaving the date blank, and after- ward to fill the blanks when the ■ intended mortgagor came in to execute the instru- ment) ; Abel v. Fitch, 20 Conn. 90 (testimony •of arbitrators as to recollection of what was submitted to them, for the purpose of show- ing that the paper signed by the parties sub- mitting their differences had been altered) ; Smith v. Jagoe, 172 Mass. 538, 52 N. E. 1088 (holding that on the issue whether a chattel mortgage was executed in blank, to be filled by the mortgagee, and whether he exceeded ■the authority thus impliedly given, the situa- tion of the parties and all that was said when the authority was given are competent evi- dence, and though the mortgagor cannot tes- tify as to his " expectation " so as to affect the construction of the language of the mort- gage, such evidence is material upon the ques- tion whether a fraud had been practised upon him by the mortgagee in filling the blanks, and whether he had estopped himself to set up the improper filling of the blanks) ; Win- ters v. Mowrer, 163 Pa. St. 239, 29 Atl. 916. Leaving of blank space. — Notwithstand- ing the mere leaving of a blank space in a •completed instrument may not be considered such negligence on the part of the maker as to render him liable to an innocent purchaser, yet, upon the issue whether or not the instru- ment tad been altered by raising the amount, evidence showing that such a blank space was left as was sufficient to permit the amount to be raised without leaving traces of the altera- tion is admissible upon the probability of the genuineness of the instrument. Pearson v. Hardin, 95 Mich. 360, 54 N. W. 904. 42. Agawam Bank v. Sears, 4 Gray (Mass.) '95, holding that embarrassed circumstances of a debtor could furnish no presumption that he would make a fraudulent alteration, and therefore evidence of his pecuniary embarrass- ment is inadmissible. But in Winters v. Mowrer, 163 Pa. St. 239, 29 Atl. 916, it was held that testimony that plaintiff, at about the time of the alleged writing, was borrow- ing a large sum from a third party was ad- missible, the defense being alleged fraud in the alteration of the amount of the note, the •court holding that such evidence bore on the probable truthfulness of the loan alleged on the one side and denied on the other. 43. Moye v. Herndon, 30 Miss. 110. 44. Matlock v. Wheeler, 29 Oreg. 64, 40 Pac. 5, 43 Pac. 867, wherein plaintiff testified that after the execution of the note in suit he indorsed a payment thereon and erased the word " maturity " upon defendant's sugges- tion that by mistake the note had been given for too large a sum, which testimony was con- tradicted by defendant. It was held that evi- dence that the amount of the note, after deducting the indorsed payment, included in- terest from the date of the note to maturity, calculated in advance, was admissible. Evidence excluded. — In an action on a pol- icy of insurance a recovery was resisted on the ground that an alteration had been made extending the life of the policy. It was held that the exclusion of evidence of the mini- mum rate existing in the company at the time was harmless where the policy itself recited a payment of a consideration different from that which would have been payable at such rate for the time that the policy should run as alleged by the company and from that due at such rate for the term stated on the face of the policy. Insurance Co. of North Amer- ica v. Brim, 111 Ind. 281, 12 N. E. 315. 45. Hunter v. Parsons, 22 Mich. 96 (hold- ing that where some of the alleged alterations were printed words, the testimony of the printer is admissible to show that the word was originally printed as it appeared when offered in evidence) ; Ansley v. Peterson, 30 Wis. 653, holding that the alteration may be shown by witnesses who saw the instrument prior to the alleged alteration, but who were not present when it was made. Subscribing witness. — The fact of an era- sure may be proved by other than subscrib- ing witnesses to the deed. Such matter is not supposed to be within the peculiar office of such witnesses. Penny v. Corwithe, 18 Johns. (N. Y.) 499. 46. Bernstien v. Ricks, 20 La. Ann. 409; Batchelder v. Blake, 70 Vt. 197, 40 Atl. 34. See also Fisher v. Hoffman, 2 Wkly. Notes Cas. (Pa.) 18, holding that, where one of the figures of the date of an instrument was writ- ten over a printed form, the testimony of a witness who saw plaintiff offer a note of similar amount, in the month and year which Vol. II 248 ALTERATIONS OF INSTRUMENTS b. Testimony as to Appearance of Instrument. Where an issue is raised as to an alteration, inquiry as to whether the body of the note and signature are written with the same ink and hand, as to the color of the ink with which the different parts of the instrument are written, etc., is proper. 47 Expert testimony is competent in this connection, 48 though it also has been held that a witness, without qualifying as an expert, may testify that he can see the marks of an erasure. 49 4. Other Instruments — a. In General. Upon the issue of an alteration of a particular instrument, evidence of the alteration of other instruments, or in rela- tion to the manner of the execution of other instruments than that in contro- versy, is inadmissible ; M but the character of a note in renewal of which the one in controversy was executed may be pertinent, and evidence thereof admissible. 61 And evidence that a note which the payee had drawn in proposed renewal of the note in suit is admissible, on behalf of defendant, to show that the words com- plained of as alterations in the note in suit were in the proposed renewal note, where the payee testiiied that he drew the note in suit in his usual manner of drawing such instruments. 52 b. Collateral Writings. Other documents than those alleged to have been altered, but which are connected with some part of the same general transaction, are admissible in evidence to throw light upon the issue of an alteration in the instrument involved. 53 the note in suit bears date, directly corrob- orates the instrument. Affidavit by subscribing witnesses. — The ex parte affidavit of a subscribing witness to a deed, indorsed on the deed after the deed had been recorded, to the effect that an inter- lineation which did not appear in the record was made by himself before the execution of the deed, is inadmissible. The facts are com- petent, but the medium of proof is incompe- tent. Jordan v. Stewart, 23 Pa. St. 244. And certainly verbal and written declarations of such a witness, if admissible, are not suffi- cient to rebut the presumption arising from his signature. Reformed Dutch Church v. Ten Eyck, 25 N. J. L. 40. 47. Dubois v. Baker, 30 N. Y. 355; Na- tional State Bank v. Rising, 4 Hun (N. Y. ) 793. 48. Nelson v. Johnson, 18 Ind. 329 (hold- ing that where persons testify as to their opinions, but the record does not show whether as experts or not, and no objection was made to the evidence or motion to withdraw it, there was no error on the record) ; Vinton v. Peck, 14 Mich. 287 (holding that witnesses may be allowed to compare the writing in question with an appeal bond in the same case admitted to have been signed by defend- ant, or with other writings legitimately intro- duced under the issues, in order to judge of the genuineness of the writing to be proved) ; Moye v. Herndon, 30 Miss. 110 (saying, how- ever, that such evidence has but little weight and should be received with caution) ; Fisher v. Hoffman, 2 Wkly. Notes Cas. (Pa.) 18. See Evidence. 49. Yates v. Waugh, 46 N. C. 483, wherein it is said that it is not improper to prove by witnesses that which the jury may arrive at without such aid. 50. Alabama. — Winter v. Pool, 100 Ala. 503, 14 So. 411. Vol. II District of Columbia. — Cotharin v. Davis, 2 Mackey (D. C.) 230. Michigan. — Pearson v. Hardin, 95 Mich. 360, 54 N. W. 904. Missouri. — Paramore v. Lindsey, 63 Mo. 63; Iron Mountain Bank v. Murdoek, 62 Mo. 70. But see Haynes v. Christian, 30 Mo. App. 198. England. — Thompson v. Mosely, 5 C. & P. 501, 24 E. C. L. 676. 51. Plattsburgh First Nat. Bank v. Heaton, 6 Thomps. & C. (N. Y.) 37, holding that in an action on a renewal note, wherein defendant claimed that the date had been altered, evi- dence that the date of the original note was such that the date of its maturity would cor- respond with the date of the note in suit is admissible, and in such a case a question to a witness as to whether he had ever seen, prior to a date after that of the note, any note of the maker in blank did not so plainly refer to notes other than that in suit as to require it to be excluded on a general objection. Alteration of renewal note. — So it has been held that, where such an alteration appears upon the face of a note as to render it sus- picious, it may be shown as a circumstance corroborating its appearance that the note for which the one in suit was given in re- newal had been altered also. Rankin v. Blackwell, 2 Johns. Cas. (N. Y.) 198. 52. Hellriegel v. Corson, 24 N. Y. App. Div. 452, 48 N. Y. Suppl. 419. 53. Carlisle v. People's Bank, 122 Ala. 446, 26 So. 115 (holding that, on an issue as to the alteration of a chattel mortgage by in- serting other notes than the one which defend- ant claims the mortgage was executed to secure, a bond for title, executed on the same day with the mortgage, and signed by the parties, which contains recitals in reference to the mortgage securing the notes, is ad- missible) ; Cook v. Moulton, 59 111. App. 428 ALTERATIONS OF INSTRUMENTS 249 e. Duplicate. A duplicate of a contract involved is admissible to show an alteration. 54 5. Declarations and Conduct of Parties. Upon the issue of an alteration, declarations, conversations, and conduct of the parties bearing upon the subject are admissible in evidence ; 55 but on the issue of an alteration set up by a defend- ant, statements made by another who signed before defendant, upon delivery of the instrument in defendant's absence, are inadmissible against the defendant ; 56 (wherein it was held competent to refer to the conditions of a proposed deed, in explana- tion of erasures and alterations in a note se- cured by such deed, to show that such altera- tions were made before the note was exe- cuted) ; Perry v. Burton, 31 La. Ann. 262 (a letter written on the same piece of paper with a receipt admissible to explain alteration in receipt) ; Stein v. Brunswick-Balke-Collender Co., 69 Miss. 277, 13 So. 731 (holding that, in determining whether notes sued on were altered after their execution, the contract for the purchase of the goods for which the notes were given is competent and relevant evi- dence ) . 54. Young v. Cohen, 42 S. C. 328, 20 S. E. 62. But, though an alteration appeared on the face of the instrument, it was held that the court would not nonsuit the party where defendant had ■ a counterpart which she re- fused to show. Curry v. May, 4 Harr. (Del.) 173. Proved copy. — Where a plea of non est factum seeks to avoid a written instrument on the ground of alteration, a copy of the paper as proved to have been originally made may go to the jury to enable them to deter- mine whether or not the original had been al- tered. Connor v. Fleshman, 4 W. Va. 693. 55. Browning v. Gosnell, 91 Iowa 448, 59 N. W. 340 (which involved the alteration of a note, after it was executed by the maker, by procuring additional signers, and a ques- tion to the first maker on cross-examination, if, after all the names had been signed to the note, he did not promise to pay it, was held to be proper, because, while as to the addi- tional signers it was immaterial, it was evi- dence against the first maker, and the objec- tion being a general one the evidence should be admitted) ; Booth v. Powers, 56 N. Y. 22 (evidence of willingness on the part of a maker to ratify an alleged alteration and tc admit the note to be a valid obligation) ; Cur- tice v. West, 50 Hun (N. Y.) 47, 2 N. Y. Suppl. 507, 18 N. Y. St. 511 (admissions of conversations between plaintiff and defendant which took place before the execution of the instrument) ; Winters v. Mowrer, 163 Pa. St. 239, 29 Atl. 916 (declarations of plaintiff, be- fore the family of defendant, that nothing was due plaintiff, admissible on the issue of an alleged fraudulent alteration of the amount of a note ) ; North v. Henneberry, 44 Wis. 306 (on the question whether the grantor as- sented to an alteration of the deed, evidence admissible that he testified in a judicial pro- ceeding after full knowledge of the facts that the grantee was the owner of the land ) . Letter having no connection with note in suit. — On the issue whether one of a series of notes had been altered, as claimed by de- fendant, plaintiff notified defendant to pro- duce all the notes of the series which had been paid; two of such notes were not pro- duced because they were lost, but two others were produced, and one of these contained the clause which defendant insisted had been inserted in the note in suit as an alteration, and the other did not contain such clause, and plaintiff contended that the latter had been altered by erasure and proved that it had been surrendered to defendant by the cashier of a bank in exchange for one of the notes produced which contained the disputed clause. A letter written by plaintiff to the cashier, directing him to see that the clause should be inserted in the note from which he claimed it had been erased, was held to be inadmissible because the issue was susceptible of direct proof, and the letter was before the writing of the note and had no connection with the note in suit, and made no reference to it. Capen v. Crowell, 63 Me. 455. Disputed clause interlined before signing. — In Jenkinson v. Monroe, 61 Mich. 454, 28 N. W. 663, a written agreement in duplicate was interlined, before signing, by one of the parties and after execution by the other party, and, upon the disputed point whether the clause so interlined was a part of the written contract as executed by the parties, parol evidence of the subsequent conduct and conversation of the parties is admissible as tending to show a final settlement and inter- pretation by the parties of an open and dis- puted question not settled in the written con- tract as originally executed by one of the parties. Issues tried under original contract. — Where the issues are tried under the contract as originally executed, though an alteration of the contract was admitted, evidence of conversations as to who made the alteration is irrelevant. Jones v. Julian, 12 Ind. 274. 56. Hollis v. Vandergrift, 5 Houst. (Del.) 521. Representations of payee's agent to show innocence. — But where the payee of a note altered it by inserting interest, acting upon the false representation of his agent, who had procured the note in payment of goods sold by him, upon the question of the right of the principal to recover on the original considera- tion evidence of a conversation between one of plaintiffs and the agent who negotiated the settlement, in which conversation plain- tiff was informed that defendant had author- ized the alteration, is admissible to show the good faith and innocence on the part of the Vol. II 250 ALTERATIONS OF INSTRUMENTS and a defendant testifying that when an instrument was executed it did not con- tain a particular provision cannot, for the purpose of showing how the fact was impressed upon his mind, testify as to a conversation between himself and another defendant in the absence of plaintiff. 57 So assent cannot be shown by the testi- mony of an attorney, when such testimony relates to communications received by him as attorney. 58 And an agent's declarations cannot be received by themselves as evidence of his agency. 59 6. Memoranda Made by Party. Upon the defense of an unauthorized altera- tion, a memorandum as to dates, amount, and time of payment, made by the payee at the time of the indorsement, is not admissible unless the witness is unable to testify, from a failure to recollect the facts, without referring to the memorandum. 60 7. As to Transactions with Decedents. Under statutory inhibitions against parties to suits testifying as to personal transactions with decedents in their life- time, on the issue as to an alteration it is not competent for a party to testify as to the condition of an instrument at the time of its execution, when the other party is dead ; 61 but, on the other hand, questions which do not call for answers as to personal transactions with deceased during his life are competent. 62 Where principal in making the alteration, as such information came to plaintiff through the proper channel, and the evidence was the di- rect and accurate way of showing it. Krause v. Meyer, 32 Iowa 566. 57. Dickson v. Bamberger, 107 Ala. 293, 18 So. 290. 58. Bowers v. Briggs, 20 Ind. 139, holding that testimony by an attorney, that the party offered to confess judgment on the note in suit if witness thought it could be done with safety, was inadmissible. 59. Jordan v. Stewart, 23 Pa. St. 244. 60. National Ulster County Bank v. Mad- den, 114 N. Y. 280, 21 N. E. 408, 23 ST. Y. St. 220, 11 Am. St. Rep. 633. 61. Gist v. Gans, 30 Ark. 285 (holding that under non est factum by an adminis- trator, setting up an alteration in a note, the plaintiff could not testify that the note was executed by the decedent in the shape in which it was produced at the trial, though the court leaned to the opinion that plaintiff might testify that the note had not been al- tered by him or with his consent after its exe- cution, the latter not relating to a transac- tion with deceased during his life) ; Mitchell v. Woodward, 2 Marv. (Del.) 311, 43 Atl. 165 (in action by administrator, question to defendant, whether the paper produced had the same date as when executed, excluded) ; Benton County 3av. Bank r. Strand, 106 Iowa 606, 76 N. W. 1001 (inadmissibility of testi- mony that certain words were not on the in- strument at a certain time) ; Williams v. Barrett, 52 Iowa 637, 3 N. W. 690 (even where the witness has no interest in the par- ticular point upon which the testimony is pertinent); Church v. Howard, 17 Hun (N. Y.) 5, 8 (which was an action by the adminis- trator of the payee of a note against the maker and surety. The former, making no defense, was allowed to testify for the surety as to a personal transaction between the maker and decedent in his lifetime. It was held that under a former statute such evi- dence would have been inadmissible, but that Vol. II it was admissible under the code provision then prevailing, which precluded a party from testifying " in his own behalf or interest, or in behalf of the party succeeding to his title or interest," and that testimony by the surety that he never paid or authorized the payment of any interest on the note was inadmissible if it had been objected to because it was the denial of the existence of a fact material to the issue, and to which the deceased might have spoken, if living ) . After death of member • of partnership. — Harris v. Jacksonville Bank, 22 Fla. 501, 1 So. 140, 1 Am. St. Rep. 201, holding that where the negotiations between an individual and a member of a firm lead to the acceptance of a bill of exchange by the former, drawn by the firm, which the firm afterward negotiated with a bank, in a suit by the acceptor against the bank to compel the surrender of a draft given by the acceptor in exchange for the bill of exchange, upon the ground that the ac- ceptance had been materially altered after he had signed and delivered it, the acceptor can- not testify that the words complained of were added after he had accepted, because the mem- ber of the partnership with whom the ac- ceptor had the transaction was dead, and while he had acted on behalf of the partner- ship, yet the transaction was between him and the acceptor, in the sense of the statute. Matter on face of paper not testimony of deceased. — Under a statutory provision against such testimony, except as to a trans- action as to which the testimony of the de- ceased person shall be given in evidence, a re- cital in the face of a check that it was given for certain purposes is not the testimony of the deceased, and a question to the party: " Examine the face of the check . . . and state what, if any, words in writing, are now on the check that were not there when the check was delivered to you and when you in- dorsed it," should be excluded. In re Brown, 92 Iowa 379, 388, 60 N. W. 659. 62. Thus questions as to when and with what ink defendant signed the note, and ALTERATIONS OF INSTRUMENTS 251 the burden to explain apparent changes on the face of negotiable paper is upon the holder it is unimportant that both parties to the original transaction are dead, though an explanation is thereby rendered more difficult. 63 C. Weight and Sufficiency — 1. In General. 64 As elsewhere shown, the fact of an alteration is for the determination of the jury, 65 and it may be stated gener- ally that where an alteration is pleaded the issue is to be determined on a mere preponderance of the evidence, 66 and this is all that is required of plaintiff under his burden of proving the execution of an instrument when such execution is denied. 67 But the testimony should be stronger than to raise a mere suspicion in order to entitle one to discharge himself from liability, especially when the instru- ment itself is fair on its face. And it is held that, where the evidence is evenly balanced as to when the change was made, the presumption will then be indulged that it was made before the instrument was executed. 6 ' Where plaintiff seeks to annul an instrument on the ground of an alteration, it is held that he must make out his case by clear and convincing testimony, 70 especially when the change would amount to a crime, 71 though, on the other hand, where plaintiff seeks relief from an alteration and the rule requiring the party producing the instrument to explain apparent changes is not applied, it is nevertheless held that suspicious alterations appearing may furnish prima facie evidence on the part of plaintiff. 72 A clear whether he struck out the words complained of as having been stricken out, are held to be competent. Page v. Danaher, 43 Wis. 221. See also Gist v. Gans, 30 Ark. 285, in last pre- ceding note. 63. Nagle's Estate, 134 Pa. St. 31, 19 Atl. 434, 19 Am. St. Rep. 669. 64. See 2 Cent. Dig. tit. "Alteration of In- struments," § 259 et seq. 65. See infra, X. 66. Glover v. Gentry, 104 Ala. 222, 16 So. 38 ; Coit v. Churchill, 61 Iowa 296, 16 N. W. 147; Lewis v. Garretson, 56 Iowa 278, 9 N. W. 214. 67. Longwell v. Day, 1 Mich. N. P. 286. See also Farmers' L. & T. Bank v. Siefke, 144 N. Y. 354, 39 N. E. 358, 63 N. Y. St. 662. 68. Oakey v. Hennen, 18 La. 435. And certainly such doubtful testimony as will scarcely raise a suspicion of the genuineness of the instrument, as where the witness testi- fied that the signature might be his, did not deny the genuineness of the note, but said that he had a doubt about it, is properly ex- cluded. Austin v. Austin, 45 Wis. 523. But where the testimony on behalf of plaintiff simply shows that the whole note was writ- ten in the same handwriting and signed in the presence of the party who wrote it, but that the inserted words were not written at the time the balance of the note was written, without any explanation as to why all the words were not written at the same time, or as to when they were written, it is not suffi- cient to overcome proof of a material altera- tion. Lamar v. Brown, 56 Ala. 157, wherein the witness was one of the payees, and it was said that the plea of defendant was calcu- lated to reflect upon his integrity and would necessarily stimulate the zeal of the witness to furnish every corroborating circumstance in support of his version of the transaction. An impossible date in a bill of sale may raise a presumption of ante or post-dating, but not of alteration after delivery. Davis v. Loftin, 6 Tex, 489. 69. Cox v. Palmer, 1 McCrary (U. S.) 431, 3 Fed. 16. In in re Hughes, 3 N. Y. Suppl. 201, 18 N. Y. St. 395, where the wit- nesses failed to testify positively, so that the question referred to the referee could not be fairly settled either way, it was held that the alteration of a voucher should not be pre- sumed to have been made after it was filed. So, where the evidence is conflicting and evenly balanced, it is not sufficient to over- come the presumption in favor of a mortgage where the opposite party claims property was inserted after execution. Des Moines Nat. Bank v. Harding, 86 Iowa 153, 53 N. W. 99; Harding v. Des Moines Nat. Bank, 81 Iowa 499, 46 N. W. 1071; Potter v. Kennelly, 81 Iowa 96, 46 N. W. 856. 70. Riley v. Riley, 9 N. D. 580, 84 N. W. 347. See Smith v. Parker, (Tenn. Ch. 1896) 49 S. W. 285. In an action to remove a cloud from title on the ground that a deed to the property in suit was a forgery, the grantee in a volun- tary deed from plaintiff to other land having, after the execution of the deed, inserted therein the description of the land in suit, plaintiff testified positively that the land in suit was not included in the deed when de- livered. The original deed was not produced. There was evidence of admissions of guilt by the grantee when charged with the forgery. Plaintiff, after the delivery of the deed, con- tinued to receive the rents from the property, and the grantee, whenever he collected the same, receipted therefor as agent of plaintiff. The evidence was held sufficient to support a decree for plaintiff. Smith v. Smith, 132 Mo. 681, 34 S. W. 471. 71. Rosenberg v. Jett, 72 Fed. 90, holding that on an issue of an alteration in a no- tary's certificate the denial by the parties on the one side, supported by the testimony of the notary, must be overcome by convincing testimony. 72. Se'e supra, IX, A, 3, b, (n). In Putnam v. Clark, 33 N. J. Eq. 338, on Vol. II 252 ALTERATIONS OF INSTRUMENTS probability may arise from the internal evidence of the circumstances sufficiently strong to establish or explain an alleged alteration. 73 2. By Whom Made. Where the only evidence as to an alleged alteration is that of the maker that the words were in the note when he executed it, and the payee testifies that he did not insert the words, it is held that there is no evidence of an alteration to charge the payee. 74 3. /uthority or Consent. The evidence of consent should be positive and should not be left to mere uncertain inferences. 75 Testimony by a party to an instrument that the change 'was made in the presence of the other party and with his consent, corroborated by another in whose presence the change was made, is sufficient to show consent where the opposite party admits he was present, though he denies his consent. 76 4. Materiality. It has been held that an allegation that a written instru- ment has been mutilated by tearing a condition from it must be proved by show- ing the substance of the condition. 77 On the other hand, the refusal of a party complaining of an alteration to produce the instrument in his possession, on the trial below ( 29 N. J. Eq. 412 ) it was held that where complainant relied on the fact that it appeared by the record of the assign- ment that beneath the signature of a sub' scribing witness (the commissioner before whom the acknowledgment was taken) there was a note that certain words were written over the erasure before execution, and the commissioner testified that he never so noted a writing over an erasure, but that his un- varying practice was to make such notation above his own signature, but he did not re- member witnessing or taking the acknowledg- ment of this assignment, the production of the assignment might have shown that the note was in the commissioner's handwriting, and that, in the absence of the note, there could be no presumption that the alteration, if any, was made after execution of the as- signment. 73. Burton v. Pressly, Cheves Eq. (S. C.) 1. On the .foreclosure of a mortgage to secure three notes the defendant produced a receipt purporting to have been given for the pay- ment of three hundred and seventy dollars, which plaintiff claimed had been altered from seventy dollars to three hundred and seventy dollars. The note upon which the payment was claimed to have been made bore an indorsement, dated as of the same date as the receipt for seventy dollars. It fur- ther appeared that the final balance, in- cluding interest paid on the note, was what it would have been if the payment had been only seventy dollars at the time the payment in dispute was made, and that the note was not in fact taken up, although if the payment of three hundred and seventy dollars- had been made the note would have been paid in full. It was held that this evidence was sufficient to justify a finding that the receipt had been altered. Wilson v. Fulliam, 50 Iowa 123. 74. Ferguson v. White, (Miss. 1895) 18 So. 124, holding that under such evidence if there was such an alteration it was by a stranger. To the same effect see Drum v. Drum, 133 Mass. 566, holding that a recov- ery may be had for the original amount, al- Vol. II though plaintiff cannot prove the circum- stances of the alteration. See also Cairo, etc., R. Co. v. Parrott, 92 111. 194. Where a party defends on the ground that since the execution and delivery of the instrument it has been altered, testimony by plaintiff that he received the note on the day of its date in the same condition in which it was when of- fered in evidence is sufficient to rebut any prima facie presumption which might arise from the appearance of the note. Stough v. Ogden, 49 Nebr. 291, 68 N. W. 516; Miller v. Stark, 148 Pa. St. 164, 23 Atl. 1058. To the same effect see Fanning v. Vrooman, 12 N. Y. St. 393; Evans v. Williamson, 79 N. C. 86. And the requirement of the statute in Idaho providing that one offering a note which shows upon its face that it has been altered must prove that the alteration was made be- fore the note came into his hands, is com- plied with when the party presenting the in- strument shows that there has been no al- teration therein since it came to his hands. Mulkey r. Long, (Ida. 1897) 47 Pac. 949. 75. Pew v. Laughlin, 3 Fed. 39, holding that the assent of the captain or owners to the alteration by the charterer's agent in the charter-party was not proved by the ship- brokers' testimony that under the circum- stances they must have obtained consent, though they had no recollection of doing so. See also Nelson v. Dutton, 51 Mich. 416, 16 N. W. 791. But in King v. Bush, 36 111. 142, evidence that a note, in which an alteration of the amount had been made, was presented to the maker for payment after its maturity, and that he admitted its correctness, was held sufficient • to show that the alteration was made before its execution, or, if afterward, with the maker's consent. And in Price v. Coekran, 1 Bibb (Ky.) 570, evidence that the obligee said: "You may do as you please!" was held sufficient to sustain a judgment, based on assent of the obligee, to the tearing off of a memorandum from the foot of a note. 76. Holand v. Griffith, 13 Nebr. 472, 14 N. W. 387. 77. Hall v. Forqueran, 2 Litt. (Ky.) 329. ALTERATIONS OF INSTRUMENTS 253 the trial, is held to strengthen the presumption of the immateriality of the change. 78 5. Inspection of Instrument. The question being referred to the jury, they may decide from all the evidence in the case as well as from an inspection of the instrument itself, 79 the weight of the testimony being matter within their province. 80 But whether or not they may decide this question from a mere inspection of the instrument the authorities are not in accord. On the one hand, it seems to be considered that a mere inspection may furnish sufficient evidence to the jury, 81 governed to some extent at least by the consideration of the presump- 78. Knapp v. Maltby, 13 Wend. (N. Y.) 587. So in Johnson v. Heagan, 23 Me. 329, it was held that where it appears that a writing on » note, varying its terms, had been taken off by the indorser, it will be presumed to have been a material and valid part of the contract unless the holder clearly shows that it was immaterial. 79. Illinois.— Milliken v. Marlin, 66 111. 13 ; De Long v. Soucie, 45 111. App. 234. Maine. — Dodge v. Haskell, 69 Me. 429 ; Bel- fast Bank v. Harriman, 68 Me. 522. Michigan. — Pearson v. Hardin, 95 Mich. 360, 54 N. W. 904; Wilson v. Hotchkiss, 81 Mich. 172, 45 N. W. 838; Jourden v. Boyce, 33 Mich. 302; Comstock v. Smith, 26 Mich. 306. West Virginia. — Connor v. Fleshman, 4 W. Va. 693. Canada. — Domville v. Davies, 13 Nova Sco- tia 159. 80. Martin v. Tuttle, 80 Me. 310, 14 Atl. 207, wherein there was an obvious alteration on the face of the note in suit and defendant testified that it had not been made when he signed the note, and the holder testified that it had been made when he received the note, and upon a verdict for plaintiff it was held, over the contention that the verdict was against the weight of the evidence, that, while the verdict was against the weight of defendant's testimony, how much weight such testimony was entitled to was a question for the jury. So in Lowden v. Schoharie County Nat. Bank, 38 Kan. 533, 16 Pac. 748, it was held that where, in an action on a note by an innocent holder, the note offered in evidence was regular on its face, and the maker tes- tified to an alteration, such evidence would not be conclusive as a matter of law, although there was no other evidence than the note it- self to impeach or contradict the witness, as his manner and the improbability of his tes- timony might justify the jury in wholly re- jecting his testimony. But in Dorsey v. Con- rad, 49 Nebr. 443, 68 N. W. 645, where the presumption is indulged that an apparent in- terlineation or erasure was made before the execution of the instrument, it was held that where the only evidence introduced on the subject outside of the instrument itself was that of a so-called expert, who testified that the alteration or erasure was in a different handwriting from that in the deed, and was made in a different ink from that in which the deed was written several years preceding the trial, but after the execution of the in- strument, it could not be said on appeal that the trial court was wrong in concluding that the erasure was made before the delivery of the deed. 81. Alabama. — Davis v. Carlisle, 6 Ala. 707, from which it appears that while the court may not assume, in the absence of all other evidence, that interlineations or eras- ures were not made by a stranger, the jury may determine the issue from the whole ease, though there is no other evidence presented than the note itself. Connecticut. — See Hayden v. Goodnow, 39 Conn. 164; Bailey v. Taylor, 11 Conn. 531, 29 Am. Dec. 321. Illinois. — See Montag v. Linn, 23 111. 551. Maine. — Dodge v. Haskell, 69 Me. 429 ( un- der the principle that an apparent alteration raises no presumption, but that the whole question is for the jury, with the general bur- den of explaining his ease upon plaintiff, the paper itself, unaided by other evidence may or may not satisfy the jury) ; Belfast Nat. Bank v. Harriman, 68 Me. 522; Crabtree v. Clark, 20 Me. 337. Massachusetts. — Where the court permits the introduction of an instrument in evidence because there is not enough on the face of it to raise a suspicion, and leaves the question of alteration for the jury, but with the bur- den on the party introducing the instrument to explain its appearance, it is held that to what extent such explanatory evidence must go will depend upon the peculiar circum- stances of the case, and that the alterations themselves may be of such a character that the party may safely rely upon the paper it- self; that the question is to be determined, however, from the evidence, either on the face of the instrument or extraneous, and that there is no presumption to be indulged. Ely v. Ely, 6 Gray (Mass.) 439. See also Davis v. Jenney, 1 Mete. (Mass.) 221. Missouri. — Noah v. German Ins. Co., 69 Mo. App. 332; Grimes v. Whitesides, 65 Mo. App. 1. South Carolina. — The instrument itself may furnish sufficient evidence on behalf of the party offering it, and upon whom rests the burden of explaining apparent interlinea- tions or changes. Kennedy v. Moore, 17 S. C. 464; Wicker v. Pope, 12 Rich. (S. C.) 387, 75 Am. Dec. 732. Vermont. — Beaman v. Russell, 20 Vt. 205, 49 Am. Dec. 775, where the jury determine after ordinary proof of execution, and the burden would seem not necessarily to be upon either party to explain. England.— Taylor v. Mosely, 6 C. & P. 273, Vol. II 254 ALTER ATIOXS OF INSTRUMENTS tion attending an apparent change ; while, on the other hand, other cases, some- times influenced by considerations of a like nature, take the opposite view. 82 But the testimony of a witness who has the means of knowledge is of greater weight than that of a number of witnesses who speak merely from an inspection of the paper. 83 6. Particular Circumstances as Raising Suspicion. 84 Illustrations of apparent changes which have been deemed sufficient to raise such suspicion as to require an explanation will be found in the following : as if the paper be cut and a mutilated figure is left ; M if it appear to be contrary to the probable meaning of the instru- ment as it stood before the insertion of the interlined words ; m if the erasure or interlineation is obviously beneficial to the party producing and claiming under it ; n if the ink in which the interlineation or addition is written differs from that of the body of the instrument, and such addition is in a different handwriting from that of the body of the instrument, 88 or the words written on an erasure 25 E. C. L. 429; Bishop v. Chambre, 31. & 31. 116, 3 C. & P. 55, 14 E. C. L. 448. 82. Georgia. — Thrasher i. Anderson, 45 Ga. 538, 544, holding that, as the prima facie presumption concerning an apparent change in the face of an instrument is that it was made before execution, the jury are not at liberty to treat such presumption as of no weight, at their pleasure, but there must be something to rebut the presumption, either upon the face of the paper or aliunde to show that the alteration was made subsequent to the execution of the instrument. The court went on to say that the paper had undoubt- edly been altered, and perhaps in important particulars, but added : " Who can say, from the evidence, that it was done after it was signed? . . . Every mark upon it, showing change, may just as well nave been made, with the free consent of the maker, at the time of the signature as afterward." But it is also held that the decision of a jury is not conclusive where the instrument itself bears evidence of the fairness of a change com- plained of, as where the matter is not inter- lined, but is written in the middle of the in- strument with the same ink as the body of the instrument, and with the same penman- ship, so far as the record shows, and in addi- tion to which a contemporaneous writing to the same effect, and on the back of the same paper, shows that the matter complained of was not interlined in the paper after it was executed. Akridge i. Watertown Steam En- gine Co., 77 Ga. 50. Iowa. — Horton v. Horton, 71 Iowa 448, 32 N. W. 452. Where the cause is submitted to the court without a jury the instrument it- self cannot show that an alteration was made after the instrument was signed, or that it was made without the consent of the party, and, in the absence of any extraneous evi- dence, the court cannot declare the note in- valid. Harlan v. Berry, 4 Greene (Iowa) 212. Massachusetts. — See also Simpson t\ Davis, 119 Mass. 269, 20 Am. Rep. 324. Michigan. — Where there is no positive tes- timony that an alleged alteration was not made by defendant, a finding, upon a mere inspection of the instrument and a compari- Vol. II son of documents by the court, that such al- teration was made by defendant himself could not be justified. Sheldon v. Hawes, 15 3Iich. 519. yeoraslca. — See also Dorsey v. Conrad, 49 Xebr. 443, 68 X. W. 645. Xew Hampshire. — Cole v. Hills, 44 X. H. 227. Sew York. — Rankin v. Blackwell, 2 Johns. Cas. (X. Y.) 198. Wisconsin. — Page v. Danaher, 43 Wis. 221. England. — Knight V. Clements, 8 A. & E. 215, 35 E. C. L. 559; Clifford v. Parker, 2 31. & G. 909, 40 E. C. L. 917. Where there is no allegation or evidence upon such a point counsel cannot call upon the jury to inspect the instrument, for the purpose of determining whether or not inter- lineations exist, after the ease has been closed and is being presented to the jury. Shelton v. Reynolds, 111 X. C. 525, 16 S. E. 272. After default judgment the jury are not required to disregard a note because of an unexplained alteration or erasure. Runnion v. Crane, 4 Blaekf. (Ind.) 466. 83. 3Jalin v. Malin, 1 Wend. (X. Y.) 625. 84. For inspection of instrument by appel- late court see Appeal and Erbob, X, A, 7, a, (m), (e). 85. Bishop r. Chambre, 31. & 31. 116, 3 C. & P. 55. 14 E. C. L. 448. 86. Cox v. Palmer, 1 McCrary (TJ. S.) 431, 3 Fed. 16. 87. Alabama. — Hart v. Sharpton, 124 Ala. 638, 27 So. 450. Illinois. — 3IcAllister v. Avery, 17 111. App. 568. Michiqan. — Wilson v. Hotchkiss, 81 Mich. 172, 45 X. W. 838. Pennsylvania. — Burgwin v. Bishop, 91 Pa. St. 336 ; Robinson v. Myers, 67 Pa. St. 9. Virginia. — Hodgnett v. Pace, 84 Ya. 873, 6 S. E.217. 88. Alabama. — Fontaine v. Gunter, 31 Ala. 258. See also Burgess v. Blake, (Ala. 1900) 28 So. 963. District of Columbia. — Peugh v. 3Iitchell, 3 App. Cas. (D. C.) 321. Illinois.— See Chase v. Palmer, 29 111. 306. Massachusetts. — Wilde v. Armsby, 6 Cush. (3Iass.) 314. ALTERATIONS OF INSTRUMENTS 255 are cramped to fit the space. 89 But where an interlineation or erasure is in the same handwriting, and written with the same ink, as the balance of the deed, the presumption, in the absence of any other proof, is that it occurred prior to the execution and delivery, or at least no inference arises to require explanation, 90 especially if it makes clear what was the evident intention of the parties ; 91 and, where the change is apparently against the interest of the party claiming under the instrument, the law does not so far presume that it was improperly made as to throw upon him the burden of accounting for it. 92 If the apparent change be of a character to indicate that its purpose was to accommodate a printed form to Missouri. — Powell v. Banks, 146 Mo. 620, 48 S. W. 664; Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300. Pennsylvania. — Robinson v. Myers, 67 Pa. St. 9; Hill v. Cooley, 46 Pa. St. 259; Simp- son v. Staekhouse, 9 Pa. St. 186, 49 Am. Dec. 554; Meehling v. Hartzell, 4 Pennyp. (Pa.) 500. United States. — Cox v. Palmer, 1 McCrary (U. S.) 431, 3 Fed. 16. England. — Bishop v. Chambre, M. & M. 116, 3 C. & P. 55, 14 E. C. L. 448. Contra. — There is no principle of the com- mon law which requires a deed to be written throughout with the same colored ink. Smith v. McGowan, 3 Barb. (N. Y.) 404. In Ault v. Fleming, 7 Iowa 143 [following Jones v. Ireland, 4 Iowa 63], it is held that matter written in a different ink from the balance of the instrument furnishes no pre- sumption of a wrongful alteration; that the cases lay more emphasis upon the fact of an interlineation, and especially of an erasure, and that it would seem to require at least one of these circumstances to call for a rule which would make a presumption of guilt in a criminal case. See also Wilson v. Harris, 35 Iowa 507. So where the alteration waa not in the handwriting of the party produc- ing the instrument, nor of the only other per- son likely to have access to it, and the only other evidence from which it might be in- ferred that alteration was made by the party producing the instrument was that the paper was in her custody, the presumption is in- dulged that the alteration was made by a stranger. Croft v. White, 36 Miss. 455. Compare Coulson v. Walton, 9 Pet. (U. S.) 62, 9 L. ed. 51. And, where there is no pre- sumption and the whole question is one of fact for the jury, it cannot be a question of law to decide whether a note is in two inks or one, or in two handwritings or one, or why it was so written. Dodge v. Haskell, 69 Me. 429. But when the jury may decide from a mere inspection of the instrument, they may attend to the circumstance that other parts of the instrument are not in the handwriting of defendant, while the balance of the instru- ment is in his handwriting. Taylor v. Mosely, 6 C. & P. 272, 25 E. C. L. 429. 89. Nagle's Estate, 134 Pa. St. 31, 19 Atl. 434, 19 Am. St. Rep. 669. See also Taylor v. Mosely, 6 C. & P. 273, 25 E. C. L. 429. 90. District of Columbia. — Peugh v. Mit- chell, 3 App. Cas. (D. C.) 321. Florida And when the matter complained of is not an erasure or interlineation, but. consists of words indicating a place of pay- ment, written with the same ink and in the same hand as the body of the instrument, no alteration or suspicion appears on the face of the instrument. Harris v. Jacksonville Bank, 22 Fla. 501, 1 So. 140, 1 Am. St. Rep. 201. Georgia. — Vickery v. Benson, 26 Ga. 582. Massachusetts. — But, on the other hand, such circumstances have been considered as not sufficient to require explanation before admitting the instrument in evidence, though the burden was cast on the party producing it to explain the interlineations. Ely v. Ely, 6 Gray (Mass.) 439. Neio Jersey. — White v. Williams, 3 N. J. Eq. 376. Jew York. — People v. Minck, 21 N. Y. 539. , Pennsylvania. — Zimmerman v. Camp, 155 Pa. St. 152, 25 Atl. 1086; Robinson v. My- ers, 67 Pa. St. 9. Wisconsin. — Maldaner v. Smith, 102 Wis. 30, 78 N. W. 140. United States. — Cox v. Palmer, 1 McCrary (U. S.) 431, 3 Fed. 16. 91. Cox v. Palmer, 1 McCrary (TJ. S.) 431, 3 Fed. 16. See also Boston Block Co. v. Buf- fington, 39 Minn. 385, 40 N. W. 366. Change in handwriting of grantor. — If the change appears to be in the handwriting of the grantor the presumption is that it was made before, or concurrently with, the ac- knowledgment of the instrument, and if there is any evidence tending to repel this pre- sumption the question of fact must be deter- mined by the jury. Webb v. Mullins, 78 Ala. Ill; Sharpe v. Orme, 61 Ala. 263, such change curing defect in description of land. 92. Connecticut. — Bailey v. Taylor, 11 Conn. 531, 29 Am. Dee. 321. Mississippi. — Wilson v. Henderson, 9 Sm. & M. (Miss.) 375, 48 Am. Dec. 716, wherein it is said that even assuming that the law presumes an alteration appearing on the face of a note to have been made after delivery, such presumption must be very much weak- ened, if not destroyed, when the alteration operates prejudicially to the holder. New Jersey. — Den v. Farlee, 21 N. J. L. 279. North Carolina. — Pullen v. Shaw, 14 N. C. 213. Pennsylvania. — Zimmerman v. Camp, 155 Pa. St. 152, 25 Atl. 1086. Vol. II 256 ALTERATIONS OF INSTRUMENTS the wants of a particular occasion it will not be sufficient to engender that sus- picion which requires a preliminary explanation. 93 X. QUESTIONS OF LAW AND FACT. The materiality of a particular change in an instrument is a question of law, to be decided by the court, and it is error to leave it to be found by the jury, but (aside from the phase of the subject noted in connection with the presumptions and burden of proof attending apparent alterations) M whether, under the evidence adduced, an instrument has been altered raises an issue of fact to be determined as such by the jury. 96 For example, it is reversible error to instruct the jury to 93. Alabama. — Tyree v. Rives, 57 Ala. 173. California. — Corcoran c. Doll, 32 Cal. 82. District of Columbia. — Portsmouth Sav. Bank v. Wilson, 5 App. Cas. (D. C.) 8. Louisiana. — State v. Boisseau, 1 Rob. (La.) 388. New Hampshire. — The filling of a blank in a deed which appears to have been originally left in the description of land conveyed, and to have been subsequently filled, will be pre- sumed, in the absence of other proof, to have been made before the execution of the deed when otherwise the deed would have been im- perfect. Dow v. Jewell, 18 X. H. 340, 45 Am. Dec. 371. Pennsylvania. — Where the insertion of a crowded line, containing an exception of cer- tain land from the conveyance in a deed, is in a different handwriting from the body of the deed, but in the same handwriting as the covenant of warranty, which had been left open until the execution and delivery of the deed, this was held prima facie sufficient to repel any presumption of subsequent altera- tion. Heffelfinger v. Shutz, 16 Serg. & R. (Pa.) 44. Wisconsin. — Williams v. Starr, 5 Wis. 534. 94. See supra, IX, A, 3, b, (n), (h). 95. Alabama. — Payne r. Long, 121 Ala. 385, 25 So. 780; Capehart r. Granite Mills, 97 Ala. 353, 12 So. 44; Mackay v. Dodge, 5 Ala. 388. Arkansas. — Overton v. Matthews, 35 Ark. 146, 37 Am. Rep. 9. California. — Sill v . Reese, 47 Cal. 294. Colorado. — Miller v. Williams, (Colo. 1899 ) 59 Pac. 740; Huston v. Plato, 3 Colo. 402; Schmidt v. Stecker, 3 Colo. 273. Georgia. — Winkles v. Guenther, 98 Ga. 472, 25 S. E. 527. But in Bernhardt v. Miller, 22 Ga. 402, 68 Am. Dec. 506, it was held that, where an instrument was offered in evidence to prove a fact in a case, whether or not it had been altered in a material part should be referred to the jury. Illinois. — Milliken r. Marlin, 66 111. 13; Schwarz v. Herrenkind, 26 111. 208. Indiana. — Cochran v. Xebeker, 48 Ind. 459. But compare State r. Bodly, 7 Blackf. (Ind.) 355, where it is broadly stated that, where the issue raised by the pleadings was whether an instrument had been altered so as to de- stroy its identity, it should be submitted to the jury. Ioica. — Benton Countv Sav. Bank v. Strand, 106 Iowa 606, 76 X. W. 1001; Ault v. Flem- ing, 7 Iowa 143. Vol. II Maine. — Martin v. Tuttle, 80 Me. 310, 14 Atl. 207 ; Belfast Xat. Bank v. Harriman, 68 Me. 522. Mississippi. — Hill v. Calvin, 4 How. (Miss.) 231; Love c. Shoape, Walk. (Miss.) 508. From Moye v. Herndon, 30 Miss. 110, it might be inferred that the court considered the question of materiality one that was proper to be submitted to the jury, but it is apprehended that the decision did not intend to go to this extent, being confined to another phase of the instruction involved. Missouri. — State v. Chick, 146 Mo. 645, 48 S. W. 829; State r. Dean, 40 Mo. 464; Fowles v. Bebee, 59 Mo. App. 401. Nebraska.— Fisherdick v. Hutton, 44 Xebr. 122, 62 X. W. 488; Palmer v. Largent, 5 Xebr. 223, 25 Am. Rep. 479. New Hampshire. — Burnham v. Ayer, 35 X. H. 351 ; Bowers v. Jewell, 2 X. H. 543. New Jersey. — Jones v. Crowley, 57 X. J. L. 222, 30 Atl. 871; Richman v. Richman, 10 X. J. L. 114. Oklahoma. — Richardson v. Fellmer, 9 Okla. 513, 60 Pac. 270. Pennsylvania. — Farmers Mut. F. Ins. Co. v. Bair, 82 Pa. St. 33 ; Foster v. McGraw, 64 Pa. St. 464; Stephens v. Graham, 7 Serg. & R. (Pa.) 505, 10 Am. Dee. 485. South Carolina. — Kinard v. Glenn, 29 S. C. 590, 8 S. E. 203; Commissioners of Poor v. Hanion, 1 Xott & M. (S. C.) 554. Texas.— Randall v. Smith, 2 Tex. Unrep. Cas. 397. Vermont.— Bliss v. Mclntyre, 18 Vt. 466, 46 Am. Dec. 165; Davis v. Fuller, 12 Vt. 178, 36 Am. Dec. 334. Virginia. — Keen v. Monroe, 75 Va. 424; Xewell v. Mayberry, 3 Leigh (Va.) 250, 23 Am. Dec. 261. West Virginia. — Connor v. Fleshman, 4 W. Va. 693. United States. — Wood v. Steele, 6 Wall. (U. S.) 80, 18 L. ed. 725; Steele v. Spencer, 1 Pet. (U. S.) 552, 7 L. ed. 259. England. — Vance v. Lowther, 1 Ex. D. 176; Suffell v. Bank of England, 7. Q. B. D. 270. See 2 Cent. Dig. tit. "Alteration of Instru- ments," § 264 et seq. By court when trial without jury. — See Huston v. Plato, 3 Colo. 402; Lowman v. Au- bery, 72 111. 619; Richmond Mfg. Co. v. Davis, 7 Blackf. (Ind.) 412: Cass County Bank v. Morrison, 17 Xebr. 341, 22 X. W. 782, 52 Am. Rep. 417 ; White v. Williams, 3 X. J. Eq. 376. ALTERATIONS OF INSTRUMENTS 257 find whether a particular change is material, or to find against the validity of an instrument, if they find that it has been materially altered. 96 But, on the other hand, it is a question of fact, to be determined by the jury, whether a particular change was made before or after execution, 97 by whom the change was made, 98 whether the change was made with or without the consent of the parties, 99 and the intent with which it was made. 100 While these issues of fact remain undisposed of it is error to render judgment on the pleadings, 101 and the finding upon them is ordinarily conclusive, as any other finding of fact, and will not be disturbed on the mere weight of the evidence. 102 If 96. Alabama. — Payne v. Long, 121 Ala. 385, 25 So. 780. Mississippi. — Hill v. Calvin, 4 How. (Miss.) 231. Pennsylvania. — Stephens v. Graham, 7 Serg. & R. (Pa.) 505, 10 Am. Dec. 485. Texas. — Randall v. Smith, 2 Tex. Unrep. Cas. 397. Virginia. — Keen v. Monroe, 75 Va. 424. 97. Colorado. — Chapman v. Sargent, C Colo. App. 438, 40 Pao. 849. Georgia. — Winkles v. Guenther, 98 Ga. 472, 25 S. E. 527. Iowa. — Berryman v. Manker, 56 Iowa 150, 9 N. W. 103. Louisiana. — Pipes v. Hardesty, 9 La. Ann. 152, 61 Am. Dee. 202. Massachusetts. — Norwood v. Fairservice, 'Quincy (Mass.) 189. Mississippi. — Wilson v. Henderson, 9 Sm. & M. (Miss.) 375, 48 Am. Dec. 716. Missouri. — Beach v. Heck, 54 Mo. App. '599. Nebraska. — Lamb V. Briggs. 22 Nebr. 138, 34 N. W. 217. New York. — Mosher v. Davis, 41 N. Y. App. Div. 622, 58 N. Y. Puppl. 529 ; Acker v. Ledyard, 8 Barb. (N. Y.) 514; Tuthill v. Hussey, 7 N. Y. Suppl. 547, 27 N. Y. St. 362. Upon an agreed case which does not state that the alteration was made after the execu- tion of the bond, the court cannot assume that such was the fact in pronouncing the conclusion of law upon the fact. Ramsey v. McCue, 21 Gratt. (Va.) 349. 98. Illinois. — Milliken v. Marlin, 66 111. 13 ; De Long v. Soucie, 45 111. App. 234. Minnesota. — Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 12 Am. St. Rep. 754, 4 L. R. A. 196. New York. — Artisans' Bank v. Backus, 31 How. Pr. (N. Y.) 242. Pennsylvania. — Martin v. Kline, 157 Pa. St. 473, 27 Atl. 753, 33 Wkly. Notes Cas. (Pa.) 323. Virginia. — Ramsey v. McCue, 21 Gratt. (Va.) 349. England. — Whitfield v. Collingwood, 1 C. & K. 325,, 47 E. C. L. 325. 99. Connecticut. — Bailey v. Taylor, 11 Conn. 531, 29 Am. Dec. 321. Illinois. — De Long v. Soucie, 45 111. App, 234. Indiana. — Cornell V. Nebeker, 48 Ind. 463 ; Cochran v. Nebeker, 48 Ind. 459; Richmond Mfg. Co. v. Davis, 7 Blackf. (Ind.) 412. Maine. — Belfast Nat. Bank v. Harriman; '68 Me. 522; Chadwick v. Eastman, 53 Me. 12. Mississippi. — Wilson v. Henderson, 9 Sm. & M. (Miss.) 375, 48 Am. Dec. 716. Missouri. — Briggs v. Glenn, 7 Mo. 572. Pennsylvania. — Wilson v. Jamieson, 7 Pa. St. 126. South Carolina. — Jacobs v. Gilreath, 45 S. C. 46, 22 S. E. 757. Virginia. — Keen v . Monroe, 75 Va. 424. Wisconsin. — North v. Henneberry, 44 Wis. 306. England. — Whitfield v. Collingwood, 1 C. & K. 325, 47 E. C. L. 325. Whether particular facts constitute ratifi- cation is held to be a, question for the court. Dickson v. Bamberger, 107 Ala. 293, 18 So. 290. 100. Colorado. — Huston v. Plato, 3 Colo. 402. Georgia. — Winkles v. Guenther, 98 Ga. 472, 25 S. E. 527; Printup v. Mitchell, 17 Ga. 558, 63 Am. Dec. 258. But in Pritchard v. Smith, 77 Ga. 463, it was held that where there was no controversy as to the alteration, the materiality of the alteration, as well as the intent with which it was done, becomes a question of law, to be decided by the court. Illinois. — Wallace v. Wallace, 8 111. App. 69. Maine. — Belfast Nat. Bank v. Harriman, 68 Me. 522. Minnesota. — Wilson v. Hayes, 40 Minn. 531. 52 N. W. 467, 12 Am. St. Rep. 754, 4 L. R. A. 196. New Hampshire. — Cole v. Hills, 44 N. H. 227. New York. — Where a note was corrected by the maker, and without the assent of the indorser, by inserting omitted matter in that part indicating the amount of it, the ques- tion as to the amount intended to be inserted by the parties is for the jury. Boyd v. Broth- erson, 10 Wend. (N. Y.) 93. England. — Whether a note was originally dated bv mistake is a question of fact for the jury. Brutt v. Picard, R. & M. 37, 21 E. C. L. 698. 101. Black v. De Camp, 75 Iowa 105, 39 N. W. 215. 102. Arkansas. — Andrews v. Callowav, 50 Ark. 358, 7 S. W. 449, holding that where a jury and subsequently a chancellor found that an interlineation in a note was not made by the custodian thereof, who was prima facie responsible for such change, the appellate court would not disturb the judgment. Colorado.— Miller v. Williams, (Colo. 1899) 59 Pac. 740. Massachusetts. — Where the form and ap- pearance of a note are not material except as Vol. II 258 ALTERATIONS OF INSTRUMENTS— AMALPHITAN CODE the change is immaterial the issue of fact should not be submitted to the jury at all. 103 ALTERATIONS OF RECORDS. See Recobds. ALTERFOITS. At another time ; formerly. 1 ALTERNAT. A usage among diplomats, by which the rank and places of different powers, who have the same rights and pretentions to precedence, are changed from time to time, either in a regular order or one determined by lot. 2 ALTERNATIM. Interchangeably. 3 ALTERNATIVA PETITIO NON EST AUDIENDA. A maxim meaning "An alternative petition is not to be heard."* ALTERNATIVE. A privilege of choosing one of two things or courses ; either of two objects offered to one's choice. 5 (Alternative : Judgment, see Equity ; Judgments ; Replevin. Pleading, see Pleading. Writ, see Mandamus ; Peohibition.) ALTHOUGH. A word implying a doubt ; a concession of something not posi- tively determined, 6 and equivalent to the words " even if." 7 ALTO ET BASSO. Literally, " high and low." An absolute submission of all differences. 8 ALTRE. Another; other. 9 ALTUM MARE. The high sea. 10 ALWAYS. In all cases. 11 A. M. An abbreviation of the words write meridiem, signifying " forenoon." 13 AMALGAMATION. In England, the merger of two incorporated societies or companies ; consolidation. 13 (See, generally, Coepoeations.) AMALPHITAN CODE. A collection of sea laws, compiled about the end of the eleventh century by the people of Amalphi, consisting of the laws on maritime subjects which were or had been in force in countries bordering on the Medi- terranean, and which for a long time was received as authority in those countries. 14 bearing upon the questions of fact of the ne- 5. Abbott L. Diet. gotiation and knowledge of plaintiff, both of Alternative obligations are those which al- these questions are concluded by the decision low the obligor to choose which of two things of the court below in plaintiff's favor. Whit- he will do, the performance of either of which more v. Nickerson, 125 Mass. 496, 28 Am. will satisfy the instrument in question. Black Rep. 257. L. Diet. Missouri.— Holton v. Kemp, 81 Mo. 661. 6. Hogan r. State, 36 Wis. 226, 244. Nebraska.— Holland v. Griffith, 13 Nebr. 7 - Burnstein v. Cass Ave., etc., R. Co., 56 472, 14 N. W. 387. M( >- A PP- 4 5, 54. New York.— Tuthill v. Hussey, 7 N. Y. f. Wharton L. Lex. Suppl. 547, 27 N. Y. St. 362. 9 - Burrill L. Diet, [citing Y. B. 9 Edw. Ill, North Carolina. — Howell v. Cloman, 117 53 }' N". C. 77, 23 S. E. 95; Evans v. Williamson, 1U. Adams trloss. _ 79 N C 86 Used in the expression, " And yet altum. Pennsylvania.- Hudson r. Reel, 5 Pa. St. «« ^^ UU.Zot^ "' *" "^ !03. Palmer .. Largent, 5 Neb, 223, 25 & S^L^Sthe Am. Kep. • statute declares that the judgment shall be a 1. Burrill L. Diet, [citmq Y. B. 8 Edw. Ill, i- „ „„ ., , , , , i, 8 , ,. , .. . on -i ' len on the real estate of the debtor, and that 2 Wharton L Lex tllls llen ma ^ ' a ' waTS ' be enforced in a court T ",, '.. ' '- , .. ,, ,„„,„i„ of equity, ib was certainly never intended that In the preparation of treaties the punciple the l ielx - r slloul(i exist ind ^ endent of the iudg . of the alernat is resorted to and the represen- ffient; nor ftat th P, , fo & tative of each state signs, first, the copy in- taken as equiva i ent to , forev J.> » Wer den- tended for his own government, the order of baugh v. "Reid 20 W Va 588 596 the remaining sio-natures being determined by 12. Hedderich v. State, 101 Ind. 564, 51 lot or alphabetically. Davis Int. L. 234. Am. Rep. 768. 3. Adams Gloss. 13. Abbott L. Diet. 4. Wharton L. Lex. 14. Wharton L. Lex. Vol. II AMBASSADORS AND CONSULS By Basil Jones I. DEFINITIONS, 260 A. Ambassadors, 260 B. Consuls, 261 II. APPOINTMENT, 261 A. By Whom Made, 261 1. In General, 261 2. Viae -Consuls, 261 a. In General, 261 b. In Cases of Emergency \ 262 B. Of Foreigners, 262 1. As Diplomatic Agents, 262 2. As Consuls, 262 III. QUALIFICATION, 262 A. Bond of Consular Appointee, 262 B. Oath of Diplomatic Appointee, 262 IV. COMMENCEMENT OF MISSION OR OFFICE, 262 A. Issuance and Recognition of letters of Credence, 262 B. Issuance of Exequatur, 263 C. Refusal to Receive Ambassador, 263 D. Recognition of Diplomatic Tenure, 263 V. TERMINATION OF MISSION OR OFFICE, 263 VI. COMPENSATION, 263 A. In General, 263 B. Of Ambassadors, 264 C. Of Consuls, 264 D. Of Vice -Consuls, 264 VII. PRIVILEGES AND IMMUNITIES, 265 A. Of Ambassadors, 265 1. General Statement of Rule, 265 2. Civil liability, 260 3. Criminal liability, 267 4. Exemption from Taxation, 267 5. Who Protected by, 267 a. Family and Official Household, 267 b. Servants, 268 (i) In General, 268 (u) Actual Service Required, 268 (in) Engaging in Trade, 268 6. House, 268 7. Punishing Violation of, 269 B. 6^ Consuls, 269 1. irc, General, 269 2. Engaging in Trade, 270 3. Exemption from Attendance as Witness, 270 4. Inviolability of Archives, 271 259 Vol. II 260 AMBASSADORS AND CONSULS VIII. Power of Ambassador to Sue on behalf of Government, 271 IX. powers and duties of consuls, 271 A. In General, 271 B. Administration of Estates, 271 C. Celebration of Marriages, 272 D. Contracts against PubUc Policy, 272 E. In Regard to Seamen, 272 1. In General, 272 2. Discharge of Seamen, 272 3. Imprisonment, 273 4. Sending Home for Trial, 273 5. Transportation of Destitute Seamen, 273 6. Wages, 273 F. Licensing Enemy Vessels, 274 G. Protection of Property Rights, 274 1. In General, 274 2. Receiving Restitution, 274 X. Consular courts, 274 A. In General, 274 B. Jurisdiction, 275 1. i^ General, 275 2. Persons, 275 C. Procedure, 276 1. in General, 276 2. Appeals from Consular Counts in China and Japan, 276 D. Judgments and Their Effect, 276 XI. consular Fees, 277 A. In General, 277 B. Recovery of Fees Paid to Government by Mistake, 278 CROSS-REFERENCES For Acknowledgments Taken before Consuls, see Acknowledgments. Certificates of Consuls as Evidence, see Evidence. Citizenship of Children of Ambassadors or Consuls, see Aliens. Consent of Consul as Affecting Jurisdiction between Foreigners, see Admiralty. Jurisdiction of Actions : Against Consuls, see Coubts: By Consuls, see Courts. See also Domicile ; Treaties. I. DEFINITIONS. A. Ambassadors. An ambassador is a public minister of the highest rank, sent abroad by a sovereign state or prince, with a legal commission and authority to transact business on behalf of his country with the government to which he is sent. 1 1. Bouvier L. Diet. dors, papal legates, or nuncios. (2) Envoys, For further definitions see Abbott L. Diet. ; ministers, and other agents accredited to sov- 5 Jacob Inst. 153; Century Diet. ereigns. (3) Ministers resident, accredited The division of ambassadors into grades to sovereigns. ( 4 ) Charge's d'affaires, accred- is a question of diplomatic etiquette and ited to the department of foreign relations. precedence, and does not deal with their es- 1 Kent Comm. 39; Wheaton Int. L. (3d Eng. sential powers and privileges. Four classes ed.) 317; Glenn Int. L. 106. were established by the great powers at the Before the enactment of 27 U. S. Stat, at Congress of Vienna (1815) and the Congress L. c. 2qo. U. S. Rev. Stat. Suppl. (1899), p. of Aix la Chapelle (1818): (1) Ambassa- 94, c. 230, the United States had no repre- Vol. II AMBASSADOBS AND CONSULS 261 B. Consuls. A consul is a commercial agent appointed by a government to reside in a foreign country, and permitted by the government of the latter country so to do, to watch over the commercial rights and privileges of the nation deputing him, and to protect the interests of its subjects. 2 II. APPOINTMENT. 3 A. By Whom Made — 1. In General. The president is authorized to nomi- nate, and, by and with the advice and consent of the senate, to appoint ambassa- dors, other public ministers, and consuls." 2. Vice-Consuls — a. In General. Congress has power to vest in the presi- dent the authority to appoint vice-consuls. 5 sentative of as high diplomatic rank as am- bassador, but by that act the president was authorized to designate as ambassadors the representatives of the United States to those countries which were represented in the United States by ambassadors. Ambassadors have been further styled " ex- traordinary " when their missions are special or their stay near the court to which they are accredited is indeterminate, as distin- guished from ordinary ambassadors, whose missions are permanent. Bouvier L. Diet. [citing Vattel L. Nat. bk. I, e. 6, § 71]. 2. Hall Int. L. 330; Abbott L. Diet.; Bou- vier L. Diet. A consul is distinguished from a minister or other diplomatic agent. Seidel v. Pesch- kaw, 27 N. J. L. 427 ; State v. De la Foret, 2 Nott & M. (S. C.) 217; The Anne, 3 Wheat. (U. S.) 435, 4 L. ed. 428, in which case it is said: "A consul, though a public agent, is supposed to be clothed with authority only for commercial purposes." See infra, IX, A. Classification of consuls. — The consular service of the United States consists of con- suls-general, vice-consuls-general, deputy con- suls-general, consuls, vice-consuls, deputy con- suls, commercial agents, vice-commercial agents, consular agents, consular clerks, in- terpreters, marshals, and clerks at consulates. U. S. Cons. Reg. (1896), art. 1, § 1. Principal consular officers. — Consuls-gen- eral, consuls and commercial agents are prin- cipal consular officers, as distinguished from subordinates or substitutes. U. S. Rev. Stat. (1878), § 1674; U. S. Cons. Reg. (1896), art. 1, § 1. It seems that a consul and a commer- cial agent are invested with the same powers and duties, and that the office of each is sub- stantially the same, the name being deter- mined by the relative importance of the post. Schunior v. Russell, 83 Tex. 83, 18 S. W. 484. Commercial agents in the consular service of the United States are to be distinguished, how- ever, from certain officers described in inter- national law by the same title, who are not usually regarded by other powers as entitled to the full rank and privileges of a consular officer. U. S. Cons. Reg. (1896), art. 1, « 16. Subordinate consular officers. — Consular agents are consular officers subordinate to their principals, exercising the powers and performing the duties within the limits of their agencies, but at different places from those at which their principals are located, and they act Only as representatives of the principal. U. S. Rev. Stat. (1878), § 1674; U. S. Cons. Reg. (1896), art. 1, § 20. See also Gould v. Staples, 9 Fed. 159. Vice-consuls or vice-commercial agents, when in charge, are acting consuls or com- mercial agents for the time being, and are principal consular officers. U. S. Rev. Stat. (1878), § 1674; In re Herres, 33 Fed. 165. The term " consul " is ordinarily used in a specific sense, to denote a particular grade in the consular service; but it is also sometimes used in a general sense, to embrace all con- sular officers. Dainese v. U. S., 15 Ct. CI. 64. 3. See 2 Cent. Dig. tit. "Ambassadors and Consuls," § 1 et seq. 4. U. S. Const, art. 2, § 2. No limitation can be placed by the legisla- tive department upon the exercise of this power. Foote v. U. S., 23 Ct. CI. 443; ByerS v. U.S., 22 Ct. CI. 59; 7 Op. Atty.-Gen. (U.S.) 186. See also U. S. v. Maurice, 2 Brock. (U. S.) 96, 26 Fed. Cas. No. 15,747. To authorize the appointment of a consul it is not necessary that there should have been statutory provision for establishing the office. Mahoney v. U. S., 10 Wall. (U. S.) 62, 19 L. ed. 864 [affirming 3 Ct. CI. 152]. So it has been held that the president had power to ap- point a consul for any place for which a sal- ary for a consul was appropriated by con- gress, even though such place had previously been a consular agency merely. Sampson v. U. S., 30 Ct. CI. 365. A retiring minister cannot instal a consul in the legation and authorize him to perform diplomatic functions. Otterbourg v. U. S., 5 Ct. CI. 430. 5. U. S. v. Eaton, 169 U. S. 331, 18 S. Ct. 374, 42 L. ed. 767. Thus U. S. Rev. Stat. (1878), §§ 1073, 1695, giving the president authority to fix the com- pensation of a vice-consul, to be paid out of the allowance made by law for the principal officer whose place he fills, has been held to vest power in the president to appoint a vice- consul. U. S. v. Eaton, 169 U. S. 331, 18 S. Ct. 374. 42 L. ed. 767. Before the consular service act of 1856 [11 U. S. Stat, at L. p. 52], a vice-consul could not be appointed legally without the advice and consent of the senate, and one whose ap- pointment was not so made could not be re- garded as having been the lawful incumbent, though recognized as such by the department of state. Dainese v. U. S., 15 Ct. CI. 64. Vol. II 262 AMBASSADORS AND CONSULS b. In Cases of Emergency. Where an emergency arises necessitating the appointment of some one to perform temporarily the duties of the consulate, the diplomatic representative may make such appointment, with the consent of the foreign government, but where there are consuls-general, to whom the nomi- nations of subordinate officers are required to be submitted for approval, the authority to make such appointments is lodged in them. 6 B. Of Foreigners — 1. As Diplomatic Agents. A citizen of the country of reception is not generally acceptable as the permanent diplomatic representative of a foreign power. 7 2. As Consuls. Consular office may be given to a citizen of the country in •which the office is to be exercised. 8 III. QUALIFICATION. 9 A. Bond of Consular Appointee. Every consul-general, consul, and com- mercial agent, before he receives his commission or enters upon the duties of his office, is required to give a bond to the government in a penal sum which is in no case' to be less than the compensation allowed such officer. 10 This bond goes into effect at the time when the secretary of state approves it. 11 B. Oath of Diplomatic Appointee. The taking of the oath required of a diplomatic appointee by statute is a condition precedent to complete investiture in the office. 12 IV. COMMENCEMENT OF MISSION OR OFFICE. A. Issuance and Recognition of Letters of Credence. The mission of the ambassador begins, with reference to the government to which he is accredited, upon the production and recognition of his letters of credence. 13 6. U. S. Cons. Eeg. (1896), art. 7, § 107. In U. S. v. Eaton, 169 U. S. 331, 18 S. Ct. 374, 42 L. ed. 767, it was held that under a similar provision [U. S. Cons. Eeg. (1888), art. 6, § 87] a minister resident who was also consul-general was authorized, when his health prevented him from discharging the duties of his office, to appoint a vice-consul-general, his inability to perform such duties not depriv- ing him of the power to make such appoint- ment in his capacity as minister. 7. Matter of Baiz, 135 U. S. 403, 10 S. Ct. 854, 34 L. ed. 222; Wharton Dig. Int. L. § 88a; 2 Phillimore Int. L. 179. 8. Bijrs v. Preston, 111 U. S. 252, 4 S. Ct. 407, 28 L. ed. 419; Gittings v. Crawford, Taney (U. S.) 1, 10 Fed. Cas. No. 5,465. See 8 Op. Atty.-Gen. (U. S.) 169; Hall Int. L. 332. 9. See 2 Cent. Dig. tit. " Ambassadors and Consuls," § 1 et seq. 10. U. S. Eev. Stat. (1878), § 1697; Wil- liams v. TJ. S., 23 Ct. CI. 46 ; Dainese v. U. S., 15 Ct. CI. 64; 19 Op. Atty.-Gen. (U. S.) 219; 18 Op. Atty.-Gen. (U. S.) 157. In 2 Gould & T. Notes on IT. S. Eev. Stat. p. 157, § 1723, it is stated that ambassadors must qualify by taking oath and giving bond [citing Williams v. U. S., 23 Ct. CI. 46]. In this case, how- ever, the claimant was appointed both min- ister resident and consul-general, the statute [U. S. Rev. Stat. (1878), § 1697], as seen above, expressly requiring bond for the latter office, and the decision being, in the main, based on that provision. Consular agents are not required to give bond. Sampson r. U. S., 30 Ct. CI. 365. Vol. II The surety on the bond may be a corpora- tion. 20 Op. Atty.-Gen. (U. S.) 17; 19 Op. Atty.-Gen. (U. S.) 175. 11. 14 Op. Atty.-Gen. (TJ. S.) 7. Bondsmen of a consul are liable for money which he gets as overpayments of salary and fails to return to the government. TJ. S. v. Bee, 54 Fed. 112, 7 U. S. App. 459, 4 C. C. A. 219; U. S. v. Mitchell, 26 Fed. 607. And the neglect of officers of the government to claim or sue for the excess of salary does not dis- charge the sureties from liability therefor, even though the neglect has been of suffi- ciently long duration to be a defense against any but the government. TJ. S. v. Bee, 54 Fed. 112, 7 TJ. S. App. 459, 4 C. C. A. 219. In an action on the bond of a consul, the condition of which bond requires him to give up all fees which shall come into his hands, he is not liable for money paid, under the di- rection of the state department, to a clerk ap- pointed by the president, although the stat- ute does not provide for clerk-hire. TJ. S. v. Owen, 47 Fed. 797. But an agreement by the consul for the services of an interpreter and body-servant at the consulate is the contract of the consul, not of the government. Azogue v. TJ. S., 26 Ct. CI. 430. 12. Williams i . V. S., 23 Ct. CI. 46. Oath must be taken before an officer au- thorized by the laws of the United States to administer oaths. Otterbourg v. TJ. S., 5 Ct. CI. 430. Consular agents are not required to take the oath of office. Sampson v. TJ. S., 30 Ct. CI. 365. 13. Letters of credence contain the general AMB ASSAD OBS AND CONSULS 263 B. Issuance of Exequatur. A consul is recognized, by the government to which he is sent, through the issue of an exequatur. u The exequatur is usually in the form of a letter patent, signed by the sovereign and countersigned by the minister of foreign affairs. 15 C. Refusal to Receive Ambassador. As a general rule it is not permissible for a state to refuse to receive an ambassador; but, where there are special reasons, it may always decline to receive an agent who is persona non grata} 6 D. Recognition of Diplomatic Tenure. The reception and recognition, by the government, of a person as a foreign minister is conclusive, and the courts cannot question the legality of his credentials. 17 V. TERMINATION OF MISSION OR OFFICE. The mission of a diplomatic officer is terminated by his death ; by his recall ; by his dismissal by the government to which he is accredited ; by his departure on his own account upon a cause of complaint stated ; by war ; by the interrup- tion of amicable relations between the two governments; by the expiration of his letter of credence, if it be given for a specific time ; by the fulfilment of the spe- cific object for which he may have been accredited ; by change of form of gov- ernment, through revolution ; and, in the case of monarchical countries, by the death of the accrediting sovereign. 18 If a foreign consul is guilty of illegal or improper conduct, his exequatur may be revoked and he may be punished, or sent • out of the country, at the option of the offended government. 19 VI. COMPENSATION. 80 A. In General. The power to provide for the compensation of ambassadors and consuls is, by the constitution of the United States, vested in the legislative branch of the government. 21 purport of the mission, the name and class of the agent, and request that faith be given representations made by him in behalf of his government. According to modern custom, the " full power " to negotiate is embodied in a separate instrument. Hall Int. L. 314; 2 Phillimore Int. L. 256; Glenn Int. L. 108. 14. This is a confirmation of his commis- sion which enables him to perform the duties of his office, and guarantees such rights as he possesses in virtue of it. In the United States it is not usual to grant an exequatur to a consular officer of lower grade than vice- consul. Hall Int. L. 332; Glenn Int. L. 117; Wharton Dig. Int. L. § 118. 15. Hall Int. L. 332. 16. 2 Phillimore Int. L. 176; Hall Int. L. 312; Glenn Int. L. 106. 17. D'Azambuja v. Pereira, 1 Miles (Pa.) 366; U. S. v. Ortega, 4 Wash. (U. S.) 531, 27 Fed. Oas. No. 15,971 ; U. S. v. Benner, Baldw. (U. S.) 234, 24 Fed. Cas. No. 14,568. The best evidence to prove the diplomatic character of a person, accredited as minister to the United States, is a certiorate of the secretary of state. U. S. v. Liddle, 2 Wash. (U. S.) 205, 26 Fed. Cas. No. 15,598; U. S. v. Benner, Baldw. (U. S.) 234, 24 Fed. Cas. No. 14,568; Matter of Baiz, 135 U. S. 403, 10 S. Ct. 854, 34 L. ed. 222, 231, in which case the court said : " While we have not cared to dispose of this ease upon the mere absence of technical evidence, we do not as- sume to sit in judgment upon the decision of the executive in reference to the public char- acter of a person claiming to be a foreign minister; and therefore have the right to ac- cept the certificate of the State Department that a party is or is not a privileged person, and cannot properly be asked to proceed upon argumentative or collateral proof." Parol evidence is admissible to show the period during which a person was considered a minister by the government to which he is accredited. U. S. v. Liddle, 2 Wash. (U. S.) 205, 26 Fed. Cas. No. 15,598. 18. Hall Int. L. 317; Calvo Int. L. § 1363; Glenn Int. L. 109. As to the effect of a change of authority in the accrediting gov- ernment on the status of its diplomatic agents see Wharton Dig. Int. L. § 87 ; D'Azambuja v. Pereira, 1 Miles (Pa.) 366; 7 Op. Atty.-Gen. (U. S.) 582; 2 Op. Atty.- Gen. (U. S.) 290. Change of possession of country. — Where the province to which a consul is assigned changes from the possession of a, non-Chris- tian power to the possession of a Christian power, the statute so assigning him, and fix- ing his duties and compensation, becomes of no effect. Mahoney v. U. S., 10 Wall. (U. S.) 62, 19 L. ed. 864. 19. Hall c. Coppell, 7 Wall. (U. S.) 542, 19 L. ed. 244; 2 Op. Atty.-Gen. (U. S.) 725. 20. See 2 Cent. Dig. tit. "Ambassadors and Consuls," § 3 et seq. 21. 7 Op. Atty.-Gen. (U. S.) 186; Foote v. U. S., 23 Ct. CI. 443; Byers v. U. S., 22 Ct. CI. 59. Vol. II 264 AMBASSADORS AND CONSULS B. Of Ambassadors. Neither the president nor the secretary of state can restrict the compensation of a diplomatic officer, by the terms of his appoint- ment, to less than the salary established by law for the office. 22 The salary must be paid in money of the United States, or its actual market equivalent. 23 C. Of Consuls. 24 The transfer of the consulate, by congress, to a class hav- ing a lower salary attached is a change of the previously existing law, and the incumbent is entitled thereafter to the lower salary only. 25 Where the statute imposes upon the consul judicial duties, he cannot claim additional compensation therefor, 26 and he cannot receive the pay provided by law for a charge d'affaires, even though he performs the duties of such office, unless he was expressly author- ized by the president to exercise diplomatic functions. 27 D. Of Vice-Consuls. Vice-consular officers, acting during the absence of their superiors or during a vacancy in the office, are compensated from the salary of the office. 28 To entitle a vice-consul to compensation his appointment No diplomatic or consular officer shall be entitled to compensation for his services, ex- cept from the time when he reaches his post and enters upon his official duties to the time when he ceases to hold such office, and for such time as is actually and necessarily occu- pied in receiving his instructions, not to ex- ceed thirty days, and in making the direct transit between the place of residence, when appointed, and his post of duty, at the com- mencement and termination of the period of his official service, for which he shall in all cases be allowed and paid, except as otherwise provided by statute. U. S. Rev. Stat. (1878), § 1740; U. S. v. Bee, 54 Fed. 112, 7 TJ. S. App. 459, 4 C. C. A. 219. The pay allowed for the time occupied in returning home from his post only applies to those cases where the journey is actually performed by the officer. 9 Op. Atty.-Gen. (U. S.) 261. Nor is it granted where the officer resigns on account of malfeasance in office, or is recalled there- for. U. S. Rev. Stat. (1878), § 1740; 9 Op. Atty.-Gen. (U. S.) 89. 22. Foote v. IL S., 23 Ct. CI. 443. The salary fixed by law at the time of the representative's appointment is the amount he is entitled to receive, although previous legis- lation may have provided for a larger salary. Wallace v. TJ. S., 133 U. S. 180, 10 S. Ct. 251, 33 L. ed. 571; Francis v. TJ. S., 22 Ct. CI. 403. But a statute fixing, without limita- tion as to time, the annual salary of a diplo- matic representative should not be deemed ab- rogated or suspended by subsequent acts ap- propriating a less amount for such salary for specific years, and containing no words re- pealing, expressly or bv implication, the stat- ute. U. S. v. Langston, 118 U. S. 389, 6 S. Ct. 1185, 30 L. ed. 164. See also Foote v. TJ. S., 23 Ct. CI. 443, 444, in which case it was held that an envoy extraordinary to Corea is en- titled to receive the salary which had been previously established by statute for diplo- matic officers of that grade, even though, be- fore he was appointed, an appropriation of a smaller amount was made to enable the presi- dent " to extend diplomatic relations with the governments of Eastern Asia." 23. Clay v. TJ. S., 8 Ct. CI. 209. 24. Bond required by law is a condition precedent to the consul's right to receive sal- voi. n ary. Williams v. TJ. S., 23 Ct. CI. 46; Dain- ese v. TJ. S., 15 Ct. CI. 64. See also supra, III, A. The incumbent of a consulate created by congress under a treaty is entitled to his salary, without regard to any diplomatic question as to the construction or validity of the treaty. Dainese v. TJ. S., 15 Ct. CI. 64. Salary appropriated for a consul in a non- Christian country ceases when the country becomes a possession of a Christian power, no further appropriation being made for the salarv. Mahonev v. TJ. S., 10 Wall. (TJ. S.) 62, 19 L. ed. 864". Suit to recover consular salary may be brought by the claimant in the court of claims. Dainese v. TJ. S., 15 Ct. CI. 64. 25. Mathews v. U. S., 123 U. S. 182, 8 S. Ct. 80, 31 L. ed. 127 [affirming 22 Ct. CI. 330] ; Byers v. TJ. S., 22 Ct. CI. 59 ; Sawyer v. TJ. S., 22 Ct. CI. 326, in which case it was held that where congress, after omitting to make an appropriation for a consular post for a number of years, during which period no consul was appointed, appropriates there- for a smaller salary than the position had previously carried, an appointment made there- after to such post will be deemed to be at the reduced salary. 26. Dainese v. TJ. S., 15 Ct. CI. 64. 27. Otterbourg v. TJ. S., 5 Ct. CI. 430. Before the passage of n TJ. S. Stat, at L. p. 139, it was held that a party, acting and treated by his government as their chargt d'affaires in a foreign country, during the absence of the minister, may recover the value of his services, although he received no specific appointment from the government; and the opinion of the secretary of state as to the value of such services is to be received as that of an expert. Savage v. TJ. S., 1 Ct. CI. 170. 28. Bovd v. TJ. S., 31 Ct. CI. 158 ; 12 Op. Atty.-Gen. (U. S.) 410; 7 Op. Atty.-Gen. (TJ. S.) 714; 2 Op. Atty.-Gen. (TJ. S.) 521. So it has been held that where a vice-consul performs the duties of minister resident and consul-general, which are filled by one per- son, in the absence of the incumbent, he is entitled to be paid at the rate of compensa- tion allowed the two offices, where the salary is not apportioned between them. U. S. v. AMBASSABOBS AND CONSULS 265 must have been legally made, and he must have given the bond required by law. 29 VII. PRIVILEGES AND IMMUNITIES. 80 A. Of Ambassadors — 1. General Statement of Rule. Diplomatic agents are absolutely exempt from allegiance to the state to which they are accredited ; they are not subject to its laws, and their persons are inviolable. 31 These privi- leges and immunities of an ambassador do not expire with the cessation of his Eaton, 169 U. S. 331, 18 S. Ct. 374, 42 L. ed. 767. Double payment of salary. — Where a vice- consul in charge of a consulate has drawn salary for a period for which the consul whom he replaced has already been paid, the gov- ernment may, in a suit on his bond, recover the amount so paid him. U. S. v. Mitchell, 26 Fed. 607. 29. Dainese v. U. S., 15 Ct. CI. 64. But compare U. S. v. Eaton, 169 U. S. 331, 18 S. Ct. 374, 42 L. ed. 767; Boyd v. U. S., 31 Ct. CI. 158, to the effect that compensation of a vice-consular officer, acting during the consul's absence, begins with such absence, and not upon the approval of his bond. 30. See 2 Cent. Dig. tit. "Ambassadors and Consuls," § 6 et seq. 31. Hall Int. L. c. 4; 1 Kent Comm. 38 et seq.; Holbrook v. Henderson, 4 Sandf. (N. Y.) 619; Magdalena Steam Nav. Co. v. Martin, 2 E. & E. 94, 105 E. C. L. 94, 28 L. J. Q. B. 310, 5 Jur. N. S. 1260, 7 Wkly. Rep. 598 ; The Charkieh, L. R. 4 A. & E. 59. See also Grotius, bk. II, c. 18; Wicquefort, bk. I, § 27; Vattel L. Nat. bk. IV, c. 7. " Whatever may be the principle on which this immunity is established, whether we con- sider him as in the place of the sovereign he represents, or, by a political fiction, suppose him to be extraterritorial, and, therefore, in point of law, not within the jurisdiction of the sovereign at whose court he resides; still the immunity itself is granted by the govern- ing power of the nation to which the minis- ter is deputed. This fiction of extraterritorial- ity could not be erected and supported against the will of the sovereign of the territory. He is supposed to assent to it. This consent is not expressed. It is true that in some countries, and in this among others, a special law is enacted for the case. But the law obviously proceeds on the idea of prescribing the punishment of an act previously unlaw- ful, not of granting to a foreign minister a privilege which he would not otherwise pos- sess. The assent of the sovereign to the very important and extensive exemptions from ter- ritorial jurisdiction which are admitted to attach to foreign ministers is implied from the considerations that, without such exemp- tion, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission. A sovereign committing the inter- ests of his nation with a foreign power, to the care of a, person whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and therefore, a consent to receive him implies a consent that he shall possess those privileges which his principal intended he should retain — privileges which are essential to the dig- nity of his sovereign, and to the duties he is bound to perform." Marshall, C. J., in The Schooner Exchange v. McFaddon, 7 Cranch (U. S.) 116, 138, 3 L. ed. 287, 294. Statutory enactments. — These immunities have been declared by statute both in Eng- land and in the United States. 7 Anne, u. 12 ; U. S. Rev. Stat. (1878), §§ 4062-4065. The statutes confer no other privileges than, and are merely declaratory of, those secured by the law of nations, and were intended to pro- vide a punishment for their infringement. Holbrook v. Henderson, 4 Sandf. (N. Y.) 619; Matter of Baiz, 135 U. S. 403, 10 S. Ct. 854, 34 L. ed. 222 ; The Schooner Exchange v. Mc- Faddon, 7 Cranch (TJ. S.) 116, 3 L. ed. 287; Magdalena Steam Nav. Co. v. Martin, 2 E. & E. 94, 105 E. C. L. 94, 28 L. J. Q. B. 310, 5 Jur. N. S. 1260, 7 Wkly. Rep. 598; Heathfield v. Chilton, 4 Burr. 2015; Triquet v. Bath, 3 Burr. 1478; Novello v. Toogood, 1 B. & C. 554, 8 E. C. L. 234. Ambassador of unrecognized government. — An ambassador whose government is not recognized by the government to which he is accredited is not extended the privileges of an ambassador. U. S. v. Skinner, Brunn. Col. Cas. (TJ. S.) 446, 27 Fed. Cas. No. 16,309. Ambassador passing through intermediate state. — An ambassador from one sovereign state to another, while traveling through the territories of a state to which he is not ac- credited, in the execution of the duties of his mission, is privileged from arrest on civil process. Wilson v. Blanco, 56 N. Y. Super. Ct. 582, 4 N. Y. Suppl. 714, 23 N. Y. St. 629; Holbrook v. Henderson, 4 Sandf. (N. Y.) 619, wherein it was held that, in the United States, a foreign ambassador is not required to have a, passport nor to have otherwise obtained express permission to secure him safe-conduct, unless in time of war. Sir Robert Phillimore thus sums up the right of an ambassador passing through a third country : " 1 . That, in time of peace, the ambassador is of right inviolable in his transit through a third coun- try; but cannot claim the privileges of extra- territoriality as a matter of tacit compact, though they would probably be accorded to him by the courts of all nations. 2. That, in time of war, he cannot be secure from im- prisonment without a previously obtained per- mission to pass through the territory; but that his life can in no case be taken, unless, indeed, he actually exercises hostilities in the Vol. n 266 AMBASSADORS AND CONSULS functions, but he retains them until he returns to his principal ; ffi and while a foreign minister cannot, by an act of his own, waive the privileges and immunities which are attached to his office, 33 a prior assault by him deprives him of his privi- lege, and will excuse a battery committed on him in self-defense, but will not justify an arrest on process. 34 An ambassador does not forfeit his privileges by engaging in trade. 35 2. Civil Liability. Local jurisdiction cannot be exercised in such manner as to interfere in the remotest degree with the ambassador's freedom of diplomatic action, or with the property belonging to him as representative of his sovereign, except that he is subject to such administrative and police regulations as are neces- sary for the health or the safety of the community. 86 country through which he passes." 2 Phil- limore Int. L. 217. 32. Dupont i!. Pichon, 4 Dall. (Fa.) 321; D'Azambuja v. Pereira, 1 Miles (Pa.) 366; Vattel L. Nat. bk. IV, e. 9, § 125. Compare Marshall r. Critieo, 9 East 447, 14 Rev. Rep., preface viii note. This rule is true even though he has an- nounced the termination of his government and received his passports and his successor has been recognized. D'Azambuja v. Pereira, 1 Miles (Pa.) 366, in which ease it was held that a suit, by a newly-appointed charge d'affaires, to recover the archives and docu- ments from his predecessor, commenced by service on defendant while he was returning to his native country, did not ipso facto de- prive defendant of the privileges attached to him as a returning diplomatic agent, and that it was not evidence that his sovereign had deprived him of his privileges. 33. Yalarino v. Thompson, 7 X. Y. 576; U. S. r. Benner, Baldw. (U. S.) 234, 24 Fed. Cas. No. 14,568; Barbuit's Case, Cas. t. Talb. 281. Effect of voluntary appearance. — When a minister enters an appearance in an action against him and allows the action to proceed till issue joined, and gets a rule for a special jury, he will be deemed to have attorned to the jurisdiction of the court by his voluntary appearance ; and a stay of proceedings, on the ground of his exemption, will not be granted where neither his person nor his goods have been interfered with. Taylor v. Best, 14 C. B. 487, 78 E. C. L. 487, 2 C. L. R. 1717, 23 L. J. C. P. 89, 18 Jur. 402, 2 Wkly. Rep. 259. The privilege of the servants is the privi- lege of the ambassador, and not of the ser- vant, and may therefore be waived by the am- bassador. Fisher v. Begrez, 2 C. & M. 240, 3 Tyrw. 184, 2 Dowl. P. C. 279, 4 Tyrw. 35, 2 L. J. Exch. 13; Taylor v. Best. 14 C. B. 487, 78 E. C. L. 487, 2 C. L. R. 1717, 23 L. J. C. P. 89, 18 Jur. 402, 2 Wkly. Rep. 259. See also infra, VII, A, 5, b. 34. U. S. v. Ortega, 4 Wash. (U. S.) 531, 27 Fed. Cas. No. 15,971; U. S. r. Liddle, 2 Wash. (TJ. S.) 205, 26 Fed. Cas. No. 15,598; U. S. v. Benner, Baldw. (TJ. S.) 234, 24 Fed. Cas. No. 14,568. 35. Taylor v. Best, 14 C. B. 487, 78 E. C. L. 487, 2 C. L. R. 1717, 23 L. J. C. P. 89, 18 Jur. 402, 2 Wkly. Rep. 259; Magdalena Steam Nav. Co. v. Martin, 2 E. & E. 94, 105 E. C. L. 94, 28 L. J. Q. B. 310, 5 Jur. N. S. 1260, 7 Vol. II Wkly. Rep. 598. In this last case the de- cision was that a public minister of a foreign state, accredited to, and received by, the Eng- lish sovereign, having no real property in England, and having done nothing to disen- title him to the general privileges of a for- eign minister, cannot, while he retains this character, be sued, against his will, in Eng- land, although the action may arise out of commercial transactions in that country, and although neither his person nor his goods are touched by the suit. But the application of this rule does not prevent the property embarked by him and accruing to him in his capacity of a trades- man from being subject to seizure, at the in- stance of creditors, where this can be accom- plished without personal service on him, with- out infringing his dignity as an ambassador and without interference with the proper dis- charge of his duties. 2 Phillimore Int. L. 222 [citing Taylor v. Best, 23 L. J. C. P. 89 ; The Swift, 1 Dods. 320 ; The Charkieh, L. R. 4 A. & E. 59] ; Hall Int. L. 180. Vattel, with whom Wheaton [Int. L. (3d Eng. ed.) 317] seems to agree, admits that property employed in commerce by an ambassador is subject to the local jurisdiction, but to the extent only, it would appear, of the merchandise, cash, debts due to him, and other assets, if any, representing the capital which he actually uses in the business. Vattel L. Nat. bk. IV, e. 8, § 114. 36. Hall Int. L. 180: Glenn Int. L. 70; State r. De la Foret, 2 Nott & M. (S. C.) 217 ; The Schooner Exchange v. HcFaddon, 7 Cranch (U. S.) 116, 3 L. ed. 287; The Charkieh, L. R. 4 A. & E. 59; Gladstone v. Musurus Bey, 1 H. & M. 495, 32 L. J. Ch. 155, 9 Jur. N. S. 71, 7 L. T. Rep. N. S. 477, 11 Wkly. Rep. 180. The decision in Magdalena Steam Nav. Co. V. Martin, 2 E. & E. 94, 113, 105 E. C. L. 94, 113. 28 L. J. Q. B. 310, 5 Jur. N. S. 1260, 7 Wkly. Rep. 598. that a foreign ambassador is exempt from the civil jurisdiction of the courts of the country to which he is accred- ited, was given with express reference to the contention of counsel that " the action could be prosecuted to that stage, with a view to ascertain the amount of the debt, and to enable the plaintiffs to have execution on the judgment when the defendant may cease to be a public minister." Injunction against ambassador. — Although the English courts cannot make an order AMBASSADORS AND CONSULS 267 3. Criminal Liability. Diplomatic agents are not subject to the criminal jurisdiction of the state to which they are credited, nor can they, as a rule, be arrested; 37 and they are exempt, in the United States, from the criminal jurisdic- tion of the state courts as well as the federal courts. 38 4. Exemption from Taxation. The person and personalty of an ambassador, and the property belonging to him as a representative of his sovereign, are not subject to taxation ; otherwise, no exemption from taxes or duties are accorded him as a matter of right ; by courtesy, however, the free entry of goods intended for his private use is generally allowed. 89 A different rule obtains where he has acquired a domicile 40 in the country. 41 5. Who Protected by — a. Family and Official Household. The privileges and immunities of an ambassador extend to his family, 42 and to the members of his official household. 43 against an ambassador who does not submit himself to their jurisdiction, yet the court of chancery will grant an interim injunction re- straining a third party from handing over to him a fund which is in dispute, notwithstand- ing his title to the fund may be absolute at law. Gladstone v. Musurus Bey, 9 . 284; Sayre v. Grymes, 1 Hen. & M. (Va.1 404. England. — Isley's Case, 1 Leon. 187 ; Viner Abr. tit. Amicus Curia. See 2 Cent. Dig. tit. " Amicus Curia," § 5. 20. Matter of Pina, 112 Cal. 14, 44 Pac. 332. 21. People v. Union Bldg., etc., Assoc. 127 Cal. 400, 59 Pac. 692; Charleston v. Cadle, Vol. II Keith, 26 Miss. 166. E. C. B., 8 Abb. Pr. Com., 2 Call (Va.) 284: AMICUS CURIAE— AMNESTY V. PROCEDURE. A. In General. An amicus curies may interfere by statement in open court, 88 or by motion in writing, 23 or by affidavit. 24 In support of his contention, the court consenting to hear him, he may be permitted to introduce evidence ; K or the court itself may call witnesses before it and examine them as to the truth of the matters thus brought to its attention. 26 B. Notice. In case of a motion or suggestion by an amicus curies the par- ties immediately interested, if not present, should be informed. 27 VI. COMPENSATION. An amicus curice, to whom a question has been referred by the court for examination and report, may be allowed a reasonable compensation therefor, to be taxed as costs. 28 AMITTERE CURIAM. In old English law, to lose the court ; to be deprived of the privilege of attending the court. 1 AMITTERE LEGEM TERR.E or AMITTERE LIBERAM LEGEM. To lose the lib- erty of swearing in any court. 2 AMNESTY. An act of oblivion or forgetfulness ; 3 a general pardon of the offenses of subjects against the government, or the proclamation of such pardon. 4 (See, generally, Pardons.) 167 111. 647, 49 N. E. 192; Parker r. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567 ; Apple v. Atkinson, 34 Ind. 518 ; Life Assoc, of America v. Hall, 33 La. Ann. 49. But see Breaux v. Negrotto, 43 La. Ann. 426, 9 So. 502 ; Lesassier r. Board of Liqui- dation, 30 La. Ann. 611. 22. Olsen r. California Ins. Co., 11 Tex. Civ. App. 371, 32 S. W. 446. At request of court. — The court may, of its own motion, request information of some attorney of the court. Indiana. — Parker r. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567; Campbell r. Swasey, 12 Ind. 70. Missouri. — In re St. Louis Institute of Christian Science, 27 Mo. App. 633. Nevada. — Haley v. Eureka County Bank, 21 Nev. 127, 26 Pac. 64, 12 L. R. A. 815. Pennsylvania. — Mumma's Estate, 2 Pa. Dist. 592. United States. — Ex p. Randolph, 2 Brock. (U. S.) 447, 20 Fed. Cas. No. 11,558. 23. Haley p. Eureka County Bank, 21 Nev. 127, 26 Pac. 64, 12 L. R. A. 815. 24. Matter of Guernsey, 21 171. 443. 25. Irwin r. Armuth, 129 Ind. 340, 28 N. E. 702; Haley v. Eureka County Bank, 21 Nev. 127, 26 Pac. 64, 12 L. R. A. 815 ; Bass v. Fontleroy, 11 Tex. 698. See also The David Pratt, 1 Ware (U. S.) 509, 7 Fed. Cas. No. 3,597. 26. Olsen v. California Ins. Co., 11 Tex. Civ. App. 371, 32 S. W. 446. See also Jones v. Jefferson, 66 Tex. 576, 1 S. W. 903. 27. Tomkin v. Harris, 90 Cal. 201,27 Pac. 202 ; Matter of Guernsey, £1 111. 443. Dismissal of suit as fictitious. — No notice need be given of a motion by an amicus curiw to dismiss an action as fictitious. Haley v. Eureka County Bank, 21 Nev. 127, 26 Pac. 64, 12 L. R. A. 815. Vol. II 28. In re St. Louis Institute of Christian Science, 27 Mo. App. 633; 2 Cent. Dig. tit. " Amicus Curiae," § 2. 1. Burrill L. Diet. 2. Jacob L. Diet. 3. Ex p. Law, 35 Ga. 285, 296; Davies v. McKeeby, 5 Nev. 369, 373 [citing Webster Diet.]. Not a common-law term. — " The word ' am- nesty ' does not belong to the common law, and has no technical meaning in it, and can be used in it only in the meaning of its syno- nym in our language, and that is ' oblivion.' For the derivative and literal meaning of am- nesty is ' removed from memory ; ' and in the English law ' oblivion ' is the synonym of ' pardon,' and is so used in it." Knote v. U. S., 10 Ct. CI. 397, 407 [affirmed in 95 U. S. 149, 24 L. ed. 442]. Properly belongs to international law. — " The word ' amnesty ' properly belongs to international law, and is applied to treaties of peace following a state of war, and sig- nifies there the burial in oblivion of the par- ticular cause of the strife, so that that shall not be again a cause for war between the parties ; and this signification of ' amnesty ' is fully and poetically expressed in the In- dian custom of burying the hatchet. And so amnesty is applied to rebellions which by their magnitude are brought within the rules of international law, and in which multitudes of men are the subjects of the clemency of the government. But in these cases and in all cases it means only oblivion, and never expresses or implies a grant." Knote v. U. S., 10 Ct. CI. 397, 407 [affirmed in 95 U. S. 149, 24 L. ed. 442]. 4. Davies v. McKeeby, 5 Nev. 369, 373 Icitinrj Webster Diet.]. Distinguished from " pardon." — " ' Pardon ' and ' amnesty ' are not precisely the same. AMONG — ANCHOR WATCH 285 AMONG. Intermingled with ; 5 and sometimes used in the sense of " between." 6 AMORTISE. To alien or convey lands in mortmain. 7 AMORTISEMENT or AMORTIZATION. An alienation of lands or tenements in mortmain. 8 AMOTION. Ouster ; the removal of a corporate officer from office. 10 (See Corporations ; Municipal Coepoeations.) AMOUNT IN CONTROVERSY. See Appeal and Eeeoe ; Costs; Courts; Jus- ioes of the Peace ; Removal of Causes. AMOUR. Grace; favor. 11 AMOVE. To remove from a post or station. 12 AMOVEAS MANUS. Literally, " that you remove your hands." In old English practice, the judgment against the crown on a monstrans de droit that the posses- sion of lands claimed be restored to the demandant. 13 AMPARO. An instrument known to the Mexican law which is issued to a claimant of land as a protection to him until a survey can be ordered and the title of possession issued by an authorized commissioner. 14 AMPLIARE. In old English law, to enlarge or extend. 15 AMPLIATION. A referring of judgment till the cause is further examined. 16 AMPUTATION OF RIGHT HAND. An ancient punishment for a blow given in a superior court, or for assaulting a judge sitting in court. 17 AMUSEMENTS. See Theaters and Shows. AMY. See Ami. AN. See A. ANESTHETIC. That which produces insensibility to pain. 18 ANALOGY. Identity or similarity of proportion. 19 ANARCHY. The absence of government ; a state of society where there is no law or supreme power. 20 ANATHEMA. A punishment, in ecclesiastical law, separating a person from the body of the church and forbidding him all intercourse with the faithful. 21 ANATOMY ACT. The English statute 22 by which the practice of dissecting human corpses is regulated. 23 ANCESTOR. See Descent and Distribution. ANCESTRAL. Relating to, or derived from, ancestors. 24 ANCHORAGE. A duty or toll taken of ships for the use of the haven where they cast anchor, and sometimes exacted though there be no anchor. 25 ANCHOR WATCH. A small watch kept constantly on deck while in port or riding at single anchor. 26 * A pardon is granted to one who is certainly tion." Richards v. Clarksburg, 30 W. Va. guilty, sometimes before, but usually after, 491, 497, 4 S. E. 774. conviction. And the court takes no notice of 11. Kelham Diet. it, unless pleaded, or in some way claimed by 12. Wharton L. Lex. the person pardoned; and it is usually 13. Burrill L. Diet. granted by the crown or by the executive. 14. Trimble v. Smithers, 1 Tex. 790. But amnesty is to those who may be guilty, 15. Burrill L. Diet. and is usually granted by Parliament, or the 16. Jacob L. Diet. Legislature; and to whole classes, before trial. 17. Wharton L. Lex. Amnesty is the abolition or oblivion of the 18. State v. Baldwin, 36 Kan. 1, 20, 12 offense; pardon is its forgiveness." State v. Pae. 318 [citing Webster Diet.]. Blalock, 61 N. C. 242, 247. 19. Wharton L. Lex. 5. Gibbons v. Ogden, 9 Wheat. (U. S.) 1, 20. Spies v. People, 122 111. 1, 253, 12 N. E. 194, 6 L. ed. 23, 69. 865, 17 N. E. 898, 3 Am. St. Rep. 320. 6. Senger v. Senger, 81 Va. 687, 698. And 21. Bouvier L. Diet. see, generally, Between. 22. 2 & 3 Wm. IV, c. 75. 7. Burrill L. Diet. 23. Wharton L. Lex. 8. Jacob L. Diet. 24. Burrill L. Diet. 9. 3 Bl. Comm. 198. 25. Foreman v. Free Fishers, L. R. 4 H. L. 10. Abbott L. Diet. 266, 284; Free Fishers v. Gann, 13 C. B. N. S. Distinguished from " disfranchisement."— 853, 859, 106 E. C. L. 853. "'Amotion' relates alone to officers and ' dis- 26. The Lady Franklin, 2 Lowell (U. S.) franchisement ' to members of the corpora- 220, 14 Fed. Cas. No. 7,984 [citing Dana Diet. Vol. II a zrciEN-T— a jsrn ANCIENT. Old ; that existed in former times. 27 (Ancient : Documents, see Deeds ; Evidence ; Lost Instruments. Houses, see Easements. Lights, see Adjoining Landowners ; Easements ; Injunctions.) ANCIENTS. Gentlemen of the Inns of Court. 28 ANCILLARY. Auxiliary ; that which aids or promotes a proceeding regarded as the principal. 29 (Ancillary : Administration, see Executors and Adminis- trators. Guardianship, see Guardian and Ward. Judgment, see Equity ; Judgments. Jurisdictions, see Courts ; Equity. Receivership, see Receivers.) AND. A particle which expresses the relation of addition, 30 but which is fre- quently construed as meaning " or," 31 although it should never be so read unless the context favors the conversion, 32 and sometimes in the sense of " as well as." * The word is frequently abbreviated " &." u Sea Terms, 129; Totten Naval Text Book & Diet. 443]. One man always on deck, without any duty assigned to him, answers the requisites of an anchor watch. The Rival, 1 Sprague (U. S.) 128, 20 Fed. Cas. No. 11,867. 27. Bagley v. Castile, 42 Ark. 77, 87 [cit- ing Webster Diet.]. " 'Ancient ' is a correlative term, and has for its correlate, as standing in the opposi- tion, the term ' modern.' " Garner v. State, 5 Yerg. (Tenn.) 159, 178. Ancient demesne. — A species of copyhold tenure, existing in certain manors, which, though now perhaps granted out to private subjects, were actually in the hands of the crown in the time of Edward the Confessor, or William the Conqueror, and so appear to have been by Domesday Book, in which they were entered. Burrill L. Diet. Ancient readings. — Essays on the early English statutes. Coke Litt. 280. Ancient rent. — " That shall be deemed the ancient rent, which was the rent at the time the power was reserved, or when the last lease before was made, if the estate was not then under lease." Doe v. Lock, 2 A. & E. 705, 7.36, 29 E. C. L. 325 [citing Orby v. Mohun, 2 Vern. 531, 542]. Ancient writings. — Documents upward of thirty years old. Wharton L. Lex. 28. Jacob L. Diet. 29. Abbott L. Diet. 30. Lane v. Kolb, 92 Ala. 636, 665, 9 So. 873; Hyatt v. Allen, 54 Cal. 353, 367 [citing Webster Diet.] ; O'Brien v. Carson, 42 Iowa 553; State Board of Assessors v. Central R. Co., 48 N. J. L. 146, 352, 4 Atl. 578. 31. Alabama. — Porter v. State, 58 Ala. 66, 68; Hilliard v. Binford, 10 Ala. 977, 996. California. — People v. Pool, 27 Cal. 572, 581. Illinois. — Chicago, etc., R. Co. v. Bartlett, 120 111. 603, 11 N. E. 867; Streeter v. People, 69 111. 595. Indiana. — Smith v. Madison, 7 Ind. 86, 90. Iowa. — Williams v. Poor, 65 Iowa 410, 415, 21 N. W. 753; Eisfeld v. Kenworth, 50 Iowa 389; State v. Smith, 46 Iowa 670; State v. Brandt, 41 Iowa 593; State v. Myers, 10 Iowa 448. Maine. — Collins Granite Co. v. Devereux, 72 Me. 422; Sargent v. Simpson, 8 Me. 148; Sayward v. Sayward, 7 Me. 210, 22 Am. Dec. 191. Vol. II Maryland. — Janney v. Sprigg, 7 Gill (Md.) 197, 48 Am. Dec. 557. Massachusetts. — Litchfield v. Cudworth, 15 Pick. (Mass.) 23, 27. Missouri. — Maguire v. Moore, 108 Mo. 267, 18 S. W. 897; Missouri Loan Bank v. How, 56 Mo. 53, 58. New Hampshire. — Bay State Iron Co. v. Goodall, 39 N. H. 223, 234, 75 Am. Dec. 219. New Jersey. — Shimer v. Shimer, 50 N. J. Eq. 300, 24 Atl. 385. New York. — Room v. Phillips, 24 N. Y. 463, 470; O'Hara v. Dever, 2 Keyes (N. Y.) 558; Jackson v. Topping, 1 Wend. (N. Y.) 388, 19 Am. Dec. 515. North Carolina. — Hughes v. Smith, 64 N. C. 493. Pennsylvania.- — Simpson v. Morris, 3 Yeates (Pa.) 104, 117; Englefried v. Woel- part, 1 Yeates (Pa.) 41. South Carolina. — Bowen v. Southern R. Co., 58 S. C. 222, 36 S. E. 590; Duncan v. Harper, 4 S. C. 76; Seabrook v. Mikell, Cheves Eq. ( S. C. ) 80. Texas. — Robinson v. Brinson, 20 Tex. 438. Virginia. — East v. Garrett, 84 Va. 523, 9 S. E. 1112. West Virginia. — Jelly v. Dils, 27 W. Va. 267, 274 ; State v. Cain, 9 W. Va. 559, 569. Wisconsin. — Hall v. Fond du Lac, 42 Wis. 274, 281. United States. — U. S. v. Fisk, 3 Wall. Zi a. 7w General, 339 b. Under Statutes, 339 3. Bight to Quarantine, 340 VII. Cruelty to Animals, 341 A. I%e Offense, 341 1. Nature of, 341 a. .A£ Common Law, 341 b. Under Statutes, 341 (1) /«/ General, 341 (11) General and Local Laws, 341 (hi) Construction of Statutes, 341 (a) Generally, 341 (b) Kinds of Animals Protected, 341 2. TTAai! Constitutes Cruelty, 342 a. ^ictf£y<3 Cruelty, 342 Vol. II 292 ANIMALS (i) In General, 342 (n) Cock-Fighting, 343 (in) Dishorning Cattle, 343 (iv) Fox-Hvnting, 343 (v) Overdriving or Overloading, 343 (vi) Pigeon-Shooting, 343 b. Passive Cruelty, 343 (i) In General, 343 (n) Failure to Provide Food, Water, or Shelter, 344 3. Wilfulness, Wantonness, and Intent, 344 a. In General, 344 b. Malice toward Owner, 344 4. Persons Liable, 344 a. Agents and Servants, 344 b. Master for Act of Servant, 345 c. Owner, 345 d. Aiders and Abettors, 345 5. Jurisdiction, 345 6. Indictment, Informatio-n, or Complaint, 345 a. Charging Offense, 345 (i) In General, 345 (n) Particular Averments, 346 (a) Charge and Custody of Animal, 346 (b) Wilfulness, Wantonness, and Intent, 346 (c) Cruelty, 346 (1) Mode or Means Employed, 346 (a) In General, 346 (b) Repugnancy, 347 (2) Description of Injury, 347 (d) Description of Animal, 347 (1) In General, 347 (2) Ownership, 347 (3) ria^e, 348 b. Unnecessary Averments, 348 c. Duplicity, 348 d. Indorsement of Prosecutor's Name, 348 7. Defenses, 349 a. Act of Mercy, 349 b. Anger, 349 c. #00(2 Faith, 349 d. Intoxication — Beiuilderment, 349 e. Protection of Property, 349 f. &»or< w Amusement, 349 g. Useful Purpose, 349 8. Evidence, 349 a. Burden of Proof, 349 b. Admissibility, 349 c. Sufficiency, 350 (i) i/i General, 350 (n) ^.s to J/o(fe or Means Employed, 350 (m)_ ^4s to Wilfulness, Wantonness, and Intent, 350 d. Variance, 350 9. 2WaZ. 350 a. Instructions, 350 (i) ira General, 350 (n) ^is to iiLmtm* Of, 399 c. To Distrain, Impound, or Take Up, 400 (i) The Right, 400 ' (a) At Common Lavj, 400 (b) Under Statutes, 400 (1) In General, 400 (2) Power of Legislature to Authorise, 401 (n) Who May Distrain, 402 (in) What Animals May Be Distrained, 402 (a) In General, 402 f b) Animals in Actual Care of Person, 402 (iv) What Damage Justifies Distress, 403 (v) Proceedings hy Distrainer, 403 (a) In General, 403 (b) Must Take Animals in Act, 403 (o) Animals — How Kept, 403 (1) In General, 403 (2) Where Kept, 403 (d) Notice of Taking Up, 404 (1) To Owner, 404 (a) Necessity of, 404 (b) Requisites of, 404 aa. Whether Written or Oral, 404 bb. Contents, 405 (2) To Pound-Keeper, 405 (a) Necessity of, 405 (b) Requisites of 405 (3) Advertisement, 405 (e) Appraisement of Damages, 405 (1) Provisions for, 405 (2) Application for, 406 (3) Tr Ao J/ity -4c< as Appraiser, 406 (4) Notice to Owner, 406 (5) Requisites of Justice's Summons, 406 (6) Requisites and Sufficiency of Appraise- ment, 406 (7) Conclusiveness of Appraisement, 406 (vi) Right of Distrainer, 406 (a) To Lien, 406 (1) In General, 406 (2) How Enforced, 407 (3) How Waived or Extinguished, 407 (b) To Use Animal, 407 (vn) Remedies for Wrongful Distress, 407 (a^ Peaceable Recaption, 407 (b) Replevin, 407 (1) Right to Maintain, 407 (2) 7¥ro<3 to Commence Suit, 408 (3) Parties, 408 (4:) Jurisdiction, 408 (5) Pleading, 408 Vol. II 298 ANIMALS (a) Avowry, 408 (b) Plea in Bar, 408 (6) Evidence, 408 (a) Burden of Proof, 408 (b) Admissibility, 408 (7) Instructions, 409 (8) Judgment, 409 (c) Payment of Damages and Action against Distrainer; 409 d. To Maintain Tresspass, 409 (i) In General, 409 (ii) Persons liable, 409 (a) Generally, 409 (1) Person Havi ng Custody, 409 (2) Husband for Wife, 410 (3) Persons Bound to Maintain Gates in Road, 410 (b) Jointly, 410 (in) Action, 410 (a) Jurisdiction, 410 (b) Defenses, 410 (1) Agreement of Plaintiff to Pasture, 410 (2) Agreement with Third Person to Keep Fence in Repair, 410 (3) By - law Authorizing Animals at Large, 410 (4) Contributory Negligence, 410 (5) License from One Occupant of Common Indosure, 410 (6) Want of Fences, 410 (c) Pleading, 411 (1) Complaint or Declaration, 411 (a) Act Purposely Done, 411 (b) Appraisal of Damages, 411 (c) Continuando, 411 (d) Demand for Damages, 411 (e) Description of Land, 411 (f) Existence of Fences, 411 (g) Knowledge of AnimaVs Propen- sity to Roam, 411 (h) Negligence, 411 (2) Pfea, 411 (d) Process, 411 (e) Evidence, 411 (1) Judicial Notice, 411 (2) Burden qf Proof, 412 (3) Admissibility, 412 (a) Tb xS'Aow ^.mowwi 0/ Damage, 412 (b) T^ iSAow Manner of Entry, 412 (c) To £Aow> Sufficiency and Character of Fences, 412 (d) To Show Title of Crops Injured in Third Person, 412 (4) Sufficiency, 412 (a) In General, 412 (b) .As to Character of Fences, 413 .Vol. II ANIMALS 299 (f) Trial, 413 (1) Dismissal, 413 (2) Instructions, 413 (3) Questions of Law and Fact, 413 (g) Amount Recoverable, 414 (1) iri General, 414 (2) Exemplary Damages, 414 (3) Apportionment of, 414 XII. INJURIES TO ANIMALS, 414 A. Civil Liability, 414 1. ifl- 'General, 414 a. Domestic Animals, 414 (i) Generally, 414 (a) Trespassing Animals, 414 (1) i« General, 414 (2) ^2/ Efas of Dogs, 415 (3) TFA* m Custody of Taker -Up, 415 (b) Ti'ciows Animals, 415 (n) Dogs,m (a) 7w General, 416 (1) Intentional Injury or Killing, 416 (a) jfo General, 416 (b) 7w Protection of Property, 416 aa. /Stock, 416 bb. (Mer Zto^s, 417 cc. Inanimate Property, 417 (c) Mischievous Dogs, 417 (d) Vicious Dogs, 417 (2) Inadvertent Injury or Killing of Dogs, 418 (b) Under Statutory or Municipal Authority, 418 ,(1) i« General, 418 (2) Z>0. Beirne, 39 Pa. St. 50, 60. and in the cases of Yearsley v. Gray, 140 Pa. St. 238, 21 Atl. 318; Hoover v. 'Epler, 52 Pa. St. 522, and Cadwalader c. Dilworth, 26 Wkly. Notes Caa. (Pa.) 32, a common-law lien for keep In favor of the agistor has been squarely recog- nized. The language of Gibson, C. J., in Steinman v. Wilkins, 7 Watts & S. (Pa.) 460, 42 Am. Dec. 254, has also been approved by Vol. U Brewer, J., in Kelsey v. Layne, 28 Kan. 218, 224, 42 Am. Eep. 158. Reason for absence of lien. — " An agistor of cattle is under no legal obligation to take the charge of or keep any cattle that may be brought to him for that purpose. He may receive or refuse them, without violating any duty or obligation imposed on him by the law; and he is at perfect liberty, therefore, when he receives stock to keep, to impose such terms and conditions as he may deem proper. And he may require an agreement that he shall have a lien upon the animals for his reasonable charges, or for the agreed price, if he shall deem it necessary for his security. That class of bailees, however, who are required by law to take the charge and custody of, and to keep animals for others, have no right to impose conditions upon those who employ them; and the law, therefore, very properly gives them a lien upon the propertv for their security." Lewis v. Tyler, 23 Cal. 364. 97. Allen r. Ham, 63 Me. 532 ; Danf orth r. Pratt, 42 Me. 50 ; Lord v. Jones, 24 Me. 439, 41 Am. Dec. 391 : Hoover v. Epler, 52 Pa. St. 522; Searfe r. Morgan, 4 M. & W. 270; Brenan v. Currint, Say. 224. But see Xieolls v. Duncan, 11 t T . C. q! B. 332, 333, wherein it is said that " the right of lien in such a case as this seems to be subject yet to doubt." See 2 Cent. Dig. tit. " Animals," § 59. 98. Georgia.— Jackson v. Holland, 31 Ga. 339. Iowa. — Scott v. Mercer, 98 Iowa 258, 67 N. W. 108, 60 Am. St. Eep. 188. But com- pare Scott v. Mercer, (Iowa 1895) 63 N. W. 325, construing Iowa Laws (1880), c. 25, § 1. Maine. — Allen r. Ham, 63 Me. 532. Massachusetts. — Harris v. Woodruff, 124 Mass. 205, 26 Am. Rep. 658. New Hampshire. — Towle v. Raymond, 58 N. H. 64. New York. — Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663. Pennsylvania. — Hartman v. Keown, 101 Pa. St. 338. Tennessee. — Shields v. Dodge, 14 Lea (Tenn.) 356. England.— Bevan v. Waters, 3 C. & P. 520, 14 E. C. L. 693 ; Searfe v. Morgan, 4 M. & W. 270; Forth v. Simpson, 13 Q. B. 680, 66 E. C. L. 680. See 2 Cent. Dig. tit. " Animals," § 61. Racing illegal. — The fact that the animal was to be illegally used to run for bets and wagers will not make the contract for train- ing illegal. Harris v. Woodruff, 124 Mass. 205, 26 Am. Eep. 658. 99. See supra, III, B, 2, a, (n), (a), (1). ANIMALS 317 law by agreement of the parties, but to create such a lien the contract must expressly provide therefor/ (c) _ Under Statute — (1) In General. Nearly all the states have statutes recognizing the rights of agistors to a lien on horses and other animals for their keep. 3 _ The extent and character of such lien depend necessarily upon the con- struction given to the statute creating it. 3 (2) Who Entitled to. The statutory lien exists, generally, only in favor of one who has actually " kept " the animal, 4 and whose business it is to feed cattle, 5 and does not attach in favor of a mere servant employed in the care of animals. 6 Since, too, to maintain a lien the cattle must be the property of another, a partner «an acquire no lien by feeding animals belonging to the partnership. 7 1. Cummings v. Harris, 3 Vt. 244, 23 Am. Dee. 206. Where a contract provides that the con- tractor shall take certain cattle to his farm; that he shall feed and fatten them there until a certain date; that lie shall be liable for all losses of such cattle from death, disease, es- cape, or theft, at a fixed price per head; that he waives any lien on said cattle as an agis- tor, or in any other character; that the con- tractee shall sell said cattle; and that the eon- tractor shall receive, in full for his services, the price realized at the sale in excess of a fixed sum per head and expenses of sale, it does not give the contractor title to said cattle, nor right to sell them. Western Land, etc., Co. v. Plumb, 27 Fed. 598. Privilege of sale to pay for, keep. — An agreement that stock shall be liable for their keeping, with power to sell them to pay ex- penses, gives the bailee the right to sell only so much of it as is necessary to pay what might be due him for its keeping. A sale of more is a conversion, although such sale is not void, but voidable only, at the election ■of the party sought to be divested of the title. Whitlock v. Heard, 13 Ala. 776, 48 Am. Dec. 73. Stipulation for pay " before moving." — Under a contract for wintering cattle, which expresses the sum the agistor is to receive therefor, and provides that the amount so stipulated shall be paid " before moving the cattle " from the premises, the agistor is en- titled to retain possession of the cattle until payment to him of the sum stipulated for their keeping. McCoy v. Hock, 37 Iowa 436. 2. Hanch v. Ripley, 127 Ind. 151, 26 N. E. 70, 11 L. R. A. 61. Such liens have been held to exist in the following cases: Johnson v. Perrv, 53 Cal. 351 ; Fishell v. Morris, 57 Conn. 547, 18 Atl. 717, 6 L. R. A. 82; Kroll v. Ernst, 34 Nebr. 482, 51 N. W. 1 032 ;_ Gates v. Parrott, 31 Nebr. 581, 48 is. W. 387; Smith v. Harden, 60 N. H. 509; Towle v. Raymond, 58 N. H. •64. Statute not retroactive. — A person who Tiad an animal in his possession, under a con- tract with its owner for its keeping, at the time of the passage of the Maine act of 1872, c. 27, but who had no lien at common law nor by the terms of his contract, can claim none under that act for food or shelter furnished prior to its passage; but has one for what is afterward supplied, provided the rights of third parties are not affected thereby. Allen v. Ham, 63 Me. 532. 3. Hanch v. Ripley, 127 Ind. 151, 26 N. E. 70, 11 L. R. A. 61. " Liens are in derogation of the common law, and the court is pot authorized to ex- tend the law beyond the objects specifically provided for, or enforce a remedy provided hy statute except in accordance with the terms thereof." Lord v. Collins, 76 Me. 443, 444. 4. Merely paying or contracting to pay some value for the keeping is not sufficient. Cox v. McGuire, 26 111. App. 315; Sharp v. Johnson, (Oreg. 1901) 63 Pac. 485. 5. Conklin v. Carver, 19 Ind. 226, holding that the statute was not intended to include an insolated case of feeding. But see Kelsey v. Layne, 28 Kan. 218, 42 Am. Rep. 158, wherein it was held that the statute covered the case of one who for several years has kept a number of cattle belonging to the same person, although he kept no cattle for others. The owner of a farm is not entitled to a lien upon the stock of a farm-hand kept on said farm during his term of service for said owner, and pastured on the latter's land and fed with his grain, but which is otherwise cared for by such employee. Wright v. Wad- dell, 89 Iowa 350, 56 N. W. 650. Presumption. — Where the evidence showed a contract whereby defendant undertook, for a price stated, to keep fifty head of cattle for plaintiff in a manner and for a time stated, and that defendant performed the agreement, it was held, in an action of replevin, that the jury was warranted in inferring that defend- ant was in the business of feeding live stock, and accordingly entitled, under Ind. Rev. Stat. (1881), § 5292, to a lien. Bunnell v. Davisson, 85 Ind. 557. 6. Skinner v. Caughey, 64 Minn. 375, 67 N. W. 203; Underwood v. Birdsell, 6 Mont. 142, 9 Pac. 922; Bailey v. Davis, 19 Oreg. 217, 23 Pac. 881; Hooker v. McAllister, 12 Wash. 46, 40 Pac. 617. And to the same ■effect in Pennsylvania under the common law, see Hoover v. Epler, 52 Pa. St. 522. See 2 Cent. Dig. tit. " Animals," § 58. 7. Auld v. Travis, 5 Colo. App. 535, 39 Pac. 357. But see Corning v. Ashley, 51 Hun (N. Y.) 483, 4 N. Y. Suppl. 255 [af- firmed in 121 N. Y. 700, 24 N. E. 1100], wherein it was held that the fact that plain- tiff was one of several mortgagees to whom a chattel mortgage was given did not prevent him from acquiring a lien for the care of the Vol. II 318 ANIMALS (3) How Created — (a) Necessity op Delivery. Under such statutes before a lien is created there must be a delivery of possession. 8 (b) Necessity of Contract — aa. In General. It is further necessary that such delivery be under a contract for the keeping of the cattle for the purposes of the agistment, with an agreement to pay for the feed and care, 9 but an implied con- tract to pay for the keeping will be sufficient to sustain the lien. 10 bb. With Wnom Made- The contract must be made either with the owner or his agent. 11 (c) Necessity op Notice. To create the lien the statute in some states requires that previous notice of the amount of the charges, and of the intention to detain the animals until the charges are paid, must be given to the owner. 12 (4) Covers What Seevice. The statutes seem to contemplate a lien only for the amount which may be due for keeping ; 18 but. in the absence of a provision horse, especially since it appeared that, under the terms of the mortgage, plaintiff was not entitled to receive anything until other and prior claims had been first paid. 8. Auld v. Travis, 5 Colo. App. 535, 39 Pac. 357; H. Feltman Co. v. Chinn, 19 Ky. L. Rep. 1147, 43 S. W. 192; Underwood v, Birdsell, 6 Mont. 142, 9 Pae. 922. 9. Colorado. — Auld v. Travis, 5 Colo. App. 535, 39 Pac. 357. Missouri. — Cunningham v. Hamill, 84 Mo. App. 389. Montana. — Underwood p. Birdsell, 6 Mont. 142, 9 Pac. 922. Nebraska — Hale v. Wigton, 20 Nebr. 83, 29 N. W. 177. New York.— Cook v. Shattuek, 21 N. Y. Suppl. 29. For forms of contracts of agistment see O'Keefe v. Talbot, 84 Iowa 233, 50 N. W. 978; Meuly v. Corkill, 75 Tex. 599, 12 S. W. 1005; McAuley x. Harris, 71 Tex. 631, 9 S. W. 679. A party wrongfully converting stock to his use is not entitled to an agistor's lien for feeding and caring for the same as against one who is entitled to the possession thereof. Howard v. Burns, 44 Kan, 543, 24 Pac. 981. Terms " milk for meat." — Where cows were agisted on the terms, " milk for meat," that is, that the agistor should take their milk in exchange for their pasturage, the agist- ment was held to be within the statute. Lon- don, etc., Bank v. Belton, 15 Q. B. D. 457. 10. Thus, where, at the end of three months' pasturage, plaintiff tendered the amount due therefor and demanded his cattle, and defendant refused to accept the money or surrender the cattle, whereupon, on the same day, plaintiff brought replevin and took out his writ, but withheld service until the end of the fourth month, it was held that there arose an implied contract to pay for the keep- ing to the end of the fourth month which would sustain an agistor's lien. Powers v. Botts, 63 Mo. App. 285, 1 Mo. App. Rep. 780 ; Powers v. Botts, 58 Mo. App. 1. And where in an action to foreclose a chattel mortgage it was adjudged that plaintiff who seized the animals was not entitled thereto, and he thereupon notified the mortgagor that he held them subject to his order, but the latter failed to indicate that he would accept pos- session, such failure constitutes an implied Yol. II promise to pay the reasonable value of their keep from the time of notice. Iowa, etc., Bank v. Price, 12 S. D. 184, 80 N. W. 195. So, too, where defendant's horse strayed away and was taken up by plaintiff and turned into pasture to prevent damage on plaintiff's premises, and defendant learned the fact shortly thereafter, and sent plaintiff word that he owned the horse and not to ad- vertise it as an estray, but that he would come and get him, and thereafter allowed such horse to remain in plaintiff's care for nearly two years after notice that plaintiff would claim payment for feed and care, plaintiff was entitled to replevy the horse after de- fendant had removed him without plaintiff's consent, since plaintiff was entitled to pos- session of the horse under his lien for feed and care. Campbell v. Headen, 89 111. App. 172. 11. Elliott v. Martin, 105 Mich. 506, 63 N. W. 525, 55 Am. St. Rep. 461; Sherwood i: Neal, 41 Mo. App. 416. Mortgagee. — For this purpose a mortgagee of the horses, and not the mortgagor, is such owner. Howes v. Newcomb, 146 Mass. 76, 15 N. E. 123; Sargent v. Usher, 55 N. H. 287, 20 Am. Rep. 208. But an agistor acquires no lien under a contract made with the agent of a mortgagee under a void mortgage. Gates v. Parrott, 31 Nebr. 581, 48 N. W. 387. But see Corning v. Ashley, 51 Hun (N. Y.) 483, 4 N. Y. Suppl. 255 [affirmed in 121 N. Y. 700, 24 N. E. 1100], wherein it was held that a claim that, after default in the mortgage, the mortgagor was not " the owner " of the horse any longer was not well taken, as the word " owner," as used in the statute relat- ing to agistors' liens, is used in contradis- tinction with an entire stranger, a person who has no right or authority over the chat- tel. Sheriff. — A ranchman placed in possession of mortgaged cattle by the sheriff, to whom they were turned over for sale under the terms of the chattel mortgage, has a lien on the cattle. Vose v. Whitney, 7 Mont. 385, 16 Pac. 846. 12. Corning v. Ashley, 51 Hun (N. Y.) 483, 4 N. Y. Suppl. 255 [affirmed in 121 N. Y. 700, 24 N. E. 1100]. 13. Powers v. Botts, 58 Mo. App. 1. Breach of contract. — If there be a breach of the contract of agistment, as to the length ANIMALS 319 to the contrary in the statute or contract, there is nothing to limit the time covered. 14 (5) Attaches^ to What. The lien attaches only to the animals agisted ; 15 but where there is an entire contract for the keep of a number of animals the agistor has a lien on them all, not only for their proportionate part of the sum due for the keep of all, but for the entire amount due upon all the animals embraced in the contract. 16 (6) Lien Is Assignable. The lien of an agistor of cattle is assignable, since the action would survive and pass to the personal representative. 17 (7) Pbioeities. The lien of an agistor has priority over the lien of the assignee of past-due notes, secured by a mortgage on domestic animals, the pos- session of which remains in the mortgagor, 18 and likewise over a chattel mortgage executed while the animals were in possession of the agistor, of which fact the mortgagee had notice when he took the mortgage. 19 Ordinarily, the lien of a chattel mortgage duly recorded is held to be paramount to that of an agistor for subsequently pasturing the mortgaged stock, unless it is shown that the mort- gagee consented, either expressly or impliedly, that such stock might be so pas- tured and subjected to such lien. 20 But there are decisions to the contrary. 21 of time or in other particulars, such breach would give an action for damages as in other cases, but would not constitute the basis of » lien. Powers v. Botts, 58 Mo. App. 1. Shoeing. — A trainer has no lien upon a mare for the expenses of shoeing her while in his possession, when no charge was made against him therefor. Barringer v. Burns, 108 N. C. 606, 13 S. E. 142. Training. — Iowa Laws (1880), c. 25, § 1, which provides that the keepers of livery and feed-stables, herders, and feeders of stock for hire, shall have a lien for their charges and expenses as such, does not give a, lien to one who is " a professional trainer of horses for speed " on horses which he has in his posses- sion under contract to train. Scott v. Mer- cer, (Iowa 1895) 63 N. W. 325. 14. Allen v. Ham, 63 Me. 532. 15. Fein v. Wyoming L. & T. Co., 3 Wyo. 331, 22 Pac. 1150, holding that wagons, ox- yokes, and chains are not subject to the lien. No lien exists, therefore, on the surplus arising from the proceeds of sale, after satis- faction of an execution issued upon a judg- ment on a petition to enforce an agistor's lien, for the keep of animals during the time intervening between the dates of the two pe- titions. Lord v. Collins, 76 Me. 443. 16. George R. Barse Live-Stock Commis- sion Co. v. Adams, (Indian Terr. 1899) 48 S. W. 1023; Yearsley v. Gray, 140 Pa. St. 238, 21 Atl. 318. 17. McPherson First Nat. Bank v. Geo. R. Barse Live Stock Commission Co., 61 Mo. App. 143. 18. Blain v. Manning, 36 111. App. 214. 19. Tabor v. Salisbury, 3 Colo. App. 335, 33 Pac. 190. 20. Indiana. — Hanch v. "Ripley, 127 Ind. 151, 26 N. E. 70, 11 L. R. A. 61; Woodard v. Myers, 15 Ind. App. 42, 43 N. E. 573. Neio Hampshire.— Sargent v. Usher, 55 N. H. 287, 20 Am. Rep. 208. New York. — Bissell v. Pearce, 28 N. Y. 252 Idistinguished in Corning v. Ashley, 51 Hun (N. Y.) 483, 4 ST. Y. Suppl. 255 {affirmed in 121 N. Y. 700, 24 N. E. 1100)]. South Dakota. — Wright v. Sherman, 3 S. D. 290, 52 N. W. 1093, 17 L. R. A. 792. Vermont. — Ingalls v. Vance, 61 Vt. 582,18 Atl. 452. See 2 Cent. Dig. tit. "Animals," § 57. Retention of possession by mortgagor. — While such consent may be shown by circum- stances, the fact that the mortgagor retains possession of the mortgaged property is not of itself proof of such consent. Wright v. Sherman, 3 S. D. 290, 52 N. W. 1093, 17 L. R. A. 792. Mere knowledge of bailment. — Such con- sent will not be implied from the mere knowl- edge of such mortgagee that, after the exe- cution of his mortgage, the property had been placed in the hands of a third party to be kept. Ingalls v. Vance, 61 Vt. 582, 18 Atl. 452. Failure to act after breach. — The failure of a mortgagee to assert his right to the posses- sion of the animal on breach of the condition for the payment of the debt when due, in view of the fact that the feed and care of the animal by the bailee was necessary to the preservation of the life of the animal, may fairly be construed by the jury, under the circumstances, as a waiver of mortgagee's su- perior lien in favor of the agistor's lien. Woodard v. Myers, 15 Ind. App. 42, 43 N. E. 573. Agistor entitled to balance. — Where live stock, which is encumbered by a chattel mort- gage and also by an agistor's lien subsequent thereto, is taken from the possession of the agistor in invitum and sold upon the mort- gage, any balance remaining in the hands of the officer after satisfaction of the mortgage belongs to the agistor up to the amount of his lien. Ingalls v. Green, 62 Vt. 436, 20 Atl. 196. 31. Case v. Allen, 21 Kan. 217, 30 Am. Rep. 425 ; Willard v. Whinfield, 2 Kan. App. 53, 43 Pac. 314; Corning v. Ashley, 51 Hun Vol. II 320 ANIMALS (8) Waivee and Extinguishment. An agistor cannot be deprived of his lien upon live stock except by his voluntary relinquishment of the lien, or by such conduct as estops him from asserting it. 22 A voluntary parting 23 with pos- session of the animal is an abandonment of the lien, 24 which may be surren- dered also by agreement; but as the lien must be regarded as something of value, such agreement, in order to be obligatory, must be based on a legal consid- eration. 25 Tender of the full amount due for the keep of cattle extinguishes the lien given by statute, but does not take away plaintiff's right to an ordinary money judgment for that amount, without costs, although plaintiff refuses the tender and sues to enforce a lien for a greater amount. 26 (9) How Enforced. One lawfully claiming a lien for feeding live stock has the right of possession until the debt is paid, but he can do nothing else to enforce payment except in pursuance of the statute providing for the enforcement of such a lien. 27 Thus, when the statute gives the right to enforce by sale, 28 if the sale is made without complying with the provisions of the statute, the owner of the stock may resume possession thereof, or he may bring an action for the con- version of the same. 29 In an action to foreclose, the animals upon which a lien is claimed must be sufficiently described. 30 An allegation that petitioner " kept " the animal is substantially an allegation that food and shelter were furnished. 31 IX. Y.) 483, 4 X. Y. Suppl. 255 [distinguish- ing Bissell v. Pearee, 28 X. Y. 252] ; Aly- more v. Kahn, 11 Ohio Cir. Ct. 392. But see Graham v. Winchell, 3 Ohio X. P. 106. 22. Weber v. Whetstone, 53 Nebr. 371, 73 X. W. 695, holding that a purchaser for value without actual notice of the lien takes sub- ject thereto. See 2 Cent. Dig. tit. "Animals," §§ 64, 65. 23. Where an agistor leaves the stock he is feeding and caring for to be herded tem- porarily by another person, and they are driven off during his temporary absence by the owner or one having a special ownership in them, the agistor will not be deemed to have lost his lien, if, within a reasonable time, he demands a return of the stock. Wil- lard v. Whinfield, 2 Kan. App. 53, 43 Pac. 314. See also Weber r. Whetstone, 53 Nebr. 371, 73 N. W. 695. 24. Connecticut. — Fishell v. Morris, 57 Conn. 547, 18 Atl. 717, 6 L. R. A. 82. Iowa. — Wright v. Waddell, 89 Iowa 350, 56 N. W. 650. Maine. — Danforth v. Pratt, 42 Me. 50. Missouri. — McPherson First Xat. Bank r. Geo. R. Barse Live Stock Commission Co., 61 Mo. App. 143; Powers v. Botts. 58 Mo. App. 1. Nebraska. — Kroll v. Ernst, 34 Xebr. 482, 51 N. W. 1032. Nevada. — Cardinal v. Edwards. 5 Xev. 36. See 2 Cent. Dig. tit. "Animals," § 65. Must assert right in unequivocal terms. — The claimant of such lien, if he means to abide by it, should assert it in unequivocal terms, and not leave it to conjecture whether he bases his detention of the property on ac- count of his lien, or some other ground. He cannot be permitted to maintain a lien in the face of his own disclaimer. Workman r. Warder, 28 Mo. App. 1. But see Brown v. Holmes, 21 Kan. 687, to the effect that if a person who has a lien for the keeping and feeding of cattle claims to detain them in his possession on more than one ground, but ex- pressly makes mention of his lien and charges Vol. II as one of his reasons for such detention, such declaration will not be considered a waiver, or an abandonment of his lien. Causing to be taken on execution. — Where an agistor or trainer causes property subject to his lien to be taken on execution at his own suit, and assents to the officer's taking possession thereof, he thereby surrenders his lien. Fein v. Wyoming L. & T. Co., 3 Wyo. 331, 22 Pac. 1150; Jacobs v. Latour, 5 Bing. 130, 15 E. C. L. 506. A mere offer to buy the animal from one having no authority to sell will not be deemed a waiver. Lord v. Jones, 24 Me. 439, 41 Am. Dec. 391. 25. The promise, not in writing, of a third party, to pay the amount necessary to dis- charge the lien, is an undertaking to pay the debt of another, void by statute of frauds, and furnishes no consideration for such an agreement. Danforth r. Pratt, 42 Me. 50. 26. Berrv r. Tilden, 70 Mo. 489. 27. Greenawalt r. Wilson, 52 Kan. 109, 34 Pac. 403. Constitutionality of statute. — The Ken- tucky statute authorizing a warrant to be sued out, directing the proper officer to levy upon and seize the cattle for the amount due, and requiring the proceedings under the war- rant to be in all respects the same as in cases of distress for rent, is not unconstitutional. Griffith r. Gross, (Kv. 1900) 55 S. W. 1077. 28. Such right is given by the New Hamp- shire statute. Towle v. Raymond, 58 N. H. 64. 29. Greenawalt v. Wilson, 52 Kan. 109, 34 Pac. 403. 30. An allegation that defendant owned » certain flock of sheep, giving their number, and that they are within a certain county, and have at all times prior to the filing of the complaint been within the state, is not a sufficient description. Hooker v. McAllister, 12 Wash. 46, 40 Pac. 617. 31. Allen v. Ham, 63 Me. 532. ANIMALS 321 Though no lien exists for shoeing the animal, nor for the payment of taxes assessed upon him, the insertion of a count claiming a lien for such items will not invalidate the petition. 32 (10) How Pleaded. It is well established that the lien is admissible as a defense under a plea denying property in plaintiff. 83 b. Against Third Persons. By the common law an agistor lias such title in virtue of his possession as enables him to maintain trespass or trover for an injury to, 34 or conversion of, 85 the animals. 3. Liabilities of Agistor — a. To Owner — (i) In General. In the absence of a special contract S6 an agistor is not an insurer. 37 In caring for the animals in his charge he is required to exercise only reasonable care and diligence, 38 becom- 32. Allen v. Ham, 63 Me. 532. 33. Richards v. Svmons, 8 Q. B. 90, 55 E. C. L. 90, 15 L. J. N." S. 35, 10 Jur. 6. 34. New York, etc., E. Co. v. Auer, 106 Ind. 219, 6 N. E. 330, 55 Am. Rep. 734 [cit- ing Story Bailm. § 443] ; Weymouth v. Gile, 72 Me. 446; Betts v. Mouser, Wright (Ohio) 744. 35. Colorado. — Auld v. Travis, 5 Colo. App. 535, 39 Pac. 357. Indiana. — New York, etc., R. Co. v. Auer, 106 Ind. 219, 6 N. E. 330, 55 Am. Rep. 734 [citing Story Bailm. § 443]. New York. — Bass v. Pierce, 16 Barb. (N. Y.) 595. Ohio. — Betts v. Mouser, Wright (Ohio) 744. England. — Burton v. Hughes, 2 Bing. 173, 9 E. C. L. 533 ; Wilbraham v. Snow, 2 Saund. 47; Sutton v. Buck, 2 Taunt. 302. See 2 Cent. Dig. tit. "Animals," § 41. " If he has sued by authority and has re- covered the value, the recovery is conclusive of the subject. If the agistor sue and re- cover the value, he elects to hold himself an- swerable to the owner. If the owner sanction the suit, he cannot afterward question the right." Betts v. Mouser. Wright (Ohio) 744, 745. 36. Cummings v. Mastin, 43 Mo. App. 558 ; Calland v. Nichols, 30 Nebr. 532, 46 N. W. 631. If the contract provides specifically what shall be done in certain particulars, any im- plication of duty to exercise reasonable care in those particulars is excluded, and the stip- ulated things must be done. Bunnell v. Da- visson, 85 Tnd. 557 ; Ware Cattle Co. v. An- derson, 107 Iowa 231, 77 N. W. 1026. Preservation of hides. — Where one of the parties to the, contract was to preserve the hides of the cattle which died, as evidence of death, and the ears of any which had ear- marks, and there was no provision in the contract as to when the hides of cattle which had died should be counted, it was held that the hides preserved should be counted at the time of death, with a, view of making them available for use or sale. Teal v. Bilby, 123 TJ. S. 572. 8 S. Ct. 239, 31 L. ed. 263. 37. Illinois.— Halty v. Markel, 44 111. 225, 92 Am. Dec. 182. Iowa.— O'Keefe v. Talbot, 84 Iowa '233, 50 N. W. 978. Missouri. — McCarthy v. Wolfe, 40 Mo. 520 ; Winston v. Tavlor, 28 Mo. 82, 75 Am. Dec. [21] 112; Rey v. Toney, 24 Mo. 600, 69 Am. Dec. 444; Crawford v. Cushman, 82 Mo. App. 554; Cummings v. Mastin, 43 Mo. App. 558. A T c?r York. — Gibbs v. Coykendall, 39 Hun (N. Y.) 140 [affirmed in 116 N. Y. 666, 22 N. E. 1135] : Bass v. Pierce, 16 Barb. (N. Y.) 595. England. — Smith v. Cook, 1 Q. B. D. 79; Broadwater v. Blot, Holt 547, 3 E. C. L. 216. See 2 Cent. Dig. tit. "Animals," §§ 43, 44. 38. Illinois. — Union Stock- Yard, etc., Co. v. Mallory, etc., Co., 157 111. 554, 41 N. E. 888, 48 Am. St. Rep. 341; Cloyd v. Steiger, 139 111. 41, 28 N. E. 987 [affirming 38 111. App. 107] ; Mansfield v. Cole, 61 111. 191 ; Umlauf v. Bassett, 38 111. 96. Kansas. — Ransom v. Getty, 37 Kan. 75, 14 Pac. 487. Massachusetts. — Wood v. Remick, 143 Mass. 453, 9 N. E. 831. Missouri. — Winston v. Taylor, 28 Mo. 82, 75 Am. Dec. 112. Nebraska. — : Calland r. Nichols, 30 Nebr. 532, 46 N. W. 631. New Jersey. — Deyer v. Ashley, 6 N. J. L. J. 283. New York. — Gibbs v. Coykendall, 39 Hun (N. Y.) 140 [affirmed in 116 N. Y. 666, 22 N. E. 1135]. Pennsylvania. — Murray v. Rhodes, 3 Lack. Jur. (Pa.) 123. Texas. — Brush v. Clarendon Land, etc., Co., 2 Tex. Civ. App. 188, 21 S. W. 389. Vermont. — Sargent r. Slack, 47 Vt. 674, 19 Am. Rep. 136; Phelps r. Paris, 39 Vt. 511; Eastman v. Patterson, 38 Vt. 146. England.— Smith r. Cook, 1 Q. B. D. 79. See 2 Cent. Dig. tit. "Animals," §§ 43, 44. So, too, if A place a dog with B, and the dog be received by B, to be kept by him for reward to be paid to him by A, B is not re- sponsible for the loss of the dog if he took reasonable care of it; but if the dog be lost, the onus lies on B to acquit himself by show- = ing that he was not in fault with respect to the loss. Mackenzie v. Cox, 9 C. & P. 632, 38 E. C. L. 369. " The test is not necessarily the care which the agistor may exercise as to his own ani- mals, for they may be accustomed to a place of danger to which a strange horse would be unused, and he may choose to take risks as to his own property which would be unwar- rantable as to that of another for which he is to be paid." Pearce v. Sheppard, 24 Ont. 167, 170. Vol. II 322 ANIMALS ing liable for loss thereof or injury thereto only where there is a want of such care on his part. 89 (n) For Conversion. The unauthorized use by an agistor of animals in his custody is a conversion ; w but an offer to sell, in an attempt to enforce the lien by an irregular mode, will not be treated as such. 41 Duty to fence. — A farmer who takes in cattle to pasture for hire must keep his ground under a good fence; and, if it be not ' so at the time he receives cattle, he ought im- mediately to repair it. Even though the owner of the cattle sees the fence is bad, the farmer is bound to put and keep it in good order, for the owner of the cattle has a right to expect this will be done, and need not make it » condition of the contract, for this condition is of the nature of the contract. Cecil v. Preuch, 4 Mart. N. S. (La.) 256, 16 Am. Dec. 171. Duty as to male animals. — When the owner or keeper of a ram is bailee of the sheep of another, and the parties have made no express stipulations by contract as to the manner in which the sheep would be kept, or the care which the bailee should take of them, he should, upon principle, be required to keep them separate and apart from his ram dur- ing the period the statute requires him to re- strain it from running at large off his own premises. Phelps v. Paris, 39 Vt. 511. An unusual risk to which cattle are ex- posed in the agistor's grounds should be brought to the notice of customers. MeLain v. Lloyd, 5 Phila. (Pa.) 195, 20 Leg. Int. (Pa.) 348. 39. Illinois.— Mansfield v. Cole, 61 111. 191. Missouri. — McCarthy v. Wolfe, 40 Mo. 520 ; Winston v. Taylor, 28 Mo. 82, 75 Am. Dec. 112; Rey v. Toney, 24 Mo. 600, 69 Am. Dec. 444; Owens v. Geiger, 2 Mo. 39, 22 Am. Dec. 435; Cummings v. Mastin, 43 Mo. App. 558. New York. — Gibbs v. Coykendall, 39 Hun (N. Y.) 140 [.affirmed in 116 N. Y. 666, 22 N. E. 1135] ; Bass v. Pierce, 16 Barb. (N. Y.) 595. Pennsylvania. — Cook v. Haggarty, 36 Pa. St. 67. Texas. — Brush v. Clarendon Land, etc., Co., 2 Tex. Civ. App. 188, 21 S. W. 389. England. — Broadwater v. Blot, Holt 547, 3 E. C. L. 216. See 2 Cent. Dig. tit. "Animals," §§ 43, 44. Injury from contracting disease. — It is the duty of an agistor who takes animals for pasture to know their condition as to health; and if he has knowledge of the prevalence of a distemper among them of a contagious character, and fails to inform a customer of the fact, whose animal takes the distemper from contact with the diseased animals, and in consequence dies, the owner is entitled to recover its value in an action on the case, notwithstanding the contract for such pas- turage is void because entered into on Sun- day. Costello v. Ten Eyck, 86 Mich. 348, 49 N. W. 152, 24 Am. St. Rep. 128. But see Gibbs v. Coykendall, 39 Hun (N. Y.) 140 [affirmed in 116 N. Y. 666, 22 N. E. 1135], wherein plaintiff's cattle .were sound and Vol. II healthy when turned into the pasture, but soon after became sick and died of Texas fever, which disease they contracted from the dejections of Texan cattle which defendant had previously pastured upon the farm, of which fact plaintiff was ignorant. The jury found that defendant did not, at the time of receiving plaintiff's cattle, know that there was danger of native cattle contracting the disease by being pastured upon fields pre- viously occupied by Texan cattle, and it was held that defendant was not liable for the damages sustained by plaintiff and that the liability of native cattle to contract such disease under such circumstances was not sufficiently well known among the farmers of New York to charge defendant with knowl- edge of that fact. Injury from vicious animals. — Where an agistor has knowledge of the vicious charac- ter of an animal in his pasture, he will be liable for injuries which such animal may in- flict on other animals taken for pasture. Schroeder v. Paires, 49 Mo. App. 470. The fact that defendant had no knowledge of the mischievous disposition of the particular ani- mal is no ground for disturbing a verdict in favor of the bailor, as such knowledge is not essential to his liability, under his contract as an agistor, to take reasonable care of plaintiff's animal. Smith v. Cook, 1 Q. B. D. 79. Poor pasturage. — The owner of a pasture who receives cattle therein for a stipulated time, at a sum agreed on, is not liable for loss resulting from poor pasturage or want of water when the owner of the cattle has reserved the right, as a part of the contract, to remove the cattle whenever they might be liable to loss from defective supply of either grass or water, and when the condition of the pasture at the time of the contract is known to both contracting parties. Meuly v. Cor- kill, 75 Tex. 599, 12 S. W. 1005. But an agreement not to overstock the pasture has been held to be a continuing covenant, and the fact that the owner of the stock inspected the pasture, and acquainted himself with its capacity before the contract, does not relieve the owner from his covenant against over- stocking it. McAuley v. Harris, 71 Tex. 631, 9 S. WT 679. 40. Gooe v. Watson, 61 N. H. 136 ; Collins v. Bennett, 46 N". Y. 490. But see Johnson v. Weedman, 5 111. 495, to the effect that where a horse was delivered by plaintiff to defendant to be agisted, and defendant, with- out authority of plaintiff, rode the horse fif- teen miles, and the horse died a few hours afterward, but not in consequence of the rid- ing, plaintiff could not sustain an action for trover and conversion. 41. Shields v. Dodge, 14 Lea (Tenn.) 356. ANIMALS 323 (hi) For Acts of Servants. An agistor is bound to employ careful, skil- ful, and trustworthy servants. He is liable for all injuries done by them, in the course of their employment, through negligence or carelessness ; 42 but he is not liable for any malicious or wilful act committed by them without his knowledge or consent and outside the scope of their authority. 43 (iv) Action against Agistor — (a) Pleading. u In an action against an agistor, it is necessary to allege only his business, a delivery to and acceptance of the animals by him, the tender of the amount due, and a demand and refusal to return the animals. It is not necessary to aver negligence. 45 (b) Evidence — (1) Bukden of Pboof. If plaintiff contends that the cattle are injured by the negligence of the agistor, the burden of proof is upon plaintiff to show such negligence. 46 (2) Admissibility. Evidence that the condition of the fence was good around other parts of the pasture than that where the animal was injured ; that defend- ant was reported to be a prudent agistor of horses and was intrusted with many valuable horses to pasture ; and that, in particular instances, she had refused to assume the risk, as tending to show a general custom by her not to assume risks, is admissible. 47 (c) Question of Fact. Whether an agistor of cattle is negligent or acts in a wrongful manner is purely a question of fact, to be found by the jury or referee. 48 b. To Third Persons. An agistor who has the care and custody of animals for the purpose of pasturing them is liable for damage done by them in the same manner and to the same extent as the owner. 49 4. Liability of Owner. At the common law the owner as well as the agistor was liable for damage committed by the cattle agisted ; 60 but in some states it is held that where the animals are in the hands of an agistor, and are suffered to 42. Halty v. Markel, 44 111. 225, 92 Am. Dec. 182; Rohrabacher v. Ware, 37 Iowa 85; Sinclair v. Pearson, 7 N. H. 219. 43. Halty v. Markel, 44 111. 225, 92 Am. Dec. 182. 44. For forms of declarations against agistor by owner see Costello v. Ten Eyck, 86 Mich. 348, 49 N. W. 152, 24 Am. St. Rep. 128; Cook v. Haggarty, 36 Pa. St. 67. 45. Cummings v. Mastin, 43 Mo. App. 558. Right to interest. — Where cattle are de- livered by the owner to another to be fat- tened and returned at a certain day, upon payment being made for feeding them, and the party to whom they are delivered sells them and converts them into money, in an action of assumpsit for the proceeds of the cattle the owner will be entitled to interest upon the value of the cattle from the time of the demand for the redelivery of the cattle, made after the time fixed for their redelivery, till the date of the trial of the cause. Staat v. Evans, 35 111. 455. 46. Wood v. Remick, 143 Mass. 453, 9 N. E. 831; McCarthy v. Wolfe, 40 Mo. 520; Rayl v. Kreilich, 74 Mo. App. 246 ; Casey v. Dono- van, 65 Mo. App. 521 ; Calland v. Nichols, 30 Xebr. 532, 46 N. W. 631; Kemp v. Phillips, 55 Vt. 69. But see Hudson v. Bradford, 91 111. App. 218; Crawford v. Cashman, 82 Mo. App. 554, to the effect that where it is shown that the agistor received the animals in good condi- tion and failed so to return them a prima facie case of negligence is made out. 47. Lucia v. Meech. 68 Vt. 175, 34 Atl. 695. Evidence as to use of animal. — The exclu- sion of evidence offered by plaintiff that de- fendant has used some of the stock without his consent, where use by a keeper of a " public ranch or stable " forfeits his lien on the animal so used, is not reversible error where a plaintiff does not offer to prove that defendant keeps a public ranch, and does not offer proof to reduce the defendant's lien but only to prove damages. Harper v. Lockhart, 9 Colo. App. 430, 48 Pac. 901. 48. Halty v. Markel, 44 111. 225, 92 Am. Dec. 182; Kemp v. Phillips, 55 Vt. 69. 49. Connecticut. — Barnum v. Vandusen, 16 Conn. 200. Maine. — Weymouth v. Gile, 72 Me. 446. Massachusetts. — Sheridan v. Bean, 8 Mete. (Mass.) 284, 41 Am. Dec. 507. Missouri. — Reddick v. Newburn, 76 Mo. 423. Nebraska. — Laflm v. Svoboda, 37 Nebr. 368, 55 N. W. 1049. New Hampshire. — Kennett v. Durgin, 59 N. H. 560; Tewksbury v. Bucklin, 7 N. H. 518. Oregon. — Bileu v. Paisley, 18 Oreg. 47, 21 Pac. 934, 4 L. R. A. 840. Pennsylvania. — Rossell v. Cottom, 31 Pa. St. 525. England. — Bacon Abr. tit. Trespass, G. 2 ; 1 Esp. N. P. Dig. 387, tit. Trespass; Viner Abr. tit. Trespass, B. See 2 Cent. Dig. tit. "Animals," § 49. 50. Weymouth v. Gile, 72 Me. 446; Sher- idan v. Bean, 8 Mete. (Mass.) 284, 41 Am. Dec. 507; Blaisdell v. Stone, 60 N. H. 507; Bacon Abr. tit. Trespass, G, 2; Viner Abr. tit. Trespass, B. Vol. II 324 ANIMALS escape and do mischief, he, and not the owner, is the party responsible, 51 unless the owner purposely selected an irresponsible, incompetent, or untrustworthy bailee. 52 IV. BRANDS AND MARKS. 53 A. As Evidence of Ownership — 1. In General. In several of the states where stock-raising is a leading industry and cattle are allowed to run at large, the legislatures, in order to prevent controversies and to secure the evidence of own- ership in a practical mode best adapted to the circumstances of the country, have passed laws 54 regulating the marking, branding, and counter-branding of stock. These laws are imperative in their character, and are required by the wants and necessities of the country. 55 By some of these statutes it is expressly provided that a lawfully-recorded brand shall be jjrima facie evidence of ownership, 56 and even in the absence of such provision it has been so held. 57 Such statutes do not 51. Ozburn v. Adams, 70 111. 291; Ward v. Brown. 64 111. 307, 16 Am. Rep. 561; Red- dick i. Xewburn, 76 Mo. 423; Atwater r. Lowe, 39 Hun (X. Y.) 150; Rossell v. Cot- tom, 31 Pa. St. 525. 52. Ward v. Brown, 64 111. 307, 16 Am. Rep. 561; Reddick v. Xewburn, 76 Mo. 423. 53. Slaughtering unmarked cattle see in- fra, XV, A. 54. More than one brand. — Where it was objected that the court erred, in admitting copies of brands, because they showed differ- ent brands in each county, it was held that even where a statute provides that an indi- vidual shall have but ojie mark and brand for his cattle, yet, if he remove the cattle from the county in which his brand is re- corded, and for any reason causes a different brand to be recorded in the county to which the cattle are removed, the new brand does not invalidate the old one, nor deprive the owner of any benefit accruing from its regis- tration. MeClure r. Sheek, 68 Tex. 426, 4 S. W. 552. But see Unsell v. State, 39 Tex. Crim. 330, 45 S. W. 1022, holding that the record of a second brand in the same county while the first remains unabandoned is not admissible to prove ownership, the statute providing for the use of only one brand by one person. 55. Walden r. Murdock, 23 Cal. 540, 83 Am. Dec. 135: Beyman r. Black, 47 Tex. 55S. 56. Chesnut r. People, 21 Colo. 512, 42 Pac. 656; Murray r. Trinidad Xat. Bank, 5 Colo. App. 359, 38 Pac. 615; State v. Car- delli, 19 Xev. 319, 10 Pac. 433. Ownership of person whose brand it may be. — Under X. M. Comp. Laws, § 57, a duly recorded brand is evidence, not of ownership in the person in whose name it is recorded, but in the owner of the brand, and on a trial for larceny of an animal it may be alleged and proved that a person other than he in whose name the brand was recorded was the owner of the brand, or of the animal, at the time of the larceny. Territory v. Chavez, (X. M. 1892) 30 Pac. 903. See also Brill r. Christy, (Ariz. 1901) 63 Pac. 757. Presumption of ownership rebutted. — Where plaintiff in replevin introduced evidence that the cow replevied was given to her, and was Vol. II kept on a farm, and was branded the same as the cattle that were kept on the farm, and the owner of the farm notified, and pasturage paid for the cow, the evidence was held to be sufficient to overcome any presumption of ownership, and to put defendant upon his proof. Debord v. Johnston, 11 Colo. App. 402, 53 Pac. 255. 57. De Garca r. Galvan, 55 Tex. 53 ; Schneider r. Fowler, 1 Tex. App. Civ. Cas. § 856. To the same effect see Smith r. State, 1 Tex. App. 133, where, on a trial for theft of a branded steer, the accused proved that be- fore he took the animal he had recorded the brand as his own, and he asked the court to instruct the jury that " the record of marks and brands is prima facie evidence of owner- ship, and the oldest record is prima facie the best." which the court modified by interpolat- ing the words, " in good faith," after the word " brands," and the modification was held to be proper. But see Stewart c. Hunter, 16 Oreg. 62, 66, 16 Pac. 876, 8 Am. St. Rep. 267 (wherein the court, in speaking of a recorded brand, said: " Branding stock furnishes evidence of its ownership, though it does not constitute im- plied notice of the fact. It is a circumstance which will aid in ascertaining to whom it belongs, but is not constructive notice that it belongs to the party branding it " ) , and Al- exander v. State, 24 Tex. App. 126, 127, 5 S. W. 840 (where the court said: "While a recorded brand is admissible in evidence to prove ownership, the statute does not make it prima facie proof of ownership, nor attach to it any peculiar weight, or even expressly declare it to be admissible evidence. It is like any other evidence of ownership, and, having been admitted in evidence, is for the consideration of the jury like any other evi- dence, and the court is not required to, and ordinarily should not, call particular atten- tion to it in the charge"). A brand of itself is not conclusive evidence of the ownership of an animal any more than the fact of an animal being unbranded is conclusive of want of ownership. Davis ('. Green, 2 Hawaii 367; Plummer v. Newdigate, 2 Duv. (Ky.) 1, 87 Am. Dec. 479; Peoples r. Devault, 11 Heisk. (Tenn.) 431. ANIMALS 325 contemplate, however, that a recorded brand or mark shall be the exclusive mode of proving ownership. 58 2. Recording — a. Necessity for — (i) When Offered to Prove Ownership — (a) Brand. By some statutes it is provided that a brand shall not be any evidence of ownership unless the same has been recorded ; 69 and, since an unre- corded brand is no evidence that the actual owner owns the animal, it is self- evident that it cannot be evidence that a special owner has the management and control thereof. 60 (b) Maries. Although the Texas statute requires m#rks to be recorded, it does not provide, as in the case of brands, that they shall not be evidence of ownership unless so recorded, and hence an unrecorded mark is admissible in evidence in proof of ownership. 61 (n) When Offered to Prove Identity. An unrecorded brand is admis- sible, in connection with other proof, to identify an animal, 62 even where the statute provides that no brand except such as is recorded shall be recognized as any evidence of ownership. 63 For this purpose the brand is admissible in evidence although recorded after the commission of the offense. 64 t). Where Reeorded. The statute requires only that the owner of a mark or brand shall record the same in the county comprising the intended range of his stock. Such a statute does not require the owner to record his mark and brand in every county into which his cattle may stray. 65 The owner may, however, record his mark and brand in as many counties as he thinks necessary. 66 e. Requisites of Record — (i) In General. "Where the record shows dis- tinctly the brand and mark claimed, and by whom they are claimed, it attains all the purposes of the law. 67 58. Irrespective of any brand, ownership and identification may be shown by the flesh- marks or other satisfactory evidence. Bazell v. State, 89 Ala. 14, 8 So. 22 ; Hutto v. State, 7 Tex. App. 44; Wolf v. State, 4 Tex. App. 332; Pisher v. State, 4 Tex. App. 181; Lock- hart v. State, 3 Tex. App. 567 ; Jones v. State, 3 Tex. App. 498. 59. Murray v. Trinidad Nat. Bank, 5 Colo. App. 359, 38 Pac 615; Allen v. State, 42 Tex. 517; Poag v. State, 40 Tex. 151; Herber r. State, 7 Tex. 69: Childers v. State, 37 Tex Crim. 392, 35 S. W. 654; Gregory v. Nunn (Tex. Civ. App. 1894) 25 S. W. 1083; Thomp son v. State, 26 Tex. App. 406, 9 S. W. 760 Burke v. State, 25 Tex. App. 172, 7 S. W. 873; Thompson v. State, 25 Tex. App. 161, 7 S. W. 589; Crowell v. State, 24 Tex. App 404, 6 S. W. 318 ; Morrow v. State, 22 Tex App. 239, 2 S. W. 624; Wyers v. State, 21 Tex. App. 448, 2 S. W. 816; Hutto v. State, 7 Tex. App. 44; Fisher v. State, 4 Tex. App. 181. See 2 Cent. Dig. tit. "Animals," §§ 9, 10. That accused failed to claim authority from any one to kill the animal in question does not make an unrecorded brand evidence of ownership. McKenzie v. State, 32 Tex. Crim. 568, 25 S. W. 426, 40 Am. St. Rep. 795. Whether another state has such a statute or not has been held immaterial where, on an indictment for bringing into the state an ani- mal stolen in another state, an attempt was made to prove ownership by an unrecorded brand. McKenzie v. State, 32 Tex. Crim. 568, 25 S. W. 426, 40 Am. St. Rep. 795. 60. McKenzie v. State, 32 Tex. Crim. 568, 25 S. W. 426, 40 Am. St. Rep. 795. 61. Dixon v. State, 19 Tex. 134; Coffelt v. State, 19 Tex. App. 436; Love v. State, 15 Tex. App. 563; Dreyer v. State, 11 Tex. App. 631 ; Kelly v. State, 1 Tex. App. 628 ; John- son v. State, 1 Tex. App. 333. See 2 Cent. Dig. tit. "Animals," § 9. 62. Brooke r. People, 23 Colo. 375, 48 Pae. 502; State v. Cardelli, 19 Nev. 319, 10 Pac. 433. 63. Poage v. State, 43 Tex. 454; Childers r. State, 37 Tex. Crim. 392, 35 S. W. 654; Gregory v. Nunn, (Tex. Civ. App. 1894) 25 S. W. 1083 ; Loekwood v. State, 32 Tex. Crim. 137. 22 S. W. 413; Tittle v. State, 30 Tex. App. 597, 17 S. W. 1118; Horn v. State, 30 Tex. App. 541, 17 S. W. 1094; Coffelt v. State, 19 Tex. App. 436; Coombes v. State, 17 Tex. App. 258; Johnson v. State, 1 Tex. App. 333. 64. Chesnut v. People, 21 Colo. 512, 42 Pac. 666 ; Turner v. State, 39 Tex. Crim. 322, 45 S. W. 1020; Crowell v. State, 24 Tex. App. 404, 6 S. W. 318: Harvey v. State, 21 Tex. App. 178, 17 S. W. 158; Spinks v. State, 8 Tex. App. 125; Priesmuth v. State, 1 Tex. App. 480. 65. Thompson v. State, 26 Tex. App. 466, 9 S. W. 760; Walton v. State, (Tex. Crim. 1900) 55 S. W. 566; Atterberry v. State, 19 Tex. App. 401, the last two cases holding that a record of marks and brands in one county was evidence of ownership in every other countv. 66.' Atterberry v. State, 19 Tex. App. 401. 67. McClure v. Sheek, 68 Tex. 426, 4 S. W. 552. Vol. II 326 ANIMALS (n) Kind of Animal to Be Branded. The law does not require the record to state whether the brand is to be used on horses, cattle, or other property. 68 (hi) Part of Animal to Be Branded. The record must designate the part of the animal upon which the brand is to be placed. 69 But it has been held that the statute controlling this subject cannot be construed to mean that the record shall designate the particular right or left side, shoulder, flank, or hip of the animal upon which it is to be placed. 70 (iv) Residence of Owner. The statute requires the certificate to be filed in the county wherein the person filing the same resides, but does not require that the record shall show such residence. 71 3. How Proved. The record itself, 72 or a certified copy thereof, 73 is admissible to prove ownership ; but it is error to permit proof by parol that a brand has been recorded. 74 B. Title to — How Passed. In the absence of statute recorded brands are subject to sale or transfer like other personal property, and such transfer may be shown by parol evidence ; n but, in some states, by statute, a parol sale of a recorded mark or brand is ineffectual to pass title, 76 although such sale may be proved by parol. 77 C. Unlawfully Branding or Marking, or Altering or Defacing Brands or Marks — 1. In General. Statutes have been enacted in several of the states to punish the act of changing or defacing marks or brands which are the ordi- nary indications of ownership in stock. Such statutes also prohibit the act of 68. Ledbetter v. State, 35 Tex. Crim. 195, 32 S. W. 903 ; McGrew v. State, 31 Tex. Crim. 336, 20 S. W. 740. 69. Hayes r. State, 30 Tex. App. 404, 17 S. W. 940; Thompson r. State, 25 Tex. App. 161, 7 S. W. 589; Harwell r. State, 22 Tex. App. 251, 2 S. W. 606; Priesmuth v. State, 1 Tex. App. 480. 70. Thompson r. State, 25 Tex. App. 161, 7 S. W. 589. "Hip, thigh, and flank."— The record is sufficient if it shows that the brand is to be placed on the "hip. thigh, and flank." Thomp- son v. State, 25 Tex. App. 101. 7 S. W. 589. "Left or right side." — Where the record designates that the brand shall be placed on the " left or right side " of the animal, it is sufficient. Haves r. State, 30 Tex. App. 404, 17 S. W. 940. ' " Left side and left thigh." — A record which shows that the brand was placed upon the " left side and left thigh " is in conformity with the statute. Ledbetter v. State, 35 Tex. Crim. 195, 32 S. W. 903. "Ribs and hips." — Designating the place of branding as on the " ribs and hips "' is sufficient. McGrew v. State. 31 Tex. Crim. 336, 20 S. W. 740. 71. Chesnut v. People, 21 Colo. 512, 42 Pac. 656, holding that the fact of residence may be shown aliunde the record, if it may not be presumed from the fact of filing the brand in the particular county. 72. Chesnut v. People, 21 Colo. 512, 42 Pac. 656. Variance. — The recorded brand and the brand found upon the animal must corre- spond, or the discrepancy be satisfactorily ex- plained by the evidence. Myers r. State. 24 Tex. App. 334, 6 S. W. 194. Hence, where the record describes the brand as to be put Vol. II upon the " hip," while the evidence showed that it was on the ribs, the variance was held too great. Priesmuth v. State, 1 Tex. App. 480. But see Harwell v. State, 22 Tex. App. 251, 2 S. W. 606, where the record designated the place of branding as the " left hip " and the evidence showed the brand to be on the side of the animal, and it was held that the variance did not affect the admissibility of the record in evidence, but only its probative force, and that, unsupported by other evi- dence, the record would not be sufficient proof of ownership. 73. Wilson r. State, 3 Tex. App. 206. For forms of certified records of brands see Dickson r. Territory, (Ariz. 1899) 56 Pac. 971 ; Chesnut v. People, 21 Colo. 512, 42 Pac. 656; Thompson r. State, 26 Tex. App. 466, 9 S. W. 760 ; Byrd v. State, 26 Tex. App. 374, 9 S. W. 759. 74. Eisner r. State, 22 Tex. App. 687, 3 S. W. 474. Unless objected to when offered, however, no objection can be taken to the admission of parol evidence. Lockhart v. State, 3 Tex. App. 567. 75. Chesnut r. People, 21 Colo. 512, 42 Pac. 656. 76. Chesnut e. People, 21 Colo. 512, 42 Pac. 656; Rankin v. Bell, 85 Tex. 28, 19 S. W. 874. 77. Thus, where, on a trial for theft, the recorded mark and brand has been trans- ferred by the owners on the record to other parties, it is not essential that a bill of sale should be introduced in evidence in order to admit the record evidence of transfer, but proof of the purchase of the brand and the animals in such brand can be made by parol. Ledbetter v. State, 35 Tex. Crim. 195, 32 S. W. 903. ANIMALS 327 putting false marks or brands thereon, with intent to injure the owner by either depriving him of the property or rendering his title thereto more difficult of proof. 78 2. Elements of Offense — a. What Constitutes Alteration or Defaeement. To constitute alteration it is only necessary that defendant should put on an addi- tional brand, although the last may not interfere with or change the figure of the first. 79 To constitute defacement, however, the original brand must be obliterated. 80 b. Intent. Under most statutes an intent to defraud is the gist of the offense. 81 3. Requisites of Indictment — a. Following Language of Statute. The indict- ment should charge the offense in the language of the statute, 82 and an indictmen* in this form is sufficient. 83 b. Particular Averments — (i).^s to Mask — (a) Description of Original Mark and Alteration. The indictment need not set out or describe the original mark, nor the manner in which the alteration was made ; M but where the par- ticular mode of alteration is alleged it must be proved as averred. 85 (b) Ownership of Mark. An indictment for altering or defacing a mark or brand need not allege whose mark or brand it was that has been altered or defaced. 86 78. State v. Davis, 24 N. C. 153. Marking a hog is an offense under the South Carolina act of 1789, which provides that if any person wilfully and knowingly marks, brands, or disfigures certain animals, he shall, for each animal for which he may be convicted of branding or disfiguring, be subject to penalty, etc. (State v. Nichols, 12 Rich. (S. C.) 672), although this was doubted in State v. Roberts, 1 Treadw. (S. C.) 116. 79. Atzroth v. State, 10 Fla. 207; Linney v. State, 6 Tex. 1, 55 Am. Dee. 756. Means of alteration immaterial. — If the brand has been changed or altered from what it was to another and different brand, it matters not by what means the alteration was effected. Thus, it has been held that an alteration of the scar made by the branding- iron is not necessary, but that merely clip- ping some of the hair from the brand of the animal, whereby the brand was changed, is an alteration. Slaughter v. State, 7 Tex. App. 123. 80. Linney v. State, 6 Tex. 1, 55 Am. Dec. 756. 81. Territory v. Blevins, (Ariz. 1895) 41 Pac. 442; Morgan v. State, 13 Fla. 671 ; State v. Matthews, 20 Mo. 55; State v. Hall, 27 Tex. 333; Montgomery v. State, (Tex. App. 1890) 13 S. W. 1000; Foster v. State, (Tex. App. 1889 ) 12 S. W. 506 ; Cresap v. State, 28 Tex. App. 529, 13 S. W. 992; Fossett v. State, 11 Tex. App. 40. 82. Morgan v. State, 13 Fla. 671; State v. Davis, 24 N. C. 153. "Wilfully and knowingly." — An indict- ment which did not charge defendant, in the words of the act of 1789, with having "wil- fully and knowingly " marked, was insuffi- cient. State v. Roberts, 3 Brev. (S. C.) 139. 83. State v. Stelly, 48 La. Ann. 1478, 21 So. 89. For forms of indictments for' altering or defacing marks or brands, or for unlawfully branding or marking animals, see: Florida. — Atzroth v. State, 10 Fla. 207. Missouri. — State v. Matthews, 20 Mo. 55. North Carolina. — State v. O'Neal, 29 N. C. 251 ; State v. Davis, 24 N. C. 153. Oregon. — State v. Lee, 17 Oreg. 488, 21 Pac. 455. Texas. — State v. Haws, 41 Tex. 161 ; Davis v. State, 13 Tex. App. 215. Utah. — People v. Swasey, 6 Utah 93, 21 Pac. 400. 84. State v. Stelly, 48 La. Ann. 1478, 21 So. 89; State v. O'Neal, 29 N. C. 251; State v. Lee, 17 Oreg. 488, 21 Pac. 455. Contra, Sewall v. State, Wright (Ohio) 483, wherein it was held that an indictment for altering and defacing the ear-marks of animals should set out the marks alleged to be altered or de- faced, and describe the alteration, or the manner thereof, as near as may be. See 2 Cent. Dig. tit. "Animals," § 14. "Make" for "mark." — Where an indict- ment charged the accused with altering the " make " of a sheep, the court said that while, no doubt, the word " make " was intended to be written " mark," it was a different word, having a different signification, and could not be brought within the exception of idem sonahis. State v. Davis, 24 N. C. 153. 85. Davis v. State, 13 Tex. App. 215. See also House v. State, 15 Tex. App. 522, wherein the indictment charged the altera- tion of a brand on six head of cattle from " J L " to " B TJ D," and the proof was that the brand of " J L " was altered by defend- ant to " B U D " on some of them, and into "9 U D" on others. It was held that, to make the charge good, it was sufficient to prove the change into " B U D " on any one of the six animals, and that proof relating to the other change was admissible as part of the res gestce, the evidence showing that the brands were all put on at the same time and place, and that all constituted but one trans- action. 86. Shiver v. State, (Fla. 1899) 27 So. 36; State v. Stelly, 48 La. Ann. 1478, 21 So. 89. Vol. II '626 AXIJfAZS (n) Descriptiox of Aximal — (a) In General. An indictment is sufficient ■which describes the animal by its specific designation in the statute/ 7 (b) Value. Where the punishment is determined by the value of the animal in question, value should be alleged, 88 bnt not otherwise. 89 (in) J. 5 to Owxersbtp OF Axdcal. The indictment must allege that the animal was not defendant's own, 90 and should state the name of the owner, or allege that the Dame of the owner is unknown. 91 (rv) JTegattttxg Coxsext of Owxes. The indictment should allege that the acts complained of were done without the consent of the owner. 92 (v) As to Ixtext. Where a particular intent is required to constitute the offense under a specific statute, the indictment should allege such intent, using the language of the statute. 98 (vf) ^egattvtxg Attthoxitt of Law. It is not necessary for the indict- ment to show that the act was done •' without authority of law.*' w 87. State i: Haws, 41 Tex. 161. " A colt " is a sufficient description of the animal, and it is unnecessary to further de- scribe the colt as " an animal of the horse species." Pullen (. State. 11 Tex. App. S9. " A hog " is a sufficient description, with- out giving the size, sex. color, age, etc. State r. Stelly, 4S La. Ann. UTS. 21 So. SO. 88. Thus, where the statute provides that the illegal marking or branding of certain enumerated animals shall be punished as in cases of theft of such animals, and the theft of certain of them is declared to be a felony, regardless of value, no value need be al- leged ; but where the theft of certain others of them is declared to be a felony or misde- meanor, according to value, the value must be alleged. Melton r. State, 20 Tex. App. 202. Value not essential. — Tex. Laws (1S93), p. 25. making the punishment for stealing a hog two to four years' imprisonment, and re- pealing Tex. Pen. Code (1S79K art. T4S, making the extent of the punishment for such stealing depend on the value of the ani- mal, provides a punishment, without further legislation, for subsequent alterations of the marks of hogs : article 760 declaring that one altering the mark of a hog, without the con- sent of the owner, and with fraudulent intent, "shall be punished in the same manner as if he had committed a theft of such animal." Barfield r. State. (Tex. Crim. 1897) 43 S. W. 333. 89. Houston r. State, 66 Ark. 607. 53 S. W. 44. 90. Cresap r. State. 2S Tex. App. 529. 13 S. W. 992. 91. People v. Hall, 19 Cal. 425: State r. Haws. 41 Tex. 161: State v. Faucett, 15 Tex. 584. Describing property as belonging to estate. — It is not sufficient to describe the property as belonging to an estate. People r. Hall. 19 Cal. 425" One having actual care, control, and man- agement of an animal is properly described as the owner. Alford v. State, 31 Tex. Crim. 299, 20 S. W. 553. Estrays. — It is no objection that at the time the act was done the animal had strayed from its owner. State r. Davis, 24 X. C. Vol. II 153; Alford r. State. 31 Tex. Crim. 299. 20 S. TV. 553. 92. Cresap r. State. 2S Tex. App. 529. 13 S. W. 992 : State r. Hall, 27 Tex. 333. 93. Morgan r. State, 13 Fla. 671. "Intent to claim said steer." — An indict- ment under Fla. Rev. Stat. § 2474, for fraudu- lently altering the marks and brands of a steer, belonging to another, with intent to claim the same, which contains an allegation that the fraudulent alteration was effected by defendant ""* with intent to claim said steer." is sufficiently definite to apprise him of the specific intent charged, and to enable him to prepare his defense to that branch of the charge against him. Shiver r. State. (Fla. 1S99) 27 So". 36. Intent to convert to defendant's nse. — Un- der Ariz. Pen. Code. § 969, an indictment which fails to allege that the act was done with intent to convert the animal to defend- ant's use is demurrable. Territory r. Blevins. (Ariz. 1S95) 41 Pac. 442. Intent to defraud. — Under the Texas stat- ute the indictment should allege that the act was done "* with intent to defraud." Cresap r. State. 28 Tex. App. 529. 13 S. W. 992: State r. Hall. 27 Tex. 333. "Wilfully and felonionsly marked."— The Florida statute prescribes a punishment for fraudulently marking an unmarked animal, with intent to claim the same, or to prevent identification by the owner: and an indict- ment charging that defendant " wilfully and feloniously marked an unmarked animal " is not sufficient, the particular intent being of the essence of the offense. Morgan r. State, 13 Fla. 671. Where statute is silent respecting intent, an indictment, for altering or defacing a mark, without the use of the words, " with intent to steal," or other words of similar import, is sufficient. State r. Stelly. 48 La. Ann. 147S. 21 So. S9. 94. Murrah f. State. 51 Miss. 675, wherein it was said that, although the statute forbids the acts " without the consent of the owner, or without authority of law," yet the words, '' without authority of law," do not consti- tute a negative necessary to be averred. Marking without authority of law might con- stitute a distinct cause of indictment, or, if ANIMALS 329 4. Defenses — a. Mistake as to Ownership. Where defendant had permission to mark certain animals, and did so in the belief that they belonged to the one granting permission, this is a good defense, and warrants an instruction for acquit- tal if believed by the jury. 95 b. Former Conviction. Where two animals are branded at the same time by one not their owner, conviction for the crime of branding one of them is a bar to a prosecution for branding the other. 96 5. Evidence — a. Admissibility. On trial of an indictment for unlawfully branding or marking an animal, parol evidence is admissible to prove the prose- cutor's mark. 97 b. Weight and Sufficiency — (i) In General. On a trial for altering a mark where the only evidence is that the animal was found with its mark changed from that of its owner to that of defendant, the evidence is insufficient and a convic- tion should be set aside. 98 (if) As TO Intent. The criminal intent will be presumed upon proof of the branding, alteration, or defacement ;" but defendant may rebut this presumption by showing that he acted in good faith and with innocent motives. 1 (in) As to Ownership. The ownership of the animal must be proved as alleged. 2 done with authority of law, it would be a matter of defense. 95. Goree v. State, (Tex. Crim. 1896) 34 S. W. 119. An honest belief that animal was defend- ant's is a good defense, for it negatives the fraudulent intent which is the gist of the offense; and, where the jury has been in- structed to this effect, it is no error to omit to instruct the jury to acquit if defendant claimed to own the animal as his property. Pace v. State, (Tex. Crim. 1893) 24 S. W. 297. 96. Adams v. State, 16 Tex. App. 162. 97. State v. King, 84 N. C. 737. On a prosecution for altering marks on goats, it is not error to refuse to strike from the evidence testimony as to the marking of goats on a date previous to that fixed by an employee of the owner as the time when they were all in the herd; for such employee's tes- timony merely showed a discrepancy of dates, and did not preclude testimony that they were lost before that time. Diaz v. State, (Tex. Crim. 1899) 53 S. W. 632. 98. Dobson v. State, 67 Miss. 330, 7 So. 327. 99. Bradley v. People, 8 Colo. (599, 9 Pae. 783; State v. Davis, 24 N. C. 153. But see Fossett v. State, 11 Tex. App. 40, to the effect that an attempt to defraud must be estab- lished by evidence, either affirmative or nega- tive, and that it cannot be inferred from the naked fact that the accused marked or branded an animal, not his own, without the owner's consent. Sufficient evidence. — Where u cow was found in the possession of defendant with the brand altered from that of her owner to that of defendant, and the calf of said cow was found in the pen of defendant bearing his mark and brand, in the absence of satisfac- tory explanation on his part the jury prop- erly found him guilty of having fraudulently altered the brand of said cow, with intent to claim the same, in violation of the Florida act of Feb. 12, 1832, § 12, and the supreme court will not hold it error in the circuit court to lefuse to set aside a verdict founded on such testimony. Atzroth v. State, 10 Fla. 207. 1. Bradley v. People, 8 Colo. 599, 9 Pac. 783; State r. Davis, 24 N. C. 153. The evidence fails to establish an intent to defraud where it shows that defendant, as soon as he discovered that he had branded an animal which did not belong to him, went to the owner, explained the circumstance, and bought and paid for the animal (Taylor v. State, 35 Tex. 496), or that defendant's pur- pose was to protect the owner of the animal in his property by preventing said animal from being appropriated by some person to whom he did not belong (Montgomery v. State, (Tex. App. 1890) 13 S. W. 1000). But where, on a trial for altering the brand of cattle, the court hsid charged that before the jury could convict they must believe be- yond a reasonable doubt that defendant al- tered the brand with intent to defraud the owner, it was proper to refuse to charge for defendant that, if he believed that the animal had been stolen, and cloang-ed the brand with intent to prevent the thief from recovering it, he was not guilty. Childers r. State, 37 Tex. Crim. 392, 35 S. W. 654. 2. Mayes v. State, 33 Tex. 340; Foster v. State, (Tex. App. 1889) 12 S. W. 506; Peo- ple v. Swasey, 6 Utah 93, 21 Pae. 400. Joint ownership. — While, by Tex. Rev. Code Crim. Proc. art. 426, where property is owned in common, or jointly, by two or more 'persons, the ownership may be alleged to be in either or all of them, yet, previous to the adoption of this statute, where the indict- ment alleged that defendant defaced the brand on a certain animal with intent to de- fraud one Free Green, alleged to be the owner, and the proof showed that the animal belonged jointly to Free Green and T. J. Word, the variance was fatal. Calloway v. State, 7 Tex. App. 585. Vol. II 330 ANIMALS (iv) As to Want of Owner's Consent. The mere extrajudicial statements and declarations of the owner, or of others, are not sufficient evidence of the want of the owner's consent to the alteration of the brand. 3 (v) As to Value. Where the offense is a felony or a misdemeanor, accord- ing to the value of the animals in question, if the value alleged in the indictment is so small as to constitute the offense only a misdemeanor, no proof of value is necessary, but if the value alleged be so large as to make the offense charged in the indictment a felony, then the value must be proven. 4 6. Verdict. Where, on the trial of two defendants for unlawfully marking certain animals, it appeared that one defendant marked one animal which he claimed, and the other defendant at another time marked others which he claimed, but no joint act or concurrence in the separate acts was proved, a verdict which fails to ascertain the number of animals marked is insufficient to support a conviction. 5 7. Punishment. Where, by statute, punishment for fraudulently altering the mark and brand of cattle is made the same as for theft, and a theft of neat cattle is made a felony without regard to the value of the property stolen, a charge of the court allowing the jury to find any other punishment than that prescribed for such act is error. 6 D. Driving Unmarked Cattle from County. Where the statute makes it an offense to drive herds of cattle from the county to market without a list of the marks and brands of such cattle recorded, the offense is not punishable in the county from which the cattle were driven 7 E. Shipping- from County Hides Branded after Skinning. Where the statute makes it an offense to ship out of the county hides which have been branded since they were skinned from the carcass, it is no defense that they originally came from a county other than the one in which the indictment was found, and, on a trial for this offense, a bill of sale of the hides, and an inspector's certificate that he had examined them, is irrelevant evidence which is properly excluded. 8 V. BREEDING OF ANIMALS. 9 A. Standing Unlicensed Animal. 10 Where a statute prohibits the standing of a covering horse or jack, without license, it is immaterial whether the person guilty be the owner. 11 Standing a jack under a contract to have the mules at a stipulated price less than their value is a standing of the jack for profit within the meaning of such a statute. 12 B. Contract for Service — 1. Consideration. There can be no recovery for the services of an unlicensed stallion where the statute imposes a penalty for standing an unlicensed animal. 13 It is not necessary for plaintiff in an action to Insufficient evidence. — When, on a trial for render the offense a felony, it is not error for illegally branding horses alleged to be the the court to refuse an instruction that the property of Hawkins, it appeared that the jury must believe that the animals were of horses were estrays and had been in the the value of sixty-five dollars, as alleged in neighborhood for about two years; that his the indictment. Diaz v. State, (Tex. Crim. neighbors had requested Hawkins to look 1899) 53 S. W. 632. after the horses and see that no one but the 5. State v. Nichols, 12 Rich. (S. C.) 672. true owner branded them; that when branded 6. Buford v. State, 44 Tex. 525. by the defendant they were on the range with 7. Senterfit v. State, 41 Tex. 186. Hawkins' stock, but he had never taken ac- 8. Williams v. State, 37 Tex. 405. tual possession, it was held that the evidence 9. Restraint of animals used for breeding failed to show such possession and control see infra, XIV. by Hawkins as to sustain the allegation of 10. For form of indictment for standing his ownership. Hawkins v. State, (Tex. an unlicensed covering jack see Com. v. Bran- Crim. 1892) 20 S. W. 830. don, 4 B. Mon. (Ky.) 2. 3. West v. State, 32 Tex. 651. 11. Com. v. Brandon, 4 B. Mon. (Ky.) 2. 4. Melton v. State, 20 Tex. App. 202. 12. Com. v. Harris, 8 B. Mon. (Ky.) 373. Where it appears by overwhelming testi- 13. Smith v. Robertson, 20 Ky. L. Rep. mony that the value of the animals was more 1959, 50 S. W. 852, 45 L. R. A. 510. But see than twenty dollars, the amount necessary to Briggs v. Hunton, 87 Me. 145, 32 Atl. 794, 47 Vol. II ANIMALS 331 recover for such services to allege that he has procured a license. u Although the statute provides for advertising terms of service, this will not prevent the parties from making other terms, the object of such statutes being merely to make the advertised terms conclusive between the parties in the absence of a special agree- ment to the contrary. 15 2. No Implied Warranty of Freedom from Disease. There is no implied war- ranty, in a contract for the services of a stallion, that the animal is free from disease that may be transmitted to the offspring. 16 3. Lien — a. In General. At common law it would seem that a person who receives a mare for the purpose of being covered by his horse has a lien upon her for the use of his horse so long as he retains possession of the mare, 17 and a lien on the offspring may be created by agreement 18 or statute. 19 By the New York Am. St. Rep. 318, holding that the price of service of a male animal may be recovered if the animal has not been advertised or held out for public use, although the animal has not been registered as required by statute. Insufficient registration. — A certificate by the owner of a stallion, under Me. Rev. Stat. •c. 38, § 61, giving the name of the horse as " Oliver," will not support an action for services of the same horse under the name of "Dictator Chief." Nelson v. Beck, 89 Me. 264, 36 Atl. 374. 14. Crumbaugh v. Williams, 19 Ky. L. Rep. 582, 41 S. W. 268. 15. Sturgeon v. Merritt, 49 Mo. App. 160. Admissibility of terms as evidence. — On an issue as to whether a foal was insured, as a part of a special contract for the services of a stallion, the advertised terms of the conditions of service were not admissible in favor of the owner of the stallion. White v. Williams, 20 Ky. L. Rep. 1600, 49 S. W. 808. Election of terms. — Where, by the con- tract, plaintiff was to receive five dollars for each colt begotten by the ass bailed, or pay to defendant twenty dollars per month for his services, at his election, and the bailment was terminated by mutual consent of the parties before the expiration of the season, it was held that, plaintiff having failed to elect, ac- cording to the terms of the contract, the de- fendant might do so, and his counter-claim for services would lie. Conwell v. Smith, 8 Ind. 530. " With the privilege of breeding back again next season, should the mare not prove with foal. The money (price of the season) due at the time of the service, or before the mare is removed." Under the foregoing stipula- tions in the published terms upon which a stallion was to make a season, the customer had the right to reput his mare the next sea- son, provided she did not prove in foal in the first one, and provided the horse and mare both lived till the next season. The owner of a mare not proving with foal is liable for the price of the season, although he is deprived of the privilege of breeding back the next season by the death of the horse. Price v. Pepper, 13 Bush (Ky.) 42. See also Pink- ham v. Libbey, 93 Me. 575, 45 Atl. 823, 49 L. R. A. 693. In an action to recover for the service of a stallion, though it appeared plaintiff under- stood merely that defendant was to come back the next year with his mare in case she should prove not to be with colt, yet, as his language justified defendant in understand- ing that he was not to pay in that event, a finding by the court for defendant will not be disturbed as against the evidence, the con- ditions not being fulfilled. Seacord v. Gale, 65 111. App. 637. 16. Briggs v. Hunton, 87 Me. 145, 32 Atl. 794, 47 Am. St. Rep. 318. 17. Jackson v. Holland, 31 Ga. 339; Grin- nell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dee. 663 ; Scarfe v. Morgan, 4 M. & W. 270. 18. Thus plaintiff's mare having been served by defendant's stallion, and plaintiff having executed a written agreement to pay defendant twenty dollars in twelve months if mare proved with foal, " colt holden for pay- ment," the agreement .vas construed to be a mortgage of the colt. Sawyer v. Gerrish, 70 Me. 254, 35 Am. Rep. 323. 19. Gile v. Atkins, 93 Me. 223, 44 Atl. 896, 74 Am. St. Rep. 341 ; Harby v. Wells, 52 S. C. 156, 29 S. E. 563. A colt foaled on the twelfth day of July, 1898, became " six months old " at the be- ginning of the eleventh day of January, 1899, within the meaning of Me. Stat. ( 1895 ) , c. 25, giving the owner of a stallion a, lien for service fee on the colt, " to continue in force until the foal is six months old." Gile v. Atkins, 93 Me. 223, 44 Atl. 896, 74 Am. St. Rep. 341. Sufficiency of judgment in proceedings to enforce. — In an action to enforce the statu- tory lien against a colt for service of the mare after the mare and colt have been sold and transferred, a judgment for the amount claimed, with a lien against the colt, is suf- ficient, though it be indefinite as to whether the personal judgment be against the defend- ant who procured the service or the subse- quent owner. Harby v. Wells, 52 S. C. 156, 29 S. E. 563. Evidence as to time of commencing suit. — There was evidence that the suit to enforce a lien on a colt for services of a stallion was instituted within twelve months after the claim accrued, where the action was brought March 7, 1897, and plaintiff testified that the mare was impregnated April 21, 1896, and " that a mare carried her colt between eleven and twelve months." Harby v. Wells, 52 S. C. 156, 29 S. E. 563. Vol. II 332 ANIMALS statute M the lien attaches to both mother and offspring and exists from the time of service, and one who purchases the mare after service, but before the filing of a notice of lien and before the time for filing such notice has expired, takes her subject to the existing lien. 21 b. Priorities. The lien on the offspring given by statute to the keeper of a stallion for public use has been held to be superior to the right of a mortgagee to whom the mare is conveyed while in foal and whose mortgage is registered before the foal is dropped ; ffl but the statutory lien on the mare has been held subordinate to a prior recorded mortgage. 23 C. Liability for Negligence. The owner of a stallion is liable for injuries to a mare, while being served by the stallion, due to such owner's negligence. 24 D. Giving False Pedigree. 25 To convict one of the offense of giving a false pedigree of an animal, with intent to defraud, it must be shown that such pedigree was given " knowingly." M E. Gelding Male Animal. Under the Oregon statute, if a stallion is found running at large, out of the inclosed grounds of his owner, during certain months, such stallion may be gelded without first twice taking him to the owner, provided the animal is not kept for breeding purposes, or, if so kept, the person gelding him has no actual or constructive notice that he is so kept. 27 VI. CONTAGIOUS AND INFECTIOUS DISEASES OF ANIMALS. A. Civil Liabilities 28 — 1. Nature and Extent of — a. Diseases Generally — (i) Liability of Owxer — (a) For Allowing Animals at Large. Except where the owner knows that it is probable that the animals may intrude on an adjoining inclosure, 29 or the statute law forbids, 30 he may keep his diseased cattle in his own pasture. 31 He will Dot be liable for injury to cattle in an adjoining pasture unless negligent in the manner of keeping his own. 32 The duty devolves upon the owner of cattle affected with a contagious disease to use all necessary care to prevent such cattle from communicating the disease to healthy cattle of others ; s if, knowing them to be infected, he suffers them to run at large, 34 or to escape 20. X. Y. Laws (1887), c. 458, as amended own land, where they can communicate dis- by X. Y. Laws (1888), c. 457. ease to sheep lawfully pastured in an adjoin- 21. Tuttle r. Dennis, 58 Hun (X. Y.) 35, ing field. Herrick i: Garv, 65 111. 101. 11 X. Y. Suppl. 600, 33 N. Y. St. 445. See 31. Fisher v. Clark, 41* Barb. (X. Y.) 329, also Harby r. Wells, (S. C. 1898) 29 S. E. holding that pasturing sheep having an infec- 563. tious disease on one's own land is not » 22. Sims v. Bradford, 12 Lea (Term.) 434. nuisance in the absence of a statute making 23. Easter v. Goyne, 51 Ark. 222, 11 S. W. it so, and that no liability attaches for dam- 212. age caused thereby to another. 24. Cavender v. Fair, 40 Kan. 182, 19 Pac. 32. Mills r. Xew York, etc., R. Co., 2 638. Rob. (X. Y.) 326: Clarendon Land, etc., Co. 25. For form of information for giving v. McClelland, 89 Tex. 483, 34 S. W. 98, 35 false pedigree of a horse see People v. Um- S. W. 474, 59 Am. St. Rep. 70, 31 L. R. A. lauf, 88 Mich. 274, 50 N. W. 251. 669. 26. People v. Umlauf, 88 Mich. 274, 50 Degree of care required. — The owner of X. W. 251, wherein it was held that defend- diseased horses, knowing their disorder to be ant could not be convicted, it appearing that, contagious, is bound to exercise all the care although he gave a false pedigree, he could that a prudent man would exercise, or a not read, and thought it was true, and there rightful regard for the interests of others was no evidence to the contrary. requires, such as placing his diseased horses 27. Tucker v. Constable, 16 Oreg. 407, 19 so remote from a partition between his stable Pac. 13. and that of a neighbor as to render contact 28. Agistor's liability for injuries result- with his neighbor's horse impossible. Mills ing from disease see supra, III, B, 3, a, (I). v. New York, etc., R. Co., 2 Rob. (N. Y.) 29. Clarendon Land, etc., Co. !,'. McClel- 326. land, 86 Tex. 179, 23 S. W. 576, 1100, 22 33. Gravson r. Lynch, 163 U. S. 468, 16 L. R. A. 105. S. Ct. 1064, 41 L. ed. 230 {affirming 5 N. M. 30. Under the Illinois act of Feb. 16, 1865, 487, 25 Pae. 992]. relating to diseased sheep, it is clear that the 34. Herrick t>. Gary, 83 111. 85 ; Mills i". owner of sheep having a contagious disease New York, etc., R. Co., 2 Rob. (X. Y.) 326. has no right to let them run, even upon his Watering at public tank. — The owner of Vol. II ANIMALS 333 from his pasture into the premises of another, through a defect in his part of a division fence, which he neglects to keep in repair, 35 he is liable for all damages occasioned thereby to the animals of others. 36 (b) For Placing on Another's Premises. The owner of an animal is liable to another, ignorant of the danger to which his own property is exposed, for all damages occasioned thereto, where, under express or implied license, he drives upon another's premises diseased animals, known by him to be infected ; ^ so like- wise when the owner places the animals in such other's charge without notifying him of the disease, 88 or representing that the animals are sound. 39 (c) For Selling. One who knowingly sells diseased animals, representing them to be sound, is liable for all the direct consequences that naturally follow, if the purchaser acts upon such representation as if it were true, 40 and which could -not have been avoided by the exercise of due care and diligence on the part of the latter. 41 This rule holds whether or not the vendor knew at the time such representations were made that the purchaser owned other animals. 42 When the soundness of the animal is warranted the vendor is liable in an action for breach of warranty. 48 (n) Liability of Carrier^ — (a) For Transporting to Prohibited District. A railroad company carrying animals to a prohibited district, with knowledge of their destination, is guilty of " causing the movement " of the animals within diseased horses lias no right to water thern at a public tank used for watering the sound horses of other persons. Mills v. New York, etc., R. Co., 2 Rob. (N. Y.) 326. 35. Herrick v. Gary, 83 111. 85. 36. Herrick v. Gary, 83 111. 85. Care required in treatment of infected ani- mals. — Where plaintiff's sheep are infected from the sheep of defendant, the former will not be held responsible for more than ordi- nary care and skill in their treatment; but, even if they could have been cured by proper care and treatment, this will not exonerate defendant from liability for the trouble and expense incurred by plaintiff. Herrick v. Gary, 65 111. 101. 37. Hite v. Blandford, 45 111. 9; Eaton v. Winnie, 20 Mich. 156, 4 Am. Rep. 377. Scienter essential. — In Hawks v. Locke, 139 Mass. 205, 208, 1 N. E. 543, 52 Am. Rep. 702, the court said : " No decision, so far as we know, has gone further than to hold persons answerable if they knew that the animals were diseased." 38. Penton v. Murdock, 22 L. T. Rep. N. S. 371, 18 Wkly. Rep. 382. 39. Fultz v. Wycoff, 25 Ind. 321. 40. Rose v. Wallace, 11 Ind. 112; Sher- rod v. Langdon, 21 Iowa 518; Jeffrey v. Bigelow, 13 Wend. (N. Y.) 518, 28 Am. Dec. 476; Mullett v. Mason, L. R. 1 C. P. 559. Knowledge of disease at former time. — Where an administratrix, under authority of the court, sold heifers infected with tubercu- losis, from a herd of cattle left by deceased, she was not personally liable because she knew that such disease had shown itself in this herd at some former time, if at the time of the sale she had reason to believe, and did believe, that the disease had been entirely eradicated. Newell v. Clapp, (Wis. 1897) 72 N. W. 366. Merely exposing diseased animals for sale, although an offense under the statute, does not amount to a representation that they were free from disease. Ward v. Hobbs, 3 Q. B. D. 150 [affirmed in 4 App. Cas. 13]. 41. Sherrod v. Langdon, 21 Iowa 518. 42. Sherrod v. Langdon, 21 Iowa 518. 43. Mullett 17. Mason, L. R. 1 C. P. 559. Injury to lambs as item of damage. — Where sheep are purchased under a warranty that they are sound and healthy, but they are dis- eased with an infectious disease, the injury to the lambs resulting from such disease, and which were dropped soon after the purchase, is a proper item of damages to be considered in an action upon a breach of such warranty. Broquet v. Tripp, 36 Kan. 700, 14 Pac. 227. 44. By act of congress of May 29, 1884, the transportation by any person of any live stock with knowledge that it is infected with a communicable disease, with the qualifica- tion that Texas fever shall not be considered such a disease as to cattle transported by rail to slaughter, is forbidden. By section 7 of the act, which was afterward made to apply to the secretary of agriculture, it was made the duty of the commissioner of agriculture to notify transportation commis- sioners of the existence of a contagion, and declares a violation of the act to be a misde- meanor. It has been held that the secretary- has no power to make regulations on compli- ance with which cattle may be removed from any state in which contagion exists to other parts of the United States. Mullen v. West- ern Union Beef Co., 9 Colo. App. 497, 49 Pac. 425. But after the cattle become domiciled in a state, their management therein is regu- lated by the state laws and not by this act, unless the state has determined to cooperate with the secretary of agriculture in the exe- cution of such act. Mullen v. Western Union Beef Co., 9 Colo. App. 497, 49 Pac. 425. See also Cotting v. Kansas City Stock- Yards Co., 79 Fed. 679. Vol. II 334 ANIMALS an order regulating the movement of animals, though sach carrier does not carry the animals further than to a point outside the district and does not go within it. 45 (b) For Cleaning Cars. A railroad company which furnishes, for the car- riage of ties, cattle cars which contain such an accumulation of refuse matter, resulting from the carriage of cattle, that the loading of ties on the cars neces- sarily involves the ejection of some of this refuse matter, unloads such matter within the purview of the statutory inhibition, though the ties are loaded on the cars by the servants of an independent contractor, and the company is liable for damages resulting therefrom. 46 b. Texas Fever — (i) In General. In a number of the western states statutes have been passed prohibiting the driving or conveying into those states, at certain seasons of the year, of any Texas, Cherokee, or Indian cattle. Such statutes have been held void as interfering with the power of congress to regulate interstate commerce, 47 as have similar statutes so far as they forbid the trans- portation through the states of cattle affected with Texas fever. 48 But the states may prevent the importation of diseased cattle into their territory, 49 and may pre- scribe the kind of cars in which they may be transported through the states, and such other precautionary measures as may be reasonably necessary. 50 A statute providing that a person, having in his possession Texas cattle which have not been wintered north, shall be liable for damages accruing from allowing them to run at large, is constitutional. 51 These statutes are not repealed or nullified by the act of congress of May 29, 1884, which establishes the bureau of animal industry. 52 (ii) Liability of Owner. One who, with knowledge that his cattle are infected with Texas fever, brings them into a state, and allows them to run at large on the range used by the cattle of another, whereby the other's cattle become infected and die, is guilty of negligence, and he is liable to such other for the damage thus caused, without regard to any state statute prohibiting the introduction of snch cattle, and giving damages therefor. 53 45. Midland R. Co. v. Freeman, 33 L. J. 51. Kimmish v. Ball, 129 U. S. 217, 9 M. C. 79. S. Ct. 277, 32 L. ed. 695. 46. Pike v. Eddy, 53 Mo. App. 505. 52. Missouri, etc., R. Co. v. Haber, 56 47. Chicago, etc., R. Co. v. Eriekson, 91 Kan. 694, 44 Pac. 632 [affirmed in 169 U. S. 111. 613, 33 Am. Rep. 70; Salzenstein v. Mavis, 613, 18 S. Ct. 488, 42 L. ed. 878]. 91 111. 391 [overruling Yeazel v. Alexander, 53. Kimmish v. Ball, 30 Fed. 759. See 58 111. 254 (followed in Chicago, etc., R. Co. also Croff v. Cresse, 7 Okla. 408, 54 Pac. 558, v. Gasaway, 71 HI. 570; Somerville v. Marks, holding that one who moves cattle from an 58 111. 371; Stevens v. Brown, 58 111. 289)]; infected district, against which the United Urton v. Sherlock, 75 Mo. 247; Gilmore v. States and the territory have quarantined, Hannibal, etc., R. Co., 67 Mo. 323 ; Hannibal, into a protected area, and places them in the etc., R. Co. v. Husen, 95 U. S. 465, 24 L. ed. pasture of another, where other cattle are 527. running, is liable for the loss by death of 48. Selvege v. St. Louis, etc., R. Co., 135 such other cattle by taking such contagious Mo. 163, 36 S. W. 652; Grimes v. Eddy, 126 disease, even though he had no actual knowl- Mo. 168, 28 S. W. 756, 47 Am. St. Rep. 653, edge that the cattle which he placed in the 26 L. R. A. 638, 27 S. W. 479. pasture were affected with a contagious dis- 49. Missouri Pac. R. Co. v. Finley, 38 Kan. ease. 550, 16 Pac. 951; Grimes v. Eddy, 126 Mo. Under the Illinois statute held unconstitu- 168, 28 S. W. 756, 47 Am. St. Rep. 653, 26 tional in Salzenstein v. Mavis, 91 111. 391, it L. R. A. 638 ; Hannibal, etc., R. Co. v. Husen, was held that, to make one liable to damages 95 U. S. 465, 24 L. ed. 527. as the owner of Texas or Cherokee cattle for Presumption in favor of state officers' or- infection to other cattle, he must be the ders. — Where a state sanitary commission, owner in the natural and ordinary sense of as a precautionary measure, has excluded the that term, and that a conditional ownership cattle of another state from the state, as growing out of a lien would not make a party affected with a contagious and infectious dis- liable unless he had the actual possession and ease, it will be presumed that their judgment control of the cattle. Smith v. Race, 76 III. and discretion was properly exercised. St. 490; Hatch r. Marsh, 71 111. 370. And where Louis Southwestern R. Co. v. Smith, 20 Tex. several owners of different droves of Texas Civ. App. 451, 49 S. W. 627. and Cherokee cattle drove their respective 50. Grimes v. Eddy, 126 Mo. 168. 28 S. W. cattle over the herding-ground of another at 756, 47 Am. St. Rep. 653, 26 L. R. A. 638. different times, and by reason thereof, Vol. II ANIMALS 335 (in) Liability of Carries, — (a) For Transporting. The liability of rail- roads, etc., for violating the provisions of the statute which prohibit the transpor- tation of cattle suffering from Texas fever is limited to the disease communicated to other cattle in the neighborhood or along the line of such transportation or removal, 54 and such liability may be rebutted by showing that the company was free from negligence. 55 Where such cattle are brought - by a railroad company into one county, and afterward transported by an owner, having no connection with the road, into another county, such transportation is a new and independent offense under the statute ; and the company is not liable for disease communicated by the cattle while in the latter county. 56 (b) For Escape of Animals Having. A railway company which negligently allows Texas cattle to escape from its cars and run at large, is liable for the result- ing loss if native cattle are infected thereby with Texas fever. 57 2. Actions — a. For Damages — (i) Jurisdiction. Actions for violations of the statute relating to Texas cattle are within the exclusive jurisdiction of a justice of the peace. 58 (n) Form of Action. An action under the Illinois statute making the owner or person naving possession of diseased sheep liable for all damages result- ing from their running at large should be in case and not in debt, the action being remedial and not penal. 59 (m) Parties. In an action for damages resulting from driving into the state cattle which communicated Texas fever, the purchasers of the cattle who have assumed the liability for damages are properly joined as defendants, and a per- sonal judgment may be had against them as well as against the vendor. 60 All persons injured may be joined as defendants in an action against the owner of the cattle communicating such disease, and in such action defendants sustaining such injuries, and entitled to a lien on the same cattle, may set up their causes of action and obtain judgments thereon, and the liens of all persons entitled to recover against the owner may be adjusted in one action. 61 A railroad company, acting in conjunction with the owner of cattle communicating such disease in through one or the other, or both, of sueh or Spanish fever, so as to make it necessary droves, disease was imparted to cattle owned to unload the cattle, and thereupon the com- by the latter, it was held there was no joint pany is notified that the cattle are from liability for such injury, of the several own- Texas, and will spread disease among the do- ers. Yeazel v. Alexander, 58 111. 254. mestic cattle if permitted to run at large or 54. Coyle v. Chicago, etc., R. Co., 27 Mo. if driven upon the public highway, it should App. 584. corral the cattle at or near the wreck, or Under the earlier Missouri statute, which otherwise prevent them from running at large was declared to be unconstitutional in Hanni- or getting upon the public highway, until re- bal, etc., R. Co. v. Husen, 95 TJ. S. 465, 24 loaded. If, however, it drives the cattle, after L. ed. 527, the liability of the carrier was not receiving notice of their diseased condition, limited to damages resulting from disease upon the public highway, it does so at its communicated while the animals were under own peril, and is liable, under the statute, his control, or by his want of proper care, for the damages arising from the eommunica- but was liable for all damages, direct or re- tion of the disease or fever to domestic cattle mote, caused by the introduction of the stock. from the cattle so diseased. Missouri Pac. Meroer v. Kansas City, etc., R. Co., 60 Mo. R. Co. v. Finley, 38 Kan. 550, 16 Pac. 951. 397; Dimond v. Kansas City, etc., R. Co., 60 58. Evans v. Adams, 21 Kan. 119. Mo. 393 ; Husen v. Hannibal, etc., R. Co., 59. Mount v. Hunter, 58 111. 246. 60 Mo. 226 ; Wilson v. Kansas City, etc., R. Statutory action not exclusive. — The right Co., 60 Mo. 184. See also Chicago, etc., R. of action afforded by the common law has not Co. v. Gasaway, 71 111. 570. been superseded by the act to prevent the 55. Furley v. Chicago, etc., R. Co., 90 Iowa spread of contagious and infectious diseases 146, 57 N. W. 719, 23 L. R. A. 73. among swine, and the remedy furnished by 56. Surface v. Hannibal, etc., R. Co., 63 the statute must be considered cumulative, Mo. 452. rather than as a substitute, and it is optional 57. Selvege v. St. Louis, etc., R. Co., 135 with plaintiff to resort to the onp or the Mo. 163, 36 S. W. 652; Grimes v. Eddy, 126 other. Conard v. Crowdson, 75 111. App. Mo. 168, 28 S. W. 756, 47 Am. St. Rep. 653, 614. 20 L. R. A. 638. 60. Woodrum v. Clay, 33 Fed. 897. Where a train is wrecked while transport- 61. Missouri, etc., R. Co. v. Haber, 56 Kan. ing cattle diseased with the Texas, splenic, 694, 44 Pac. 632. Vol. II 336 ANIMALS bringing them into the state, may also be joined as defendant in such action, and all questions affecting its liability, not only to plaintiff, but to each of defend- ants, may be determined in the case. 63 (iv) Defenses — (a) Contributory Negligence. The contributory negligence of plaintiff is a competent defense ; K but when the importation of certain cattle was prohibited by law it was held that nothing less than gross negligence on the part of a plaintiff whose cattle became infected in consequence thereof would defeat his right of recovery. 64 (b) Disease Contracted from Plaintiff 's Animals. The fact that one of plaintiff's sheep communicated the disease to defendant's flock will not exonerate the defendant from liability to the plaintiff if he thereafter permits his flock to run where it can do injury to plaintiff. 65 (c) Plaintiff's Unlawful Act. Where plaintiff's own unlawful act concurs in causing the damage he complains of he cannot recover compensation for such damage. 6 " (v) Pleading m — (a) In General. A complaint by a livery-stable keeper for damages caused by the placing of a diseased horse in his care need not allege that the injury occurred without fault or negligence on his part, or that he did not, in his business, receive sick and diseased horses for keeping. 68 (b) Scienter. It should be alleged that defendant knew that the cattle were diseased, whether in an action to recover damages for failure to restrain, 69 for driv- ing into the county cattle having Texas fever, 70 or against a carrier for turning loose cattle infected therewith ; 71 but, when the owner is guilty of a trespass in per- mitting his diseased animals to enter a neighbor's close, knowledge of their condi- tion is immaterial. 72 (c) Conviction of Criminal Offense. In a civil action to recover damages for a violation of the act to prevent the spread of contagious and infectious diseases among suine, it is not necessary to allege or prove that the defendant has been convicted in a criminal prosecution for a violation of the act. 73 (d) Against the Form of the Statute. When the statute giving a right of action for damages resulting from diseased animals running at large is remedial and not penal the declaration need not conclude that the act is against the form of the statute. 74 (vi) Evidence — (a) Burden of Proof . Where plaintiff seeks to recover 62. Missouri, etc., E. Co. v. Haber, 56 Kan. ease to sheep see Eaton v. Winnie, 20 Mich. 694, 44 Pac. 632. 156, 4 Am. Rep. 377. 63. St. Louis, etc., R. Co. v. Goolsby, 58 Variance. — A variance between an allega- Ark. 401, 24 S. W. 1071 ; Missouri Pac. R. Co. tion that cattle communicated " Texas cattle v. Finley, 38 Kan. 550, 16 Pac. 951 : Patee v. fever," which is a " contagious " disease, and Adams, 37 Kan. 133. 14 Pac. 505; Demetz r. a finding that they communicated "Texas Benton, 35 Mo. App. 559 ; Coyle !'. Conway, fever," an " infectious " disease, is immate- 35 Mo. App. 490 ; Walker t. ^Herron, 22 Tex. rial, as is a variance between an allegation 55. that the disease was communicated oh plain- See 2 Cent. Dig. tit. "Animals," § 85. tiff's range and a finding that it could not be Mere failure to prevent intermingling. — • determined whether it was on that range, or on Failure of the owner of cattle to prevent defendant's range, or in the road, where the them from being intermingled with those of cattle were indiscriminately mixed on both other owners whose cattle are infected with ranges, which were unfenced. Grayson v. Texas fever is not so clearly contributory Lynch, 163 U. S. 468, 16 S. Ct. 1064, 41 L. ed. negligence, where the cattle ranges are un- 230 [affirming 5 N. M. 487. 25 Pac. 992]. fenced, that it must be so held on appeal, 68. Fultz r. Wycoff, 25 Ind. 321. where the trial court has held to the con- 69. Bradford r. Floyd, 80 Mo. 207; Coyle trarv. Grayson v. Lynch, 163 U. S. 468, 16 r. Conway, 35 Mo. App. 490. S. Ct. 1064, 41 L. ed. 230 [.affirming 5 N. M. 70. Patee v. Adams, 37 Kan. 133, 14 Pac. 487, 25 Pac. 992]. 505. 64. Sangamon Distilling Co. v. Young, 77 71. St. Louis, etc., R. Co. v. Goolsby, 58 111. 197; Somerville v. Marks, 58 111. 371. Ark. 401, 24 S. W. 1071. 65. Herrick v. Gary, 83 111. 85. 72. Lee r. Burk, 15 111. App. 651. 66. Han is r. Hatfield, 71 111. 298. 73. Conard v. Crowdson, 75 111. App. 67. For form of declaration for injuries 614. caused by communication of infectious dis- 74. Mount v. Hunter, 58 111. 246. Vol. n ANIMALS 33? damages caused by the communication of disease to his cattle in a pasture by- defendant's cattle breaking into such pasture through a fence, he must prove that his own fence was reasonably sufficient. 75 In an action for permitting infected animals to run at large, or for selling such animals, the burden is on plaintiff to show that defendant knew, or had notice of facts which would make him charge- able with knowledge, that his cattle were infected and liable to communicate disease, 76 and that plaintiff's animals suffered from the same disease. 77 (b) Judicial Notice. It has been held that courts will take judicial notice of the fact that Texas cattle have some contagious or infectious disease communicable to native cattle. 18 (o) Admissibility. In an action to recover damages for communicating an infectious disease to plaintiff's sheep, defendant's witnesses having testified that they had cured sheep of the disease by a certain treatment, the refusal to allow plaintiff to show, by other witnesses, that they had tried the same prescription without success is error ; 79 and defendant having introduced testimony that plain- tiff's sheep were seen running at large prior to their infection, for the purpose of showing that they were infected while so running at large, the court should not refuse to allow plaintiff to show that the said sheep were not his. 80 Where two lots of sheep had been bought by two persons of one vendor and for convenience were placed in one flock, and one purchaser sued for a breach of warranty that they were healthy, it was held not error to allow testimony to be introduced showing the general condition of all the sheep after they had been in one flock some time, it appearing that the commingling of the flock was not for the pur- pose of defrauding defendant, nor in any way concealing evidence from him, or manufacturing evidence in favor of plaintiff. 81 (d) Sufficiency as to Knowledge. Evidence that it is a matter of general notoriety that native cattle, treading over the ground after Texas cattle, are liable to contract Texas fever does not show that defendant company had knowledge of the fact; 83 but under the act of congress of May 29, 1884, prohibiting the transportation of infected cattle from one state to another, it is sufficient to show that the locality from which the cattle were shipped was known to have been infected, without showing actual knowledge that the cattle were diseased. 83 And when plaintiff protested to a railroad company against the unloading of Texas cattle, lest his cattle might contract some disease from them, the defendant com- pany must be held to have been fully informed and warned of the danger of communicating the disease. 84 (vn) Trial — (a) Instructions. Where injury is done by two lots of cattle, so that it is impossible to say that one lot was more concerned in it than the other, it is error to instruct the jury to find for a defendant, who owned one lot ; 85 but it is proper to refuse instructions for plaintiff that, if the cattle on the section with plaintiff's cattle infected them, defendant could not be acquitted on the ground that the damages might have accrued from the acts of the owners of the other lot, or that if certain cattle caused the danger, without limiting it to defendant's cattle, he should be found guilty. 86 If it is doubtful whether plaintiff's animals became infected directly by defendant's diseased sheep which were trespassing, or indirectly through other sheep pastured in plaintiff's fields, which first caught the disease, it is error to instruct that, if it was as likely plaintiff's sheep caught the 75. Clarendon Land, etc., Co. v. McClel- 80. Herrick v. Gary, 83 111. 85. •land, 89 Tex. 483, 34 S. W. 98, 35 S. W. 474, 81. Broquet v. Tripp, 36 Kan. 700, 14 Pac. 59 Am. St. Rep. 70, 31 L. R.'A. 669. 227. 76. St. Louis, etc., R. Co. v. Goolsby, 58 82. Grimes v. Eddy, (Mo. 1894) 27 S. W. Ark. 401, 24 S. W. 1071; O'Hair v. Morris, 479. 87 111. App. 393. 83. Lynch v. Grayson, 5 N. M. 487, 25 Pac. 77. O'Hair v. Morris, 87 111. App. 393. 992. 78. Grimes v. Eddy, 126 Mo. 168, 28 S. W. 84. Lynch v. Grayson, 5 N. M. 487, 25 Pac, 756, 47 Am. St. Rep. 653, 26 L. R. A. 638 992. [overruling Bradford v. Floyd, 80 Mo. 207]. 85. Newkirk v. Milk, 62 111. 172; Frazee v. But see infra, VI, A, 2, a, (vn), (b). Milk, 56 111. 435. 79. Herrick v. Gary, 83 111. 85. 86. Newkirk v. Milk, 62 111. 172. [22] Vol. II 338 ANIMALS disease elsewhere as from defendant's sheep, the jury should find for defendant. 87 Where it appears that none of defendant's animals were from a prohibited section, but were native animals which had never been in such prohibited section, the court should instruct the jury to find for defendant. 88 "Where damages are sought for disease communicated by cattle which have broken through a fence it is error to charge that it is incumbent on defendant to prove that the fence was insufficient. 89 (b) Questions of Law and Fact. The question whether the disease called scab is contagious among sheep is for the jury upon the evidence before them ; m so likewise is the question whether Texas cattle, though free from disease, do com- municate disease to other cattle. 91 b. For Penalty. In an action under a statute giving a penalty against the owner of a dog, if the owner has good reason to believe that it was bitten by a mad dog, and neglects or refuses to kill it immediately, it is not necessary to prove that the biting dog was in fact mad ; it is sufficient if the owner of the dog had good reason to believe it was mad. 92 B. Criminal Offenses — 1. Bringing Glandered Horses into Public Place. Bringing a glandered horse into public place is an offense at common law. 93 2. Failure to Cure after Inspection. An indictment for failure to cure diseased sheep within a specified time after inspection must allege that the defendant had knowledge of the inspection, the date on which he acquired such knowledge, and that he failed to effect a cure within the specified time thereafter. w 3. Keeping Diseased Animals. In an indictment for keeping a diseased animal where other animals could have access to it, the prosecution must prove that defendant was the owner of an animal affected by an infectious disease, and knew him to be so affected, and that the animal was kept by him where other animals could have access to and become infected by him. 95 4. Removing Diseased Animals. In an indictment for removing sheep infected with scab it is unnecessary to aver that defendant had knowledge that the sheep had scab at the time of their removal ; % but it must be alleged that defendant was the owner of the sheep at the time of their alleged removal. 97 The material ques- tions of fact in such case being whether or not defendant's sheep were infected with scab, and whether or not defendant violated the act in relation thereto, the charge of the court should submit these issues to the jury. 98 5. Selling Diseased Animals. When the statute forbids the sale of diseased animals the sale must have been made with knowledge, or such notice as would 87. Herrick r. Gary, 65 111. 101. eased animal, and no animal which has within 88. Stager v. Harrington, 27 Kan. 414. twenty-eight days been in the same shed or 89. Clarendon Land, etc., Co. v. McClel- stable with » diseased animal, shall be re- land, 89 Tex. 483, 34 S. W. 98, 35 S. W. 474, moved without a license from the local au- 59 Am. St. Rep. 70, 31 L. R. A. 669. thority, and that no cattle shall be moved 90. Mount v. Hunter, 58 111. 246. out of the district in which they are without 91. Davis v. Walker, 60 111. 452; Claren- such a license, under a penalty, etc., the of- don Land, etc., Co. v. McClelland, 89 Tex. fense is complete as soon as the animal has 483, 34 S. W. 9S, 35 S. W. 474, 59 Am. St. been removed from its place of location, and Eep. 70, 31 L. R. A. 669. But see supra, VI, the justices of the county from which remo- A, 2, a, (vi), (b). val was had alone have jurisdiction, and the 98. Wallace v. Douglas, 32 N. C. 79. justices of the county into which the animal 93. Reg. v. Henson, 1 Dears. 24. is taken have no jurisdiction. Reg. v. Wil- 94. Hand i . State, 37 Tex. Crim. 310, 39 liams, 15 L. T. Rep. N. S. 290. S. W. 676. The act of congress of May 29, 1884, relat- 95. Wirth v. State, 63 Wis. 51, 22 N. W. ing to the exportation of diseased cattle and 860, holding that when the disease is nothing the suppression and extirpation of pleuro- but a bad cold or influenza, certainly not pneumonia and other contagious diseases, and generally regarded as infectious or conta- making their removal a misdemeanor, does gious, defendant cannot be presumed to have not relate to shipment's of cattle made be- had such knowledge of the infectious charac- tween different points in the same state, ter of the disease. Davis v. Texas, etc., R. Co., 12 Tex. Civ. App. 96. State v. Sterritt, 19 Oreg. 352, 24 Pac. 427, 34 S. W. 144. 523. 97. State v. Sterritt, 19 Oreg. 352, 24 Pac Offense, when complete. — Under orders un- 523. der the English act declaring that no dis- 98. Troy v. State, 10 Tex. App. 319. Vol. n ANIMALS 339 impute knowledge, of the fact and condition of the animals on the part of the vendor." So, too, where the statute forbids the sale of animals knowing them to be under quarantine, if the defendant shows that on fair and just grounds he believed the legal impediment to be out of the way, guilty knowledge is disproved and the defense is sufficient. 1 5. Shipping into State without Filing Certificate. An indictment for shipping a cow into the state without sending the secretary of agriculture a certificate that she was free from tuberculosis, as far as could be determined by physical exami- nation and the tuberculin test, need not more particularly describe the animal or the certificate, nor need it recite that the complaint was made by the secretary of the state, though the statute requires him to make it. 2 6. Who May Lay Information. The right to lay an information for an offense in contravention of the English diseased animals act of 1894 is not restricted by the act to the local authority whose duty it is to execute and enforce it but such an information may be laid by a common informer. 3 C. Suppression — 1. In General. Under the English contagious diseases act, empowering the privy council to make such general or special orders as they see fit for applying the law or any of the provisions of the act to certain animals and diseases, and also empowering the council to extend for every or any of the purposes of the act the definition of diseases therein mentioned so that the same shall for those purposes comprise any disease of animals in addition to the diseases mentioned in the act, it has been held that the council have power to make orders for the suppression of rabies, 4 to prescribe the amount of air-space for each animal kept in a building, 5 and to regulate thu removal of dung, etc. 2. Right to Kill Diseased Animals — a. In General. Any person may kill a mad dog, or one that is justly suspected of being mad, or that is known to have been bitten by a dog which was mad. 7 b. Under Statutes. Under statutes authorizing the summary killing of certain diseased animals an adjudication of commissioners that an animal>had the disease is not conclusive, 8 and the burden is on the officials to establish affirmatively the actual existence of disease or exposure thereto. 9 When the killing was done in a 99. Stryker v. Crane, 33 Nebr. 690, 50 N. E. 100, 23 Am. St. Rep. 850, 10 L. R. A. N. W. 1132. 116. Statute construed. — Under a statute mak- 9. Pearson v. Zehr, 138 111. 48, 29 N. E. ing it unlawful to sell animals " infected with 854, 32 Am. St. Rep. 113. contagious or infectious disease," the use of It would seem that farmers and other per- the words " contagious or infectious " in the sons who for many years have had the per- statute is believed to have been intended to sonal care of horses, both sick and well, and describe one disease, and not distinctive dis- have had extensive practical experience with eases. Stryker v. Crane, 33 Nebr. 690, 50 such animals, and with some particular dis- N. W. 1132. ease to which they are subject, and ample op- 1. Hess v. State, 45 N. J. L. 445. portunity to observe and know the character- 2. State v. Snell, 21 R. I. 232, 42 Atl. 869. isties and symptoms of such disease, are well 3. Reg. v. Stewart, 65 L. J. M. C. 83. qualified to state whether, in a, particular" 4. Bellhouse v. Leighton, 58 L. J. M. C. case, such characteristics and symptoms do 67. or do not exist, and that, after detailing facts 5. Baker v. Williams, 66 L. J. Q. B. 880. which show that they have a practical and 6. Horse-litter is not dung liable to propa- personal knowledge and experience in respect gate infection within the meaning of a cattle- thereto, they may properly venture an opin- plague order empowering the quarter sessions ion in regard to the existence or non-existence to prohibit the removal of " all dung, hay, of a disease with which observation has made straw, fodder, or litter liable to propagate them familiar. Pearson v. Zehr, 138 111. 48, infection." Youngman v. Morris, 15 L. T. 29 N. E. 854, 32 Am. St. Rep. 113. Rep. N. S. 276. Destruction of sound animals tortious. — 7. Wootf v. Chalker, 31 Conn. 121, 81 Am. Where cattle are destroyed by authority of Dec. 175; Brent v. Kimball, 60 111. 211, 14 the state veterinarian, under color of Wis. Am. Rep. 35; Putnam v. Payne, 13 Johns. Laws (1885), c. 467, as amended by Laws (N. Y.) 312; Laverty v. Hogan, 2 N. Y. City (1887), c. 76, providing for the destruction Ct. 197; Perry v. Phipps, 32 N. C. 259, 51 of such animals when affected with a "con- Am. Dec. 387. tagious or infectious disease of malignant or 8. Miller v. Horton, 152 Mass. 540, 26 very fatal nature," none of which cattle were Vol. n 340 ANIMALS reckless and offensive manner the owner may recover exemplary damages over and above the value of the property destroyed ; 10 but when the animal is diseased and the statute directs the payment to the owner of " the actual value at the time of destruction of any animal " so killed, the owner is not entitled to the value of the animal considered as sound and unaffected by disease, but simply its actual value in its diseased condition. 11 Failure of the proper local authorities to act, whereby the owner failed to receive compensation for animals which died, does not make a case for an action at law for damages, but is clearly a case for a com- plaint to the body appointing such local officials. 12 3. Right to Quarantine. 13 Under the Kansas statute providing for the taking up, inspection, and placing in custody of the sheriff of certain diseased animals, the report of inspectors, and the order of the justice to the sheriff commanding him to keep the cattle, are not conclusive against the owner ; he may, in an action of replevin, or in an action in the nature of trover, show that such animals were not diseased within the meaning of the statute. 14 Such order constitutes a sufficient prima facie justification of the sheriff's refusal to return the cattle to the owner during the quarantine period. 15 Under this statute the justice can act only within his own township, and if he act outside thereof his proceedings are void. 16 at the time affected with any disease what- ever, such destruction is without authority of law and tortious. Houston r. State, 98 Wis. 481, 74 X. W. Ill, 42 L. K. A. 39. State not liable. — Where sound cattle are destroyed by the state live-stock sanitary commission, as diseased cattle, under 3 How. Anno. Stat. Mich. p. 3150, providing for the appointment of a commission to prevent con- tagious disease among cattle, the state is not liable for the wrongful act, but the remedy of the owner, if he has any, is against the commissioners individually. Shipman r. State Live-Stock Sanitary Commission, 115 Mich. 488, 73 X. W. 817. A resolution by a city board of health that the health officer request the Society for the Prevention of Cruelty to Animals to send their veterinary surgeon and investigate all stables, and that the health officer be author- ized to condemn and destroy such horses as may be found glandered, is no justification to an officer of the Society for the Prevention of Cruelty to Animals for killing glandered horses found by him before same have been reported to the board of health, and the re- port acted upon by it. Westchester Electric R. Co. v. Angevine, 52 X. Y. App. Div. 239, 65 X. Y. Suppl. 376. 10. Pearson v. Zehr, 138 111. 48, 29 X. E. 854, 32 Am. St. Rep. 113. 11. Tappen r. State, 146 X. Y. 44, 40 X. E. 499. See also Shipman v. State Live-Stock Sanitary Commission, 115 Mich. 488. 73 X. W. 817: Campbell v. Manchester, 67 X. H. 148, 36 Atl. 877. Bight of appeal. — X. H. Laws (1889), c. 93, giving the owner of a diseased animal killed by direction of a municipal corporation the right to appeal by petition to the trial term of the supreme court when he is " aggrieved by the amount of [the] appraisement " of the animal, does not permit an appeal because of the corporation's refusal to pay the appraise- ment. Campbell v. Manchester, 67 X. H. 148, 36 Atl. 877. Vol. II Requisites of appraiser's report. — Where commissioners appointed by the county judge to appraise horses afflicted with glanders re- ported that they examined the animals, and found them diseased, and assessed their value at ninety dollars, the objection that the re- port as returned did not show the value of the animals as diseased was without merit. Maynard r. Freeman, (Tex. Civ. App. 1900) 60 S. W. 334. 12. Mulcahv v. Kilmacthomas, 18 L. R. Ir. 200. 13. Limited to certain season.— Under Tex. Rev. Stat. (1895), art. 5043fc, providing that the quarantine line, as fixed by the live-stock sanitary commission, shall not apply from the first day of Xovember to the fifteenth day of May of each year, an order of the commis- sion prohibiting the moving of cattle across a certain line from February 15th to Xovem- ber 15th was void. The further provision of said section that the quarantine line must conform with the federal line has nothing to do with the question of the time cattle may be moved within the state. Roberson v. State, 38 Tex. Crim. 507, 43 S. W. 989. Expenses of quarantine. — Under Mass. Stat. (1894), c. 491, which provides that when cat- tle are quarantined under the act on the premises of the owner the expense shall be paid by him, and when taken from such prem- ises the expense shall be paid by the town wherein the cattle are kept, if the animals are quarantined on the premises of the owner at his own expense, and are afterward, by or- der of the cattle commissioners, shipped on cars, the expense thereof is to be borne by the owner. Kenneson v. Framingham, 168 Mass. 236, 46 X. E. 704. 14. Wilcox v. Johnson, 34 Kan. 655, 9 Pac. 610; Verner v. Bosworth, 28 Kan. 670. 15. Hard wick v. Brookover, 48 Kan. 609, 30 Pac. 21. 16. Wilcox i'. Johnson, 34 Kan. 655, 9 Pac. 610. ANIMALS 341 VII. CRUELTY TO ANIMALS. A. The Offense— -1. Nature of — a. At Common Law. At common law cruelty to an animal was not an offense on the ground of the pain and suffering inflicted ; " but when the act was committed publicly and so as to constitute a nuisance, 18 or when committed with a malicious intent to injure the owner, 19 it was indictable. b. Under Statutes — (i) In General. In comparatively recent times the subject of cruelty to animals has been made the subject of legislation, with the result that there now generally exist statutes having for their object the protection of dumb animals from wilful or wanton abuse, neglect or cruel treatment, by providing punishment for the infliction upon them of such pain or suffering as is not necessarily involved in the execution of some lawful purpose. 20 (n) General and Local Laws. A general law, confiding in the courts the power to punish violations of such a statute, according to the circumstances of aggravation, will supersede a local law punishing the like offense by a maximum or minimum fine, irrespective of the aggravated circumstances. 21 (hi) Construction of Statutes — (a) Generally. Acts having for their object the prevention of cruelty to animals should be construed so as to effectuate the legislative intention and attain the practical object of such laws, so far as the rules of construction may warrant without involving absurd consequences. 22 (b) Kinds of Animals Protected. Where the object intended is to protect animals generally, the language of the statute, unless qualified, will be construed 17. Waters v. People, 23 Colo. 33, 46 Pac. 112, 58 Am. St. Rep. 215, 33 L. R. A. 836; State v. Bruner, 111 Ind. 98, 12 N. E. 103; People v. Brunell, 48 How. Pr. (N. Y.) 435; Branch v. State, 41 Tex. 622. And see Ross' Case, 3 City Hall Rec. (N. Y.) 444, holding that killing a balky horse with a single blow is not cruelty, where there was an absence of deliberation. 18. Stage Horse Cases, 15 Abb. Pr. N. S. (N. Y.) 51; People v. Brunell, 48 How. Pr. (N. Y.) 435; People v. Stakes, 1 Wheel. Crim. (N. Y.) Ill; Ross' Case, 3 Citv Hall Rec. (N. Y.) 191; State v. Briggs, 1 Aik. (Vt.) 226; TJ. S. v. McDuell, 5 Craneh C. C. (U. S.) 391, 26 Fed. Cas. No. 15,672; U. S. v. Jackson, 4 Craneh C. C. (U. S.) 483, 26 Fed. Cas. No. 15,453; U. S. v. Logan, 2 Craneh C. C. (U. S.) 259, 26 Fed. Cas. No. 15,623. The New York act of 1867 is declaratory of the common law. Stage Horse Cases, 15 Abb. Pr. N. S. (N. Y.) 51. 19. People v. Brunell, 48 How. Pr. (N. Y.) 435. . For form of an indictment: For the com- mon-law offense of beating a cow in public see U. S. v. Jackson, 4 Craneh C. C. (U. S.) 483, 26 Fed. Cas. No. 15,453. For inciting a dog to bite and tear a cow in a public street see U. S. v. McDuell, 5 Craneh C. C. (U. S.) 391, 26 Fed. Cas. No. 15,672. 20. Hodge v. State, 11 Lea (Tenn.) 528, 47 Am. Rep. 307; Turman v. State, 4 Tex. App. 586; Benson v. State, 1 Tex. App. 6. Statutes repealed. — The Georgia act of 1879, § 6, when read with the title of the act, im- ports a repeal of the acts of 1875 and 1876 respecting cruelty to animals; but the act of Sept. 21, 1881, § 4310, respecting the punish- ment, is reinstated. MeKinne v. State, 81 Ga. 164, 9 S. E. 1091. Ind. Rev. Stat. (1881), § 2101, was repealed by the Indiana act embodied in Elliott Suppl. § 329 et seq., which is much broader and more exact, and which in one clause repeals all statutes inconsistent with it. State v. Giles, 125 Ind. 124, 25 N. E. 159. Failure to provide punishment. — An act making the forbidden cruelty a misdemeanor, but failing to provide the mode of punish- ment, 'will not preclude its infliction under a general statute providing for such omissions. State v. Greenlees, 41 Ark. 353. The passage of municipal ordinances to prevent and punish such cruelty is within the police power, or such other authority as may have been conferred upon the municipal- ity to enable it to maintain its peace and good government and to promote its general welfare. St. Louis v. Schoenbuseh, 95 Mo. 618, 8 S. W. 791. Interference with property. — An ordinance passed to prevent cruelty is not an interfer- ence with private property rights. State v. Karstendiek, 49 La. Ann. 1621, 22 So. 845, 39 L. R. A. 520. 21. State v. Falkenham, 73 Md. 463, 21 Atl. 370. 22. Grise v. State, 37 Ark. 456. And see State v. Allison, 90 N. C. 733, and State v. Simpson, 73 N. C. 269, holding that a statute denouncing the offense of killing or abusing an animal must be construed as not to in- clude a mere accidental or permissive kill- ing. "Maim" in a statute punishing the wilful maiming, etc., of any dumb animal, is synony- mous, or nearly so, with the word " crip- ple." Turman v. State, 4 Tex. App. 586. Vol. II 342 ANIMALS broadly and so as to embrace all living animals, including birds and fowls ; x but if a kind or class of animals is sought to be protected, the application of the statute will be restricted to the consideration of offenses concerning those animals which are intended. 24 2. What Constitutes Cruelty — a. Active Cruelty — (i) Ix General. Cru- elty to animals may consist of wilful or wanton abuse or ill treatment, or unnec- essary or unreasonable acts or conduct which cause pain and suffering ; a a need- less killing, unaccompanied by torture, is an act within this class. 26 No gen- eral statement can be made as to what particular acts will constitute the offense; 27 but the infliction of pain and suffering, consequent upon the performance of a customary and proper lawful act, and to serve some useful purpose, is not cruelty, where the act is done in good faith and with reasonable care and skill. 28 Neither will acts be deemed cruel where there is no pain or suffering in fact, 29 nor when done to protect property from depredations. 30 23. The word " animal " will include a dog not listed for taxation (State v. Giles, 125 Ind. 124, 25 N. E. 159), a captive fox (Com. r. Turner, 145 Mass. 296, 14 N. E. 130), and a goose (State v. Bruner, 111 Ind. 98, 12 N. E. 103). "Bird or animal" includes a game-cock. People v. Klock, 48 Hun (N. Y.) 275. " Useful fowl or animal " includes chickens (State v. Seal, 120 N. C. 613, 616, 27 S. E. 81, 58 Am. St. Rep. 810), and pigeons (State r. Porter, 112 N. C. 887, 16 S. E. 915). "Every living creature" will include cap- tive doves. Waters f. People, 23 Colo. 33, 46 Pac. 112, 58 Am. St. Rep. 215, 33 L. R. A. 836. "Animal" in its common acceptation in- cludes all irrational creatures, and in a stat- ute will embrace wild and noxious animals, unless a different meaning is indicated. Com. V. Turner, 145 Mass. 296, 14 N. E. 130. 24. " Domestic animals " will include a dog (Wilcox v. State, 101 Ga. 563, 28 S. E. 981, 39 L. R. A. 709), mules (State r. Gould, 26 W. Va. 258), game-cocks (Budge r. Par- sons, 3 B. & S. 382, 113 E. C. L. 382, 7 L. T. Rep. N. S. 784, 32 L. J. M. C. 95 ; Bates v. McCormick, 8 Ir. Jur. N. S. 239, 9 L. T. Rep. N. S. 174, 175), and captive birds trained as decoys for bird-catching (Colam r. Pagett, 12 Q. B. D. 66, 55 L. J. M. C. 167 ) ; but not cap- tive rabbits (Aplin v. Porritt, [1893] 2 Q. B. 57, 17 Cox C. C. 662), caged lions (Harper r. Marcks, [1894] 2 Q. B. 319, 63 L. J. M. C. 167), a tame sea-gull (Yates v. Higgins, [1896] 1 Q. B. 166), parrots (Swan v. San- ders, 50 L. J. M. C. 67, 44 L. T. Rep. N. S. 424, 14 Cox C. C. 566), or captive lizards or chameleons (In re Racey, [Canada] 54 Alb. L. J. 252). "Cattle" will include pigs (State r. Pru- ett, 61 Mo. App. 156, 1 Mo. App. Rep. 356) and goats ( State v. Groves, 119 N. C. 822, 25 S. E. 819). " Swine " includes hogs. Rivers v. State, 10 Tex. App. 177. 25. Hunt v. State, 3 Ind. App. 383, 29 N. E. 933; Budge v. Parsons, 3 B. & S. 382, 113 E. C. L. 382, 7 L. T. Rep. N. S. 784, 32 L. J. M. C. 95, 9 Jur. X. S. 796, 11 Wklv. Rep. 424 ; Ford v. Wiley, 23 Q. B. D. 203 ; Murphy v. Manning, 2 Ex. D. 307, 46 L. J. M. C. 211; Vol. II Swan v. Sanders, 44 L. T. Rep. N. S. 424, 50 L. J. M. C. 67, 14 Cox C. C. 566; Callaghan v. Society, etc., 16 L. R. Ir. 325; Brady v. McArgle, 14 L. R. Ir. 174, 15 Cox C. C. 516. " Torture " ex vi termini, involves cruelty (Brady r. McArgle, 14 L. R. Ir. 174, 15 Cox C. C. 516), and consists in some violent, wan- ton, and cruel act, necessarily producing pain and suffering (State r. Pugh, 15 Mo. 500). The instant killing of a dog is not cruelty within a statute designed to prevent unneces- sary torture and cruelty. Horton v. State, 124 Ala. 80, 27 So. 468. 26. State v. Neal, 120 N. C. 613, 27 S. E. 81, 58 Am. St. Rep. 810. The easy death of the animal is not a justification where cruelty is no part of the charge. Grise v. State, 37 Ark. 456. 27. Among acts amounting to cruelty are beating an animal in a wanton and cruel manner (Com. i. Miller, 3 Lane. L. Rev. 175; U. S. v. Logan, 2 Cranch C. C. (U. S.) 259, 26 Fed. Cas. No. 15,623) ; striking and hack- ing a pig with an axe (Adeock v. Murrell, 54 J. P. 776) ; dislocating the limbs of hogs and plunging them alive in boiling water, during the process of slaughtering them (Davis v. American Soc, etc., 16 Abb. Pr. N. S. (N.Y.) 73 [affirmed in 75 N". Y. 362] ) ; cutting the combs of cocks (Murphy v. Manning, 2 Ex. D. 307, 46 L. J. M. C. 211, 20 Moak 558), or otherwise torturing them (Budge t>. Parsons, 3 B. & S. 382, 113 E. C. L. 382, 7 L. T. Rep. N. S. 784, 32 L. J. M. C. 95, 9 Jur. N. S. 796, 11 Wkly. Rep. 424; Bates v. McCormick, 9 L. T. Rep. N. S. 174, 12 Ir. C. L. 577) ; the administration of poison (People v. Davy, 32 N. Y. Suppl. 106, 65 N. Y. St. 162); the harsh and unreasonable treatment of a dog on a treadmill or inclined plane (People r. Ct. of Special Sessions, 4 Hun (N. Y.) 441). 28. As beating a horse to train or dis- cipline him, though the beating was unneces- sarily severe (State v. Avery, 44 N. H. 392), or spaying swine, though in fact the opera- tion was unnecessary and useless (Lewis v. Fennor, 18 Q. B. D. 532, 56 L. J. M. C. 45, 56 L. T. Rep. N. S. 236, 35 Wkly. Rep. 378, 51 J. P. 371, 16 Cox C. C. 176). 29. State v. Pugh, 15 Mo. 509, tying brush or boards to a horse's tail. 30. Hodge r. State, 11 Lea (Term.) 528, ANIMALS 34a (n) Cock -Fighting. Cock-fighting, if not specifically made an offense, will ordinarily come within the terms of enactments to prevent cruelty to animals. 81 (m) Dishorning Cattle. There are cases holding that the dishorning of cattle for convenience and profit, and not wantonly, constitutes cruelty, because unnecessary and unreasonable ; S2 but, by the weight of authority, if the operation is a customary one in the locality, is performed with care and skill, enables the owner of the animals to keep them more easily by rendering them more tractable, to transport them with safety and convenience, and to realize a greater profit, the dishorning is not violative of the statute. 33 (iv) Fox -Bunting. Eeleasing a captive fox and permitting it to be hunted by dogs let loose for the purpose, who tear and mangle it, is an exposure of the animal to unnecessary suffering. 34 (v) Overdriving or Overloading. Another species of cruelty denounced consists of the overdriving or overloading of horses and work-animals. This offense may be committed by cruel driving or cruel treatment. 35 (vi) Pigeon-Shooting. The shooting of captive pigeons for sport, or as a means of improving marksmanship, has been held to constitute cruelty under the statute. 36 It has also been held that where the wounded birds are at once killed, and, with those shot dead, are sold and eaten as food, there is not such a needless killing as will constitute the offense. 37 b. Passive Cruelty — (i) In General. " Cruelty, torture, or torment," denounced by statute, may consist also of acts of omission, neglect, and the like, whereby unnecessary or unjustifiable pain or suffering is caused or permitted, where a reasonable remedy or relief may be afforded ; M but accidental injury or 47 Am. Rep. 307, wherein the defendant caught, in a steel trap, a depredatory dog which was not allured on the premises. 31. Finnem v. State, 115 Ala. 106, 22 So. 593; Bates v. McCormiek, 8 Ir. Jur. N. S. 239, 9 L. T. Rep. N. S. 174, 175, 12 Ir. C. L. 577 [distinguishing Coyne v. Brady, 7 Ir. Jur. N. S. 66] ; Budge v. Parsons, 3 B. & S. 382, 113 E. C. L. 382, 7 L. T. Rep. N. S. 784, 32 L. J. M. C. 95, 9 Jur. N. S. 796, 11 Wkly. Rep. 424, wherein defendant fought his cock against another having a broken thigh. 32. State v. Crichton, 4 Ohio Dec. 481; Ford v. Wiley, 23 Q. B. D. 203, 58 L. J. M. C. 145, 53 J. P. 485 ; Brady v. McArgle, 14 L. R. Ir. 174, 15 Cox C. C. 516. 33. Rex v. McDonagh, 28 L. R. Ir. 204; Callaghan v. Society, etc., 16 L. R. Ir. 325, 16 Cox C. C. 101 ; Renton t>. Wilson, 15 Jus- ticiary Cas. (Scotch) 84, 53 J. P. 491, 2 White Just. Rep. 43; Todrick v. Wilson, 2 White Just. Rep. 636. 34. Com. v. Turner, 145 Mass. 296, 14 N. E. 130, holding that under the statute no allega- tion or proof of torture or cruelty is neces- sary except as involved in unnecessary suf- fering, knowingly and wilfully permitted. 35. State v. Bosworth, 54 Conn. 1, 4 Atl. 248; MeKinne v. State, 81 Ga. 164, 9 S. E. 1091 ; State v. Roche, 37 Mo. App. 480 ; Stage Horse Cases, 15 Abb. Pr. N. S. (N. Y.) 51; People v. Tinsdale, 10 Abb. Pr. N. S. (N. Y.) 374. See 2 Cent. Dig. tit. "Animals," §§ 101, 102. Using animals unfit for labor. — In Eng- land keepers of places for the slaughter of animals may be punished for using or work- ing animals delivered to them for destruction because unfitted for labor. Benford v. Sims, 2 Q. B. 641, 67 L. J. Q. B. 655, 78 L. T. Rep. N. S. 718, 47 Wkly. Rep. 46. And this is true of unlicensed as well as of licensed slaughterers. Colam v. Hall, 40 L. J. M. C. 100. 36. State v. Porter, 112 N. C. 887, 16 S. E. 915. Especially where the shooting is for a cup (Paine v. Bergh, 1 N. Y. City Ct. 160), and though there is no intention to torture or inflict pain (Waters v. People, 23 Colo. 33, 46 Pac. 112, 58 Am. St. Rep. 215, 33 L. R. A. 836). See 2 Cent. Dig. tit. "Animals," § 104. 37. State v. Bogardus, 4 Mo. App. 215; Com. v. Lewis, 140 Pa. St. 261, 21 Atl. 396, 27 Wkly. Notes Cas. (Pa.) 359, 11 L. R. A. 522. At common law shooting live doves as they are released from a trap is not an of- fense. Waters v. People, 23 Colo. 33, 46 Pac. 112, 58 Am. St. Rep. 215, 33 L. R. A. 836. 38. Waters v. People, 23 Colo. 33, 46 Pac. 112, 58 Am. St. Rep. 215, 33 L. R. A. 836 (construing Mill's Anno. Stat. Colo. § 117) ; Com. v. Thornton, 113 Mass. 457. Keeping a horse with a diseased leg from which the hoof has rotted, in a pasture in which, in its effort to support life by graz- ing, it is inevitably put to intense pain, is cruelty of this character. Everitt v. Davies, 38 L. T. Rep. N. S. 360, 26 Wkly. Rep. 332. See also Westbrook v. Field, 51 J. P. 726 (wherein a drover, acting under instructions, left a sheep with a broken leg in a pen with others, and it was held that, though careless- ness was shown, the offense of cruelty was not established), and Adcoek v. Murrell, 54 J. P. 776 (wherein a person was convicted for hacking a pig with an axe, and permit- ting it to lie wounded for over twenty-four hours). Vol. II 344 ANIMALS permissive suffering will not constitute cruelty. 39 And it has been held that the mere omission to destroy a suffering animal, and leaving it in pain, after a justi- fiable injury, is no more than passive cruelty, which, not being provided for by statute, is not punishable. 40 (n) Failure to Provide Food, Water, or Shelter. The failure to provide horses and cattle with proper food, water, or shelter is a statutory offense in some jurisdictions, in which the cruel suffering of the animal is not a necessary ingredient. 41 The elements of this form of the offense may combine with those necessary to constitute overdriving or overworking so as to contravene the statute. 41 3. Wilfulness, Wantonness, and Intent — a. In General. Where it is expressly or impliedly required that the prohibited act should have been done wilfully or wantonly, or with an intent to ill-use the animal, or subject it to unnecessary pain and suffering, it must appear that the act was intentional as distinguished from accidental or involuntary, or that the accused was actuated with a malevolent purpose or reckless disregard of the consequences. 48 The evil motive need not be actual, however. If the act is of such a character as to evince an absence of proper regard for animal life or f eelings the intention will be presumed and the necessary motive supplied by construction. 44 An intent to cause pain and suffer- ing is immaterial when such elements are unnecessary to constitute the offense, 45 provided the conduct of defendant was wilful and not accidental. 46 b. Malice toward Owner. The object of statutes to prevent cruelty is the protection of the animals themselves, and not the owner's property rights, there- fore malice toward the owner, or intent to injure him, is not an ingredient of the offense. 47 4. Persons Liable — a. Agents and Servants. Irrespective of the criminal liability of the owners of animals for causing or permitting them to be cruelly treated, persons employed by them and actively engaged in the commission of 39. State v. Allison, 90 ST. C. 733; State v. Simpson, 73 N. C. 269. 40. Powell v. Knights, 38 L. T. Rep. N. S. 607, 26 Wkly. Rep. 721. 41. State 17. Bosworth, 54 Conn. 1, 4 Atl. 248; Com. v. Curry, 150 Mass. 509, 23 N. E. 212. The failure to provide young parrots with water, while placed in a box for shipment, during their transportation for a short time, is not ill usage, in the absence of any proof of suffering. Swan v. Sanders, 50 L. J. M. C. 67. 42. State v. Bosworth, 54 Conn. 1, 4 Atl. 248. 43. Indiana. — Hunt v. State, 3 Ind. App. 383, 29 N. E. 933. Massachusetts. — Com. v. Wood, 111 Mass. 408. New York. — Davis v. American Soc. etc., 6 Daly (N. Y.) 81 [affirmed in 75 N. Y. 362]. Texas. — Branch v. State, 41 Tex. 622; Gerdes v. State, (Tex. Crim. 1896) 34 S. W. 268 ; Thomas v. State, 14 Tex. App. 200. England. — Westbrook v. Field, 51 J. P. 726. "Wilful" and "wanton" defined.— A wil- ful act is one committed with an evil intent, with legal malice and without legal justifica- tion. A wanton act is one committed regard- less of the rights of the owner of the animal, in reckless sport or under such circumstances as indicate wicked or mischievous intent, and without excuse. Thomas v. State, 14 Tex. App- 200. An unlawful act is not necessarily Vol. II wilful and wanton. Jones v. State, 9 Tex. App. 178. Ignorance of animal's condition. — Driving a horse, while ignorant that it is sick, is not, ■per se, tormenting or torturing it. Stage Horse Cases, 15 Abb. Pr. N. S. (N. Y.) 51. 44. Hunt v. State, 3 Ind. App. 383, 29 N. E. 933; People v. Tinsdale, 10 Abb. Pr. N. S. (N. Y.) 374. Malice presumed. — If the act was cruel, severe, and intentional, and was committed without just cause or excuse, the law will regard it as malicious. State v. Avery, 44 N. H. 392. 45. Colorado. — Waters v. People, 23 Colo. 33, 46 Pac. 112, 58 Am. St. Rep. 215, 33 L. R. A. 836. Massachusetts. — Com. v. Wood, 111 Mass. 408; Com. v. Lufkin, 7 Allen (Mass.) 579. Missouri. — State v. Hackfath, 20 Mo. App. 614. New York. — People v. Tinsdale, 10 Abb. Pr. N". S. (N. Y.) 374. North Carolina. — State v. Neal, 120 N. C. 613, 27 S. E. 81, 58 Am. St. Rep. 810. Guilt of the offense does not depend on whether or not the accused thought he was not wilfully or unnecessarily cruel, but whether he intentionally and knowingly did acts which were plainly of a nature to inflict unnecessary pain, and so were unnecessarily cruel. Com. v. Magoon, 172 Mass. 214, 51 ST. E. 1082. 46. State v. Hackfath, 20 Mo. App. 614. 47. State v. Avery, 44 N. H. 392 ; Branch v. State, 41 Tex. 622. ANIMALS 345 the cruel acts are punishable under statutes prohibiting the commission of such acts by " any person," etc. 48 b. Master for Act of Servant. The owner or custodian is not criminally liable for cruelty, active or passive, done or caused by his agents or servants, with respect to animals owned by him or in his charge, unless knowledge and approval are in some way brought home to him. 49 e. Owner. The owner of an animal, if guilty of cruelty toward it, is liable to the same extent as a third person. 50 d. Aiders and Abettors. One who counsels the perpetration of an act of cruelty may be convicted as an aider and abettor, though the advice given was only the remote cause of the cruelty. 61 5. Jurisdiction. To confer jurisdiction to entertain prosecutions for infrac- tions of statutes forbidding cruelty to animals, the proceedings must be instituted in the mode prescribed by statute. 53 6. Indictment, Information, or Complaint — a. Charging Offense — (f) In General. The indictment, information, or complaint must describe the offense with reasonable certainty ; 53 such complaint must be sufficient to apprise the defendant with that of which he is charged, 54 and to enable him to plead a convic- tion or an acquittal in bar of another prosecution for the same offense. 55 Charg- 48. The employment by a street railway company of a conductor and driver to oper- ate a car will not exempt the latter from pun- ishment for overloading and overdriving a horse attached thereto. People v. Tinsdale, 10 Abb. Pr. N. S. (N. Y.) 374. 49. Roeber v. Society, etc., 47 N. J. L. 237 ; Small v. Warr, 47 J. P. 20. There is no presumption of the approval, by the master in his absence, of the cruel act of his servant. Roeber v. Society, etc., 47 N. J. L. 237. A receiver of cattle which are suffering who has directed his employees to alleviate their condition is not liable for such em- ployees' neglect when he has no knowledge of their disobedience, or has not wilfully shut his eyes to the facts. Elliott v. Osborn, 65 L. T. Rep. N. S. 389, 17 Cox C. C. 346. 50. Com. v. Lufkin, 7 Allen (Mass.) 579; Benson v. State, 1 Tex. App. 6. 51. Benford v. Sims, 2 Q. B. 641, 67 L. J. Q. B. 655, 78 L. T. Rep. N. S. 718, 47 Wkly. Rep. 46. 52. In New York certain courts are vested with exclusive jurisdiction of the offense, un- less it is certified that the trial should be by indictment, and unless a certificate is ob- tained a prosecution by indictment is pre- cluded. People v. Davy, 32 N. Y. Suppl. 106, 65 N. Y. St. 162. 53. Rose v. State, 1 Tex. App. 400. There is no jurisdiction to issue a warrant where the complaint insufficiently charges the offense. Warner o. Perry, 14 Hun (N. Y.) 337. " Beating " a horse, in an indictment charg- ing that defendant " did beat a certain horse," refers to the infliction of blows, and cannot be understood as referring to a race or other act of contest. Com. v. McClellan, 101 Mass. 34. A simple charge of cruelly killing an ani- mal does not charge the offense of cruelly beating, or needlessly mutilating, etc. Hunt v. State, 3 Ind. App. 383, 29 N. E. 933. 54. State v. Greenlees, 41 Ark. 353; State v. Haley, 52 Mo. App. 520. Facts must be set out showing that de- fendant was active in some way in causing or procuring the cruelty complained of. Roeber v. Society, etc., 47 N. J. L. 237. The defendant cannot successfully object to an indictment, which is defective under the law in force when the offense was committed, if it is a good pleading under the law in force when the presentment was made, and when the trial was had. Rountree v. State, 10 Tex. App. 110. 55. Rose v. State, 1 Tex. App. 400. Forms. — For form of an affidavit charging the overdriving of horses see Friedline v. State, 93 Ind. 366. Of an information for same offense see State v. Haley, 52 Mo. App. 520. Of a complaint for cruelly driving see Com. v. Porter, 164 Mass. 576, 42 N. E. 97. Of an indictment for overloading street-car horses, by a driver and car conductor, see People v. Tinsdale, 10 Abb. Pr. N. S. (N. Y.) 374. Of complaints for failure to provide horse with proper food and shelter see State v. Clark, 86 Me. 194, 29 Atl. 984; Com. v. Ed- mands, 162 Mass. 517, 39 N. E. 183. Of complaint for beating horses see Com. v. Luf- kin, 7 Allen (Mass.) 579. Of an indictment for same offense see Com. v. McClellan, 101 Mass. 34. Of indictment for cruelty to a horse see State v. Falkenham, 73 Md. 463, 21 Atl. 370. Of an indictment for shooting a mule see State v. Gould, 26 W. Va. 258. Of a complaint for beating a cow see Com. v. Whitman, 118 Mass. 458. Of an indictment for same offense see State v, Allison, 90 N. C. 733. Of an information for beating, maim- ing, and killing pigs see State v. Pruett, 61 Mo. App. 156. Of an indictment for permit- ting a dog to be submitted to unnecessary torture see Com. v. Thornton, 113 Mass. 457. Of a complaint for releasing a captive fox and dogs to hunt it see Com. v. Turner. 145 Mass. 296, 14 N. E. 130. Of an affidavit charging the burning and torturing of a goose Vol. II 346 ANIMALS ing the offense in the statutory language, or language substantially equivalent thereto,, will ordinarily be deemed sufficient. 56 (n) Particular Averments — (a) Charge and Custody of Animal. Where the charge and custody of the animal by the person ill-treating it is necessary to make out the offense, the fact that at the time of the offense such person had the charge and custody of the animal in question must be appropriately averred. 57 (b) Wilfulness, Wantonness, and Intent. Where, to constitute the offense, it is necessary that the alleged cruelty or abuse should have been done unlawfully, maliciously, wilfully, needlessly, or the like, the act should be so characterized by the use of the statutory language or its equivalent. 58 Such a characterization of the act is necessary, too, in an indictment framed on a statute simply denouncing the killing or abuse of animals, for it will not be presumed that the legislature intended to punish a mere unintentional or accidential injury ; 59 but, if the intent with which the act is done forms no ingredient of the offense, it need not be averred. 60 (o) Cruelty — (1) Mode or Means Employed — (a) In General. Where the act of cruelty charged is made illegal by statute the particular means and instruments made use of to accomplish it need not be averred, but may be proven to establish the offense. 61 Where, however, the language of the statute is not precise, but see State v. Bruner, 111 Ind. 98, 12 ST. E. 103. 56. Indiana. — State v. Giles, 125 Ind. 124, 25 N. E. 159. Maine. — State v. Clark, 86 Me. 194, 29 Atl. 984. Maryland. — State v. Falkenham, 73 Md. 463, 21 Atl. 370. Massachusetts. — Com. v. Edmands, 162 Mass. 517, 39 N. E. 183; Com. v. Thornton, 113 Mass. 457; Com. v. McClellan, 101 Mass. 34. Minnesota. — State v. Comfort, 22 Minn. 271. Missouri. — State v. Goss, 74 Mo. 592 ; State v. Haley, 52 Mo. App. 520; State v. Hack- fath, 20 Mo. App. 614. New Jersey. — Roeber v. Society, etc., 47 N. J. L. 237. North Carolina. — State v. Watkins, 101 N. C. 702, 8 S. E. 346. Texas. — Turman r. State, 4 Tex. App. 586; Benson r. State, 1 Tex. App. 6. West Virginia. — State v. Gould, 26 W. Va. 258. See 2 Cent. Dig. tit. "Animals," § 108 et seq. 57. State r. Clark, 86 Me. 194, 29 Atl. 984; State v. Haskell, 76 Me. 399. Sufficiency of allegation. — A charge of hav- ing the " custodv and control " is sufficient (State v. Clark, 86 Me. 194, 29 Atl. 984); but an allegation of ownership is not (State v. Spink, 19 R. I. 353, 36 Atl. 91). Nature of custody. — It is not necessary to specify the nature of the custody. State v. Clark, 86 Me. 194, 29 Atl. 984. Unnecessarily charging defendant with hav- ing the " charge or custody " of the animal alleged to have been cruelly treated will not render a count indefinite, and the unneces- sary words may be rejected as surplusage. Com. v. Whitman, 118 Mass. 458. 58. Com. v. Thornton, 113 Mass. 457; War- ner v. Perry, 14 Hun (N. Y.) 337; State v. Rector, 34 Tex. 565. " Cruelly " -will include both the wilfulness Vol. II and cruel temper with which the act was done and the pain inflicted (Com. v. McClellan, 101 Mass. 34), and also knowledge of the commission of a wrongful act (Com. v. Por- ter, 164 Mass. 576, 42 N. E. 97 ) . So a charge of " wilfully and unlawfully " doing a cruel act will be equivalent to a charge of its wil- ful commission (State v. Allison, 90 N. C. 733, 735). " Knowingly, wilfully, and needlessly." — An averment that defendant did " knowingly, wilfully, and needlessly act in a cruel man- ner toward a certain fowl, to wit, a chicken, by killing said chicken," is a sufficiently in- telligible charge that defendant was guilty of cruelty to the fowl bv needlessly and wil- fully killing it. State v. Neal, 120 N. C. 613, 27 S. E. 81, 58 Am. St. Rep. 810. " Unlawfully." — A count of an information charging defendant with cruelty to an ani- mal, by unlawfully causing its death by fail- ing to provide it with proper shelter, does not charge the statutory offense of unnecessarily failing to provide an animal with proper shelter, since "unlawfully" is not the equiva- lent of " unnecessarily." Ferrias v. People, 71 111. App. 559. 59. State v. Simpson, 73 N. C. 269. But see Burgman v. State, (Tex. Crim. 1896) 34 S. W. Ill, holding that the overdriving of a horse need not be charged to have been wil- ful or wanton, though the statute so charac- terizes the offense. 60. State v. Hackfath, 20 Mo. App. 614. 61. Arkansas. — State v. Greenlees, 41 Ark. 353. Maryland. — State v. Falkenham, 73 Md. 463, 21 Atl. 370. Minnesota. — State v. Comfort, 22 Minn. 271. Missouri. — State v. Goss, 74 Mo. 592. North Carolina.— State v. Neal, 120 N. C. 613, 27 S. E. 81, 58 Am. St. Rep. 810; State v. Watkins, 101 N. C. 702, 8 S. E. 346. Pennsylvania. — Com. v. Lewis, 140 Pa. St. 261, 21 Atl. 396, 27 Wkly. Notes Cas. (Pa.) 359, 11 L. R. A. 522. ANIMALS 347 implies that a variety of acts or things, in whole or in part, may or may not con- stitute the offense, the facts which give special character and significance to the particular form of the offense should be appropriately set out. 62 A statute inhibiting the actual or permissive driving or working of animals unfit for labor, or the cruel abandonment or transportation of animals in an unnecessarily cruel manner, does not require allegations of torture or cruelty except as they are involved in unnecessary suffering knowingly and wilfully permitted ; 6S and it has been held that, in charging the offense of torturing or mutilating an animal, the method of torture or mutilation, as well as the effect produced, should be stated. 64 (b) Repugnancy. The means alleged to have been used in the commission of the act or acts of cruelty should not be repugnant ; and a count alleging the com- mission of the offense in two different and inconsistent ways is objectionable. 65 (2) Description of Injury. Where the statute does not describe the injury, it is not necessary to describe or characterize it, unless some sufficient reason exists for such particularity. 66 On the other hand, it has been held that, where mutila- tion is charged, its kind or character must be alleged. 67 (d) Description of Animal — (1) In General. The animal as to which the cruelty is alleged to have been perpetrated need not be described with extreme particularity ; but it will ordinarily be sufficient to show that the animal is within the protection of the statute. 68 (2) Ownership. Statutes denouncing cruelty to animals are designed for West Virginia. — State v. Gould, 26 W. Va. 258, holding this to be true as to some forms of the offense, as overdriving, beating, muti- lating, killing, etc.; but otherwise as to " tor- turing or tormenting," as to which the man- ner and circumstances of the act must be stated. 62. Averring intent of statute. — The words of the statute — " overloaded," " injured," " tortured," and " tormented " — do not im- ply or describe the acts charged to have been done with certainty. They each imply a variety of acts that may or may not consti- tute the offense, or parts of it. The acts should be so specified and charged as to show that they mean what the statute intends by overdriving, injury, torture, and torment. The court must see that the offense is charged, and it, and not the pleader, must de- termine that the acts done constitute the of- fense denounced by the statute. State v. Watkins, 101 N. C. 702, 8 S. E. 346. 63. Com. v. Turner, 145 Mass. 296, 14 N. E. 130. 64. Merely charging tying things to a horse's tail, without averring the effect of such act, does not charge a, torturing. State v. Fugh, 15 Mo. 509. Burning fowl. — A charge of torturing, tor- menting, and needlessly mutilating an ani- mal, by then and there unlawfully turpentin- ing and burning the animal in a cruel and wanton manner, while possibly inapt and not so full as it might be, warrants a fair in- ference that the accused put turpentine on the animal and thereby caused it to be burned in a cruel and wanton manner. State v. Bru- ner, 111 Ind. 98, 12 N. E. 103. 65. State v. Haskell, 76 Me. 399, holding that a count charging that the defendant did cruelly torment, torture, maim, beat, and wound a horse, and deprive him of necessary sustenance, stated a single offense, the dif- ferent descriptions of the offense not being repugnant. 66. State v. Giles, 125 Ind. 124, 25 N. E. 159, holding that a statement of the means employed in the commission of the act ap- prises the accused of the charge as fully as though the injury was fully described. A charge of " shooting " is equivalent to a charge of "wounding." State v. Butts, 92 N. C. 784. 67. Avery v. People, 11 111. App. 332. 68. Com. v. Whitman, 118 Mass. 458; Com. v. McClellan, 101 Mass. 34. But see State v. Watkins, 101 N. C. 702, 8 S. E. 346, holding that the animal abused should be described with reasonable certainty. Illustrations. — A designation of the animal as a " hog " is sufficient under a statute pro- tecting " swine." Rivers v. State, 10 Tex. App. 177. Charging the killing of a "bar- row " is a charge of killing an animal. State v. Greenlees, 41 Ark. 353. The court will take judicial notice that a mule is a " domes- tic animal " so protected ( State v. Gould, 26 W. Va. 258), and an averment that a goose is the property of some person unknown is equivalent to an averment that it was a domestic fowl (State v. Bruner, 111 Ind. 98, 12 N. E. 103), and an information charging the wounding of an animal of the class enu- merated in the statute need not further al- lege that it was a " domesticated animal " (Rivers v. State, 10 Tex. App. 177). Color of animal. — "A certain horse, a dumb animal under the statute," is sufficient with- out a specification of the color of the animal. Benson v. State, 1 Tex. App. 6. Protection from second prosecution. — Par- ticularity for the sake of distinguishing the animal from others of the same kind is un- necessary to protect the accused from a, second prosecution for the same offense. Com. v. McClellan, 101 Mass. 34. Vol. II 348 ANIMALS the protection of the animals themselves irrespective of their ownership ; it is not necessary to allege the ownership, nor is it necessary to negative the idea of a property right in the accused unless the statute so requires. 69 (3) Value. Where the punishment which may be imposed is not in any way dependent on the value of the animal killed, injured, or abused, averments of such value are not requisite. 70 b. Unnecessary Averments. Unnecessary averments will not render defec- tive an indictment otherwise good ; but the redundant statements may be rejected as surplusage, 71 unless the unnecessary allegation is descriptive of the animal, in which case it cannot be disregarded. 72 e. Duplieity. A charge of more than one distinct and separate offense of cruelty or ill-treatment is bad for duplicity ; ra but the pleading will not be bad for duplicity if, though the language be inappropriate, no more than one offense is charged in fact. 74 Offenses involving continuous action, and which may be con- tinued from day to day, may be so alleged. 75 d. Indorsement of Proseeutor's Name. A statutory requirement of the indorsement of the prosecutor's name, on an indictment charging a trespass against the property of another, has no application to an indictment against a person for cruelty to his own animals. 76 69. Arkansas. — Grise v. State, 37 Ark. 456. Indiana. — State v. Bruner, 111 Ind. 98, 12 N. E. 103. Massachusetts. — Com. v. Whitman, 118 Mass. 458: Com. v. McClellan, 101 Mass. 34; Com. v. Lufkin, 7 Allen (Mass.) 579. Texas. — State v. Brocker, 32 Tex. 611 [overruling State v. Smith, 21 Tex. 748] ; Rivers r. State, 10 Tex. App. 177; Darnell r. State, 6 Tex. App. 482; Turman v. State, 4 Tex. App. 586; Collier v. State, 4 Tex. App. 12; Rose v. State, 1 Tex. App. 400; Benson v. State, 1 Tex. App. 6. West Virginia. — State v. Gould, 26 W. Va. 258. See 2 Cent. Dig. tit. "Animals," § 110. 70. Grise v. State, 37 Ark. 456 ; Turman v. State, 4 Tex. App. 586; State v. Gould, 26 W. Va. 258. 71. Thus the unnecessary insertion of the word " cruelly " in an indictment for the fail- ure of the custodian of a horse to furnish it with proper shelter and protection (Com. v. Edmands, 162 Mass. 517, 39 N. E. 183) or in an indictment for overdriving (Com. v. Flan- nigan, 137 Mass. 560) ; of allegations as to ownership, charge, or custody (Com. v. Whit- man, 118 Mass. 458; Rivers v. State, 10 Tex. App. 177; State v. Gould, 26 W. Va. 258) ; and of allegations that defendant did " shoot, torture, and otherwise ill-treat," etc., follow- ing a direct charge of cruelty (State v. Gould, 26 W. Va. 258 ) do not render the indictment bad. Nor is an allegation of torture or cruelty necessary except as involved in un- necessary suffering, knowingly and wilfully permitted (State v. Porter, 112 N. C. 887, 16 S. E. 915): 72. As the color of the animal (Benson v. State, 1 Tex. App. 6), or its ownership (Rose v. State, 1 Tex. App. 400). 73. As charging the cruel treatment of an animal in a specific way, and also charging the distinct offense of failing, as custodian, to provide for the wants of an animal in de- Vol. II fendant's care (State v. Haskell, 76 Me. 399); or charging in one count separate and dis- tinct offenses of a similar character, set out in the statute in the disjunctive, and each of which constitutes a misdemeanor (State v. Gould, 26 W. Va. 258 ) . Distinct charges in separate counts. — A count charging defendant with overworking oxen, on certain days, a count charging him with neglect to provide the animals with proper food, drink, and protection during the same period, and a count charging that dur- ing the same period he deprived them of proper sustenance, each charge one offense. State v. Bosworth, 54 Conn. 1, 4 Atl. 248. 74. Animal owned by two persons. — A complaint based on Mass. Gen. Stat. c. 165, § 41. charging that defendant, at a time and place named, " with force and arms, unlaw- fully and cruelly did beat and torture a cer- tain horse, of the property of " two persons named, does not charge two offenses. Com. r. Lufkin, 7 Allen (Mass.) 579. Surplus averments. — The addition, in any one count for overdriving, overloading, or de- priving of necessary sustenance, or unneces- sarily or cruelly beating, or needlessly muti- lating or killing, of the words " torture and torment," or either of them, would not cause such count to be fatally defective as includ- ing a charge of more than one offense in a single count, though, in a separate count stat- ing the mode of torturing, the torture would constitute a separate offense, the added words being mere surplusage. State v. Gould, 26 W. Va. 258. If an attempt to charge in one count two separate and distinct infractions of the statute would be bad for duplicity if they were appropriately set out, and one charge is defective, it may be rejected as sur- plusage, and the complaint sustained as to the offense which is adequately alleged. State r. Haskell, 76 Me. 399. 75. State v. Bosworth, 54 Conn. 1, 4 Atl. 248. 76. State v. Goss, 74 Mo. 592. ANIMALS 349 7. Defenses — a. Act of Merey. It seems that a person, who kills an enfeebled and incapacitated horse as an act of mercy, is not guilty of cruelty." b. Anger. The impulse of anger is not a defense where animals were wilfully and needlessly killed. 78 e. Good Faith. It is available, as a defense to a charge of wilfully and cruelly overdriving a horse, that defendant, a minor, honestly exercised his judgment. 79 d. Intoxication — Bewilderment. Though intoxication would be no defense to a charge of unnecessarily leaving a horse uncared for, yet bewilderment from other causes, so as to incapacitate defendant in locating the animal, might be. 80 e. Protection of Property. It has been held that the fact that the ani- mal was trespassing and committing depredations at the time of the killing or infliction of the injury is no justification to the wrong-doer. 81 It has also been held in numerous cases that, where the injury results from the employment of neces- sary and proper means in driving off trespassing animals, 83 such killing or injury will not be deemed cruelty, in the absence of wilfulness, or wantonness, or an intention to inflict unnecessary pain or suffering. The same rule applies where the owner of land, after ineffectually using ordinary care to protect his property, kills or injures animals invading his premises, and ravaging his crops, or other- wise damaging his property. 83 f. Sport or Amusement. The defendant cannot plead that the killing or wounding was done in the gratification of a taste for sport or amusement. 84 g. Useful Purpose. It has been held that the fact that the alleged cruel act was not done wantonly, but for convenience and profit, is not a defense ; but that to constitute a defense the act must be shown to be necessary and reasonable under the circumstances. 85 8. Evidence — a. Burden of Proof. Where the issue is whether defendant " needlessly " killed the animal, the burden of proof is upon the state to show, not only the killing, but that it was done under such circumstances as, unexplained, would authorize the jury to believe that it was needless, in the sense of the statute. 86 b. Admissibility. Evidence is admissible to show the extent of the injury, as the apparent effect of blows, 87 or the value of an animal before the commission of 77. Ferrias v. People, 71 111. App. 559. Tex. App. 423, 2 S. W. 767, defendant was 78. State v. Neal, 120 N. C. 613, 27 S. E. held entitled to an instruction that if it rea- 81, 58 Am. St. Rep. 810. sonably appeared to him that his horse was 79. Com. v. Wood, 111 Mass. 408, holding in danger of serious injury from the attack that in such a case evidence is inadmissible of the other one, and he inflicted the wound to show a request of the owner of the horse, upon the attacking horse to protect his own on a former occasion, not to permit defendant horse from the threatened injury, he should to have horses, as the question was whether be acquitted. or not the offense had been committed, and Trapping a dog while he is engaged in dep- not whether it was discreet or judicious to redations will not constitute " needless " urn- afford an opportunity for its commission. tilation, torture, etc. Hodge v. State, 11 Lea 80. Com. v. Curry, 150 Mass. 509, 23 N. E. (Tenn.) 528, 47 Am. Rep. 307. 212. Evidence of habits of animal — Recom- 81. State v. Butts, 92 N. C. 784. See also pensing owner.— Defendant may show the State v. Neal, 120 N. C. 613, 27 S. E. 81, 58 habit of the animal to invade and damage Am. St. Rep. 810, where the prosecutor had defendant's property, and also that, after been warned to prevent his fowls from tres- wounding it, he sent to the owner its money passing. value. Lott v. State, 9 Tex. App. 206. '82. Avery v. People, 11 111. App. 332. 84. State v. Neal, 120 N. C. 613, 27 S. E. 83. Stephens v. State, 65 Miss. 329, 3 So. 81, 58 Am. St. Rep. 810; State v. Porter, 112 458; Hodge v. State, 11 Lea (Tenn.) 528, 47 N. C. 887, 16 S. E. 915. Am. Rep. 307; McMahan v. State, 29 Tex. 85. Dishorning cattle (Brady v. McArgle, App. 348, 16 S. W. 171 ; Brewer v. State, 28 14 L. R. Ir. 174, 15 Cox C. C. 516 [but see Tex. App. 565, 13 S. W. 1004; Reedy v. State, supra, VII, A, 2, a, (in)]); cutting the 22 Tex. App. 271, 2 S. W. 591; Farmer v. combs of cocks for fighting purposes, or to State, 21 Tex. App. 423, 2 S. W. 767; Payne enter them for competition at an exhibition v. State, 17 Tex. App. 40; Thomas v. State, (Cleasby, B., in Murphy v. Manning, 2 Ex. 14 Tex. App. 200; Lott v. State, 9 Tex. App. D. 307, 46 L. J. M. C. 211 ). 206. 86. Grise v. State, 37 Ark. 456. Protecting horse. — In Farmer v. State, 21 87. State v. Avery, 44 N. H. 392. Vol. II 350 ANIMALS the offense, and the extent to which such value was impaired. 88 A witness may testify, also, as to knowledge of the disposition of a horse alleged to have been ill- treated, and give his opinion that the horse was kind and manageable. 89 e. Sufficiency — (i) In General. The commission of the offense by the accused must be made out by proof sufficient to connect him therewith. 90 The sufficiency of such proof is dependent on the particular circumstances of the indi- vidual case ; 91 but a conviction is improper where the evidence as to the abuse and ill-treatment is very slight and utterly fails to show that the animal's death, which is charged as a part of the offense, was caused thereby. 92 (n) As to Mode or Means Employed. Where the act is alleged to have been accomplished by more than one means, proof that any of the means charged were used proves the offense where the penalty is the same whether one or all the means were used. 93 (m) As to Wilfulness, Wantonness, and Intent. Proof of the mere fact of the infliction of the injury is not sufficient to establish the offense, where malice, wilfulness, wantonness, or the like is an essential ingredient ; but the wilful or wanton spirit which accompanied the commission of the act must be shown by proof of acts or conduct which will satisfy the jury that the offense was knowingly committed, or of the wicked intent of the accused. 94 d. Variance. There must be no variance between the indictment and the evidence. 95 Thus a charge of causing the death of an animal by neglect is not sustained by proof of a killing by blows ; 96 an allegation that the animal was wounded and killed, by evidence of wounding only ; 97 of ownership in one, by evidence of ownership in another ; 9S nor is a charge of cruelty sustained by evi- dence of the killing of a trespassing animal, which killing constitutes the statutory offense of malicious mischief. 99 It has been held, however, that proof of the killing of a particular kind of animal will support an averment of the killing of one of the same species differently described. 1 9. Trial — a. Instructions — (i) In General. The instructions should be sufficiently full and explicit to enable the jury to understand the precise nature of the offense ; 2 and when, to convict, the jury must find that the act charged was done in a prescribed manner, the particular word used should be so defined that its effect will not be misapprehended in determining the guilt or innocence of the accused. 3 The instructions should not assume facts not proven, such, for 88. For the purpose of showing the nature ure to provide the horse with proper food and of their treatment, and whether or not such drink sufficient to convict. Com. v. Curry, unjustifiable pain or suffering was caused as 150 Mass. 509, 23 N. E. 212. would constitute the offense. McKinne v. 92. Burgman v. State, (Tex. Crim. 1896) State, 81 Ga. 164, 9 S. E. 1091. 34 S. W. 111. 89. State v. Avery, 44 N. H. 392. 93. State v. Haskell, 76 Me. 399. 90. Thus evidence that the animal was 94. State v. Roche, 37 Mo. App. 480. found dead on the farm of one of two defend- 95. Avery v. People, 11 111. App. 332. ants, and that the other, who was assisting in 96. Ferrias v. People, 71 111. App. 559. working the farm for a few days, gave no in- 97. Reid v. State, 8 Tex. App. 430. formation to persons inquiring about the ani- 98. Collier v. State, 4 Tex. App. 12. mal, is insufficient to convict the latter. Col- 99. Brewer v. State, 28 Tex. App. 565, 13 lier v. State, 4 Tex. App. 12. But evidence S. W. 1004; McRay v. State, 18 Tex. App. tending to prove that defendant released a 331; Payne v. State, 17 Tex. App. 40. fox in the presence of dogs; that the fox ran 1. Grise r. State, 37 Ark. 456, where the into a wood ; that five minutes thereafter the killing of a hog was charged, and the killing dogs were loosed, upon which they pursued, of a pig proved. caught the fox, and mangled it, is sufficient 2. Com. v. Lufkin, 7 Allen (Mass.) 579. to convict. Com. v. Turner, 145 Mass. 296, 3. "Needlessly." — A definition of " need- 14 N. E. 130. lessly" as without necessity or unnecessarily, 91. Neglect to feed and water. — Unneces- as where one kills the domesticated animal of sarily leaving a horse harnessed to a carriage another, either in mere wantonness or to in the woods, where it remained all night un- satisfy a depraved disposition, or for sport cared for, when it appears that the horse was or pastime, or to gratify one's anger, or for actually without food and drink for more any other unlawful purpose, is erroneous than twenty-four hours, except the food which where the lawfulness or unlawfulness of the it obtained in the woods, is evidence of a fail- act has no bearing upon its character as Vol. II ANIMALS 351 example, as the mutilation of the animal, 4 or the commission of the particular act charged. 5 (n) As to Kind of Animal. On trial of an indictment framed under a statute forbidding the killing, maiming, etc., of " any domesticated animal," an instruc- tion that the offense consisted of the killing, etc., of " any animal," while inaccu- rate, will not require reversal, where it was not objected to or sought to be cor- rected, and no prejudice resulted. 6 , (in) As to Ownership of Animal. The giving of instructions which might possibly have misled the jury, by causing them to regard as important the ownership of the animal in question, is error requiring reversal. 7 (iv) As to Wilfulness or Wantonness. Where wilful or wanton conduct or intent is an ingredient of the offense, the jury should be informed as to the neces- sity of direct proof of this character, or of inferences which they may draw from the facts and circumstances, and the effect of such proof. 8 If the evidence clearly establishes the existence of these elements, or conclusively negatives the idea that the act was unintentional, accidental, or done with a proper motive, it is error to permit the jury to consider whether or not the accused acted in good t til til. (v) As to Justification. "Where there is no evidence of justification an instruction that defendant must have been justified beyond a reasonable doubt is harmless error. 10 b. Province of Jury. Where the evidence as to the commission of constituent acts of the offense is conflicting or inconclusive, the question of their commission is for the jury. 11 10. Appeal. Mere formal defects in the indictment in characterizing the offense, 12 or non-prejudicial inaccuracies in an instruction defining the offense, 13 cannot be availed of for the first time on appeal. In New Jersey, on appeal charged. Neither would the definition be sufficiently instructive to authorize the re- fusal of instructions, requested by the ac- cused, which substantially define the word correctly, and which he is entitled to have particularly impressed upon the jury — it be- ing new, and a matter which they might mis- apprehend. Grise v. State, 37 Ark. 456. "Wilfully and wantonly." — Where it is necessary that the act should have been " wil- ful and wanton," the court should expound the legal signification of the words " wil- fully" and "wantonly." Thomas v. State, 14 Tex. App. 200. 4. Avery v. People, 11 111. App. 332. 5. There being no presumption of the ap- proval, by the master, in his absence, of the cruel act of his servant, a charge that the master, by his employee, acted cruelly is founded on no facts, and is not equivalent to a charge of causing or procuring the cruel act. Roeber v. Society, etc., 47 N. J. L. 237. 6. Aehterberg v. State, 8 Tex. App. 463. 7. Com. v. Lufkin, 7 Allen (Mass.) 579. 8. Degree of force. — An instruction is erro- neous which makes the guilt or innocence of the accused dependent on whether or not he used unnecessary force in protecting his prop- erty, where that fact is not an issue involved except in so far as it might be considered by the jury in determining whether or not the force used was wilfully used. Farmer v. State, 21 Tex. App. 423, 2 S. W. 767. 9. State v. Neal, 120 N. C. 613, 27 S. E. 81, 58 Am. St. Rep. 810; Tinsley v. State, (Tex. Crim. 1893) 22 S. W. 39, 40, wherein the testimony shows that the chastisement inflicted on a horse was cruel in the extreme and manifested a spirit of heartless and brutal rage; and it was held that an instruc- tion that the jury might acquit if the beat- ing was done " with the intent and design of compelling said horse to obey him, and he did not strike and beat the horse in a wilful and wanton manner, with intent to injure him," was unauthorized. Motive. — An instruction is improper, if it is calculated to make the determination turn on the question of whether or not defendant thought he was unnecessarily cruel where there was cruelty in fact. Com. v. Magoon, 172 Mass. 214, 51 N. E. 1082. 10. State v. Neal, 120 N. C. 613, 27 S. E. 81, 58 Am. St. Rep. 810. 11. Overloading. — People v. Tinsdale, 10 Abb. Pr. N. S. (N. Y.) 374. Good faith or wilful purpose. — State v. Isley, 119 N. C. 862, 26 S. E. 35. The inexperience and want of knowledge of a minor as to the proper treatment of horses, charged to have been overdriven and abused. Com. v. Wood, 111 Mass. 408. Continunity of offense.— On evidence of a. beating fo* a long time, with occasional in- terruptions of a few minutes' duration, the jury may find the beating to have been con- tinuous. State v. Avery, 44 N. H. 392. 12. Com. v. Plannigan, 137 Mass. 560. 13. Aehterberg v. State, 8 Tex. App. 463. Vol. II 352 ANIMALS from a judgment for a penalty rendered by a justice, defendant is entitled to relief, both as to matters of law and fact, as in other appeals from justices of the peace. 14 B. Societies for Prevention of Cruelty — 1. Exemptions — a. From Taxa- tion. A society for the prevention of cruelty to animals, the members of which derive no benefit or profit from its operations, which educates men in the dis- eases of the domestic animals, and the proper mode of dealing with them, and inculcates the duty of kindness and humanity to them, is a benevolent and charit- able institution within a statutory exemption of such institutions from taxation. 15 b. From Payment of Dog License. A statute requiring the owners of dogs to pay a license-fee, and permitting a society for the prevention of cruelty to animals to appropriate and dispose of unlicensed dogs, or, in its discretion, to keep them without the payment of any fee, is unconstitutional. Such a statute conflicts with the provision which forbids the grant of exclusive privileges and immunities. 16 2. Rights — a. To License-Fees. An act requiring the owners of dogs to pay a license-fee to a humane society for its own use is unconstitutional, for a pro- vision of the constitution forbids the giving of public moneys to any association or private undertaking. 17 b. To Fines and Penalties. Under a statute requiring fines and penalties collected for infractions of the acts to prevent and punish cruelty to animals, to be paid on demand to a designated society formed to prevent such cruelty, where such moneys have been collected by, and are in the possession of, a municipality or its officers, the society may recover the same by an action against the municipality, 18 after duly demanding the same. 19 e. To Kill — (i) Power of Legislature to Grant — (a) As to Dogs. A statute authorizing a humane society to appropriate, dispose of, or destroy unlicensed dogs is not unconstitutional as a delegation of governmental power ; nor is it so as assuming to vest in a private corporation the execution of police power, the authority vested in the officers or agents of such society to kill dogs being neither greater nor less than that conferred on other citizens. 20 (b) As to Other Animals. Statutes which authorize agents of societies for the prevention of cruelty to animals to condemn, conclusively fix the value of, and destroy animals, without notice to the owners, are violative of a constitutional pro- vision that no person shall be deprived of his property without due process of law ; 21 and a similar statute authorizing such agents to destroy or cause the destruction of animals found neglected or abandoned, and which, in the opinion of a specified number of citizens, are injured or diseased past recovery, or by age have become useless, is likewise in contravention of a constitutional provision protecting the property of every individual, and providing for compensation when taken, there being no condition of the animal described in the statute such as would make it dangerous to public health and safety. 22 If the legislature 14. Roeber v. Society, etc., 47 N. J. L. tion of the fees received to the care or de- 237; Pennsylvania R. Co. v. New Jersey Soc, struction of unlicensed dogs is an unauthor- etc, 39 N. J. L. 400, convictions under the ized appropriation of public moneys, and not New Jersey acts of 1873 and 1880 (Pamph. a lawful setting aside of public funds for the L. 80; Pamph. L. 212) prescribing penalties use of a corporation discharging duties as a for cruelty to animals. governmental agency. 15. Massachusetts Soc, etc. v. Boston, 142 18. American Soc, etc, v. Cohoes, 4 N. Y. Mass. 24, 6 N. E. 840. St. 808. 16. Fox v. Mohawk, etc, River Humane 19. American Soc, etc. v. Gloversville, 78 Soc, 165 N. Y. 517, 59 N. E. 353 [affirming Hun (N. Y.) 40, 29 N. Y. Suppl. 257, 60 25 N. Y. App. Div. 26, 48 N. Y. Suppl. 625], N. Y. St. 808. 17. Fox r. Mohawk, etc. River Humane 20. Fox v. Mohawk, etc., River Humane Soc, 165 N. Y. 517, 59 N. E. 353 {affirming Soc, 165 N. Y. 517, 59 N. E. 353 [reversing 25 N. Y. App. Div. 26, 48 N. Y. Suppl. 625], 25 N. Y. App. Div. 26, 48 N. Y. Suppl. wherein it is said that, conceding that a hu- 625]. mane society was created as a subordinate 21. King v. Hayes, 80 Me. 206, 13 Atl. 882. governmental agency to assist in the enforce- 22. Brill v. Ohio Humane Soc, 4 Ohio Cir. ment of laws relative to animals, the devo- Ct. 358. Vol. II ANIMALS 353 were empowered to authorize the killing of an animal under the circumstances prescribed, it could not impart, as against the owner, a conclusive character to the determination of the persons designated, for the reason that the owner is entitled to be heard and have his property rights determined in a proper tribunal. 28 (n) Liability of Society or Agent. An owner whose animal has been destroyed, without notice to him, by such an agent, has a right of action for damages, if he can establish that the circumstances authorizing the officer to act did not exist ; but the agent or officer may justify by showing that the animal killed was past recovery. 34 If the agent transcends the authority specially con- ferred on him by statute and not delegated to him by the society, he is personally liable, and the society is not, unless it directed the commission of the act com- plained of. 25 d. To Arrest. "Where acts have been passed authorizing arrests to be made by a humane society's officers or agents duly designated by the sheriff and author- ized by the act to execute laws against cruelty, the commission of the forbidden acts in the presence of such an officer will authorize the latter to arrest without a warrant. 26 3. Injunction to Restrain — a. When Proper. An injunction will not issue to restrain a society, organized to enforce the laws respecting cruelty to animals, or to restrain its officers, who are vested with power to make arrests for that purpose, from exercising those powers, on the ground that the statute conferring such power is unconstitutional, or that the officers are exceeding their powers or using them oppressively by making arrests, where there is an adequate remedy at law and the pecuniary responsibility of the society and its officers is unquestioned. 27 The court may, however, enjoin the society or its agents from stopping the vehicles of a public carrier of passengers, except for the purpose of an arrest for a palpable violation of the law, and from taking possession of the vehicles or the horses attached, or of interfering with the passengers. 28 b. Ascertaining Commission of Offense in Aetion for. In an action of this character the violation of a statute denouncing cruelty cannot be determined ; such an issue must be tried at law, where the people as well as the accused may be represented. 29 e. Violation of — Contempt. Stopping a passenger vehicle and arresting the driver for an actual violation of the statute is not a violation of the injunction which should be punished as a contempt, although, on trial for the offense, the driver was acquitted, but the plaintiff will be left to his action for damages. 80 23. Brill i?. Ohio Humane Soc, 4 Ohio Cir. River Humane Soc, 20 Misc. (N. Y.) 461, 46 Ct. 358. To the same effect see Sahr v. N. Y. Suppl. 232; Stage Horse Cases, 15 Abb. Scholle, 89 Hun (N. Y.) 42, 35 N. Y. Suppl. Pr. N. S. (N. Y.) 51. 97, 69 N. Y. St. 453, holding that the deter- The New York statutes (Laws (1886), mination of the fact that the animal was c. 682; Laws (1867), c. 375) do not require past recovery can be had only after notice to a, special appointment by the sheriff for each the owner entitling him to be heard. arrest, but the agent designated is author- The Connecticut statute authorizing in one ized to act under a general appointment section the destruction by an agent of in- until it is revoked. Davis v. American Soc, capacitated animals "in his charge," after etc., 75 N. Y. 362 [affirming 6 Daly (N. Y.) condemnation by him with the aid of citizens 81, 16 Abb. Fr. N. S. (N. Y.) 73]. called in, will not justify him in taking up 27. Davis v. American Soc, etc., 6 Daly and killing an animal when he has failed to (N. Y.) 81, 16 Abb. Pr. N. S. (N. Y.) 73 comply with other sections requiring him to [affirmed in 75 N. Y. 362]. give a prescribed notice to the owner of the For a substantial form of complaint to taking, and to afford the latter an opportu- enjoin a society for the prevention of cruelty nity to retake the animal. Goodwin v. Tou- to animals from interfering with plaintiff's cey, 71 Conn. 262, 41 Atl. 806. business of slaughtering hogs see Davis v. 24. Sahr v. Scholle, 89 Hun (N. Y.) 42, 35 American, Soc, etc., 6 Daly (N. Y.) 81. N. Y. Suppl. 97, 69 N. Y. St. 453. 28. Stage Horse Cases, 15 Abb. Pr. N. S. 25. Dillon v. American Soc, etc., 2 N. Y. (N. Y.) 51. City Ct. 45; Hanna v. New Jersey Soc, 63 29. Davis v. American Soc, etc., 75 N. Y. N. J. L. 303, 43 Atl. 886. 362 [affirming 6 Daly (N. Y.) 81, 16 Abb. Pr. 26. Davis v. American Soc, etc., 75 N. Y. N. S. (N. Y.) 73. 362 [affirming 6 Daly (N. Y.) 81, 16 Abb. 30. Stage Horse Cases, 15 Abb. Pr. N. S. Pr. N. S. (N. Y.) 73]; Pox v. Mohawk, etc., (N. Y.) 51. [23] Vol. II 354 ANIMALS VIII. DRIVING AWAY ANIMALS OR REMOVING FROM RANGE. A. Civil Remedy. In some jurisdictions the statutes impose civil penalties on persons engaged in driving cattle, if such persons, without authority, drive away stock not their own to or beyond a prescribed distance from their proper range or premises, or wilfully permit or suffer others so to do. 31 Knowledge of wrongdoing on the part of the person charged is a prerequisite to liability under statutes of this nature. 32 Consequently, it must be properly alleged and proved that defendant had some knowledge that the animals of another entered his drove, or were being taken away, before he can be charged in a civil action for damages. 33 B. Criminal Prosecutions — 1. In General. The offense of wilfully driv- ing away or removing from its accustomed range or place an animal not one's own, and without consent of the owner, is, in contemplation of law, not only an acquisition, but an appropriation of the property, and is not clearly distinguish- able from the ordinary definition of theft. 3 * In fact, in Texas, one form of the offense is denominated theft by statute. 35 However, although the commission of such an act will ordinarily constitute larceny, this particular form of misappropri- ation has been made the subject of legislation, with the result that the offense is specifically denounced, the degrees thereof made dependent on the presence or absence of an intent to defraud, and matters of defense or mitigation prescribed. 36 2. Elements of Offense. "Where the degree of the offense is based on the fact of wilfulness and intention to defraud the owner of his animals, to constitute the 31. See Arnold v. Ludlam, 38 111. 190 (decided under 111. Rev. Stat. c. 35) ; Cham- berlain v. Gage, 20 Iowa 303 (decided under Iowa Laws (1862), c. 34). Instruction not warranted. — It is mis- leading and erroneous to instruct that the moving of cattle by the owner thereof from one feeding or grazing-place to another in the same neighborhood does not constitute him a " drover or person engaged in driving cattle " so as to subject him to the pre- scribed penalty for such driving •when no proof was adduced that he was so engaged, but, on the contrary, the statutory offense was made out. Arnold v. Ludlam, 38 111. 190. 32. Chamberlain v. Gage, 20 Iowa 303, wherein it was said by Lowe, J., that the statute under consideration (Iowa Laws (1862), e. 34) was apparently enacted upon the hypothesis that a diligent drover could not reasonably drive off the stock more than five miles, the prescribed distance, without knowledge of the presence in his drove of the animal of another, and upon acquiring such knowledge would be bound at his peril, within that distance, to turn out of his drove such cattle as did not belong to him. Evidence sufficient. — Evidence that defend- ant drove a herd through part of the state, with knowledge that cattle belonging to an- other were in the drove; that he branded and exercised other acts of ownership over such animals; that he drove them twenty-five miles from their usual range along a route through a thickly settled country with a habitation on every mile of the route, suf- ficiently establishes the offense of wilfully and knowingly driving or permitting the driving through the state of cattle driven Vol. n from the premises or range of another, and belonging to such other, to any distance ex- ceeding five miles, provided that if such driver shall not pass any habitation within five miles, and shall separate from the drove the cattle so driven off at the next habitation, no cause of action shall accrue. Arnold v. Ludlam, 38 111. 190. 33. Chamberlain v. Gage, 20 Iowa 303. In this case, Lowe, J., after announcing the opinion of the court, said, in substance, that when a recovery is sought for willingly per- mitting or suffering others to drive away animals, or where the alleged wrongdoer is sought to be held in treble damages for doing so himself, knowledge is a necessary element which must be charged and proven; but that if defendant is charged to have committed the wrongful act personally, and actual dam- ages alone are claimed, it is not necessary to aver that defendant acted knowingly or will- ingly. 34. Counts v. State, 37 Tex. 593. 35. Shubert v. State, 20 Tex. App. 320. 36. The effect of the Colorado statute is not to take the larceny of any of the animals named therein out of the provisions of the general act (Colo. Crim. Code, § 65; Colo. Gen. Stat. § 753), but to leave it indictable under either act. To this extent the pro- visions are concurrent. Kollenberger v. Peo- ple, 9 Colo. 233, 11 Fac. 101. The offense denounced by the Texas stat- ute (Tex. Pen. Code, art. 766a; Paschal's Dig. art. 24106) was not abrogated by the act of May 17, 1873, which amends section 766 of the Penal Code and, by an article also numbered 766a, prescribing a penalty for the theft of certain enumerated animals. Smith v. State, 43 Tex. 433. ANIMALS 355 offense it is necessary that those elements should have existed. 87 They do not existif the accused, in removing the animals, acted on a well-founded belief in his^ right to take them, 88 or where the object is to save the life of the animal, and no claim of right to possession is made, 39 or where one turns animals out of his own pasture and notifies their owner of his action. 40 Eor is an employee guilty of wil- fully driving off cattle, where, acting under instructions, he drives cattle from his employer's pasture, although the owner of the cattle owns a few acres, inclosed within the pasture, with his consent, since in such a case the cattle are not on their accustomed range. 41 3. Venue. Where the offense is complete the instant a county line or bound- ary is passed it may be prosecuted either in the county from which or in the county to which the animal is driven. 43 4. Indictment — a. In General. Ordinarily, and where there is no cause for any exception to the general rule, it is sufficient to charge the offense in the lan- guage of the statute. 43 b. Charging Several Offenses by One Aet. Where the offense consists of the removal by one act of several animals which are the property of different owners, the state is not bound to divide the single act into as many different charges as might be formed out of it, but may charge the taking by one act of the property of different persons as one offense. 44 Such joinder is immaterial where the grade of the offense is not thereby affected. 45 e. Particular Averments — (i) As TO Driving Off. It is not necessary, where the offense consists in driving the animal away, to state the distance it was driven. 46 (u) Description of Animal. It is unnecessary to charge that the animal taken was alive, since that fact will be presumed unless the contrary is stated. 47 (in) Description of Range. An indictment for the wilful driving of an animal from its accustomed range need not particularize or describe by limits the 37. " Wilfully," in Tex. Pen. Code, art. 749, fit v. Stale, 41 Tex. 186, a prosecution based denouncing the offense of wilfully, fraudu- . on a statute defining a different offense], lently, etc., taking and driving away an ani- See also infra, VIII, B, 5, a, (I), (b), mal without the owner's consent, means with ( 2 ) . evil intent or without reasonable ground to 43. State v. Thompson, 40 Tex. 515. believe that the act was lawful. Yoakum v. For forms of indictment: For stealing, State, 21 Tex. App. 260, 17 S. W. 254; Owens leading, driving, and carrying away cattle, v. State, 19 Tex. App. 242. framed under Colo. Gen. Stat. p. 931, § 22, To same effect see Beachamp v. State, (Tex. see Kollenberger v. People, 9 Colo. 233, 11 Crim. 1894) 28 S. W. 807, holding that the Pae. 101. question of wilful intent is not an issue, For wilfully removing from accustomed where the taking was without any excuse or range, with intent to defraud, based on Tex. reasonable belief in the right to take the ani- Crim. Code, art. 766, see Darnell v. State, 43 mal, and the existence of the fraudulent in- Tex. 147. tent is beyond doubt. For removing horse from range, based ore 38. Yoakum v. State, 21 Tex. App. 260, Tex. Pen. Code, art. 749, see Shubert v. State, 17 S. W. 254. 20 Tex. App. 320, 329. 39. Wilson v. State, (Tex. App. 1892) 19 44. Long v. State, 43 Tex. 467, wherein an S. W. 255, where, to save its life, the ae- indictment, containing a charge of driving cused permitted a motherless calf to follow one animal was followed by another charge of his cow to and remain at his place for a the driving of another, which was in turn short time. followed by another as to a third animal, the 40. Mahle v. State, (Tex. App. 1890) 13 averments being connected by the words S. W. 999. " then and there," was held sufficient to 41. Wells v. State, (Tex. App. 1890) 13 charge the driving of three animals by one S. W. 889. act. 42. Because by a general provision (Pas- For form of indictment charging the tak- chal's Dig. art. 2659) the jurisdiction of the ing by one aet of the property of different county from which the animal is driven is persons see Long v. State, 43 Tex. 467. extended four hundred feet beyond the bound- 45. Long v. State, 43 Tex. 467. ary line, and the offense is necessarily com- 46. Darnell v. State, 43 Tex. 147. pleted within the jurisdiction of the county 47. Kollenberger v. People, 9 Colo. 233, 11 from which the animal is driven. Rogers v. Pae. 101, further stating that if the animals State, 9 Tex. App. 43 [.distinguishing Senter- are dead that fact must be set out. Vol. II 356 ANIMALS place in question further than to characterize it as the accustomed range from which the animal was removed. 48 (iv) Negativing Ownership or Consent. If the indictment fails to nega- tive the ownership of the alleged wrong-doer, or fails to allege that the animals were driven away without having the written authority of the owner as pre- scribed by law, no conviction can be had. 49 (v) Intent. A charge of a fraudulent intent " to deprive " the owner of his animal is equivalent to the statutory language : " to defraud " the owner. 50 d. Immaterial Statements. An indictment appropriately charging the offense of removing cattle is not vitiated by a statement which of itself charges nothing, but merely states, by way of summation, that defendant was guilty of theft. 51 5. Trial — a. Proofs — (i) Of Prosecution — (a) Necessary Proofs — (1) Of Ownership. A prima facie case is made out when accused is shown to have had possession of cattle off their range, without having the evidence of title required by statute ; 52 likewise, such a case is made out by proof that the cattle were estrays, or belonged to, or were controlled by, some person other than the defendant ; M though, if the ownership of the animal is unnecessarily alleged, the allegation must be proved, because of the material aid in identification. 54 (2) Of Value. Where the penalty which may be inflicted is dependent on the value of the animals removed, their value must be proved K as alleged ; x but it is otherwise where the value is not material to the punishment. 57 (b) Sufficiency of — (1) In General. Under the Texas statute, a prima facie case is made out by proof of the driving, using, or removing from a range of cattle which do not belong to the accused, or are not under his control. 58 A conviction is warranted by proof that the animal of another was in defendant's herd, with his knowledge, at a place eight to ten miles distant from its accus- tomed range ; 59 or by proof of possession of the animal at a distance from its accustomed range, and in an unusual place, with other suspicious circumstances respecting inspection and shipment. 60 A conviction is not justified where the evidence fails to show that accused drove the animals from the range, and it appears that he brought the animal to a place near the range and expressed his desire to find the owner ; 61 or where the ownership of the animal, though alleged, is not satisfactorily proven. 62 (2) As to Place of Offense. In Texas an indictment laying the venue in the county into which the animals were taken is supported by proof that they were taken from a range in another county. 63 48. Darnell i: State, 43 Tex. 147 ; State r. 58. Wills r. State, 40 Tex. 69, decided un- Thompson, 40 Tex. 515, 519, holding that der the Texas act of Nov. 12, 1866, art. 2410e. " range " or " accustomed range " in the 59. Owens v. State, 19 Tex. App. 242. Texas statute is a matter of local description 60. Shubert v. State, 20 Tex. App. 320. and, unlike a generic term requiring the spe- 61. Saltillo v. State, 16 Tex. App. 249. cies to be stated, it admits of proof under So, too, where defendant had called a the general allegation, without defining the neighbor's attention to the fact that his hogs limits of the range by averments. were getting into defendant's field, and de- " The accustomed range " is equivalent to stroying crops, and the neighbor offered to a charge of driving it from " its accustomed help defendant fix his fences so that the hogs range," the statutory language. Fowler v. could not get in, to which defendant would State, 38 Tex. 559. not agree, he stating his fences were good 49. Heard v. State, 8 Tex. App. 466; Cov- enough, whereupon defendant finally shut ington v. State, 6 Tex. App. 512 — prosecu- them up in a pen in his field, refused to turn tions for unlawfully driving cattle out of the them loose on request, but let the owner have county without having them inspected ac- them when he came for them, it was held in cording to law. a prosecution for wilfully driving and remov- 50. Shubert v. State, 20 Tex. App. 320. ing the hogs from their accustomed range, 51. Long v. State, 43 Tex. 467. that the evidence was insufficient to support 52. Wills v. State, 40 Tex. 69. a conviction. Butcher v. State, (Tex. Crim. 53. Wills v. State, 40 Tex. 69. 1900) 56 S. W. 023. 54. Smith v. State, 43 Tex. 433. 62. Smith v. State, 43 Tex. 433. 55. Wills v. State, 40 Tex. 69. 63. Because the offense is denounced as 56. Marshall v. State, 4 Tex. App. 549. theft, which offense may, by statute, be prose- 57. Wills v. State, 40 Tex. 69. cuted not only in the county from which the Vol. II ANIMALS 357 (3) As to Want of Authority. Lack of authority or of the owner's con- sent is shown by evidence that defendant gathered cattle not his own, turned them loose, because ho was unable to produce a bill of sale, again took them up and again for the same reason released them. 64 (n) Of Defense. "Where the prosecution makes out a prima facie case, 65 it then devolves on accused to present any fact under which he can justify or mitigate the offense. 66 Mere possession of animals, without the evidence of title required by statute, raises no presumption of ownership ; 67 but, where accused acted in apparent good faith, he may show that his possession was under a claim of ownership ; 68 and though, for want of written evidence of title, his possession is prima facie illegal, yet such possession is not conclusive of a felonious taking; and the defendant, to overcome the presumption against him, may prove his own- ership or show his right to control the stock, 69 or adduce evidence as to statements, explanations, disclosures of ownership or right to possession, or as to other mat- ters or things bearing on the question of intention 70 or of the character of the possession. b. Instructions — (i) Generally — (a) As to Offense — (1) In General. In prosecutions for wilfully driving off or removing an animal, with intent to defraud the owner thereof, it is unnecessary to explain the' legal meaning of " wilful," for the reason that the existence of an intent to defraud per se ren- ders the act wilful ; an instruction that the act must have been committed with such an intent is sufficient. 73 (2) Degrees of Offense. Where the offense consists of different degrees, for which different punishments are prescribed, and the proof warrants a con- viction for either degree of the offense, the jury should be informed of the elements of both ; 73 but, unless the higher degree is charged, it is improper to instruct that a conviction can be had therefor, 74 though, in a proper case, the jury may be restricted in its finding to a consideration of guilt of the inferior degree. 75 (3) Authority of Defendant. An instruction which misstates the law, as that one acting under the authority of another must know that the latter had the right to give it, and that one person cannot give authority over stock in more than one brand, justifies the reversal of a judgment of conviction. 76 (b) As to Concurrent Offenses. Where the state proves that, at the time of the property was taken, but also in any county 72. Wheeler v. State, 23 Tex. App. 598, through or into which the thief may have o S. W. 160 [.disapproving the dicta in Owens carried the same. Shubert v. State, 20 Tex. v. State, 19 Tex. App. 242, and Shubert v. App. 320. See also supra, VIII, B, 3. State, 20 Tex. App. 320, in which latter ease 64. Kemp v. State, 38 Tex. 110. the holding obiter, was that an instruction 65. See suprq, VIII, B, 5, a, (i), (b), (1). that "by 'wilfully' is meant that the act 66. Texas act of Nov. 12, 1866, art. 2410e. was done without any claim or right in the 67. Wills v. State, 40 Tex. 69. animal," although not so full as it might be, 68. Darnell v. State, 43 Tex. 147. was sufficient in the absence of any exception 69. Wills v. State, 40 Tex. 69; Kemp v. thereto]. State, 38 Tex. 110. See also Smith v. State, 73. Campbell v. State, 42 Tex. 591. 41 Tex. 168, holding that accused may prove 74. Long v. State, 43 Tex. 467, wherein his purchase of the cattle from one having the court, erroneously assuming that both de- authority from its owner, without supple- grees were charged, whereas the lesser one menting this evidence by proof that such alone was well charged, instructed that there owner had a bill of sale, duly recorded and might be a conviction under either count, and certified, etc. the jury found a general verdict of guilty 70. Saltillo v. State, 16 Tex. App. 249; and assessed the punishment as imprison- Beachamp v. State, (Tex. Crim. 1894) 28 ment, it being held immaterial that the pun- S. W. 807 (also holding that unless the ex- ishment inflicted might have been assessed as planations or statements offered are set out the maximum for the lesser and the mini- in the bill of exceptions the error is unavail- mum for the higher grade. able on appeal) ; Bawcom p. State, 41 Tex. 75. Marshall v. State, 4 Tex. App. 549 189 (wherein the court refused to permit de- [citing, in support of the text. Counts l>. fendant to prove instructions given to his State, 37 Tex. 593; Campbell v. State, 42 employees). Tex. 591]. 71. Saltillo v. State, 16 Tex. App. 249. 76. Wills v. State, 40 Tex. 69. Vol. II 358 ANIMALS driving off of the animal named in the indictment, defendant committed a sim- ilar act in respect to animals of another owner, it devolves on the trial court to limit in its charge the purpose for which such testimony was admitted, and the failure to do so is error. 77 (c) Nullifying Effect of Defense. An instruction which tends to deprive accused of exculpatory circumstances in his defense, as where accused defended on the ground of mistake, and the jury were informed that the taking could not he presumed to be in good faith, but was presumptively felonious, is prejudicial error. 78 (n) Non -Prejudicial Instructions. Mere non-prejudicial instructions cannot be successfully complained of. 79 c. Province of Jury — Intent. It is for the jury to determine whether or not defendant acted in good faith in believing that he had authority to control the stock in question ; m and where fraudulent intent is one of the elements of the higher grade of the offense the question of its existence is for the jury, in order that they may determine the punishment to be assessed. 81 d. Verdiet — Conviction of Lesser Offense. A verdict finding defendant guilty, and fixing the amount of the fine, in legal effect acquits of the higher, and convicts of the lower, degree of the offense, where, by reference to the charge of the court, the intention of the jury is manifest. 82 Where a statute denounces the offense in two sections, each prescribing a different grade — one con- stituting theft, and the other the wilful driving, by a person, from its accustomed range, of an animal not his own, a misdemeanor constituting an offense of lesser degree — on trial of an indictment for the greater offense accused may be convicted of the lesser, in view of a general statutory provision that, on trial of an offense consisting of different degrees, there may be a conviction for the lesser one. 83 IX. ESTRAYS. A. Definition. An estray is defined at common law as a wandering animal M 77. Wheeler v. State, 23 Tex. App. 598, 5 mals upon which the law sets no value, as a S. W. 160. dog or cat, and animals ferce naturw, as a 78. State v. Swayze, 11 Oreg. 357, 359, 3 bear or wolf, cannot be considered as estrays. Pac. 574, where the erroneous instruction was . . . The reason of which distinction seems " that the taking of such live animals out of to be that cattle and swans being of a re- the range, with intent to appropriate the claimed nature, the owner's property in them entire dominion over them and convert them is not lost merely by their temporary escape ; to the taker's use, cannot be presumed to be and they, also, from their intrinsic value, are in good faith," and that such a taking is a sufficient pledge for the expense of the lord presumptively felonious ; defendant claiming of the franchise in keeping them the year and to have taken the property as abandoned or day." lost, although that was not the fact. A gelding may become an estray. Owens 79. As where the jury were informed that, v. State, 38 Tex. 555. under certain circumstances, the grade of the Oxen other than work-oxen are included in offense could be reduced by them. Darnell v. the generic term " cattle " employed in the State, 43 Tex. 147. statute relating to estrays. State v. More- 80. Wills r. State, 40 Tex. 69. land, 27 Tex. 726. 81. Bawcom r. State, 41 Tex. 189. "Stray beast in suffering condition."— _ 82. Marshall v. State, 4 Tex. App. 549, in- Conn. Stat. tit. 59, § 5, provides for the tak- timating, however, that it would have been ing up, care, and ultimate disposition of better for the jury to have acquitted of the "any stray beast in a suffering condition." higher grade of offense, that is, theft, — and It has been held that by the term "stray to have convicted of the inferior offense, — beast in a suffering condition" is meant any that is, illegally driving cattle from their beast gone astray and likely, unless taken accustomed range. care of, to suffer injurv or be wholly lost to 83. Counts v. State, 37 Tex. 593. the owner. Sturges v. Raymond, 27 Conn. 84. Tame or reclaimable animals. — In 1 473. Bl. Comm. 298, it is said: "Any beasts may Fowl. — In Case of Swans, 7 Coke 18a, it be estrays that are by nature tame or re- is said that " a swan may be an estray, and claimable, and in which there is a valuable so cannot any other fowl." But see Amory property, as sheep, oxen, swine and horses, r. Flyn, 10 Johns. (N. Y.) 102, 6 Am. Dec. which we in general call cattle. . . . Ani- 316, wherein it was held that where wild Vol. II ANIMALS 359 whose owner is unknown ; 85 but in some statutes the term is used in the broader sense of any wandering or roving animal. 88 B. Taking" Up — 1. Right to Take Up — a. Who May Exercise Right. By some statutes it is provided that none but a householder 87 or freeholder 88 can take up an estray, and under such statutes the power cannot be delegated. 89 b. Where. In some of the states the place where estrays may lawfully be taken up is prescribed by statute, 90 while under the statutes of others the place geese, which had been tamed and strayed away, but without regaining their natural liberty, are found, the finder of the property has no right to a reward from the owner, but is entitled to pay for his necessary expenses in their preservation. 85. Kinney v. Roe, 70 Iowa 509, 30 N. W. 776; People v. Kaatz, 3 Park. Crim. (N. Y.) 129; Shepherd v. Hawley, 4 Oreg. 206; Rob- erts v. Barnes, 27 Wis. 422, in which latter case it was held that the statutory provision that " any person taking up a stray shall, within seven days thereafter, notify the owner' thereof, if to him known," must be understood as referring to a case in which the owner be- comes known within the seven days. Other definitions of the word have been given as follows : "A beast which, having es- caped from its keeper, wanders over the fields, its owner being unknown." Spelman Gloss, [quoted in Roberts v. Barnes, 27 Wis. 422]. "An animal found in an unusual place for such an animal, or an animal that has roved for some time in a certain place whose owner is unknown." E. Imbeaux Co. v. Severt, 9 La. Ann. 124. "An animal that has escaped from its owner and wanders or strays about." Stewart v. Hunter, 16 Oreg. 62, 65, 16 Pac. 876, 8 Am. St. Rep. 267; Burrill L. Diet, [quoted in Shep- herd v. Hawley, 4 Oreg. 206]. "Any valuable animal, not wild, found wan- dering from its owner." Webster Diet. [quoted in Kinney v. Roe, 70 Iowa 509, 30 N. W. 776]. "A wandering beast, which no one seeks, follows, or claims." Burrill L. Diet, [quoted, in Roberts v. Barnes, 27 Wis. 422]. " Cattle whose owner is unknown." 2 Kent Comm. 359 [quoted in Weber v. Hartman, 7 Colo. 13, 1 Pac. 230, 49 Am. Rep. 339; Kinney ». Roe, 70 Iowa 509, 30 N. W. 776 ; Walters v. Glats, 29 Iowa 437]. " Such valuable animals as are found wan- dering in any manor or lordship, and no man knoweth the owner thereof." 1 Bl. Comm. 297 [quoted in Weber v. Hartman, 7 Colo. 13, 1 Pac. 230, 49 Am. Rep. 339; Kinney v. Roe, 70 Iowa 509, 30 N. W. 778]. See 2 Cent. Dig. tit. "Animals," § 194. Manner of animal's escape immaterial. — Under the definitions it is plainly immaterial how^ the animal escaped from the owner — whether by his voluntary act, by the act of a trespasser upon his premises, or by a thief. Kinney v. Roe, 70 Iowa 509, 30 N. W. 776; Thompson v. Cullinane, 22 La. Ann. 586; Patterson v. McVay, 7 Watts (Pa.) 482. A horse tied to a post in the highway by its owner (Alok v. Gerke, 6 Hawaii 569), or by a thief (Hall v. Gildersleeve, 36 N. J. L. 235), is not an estray. An animal running on the range where it is used, or where it was permitted to run by its owner, could not be considered an estray, be- cause in so doing it could not be considered as having escaped or wandered away from its owner. Stewart v. Hunter, 16 Oreg. 62, 16 Pac. 876, 8 Am. St. Rep. 267; Shepherd v. Hawley, 4 Oreg. 206. Cattle, driven along the road in charge of a herder, which, in passing, casually eat of the grass growing on the roadside, are not es- trays, nor does the fact that the herder ac- cidentally falls asleep constitute them such. Thompson v. Corpstein, 52 Cal. 653. Hogs left in pen of stock-yard by an un- known owner are not estrays within the meaning of the Ohio statute which has refer-, ence to animals " running at large." Mill- creek Tp. v. Brighton Stock Yards Co., 27 Ohio St. 435. Where person who had charge of animal was known such animal is not an estray. Lyons v. Van Gorder, 77 Iowa 600, 42 N. W. 500. Question for jury. — The question as to whether the animals were estrays or not was a very proper one for the jury to determine after being instructed as to what constitutes an estray under the statute referred to. Stew- art v. Hunter, 16 Oreg. 62, 16 Pac. 876, 8 Am. St. Rep. 267. 86. Thus, in Wood v. Davis, 12 Kan. 575, 577, the court, per Brewer, J., said: "We are inclined ... to think that the word ' stray ' is used in the statute in the sense of wandering — roving — as defined by Webster, and as ordinarily understood, and not in the sense of the old common-law term, ' estrays ; '" and to the same effect see Worthington v. Brent, 69 Mo. 205 ; State v. Apel, 14 Tex. 428. 87. Weber v. Hartman, 7 Colo. 13, 1 Pac. 230, 49 Am. Rep. 339 ; Shepherd v. Hawley, 4 Oreg. 206. 88. Newsom v. Hart, 14 Mich. 233. Evidence of right to take up. — Where the statute authorizes a person " holding land in this state by deed, title-bond, or lease " to take up estrays, the deed, title-bond, or lease is the best evidence of such holding until shown to have been lost or destroyed, and parol evidence of possession of the land is not admissible until such ownership is shown. McDevitt v. Powel, Tappan (Ohio) 54. 89. Weber v. Hartman, 7 Colo. 13, 1 Pac. 230. 49 Am. Rep. 339; Newsom v. Hart, 14 Mich. 233. 90. Improved lands. — Under the New Jer- sey statute an estray can be taken up only Vol. II 360 ANIMALS where they are taken up may affect the time of year when taking up is permissible. 91 e. When. With respect to the time when estrays may be taken up, some stat- utes provide that if the animal be unbroken it can be taken up only at certain seasons, 92 unless it be found in a lawful inclosure. 93 2. Duty of Taker-Up — a. Advertising and Posting — (i) Necessity for. At common law estrays were required to be proclaimed in the church and two market- towns next adjoining the place where they were found, 94 and under most statutes relating to estrays the taker-up must give notice of the facts by posting or adver- tising. 95 A person who takes up an estray and fails to advertise it as required by law cannot acquire property therein by lapse of time or continued possession, 96 and is not entitled to any compensation. 97 (n) Sufficiency. The advertisement must be in the time * and manner " pro- when on improved lands. Hall V. Gilder- sleeve, 36 N. J. L. 235. Must have broken over or through lawful fence. — In order to justify the taking up and posting of cattle under Mo. Rev. Stat. § 7333, it must be pleaded and shown by the evidence that they had broken over or through a law- ful fence, and without this proof, plaintiff, in an action of replevin for the cattle so taken up and posted, is entitled to a judg- ment on proof ef ownership of the cattle. Storms v. White, 23 Mo. App. 31. Plantation or place of residence. — Under the Iowa statute the right of the taker-up of an estray is confined to his plantation or place of residence, and does not extend to the entire township in which he resides; but, if his farm or plantation be situated in differ- ent townships, he may take up in either, only it must be on such plantation or farm. In section 6 of the statute, which provides that the taker-up must make oath that the prop- erty was taken up at his or her plantation or place of residence in said county, " or other- wise, as the case may be," these latter words refer to, and contemplate, a case of taking up without, and not within, the settlement, as provided for in section 8 of the statute. Howes v. Carver, 3 Iowa 257. Vicinity of residence. — Under the Colorado statute an estray may be taken up only by a householder when found in the vicinity of hi3 residence. Weber r. Hartman, 7 Colo. 13, 1 Fac. 230, 49 Am. Rep. 339. And in Shepherd t'. Hawley, 4 Oreg. 206, it was held that the animal must be in the " habit of runniD" at large about his premises." 91. See infra, IX, B, 1, c. 92. Eay v. Davison, 24 Mo. 280 ; Parker v. Evans, 23 Mo. 67. An estray can he taken up only between the months of November and May, " except breachy or vicious animals, which may be taken up in any month." Shepherd v. Haw- ley, 4 Oreg. 206, 208. Hogs cannot be taken up as estrays in Au- gust. White v. Brim, 48 Mo. App. 111. 93. Parker v. Evans, 23 Mo. 67. Not applicable to broken animals. — Iowa Code, § 1464, provides " that no person shall take up any unbroken animal, as a stray, be- tween the first day of May, and the first day of November, unless the same is found within Vol. II his lawful inclosure." Under this statute it has been held that if the estray is not an un- broken animal, or is not taken up between the first day of May and the first day of Novem- ber, there is no qualification or restriction of the right of a householder to take it up, and hence a broken animal, to wit, a work-horse, may be taken up as an estray when running in the highway. Knudson v. Gilson, 38 Iowa 234. 94. 1 Bl. Comm. 298. 95. Cory v. Dennis, 93 Ala. 440, 9 So. 302; McMillan v. Andrew, 50 111. 282; Hyde v. Pryor, 13 111. 64: Harryman v. Titus, 3 Mo. 302; Wright v. Richmond, 21 Mo. App. 76; Chaffee v. Harrington, 60 Vt. 718, 15 Atl. 350. See 2 Cent. Dig. tit. "Animals," § 199. It is no excuse for failure to advertise a stray animal that the owner has claimed the animal and promised to produce proof of own- ership. Wright v. Richmond, 21 Mo. App. 76. But see Campbell v. Headen, 89 111. App. 172, holding that where the owner of a horse which had strayed away sent word to the finder not to advertise, and that he would come and get him, he is estopped from urg- ing the failure to advertise as an objection to the finder's claim for repayment for feed and care. 96. McMillan v. Andrew, 50 111. 282 ; Hyde r. Pryor, 13 111. 64 (wherein it was held that he could not recover the animal in trover from another to whom it had escaped, and who had advertised it as required by law) ; Wright v. Richmond, 21 Mo. App. 76 (wherein it was held that he could not maintain re- plevin for the animal against the owner, who had taken it from his possession) . 97. Harryman v. Titus, 3 Mo. 302. 98. Computation of time. — The statute re- quires that the person who finds a stray beast shall advertise the same within six days. The date when the advertisement is posted is excluded in the computation of time. Chaffee r. Harrington, 60 Vt. 718, 15 Atl. 350. 99. Thus, where the statute requires no- tice, if the owner is unknown, " to be posted in three public places near the lands of com- plainant," the constable's return, stating that he " executed the within by posting three no- tices near the place where taken up," is not sufficient proof that the statutory notice was ANIMALS 361 vided by statute. It must correctly name the taker-up, 1 and must describe the animal as accurately as possible. 2 b. Affidavit of Taker-Up. "Where the statute provides that, in case no person claims and proves property in an estray within the time limited, the taker-up shall make affidavit to certain facts before a justice of the peace, such oath need not be in writing, although the information required must be reduced to writing and entered on the justice's estray-book. 3 e. Appraisement. Where the statute prescribes for the appraisement of estrays the appraisement must be made by the persons mentioned in the statute, 4 and should show that the appraisers acted under oath. 5 A delay of one day in making the return will not, however, render the proceedings void or subject the taker-up to any penalty. 6 d. Bond. Under the Kansas statute requiring the taker-up to give bond in double the value of the estray it has been held that the bond is based upon the value of the property as ascertained by proceedings under the subsequent sections of the statute, and is not to be given until their termination. 7 e. Manner of Keeping. The taker-up of an estray, in order to acquire title, is not required to keep the animal within an inclosure for the time limited by law. It is sufficient if he bestow such care and attention upon the animal as a prudent and careful man bestows upon his own animals of the same kind. 8 f. Notice of Aeeident. Some statutes require the taker-up of an estray, in order to exempt himself from any liability for an unavoidable accident thereto, to certify the same to the clerk, who shall make an entry thereof in the estray-book. Since the object is to advise the owner of the property, when examining the estray-books, of such loss or accident, if actual notice is given him the object of the law is fully accomplished. 9 3. Duty of Claimant. Before the taker-up of an estray is bound to deliver the same, it is necessary for plaintiff to prove his property before a justice of the peace, and to procure an order from such justice requiring defendant to deliver the same to plaintiff, and also that he should then and there tender the fees for posting and keeping said animal. 10 given. Cory v. Dennis, 93 Ala. 440, 9 So. 6. Houser v. Seott, 65 Ga. 425. 302. 7. Culbert v. Taylor, 7 Kan. 243. Where the owner is known N. H. Gen. 8. Parker v. Evans, 23 Mo. 67. Laws, c. 144. does not require the taker-up of 9. Culbert v. Taylor, 7 Kan. 243. an estray to give notice in the manner there 10. Davis v. Calvert, 17 Ark. 85; Phelan specified. Hardy v. Nye, 63 N. H. 612, 3 Atl. v. Bonham, 9 Ark. 389. 031 [citing Jones v. Smyth, 18 N. H. 119]. Notice of time and place of proving claim. 1. A mistake in the name of the taker-up — Ala. Code (1876), § 1569, provides that if is a, fatal defect, in the advertisement of es- the owner of an estray, within one year from trays, where the notice fails to so describe the the execution of the bond given under section locality as will enable the owner to find his 1558, claims the same he must notify the property. McMillan v. Andrew, 50 111. 282. taker-up, and satisfactorily establish his claim 2. Chaffee v. Harrington, 60 Vt. 718, 15 before a justice of the county, either by his Atl. 350. own or another's oath. By a fair and reason- 3. Harryman v. Titus, 3 Mo. 302. able interpretation of this statute the party The affidavit is no evidence of the facts claiming an estray must notify the taker, not therein stated in a suit brought by such per- only of his claim, but also of the time, place, son against one claiming to be the general and before what justice he will establish it. owner of the estray. Parker v. Evans, 23 Mo. 67. The intention of the statute is that the 4. Under the Georgia code the estrays must taker-up shall have an opportunity to appear be appraised by two freeholders of the militia and contest claimant's ownership. If the district where taken up, and if appraised by owner of an estray does not appear within persons not freeholders, no cause, providential the time prescribed, and as provided by stat- or otherwise, appearing for not complying ute, he forfeits his right thereto, and the with the statute, the taker-up is liable to the property is vested in the taker-up. It could penalty prescribed by Ga. Code, § 1436. not be intended that the taker-up should be Walker v. Collier, 61 Ga. 341. deprived of his possession and qualified prop- Interest in a homestead estate is sufficient erty in the estray, and of his absolute right to qualify one as an appraiser. Houser v. thereto, in event the owner forfeits his right Seott, 65 Ga. 425. by an ex parte proceeding. Stephenson v. 5. Harryman v. Titus, 3 Mo. 302. Brunson, 83 Ala. 455, 3 So. 768. Vol. II 362 ANIMALS 4. Right of Taker-Up — a. To Appeal from Justice. Under the Arkansas stat- ute it is held that an appeal will not lie from an order of a justice of the peace in reference to estrays, the only object of the statute being to enable the taker-up to restore the animal to its owner and obtain indemnity against the bond given to the county, the right to the animal not being determined. b. To Compensation. The taker-up of an estray has a hen upon the property for his lawful charges, 12 and cannot be divested of his possession until such charges are paid. 13 The rate of compensation is prescribed by some statutes, 14 while under others the amount must be determined by certain judicial officers. 15 The right of compensation may be" lost by failure to advertise, 16 or by putting the estray to work ; 17 but, where the right has been lost by failure to advertise, the owner, by an express promise to pay him, waives his right to take advantage of the taker-up's non-compliance with the statute. 18 e. To Use Animal. The taker-up of an estray cannot use it except when necessary for its preservation and for the benefit of the rightful owner, 19 and if the taker-up do so he forfeits his claim for compensation, 20 besides subjecting him- self to an action. 21 d. Property — (i) In General. A person who takes up an estray and com- plies with the requirements of the statute is constituted a bailee of the animal during the time he is required to keep it ; he is vested with a qualified property in the subject of the bailment, 22 which becomes absolute on failure of the owner 11. Langley r. .Barkman, 23 Ark. 293. 12. Garabrant v. Vaughn, 2 B. Mon. (Ky.) 327; Ford v. Ford, 3 Wis. 399. 13. Illinois. — Mahler v. Holden, 20 111. 363. Indiana. — Logan v. Marquess, 53 Ind. 16. Kentucky. — Garabrant v. Vaughn, 2 B. Mon. (Ky.') 327. Missouri. — Rice v. Underwood, 27 Mo. 551 ; Gorman v. Studt, 10 Mo. App. 584. England. — 1 Bl. Comm. 298. See 2 Cent. Dig. tit. "Animals," § 201. But see E. Imbeaux Co. v. Severt, 9 La. Ann. 124, to the effect that a person who takes up an estray has no right to retain pos- session of it until the damages and charges are paid, since he has a direct action there- for. Right to reimburse by sale. — The Oregon statute gives the party a claim upon the ani- mal for the reasonable expense incurred, and authorizes a, sale of it in order to reimburse him, the remainder of the proceeds of the sale being deposited for the owner. Such a stat- ute is constitutional. Stewart v. Hunter, 16 Oreg. 62, 16 Pac. 876, 8 Am. St. Rep. 267. Not recoverable in trespass. — In an action of trespass quare clausum f regit for taking from plaintiff a cow which he had taken up and held as an estray, it is not proper to al- low as damages what it was worth to pasture the cow while plaintiff had it, nor expense incurred by him in advertising her as an es- tray. Gervais v. Powers, 1 Minn. 45. Owner's property is not lost by failure, be- fore the expiration of one year within which the owner is required to appear and prove his property, to pay the legal costs for keep- ing an estray, if he has established his claim within the limited period, and such failure is caused by the absence or other act of the taker-up, or by any other reason which ex- cuses delay. Stephenson v. Brunson, 83 Ala. 455, 3 So. 768. Vol. n 14. Hause v. Rose, 6 Colo. 24; Jones v. Clouser, 114 Ind. 387, 16 N. E. 797. 15. Stephenson v. Brunson, 83 Ala. 455, 3 So. 768; Parker v. King, Ga. Dec. pt. 1, 131. By whom determined. — The same justice before whom the owner proved his property must determine the compensation to which the taker-up is entitled, if the parties cannot agree. Stephenson v. Brunson, 83 Ala. 455, 3 So. 76S. 16. See supra, IX, B, 2, a, (I). 17. See infra, IX, B. 4, c. 18. Boothe v. Fitzpatrick, 36 Vt. 681. 19. Weber v. Hartman, 7 Colo. 13, 1 Pac. 230, 49 Am. Rep. 339; Barrett r. Lightfoot, 1 T. B. Mon. (Ky.) 241, 15 Am. Dec. 110; Oxley v. Watts, 1 T. R. 12; 1 Bl. Comm. 298. No necessity of his own, as to send for a physician, will justify such use. Barrett v. Lightfoot, 1 T. B. Mon. (Ky.) 241, 15 Am. Dec. 110. 20. Weber v. Hartman, 7 Colo. 13, 1 Pac. 230, 49 Am. Rep. 339; Parker e. King, Ga. Dee. pt. 1, 131. 21. See infra, IX, B, 6, a, (i). 22. McCrossin v. Davis, 100 Ala. 631, 13 So. 607; Stephenson v. Brunson, 83 Ala. 455, 3 So. 768; Hudgins v. Glass, 34 Ala. 110. But see 1 Bl. Comm. 298, to the effect that " the king or lord has no property till the year and day passed : for if a lord keepeth an estray three quarters of a year, and within the year it strayeth again, and another lord getteth it, the first lord cannot take it again." Right to pursue, recapture, or recover. — Where the taker-up has pursued the statutory course, and the animal escapes during the bailment, he may pursue and recapture it, or recover it from the person into whose posses- sion it has passed (Hudgins v. Glass, 34 Ala. 110; Hendricks r. Decker, 35 Barb. (N. Y.) 298 ) , but he does not have such right if he has failed to comply with the requirements ANIMALS 363 to appear and prove his property within the time prescribed. 23 Laws like the estray laws, however, are construed strictly against the party claiming the benefit thereof, and he must follow their provisions closely, or lose all benefit therefrom; 24 and it has been held that he must not only show that he did all on his part exactly as the law requires it, but must also show that all which the law required of the justice was done by him. 25 (n) How Pleaded. In an action of replevin a plea 26 that defendant took up the animal as an estray and regularly posted it as such, as required by law, and that plaintiff did not prove property in said estray, and pay or tender the necessary fees as required by law, is sufficient without setting forth in detail the compliance with all the steps required by the statute in posting a stray animal ; OT nor need it be averred that defendant was not guilty of any abuse of the animal, or that he had. not suffered him to be worked, or that he did not drive him out of the woods, etc., for if defendant, in regard to the estray, violated the law, that is matter to be shown in replication. 28 (m) How 'P moved. Where the law requires all proceedings in posting estrays before a justice of the peace to be in writing, it is error to permit the fact that animals were posted to be proved by parol, 29 without laying a foundation by showing that the original papers and the justice's docket were lost or destroyed ; "^ but if such evidence be not pertinent to any issue in the cause, and could not mislead, 31 or if produced to the jury without objection by plaintiff, 33 a judgment will not be reversed for such error. of the statute (Hyde v. Pryor, 13 111. 64; Bayless v. Lefaivre, 37 Mo. 119; Wright v. Richmond, 21 Mo. App. 76; Duncan v. Starr, 9 Lea (Tenn.) 238). Supports allegation of ownership in indict- ment. — The taker-up of an estray has such a property in the animal as will support an allegation of ownership in him in an indict- ment, whether he has proceeded in conform- ity with the estray laws (Jinks v. State, 5 Tex. App. 68), or not (Blackburn v. State, 44 Tex. 457). S3. McCrossin v. Davis, 100 Ala. 631, 13 So. 607; Stephenson v. Brunson, 83 Ala. 455, 3 So. 768; Hudgins v. Glass, 34 Ala. 110; Crook v. Peebly, 8 Mo. 344; 1 Bl. Comm. 298. See 2 Cent. Dig. tit. "Animals," § 205. Keeping requisite time. — One must have kept the animal for the length of time pre- scribed in the act in order to acquire property in an estrav. Geohagan v. Baker, 3 Bibb (Ky.) 284; "Hudson v. Agee, 6 Bush (Ky.) 366. The forfeiture of the owner's title to the taker-up does not depend, however, upon the fact that the possession of the latter is continuous and without any interruption dur- ing the statutory period. If it did, the es- cape of the animal three days, or even one day, before the end thereof would defeat the bail- ee's title, and the taker-up might be held re- sponsible for the value of the property to the owner, without any right of recapture. Hudg- ins v. Glass, 34 Ala. 110. 24. Alabama. — McCrossin v. Davis, 100 Ala. 631, 13 So. 607. Georgia.— Walker v. Collier, 61 Ga. 341. Illinois.— McMillan v. Andrew, 50 111. 282. Indiana. — Haffner v. Barnard, 123 Ind. 429, 24 N. E. 152. Kentucki/. — Geohagan v. Baker, 3 Bibb (Ky.) 284-! Michigan. — Newsom v. Hart, 14 Mich. 233. Missouri. — Crook v. Peebly, 8 Mo. 344. But see Chicago, etc., R. Co. v. Schultz, 55 111. 421, to the effect that a person in posses- sion of an animal which he has taken up as an estray may maintain an action against a wrongdoer for injury thereto, although, in en- deavoring in good faith to comply with the statutory provisions regarding estrays, he failed to give the requisite notice in respect to the same: and that such a recovery will be a bar to any subsequent action by the true owner for the same injury. The requisitions of the statute are neces- sary muniments of title against the original owner, and it is incumbent upon one who re- lies on such a title to see that the statute has been complied with, and to preserve the evi- dence to show such compliance. McCrossin v. Davis, 100 Ala. 631, 13 So. 607. 25. Harryman v. Titus, 3 Mo. 302. 26. For forms of pleas in replevin that ani- mal had been estrayed see Davis v. Calvert, 17 Ark. 85 ; Barnes v. Tannehill, 7 Blaekf. (Ind.) 604. 27. Davis v. Calvert, 17 Ark. 85. 28. Barnes v. Tannehill. 7 Blaekf. (Ind.) 604. 29. Mattingly v. Crowley, 42 111. 300 ; Wat- son v. Mathews, 36 Tex. 278. The law will not presume in favor of the taker-up that an officer, who, upon receipt of his fees, is bound to transmit a notice to the publisher of advertisements of estrays, has done his duty. Crook v. Peebly, 8 Mo. 344. Insufficient evidence. — Evidence by the pro- bate judge that he was " satisfied that the advertisement was duly made " is insufficient to show that the provisions of Ala. Code (1886), §§ 1343, 1344, were complied with. McCrossin v. Davis, 100 Ala. 631, 13 So. 607. 30. Mattingly v. Crowley, 42 111. 300. 31. Mattingly v. Crowley, 42 111. 300. 32. Phelan v. Bonham, 9 Ark. 389. Vol. II 364 ANIMALS 5. Right of Owner to Proceeds of Sale. Under a Wyoming statute which provides that the secretary of the live-stock commission shall pay the proceeds from a sale of estrays to the claimant thereof, on proof of ownership, which shall be in the form prescribed by the statute, it has been held that the secretary may, in addition to the statutory evidence, require corroboration of claimant's proof ; and mandamus will not lie to compel the secretary to pay such proceeds to a claimant, unless the former has abused his discretion and refused to consider proofs presented to him. 33 6. Liability of Taker-Up — a. Civil — (i) In General. A taker-up who neglects to pursue the course prescribed by statute is liable to an action of trover if he refuse to deliver the animal to its owner upon demand, 34 and to an action of trespass for working an estray, although the original taking was lawful. 35 (n) Under Statutes — (a) In General. Under some statutes the taker-up may be proceeded against in a civil action for penalties for violation of the laws in regard to estrays ; S6 but, where one has proceeded in good faith, he will not be liable to the statutory penalty for trifling irregularities. 37 (b) Form of Action. Where the statute points out a particular way for recovering the penalty, it cannot be recovered in any other way. 88 (c) Pleading. The complaint or declaration must aver facts which bring the case within the statute. 89 33. State v. Live Stock Com'rs, 4 Wyo. 126, 32 Pac. 114. 34. Wilson v. McLaughlin, 107 Mass. 587 ; Nelson v. Merriam, 4 Pick. (Mass.) 249. To support a special action on the case for negligence in not complying with the requi- sites of the act concerning estrays, it is neces- sary for plaintiff to show both the negligence and the injury sustained by him in conse- quence thereof. Palmer v. West, 12 Johns. (N. Y.) 186. 35. Barrett v. Lightfoot, 1 T. B. Mon. (Ky.) 241, 15 Am. Dec. 110; Wilson v. McLaugh- lin, 107 Mass. 587 ; Nelson v. Merriam, 4 Pick. (Mass.) 249; Murgoo v. Cogswell, 1 E. D. Smith (N. Y.) 359; Oxley v. Watts, 1 T. R. 1 2 ; Bagshawe v. Goward, Cro. Jac. 147 ; 1 Bl. Comm. 298. 36. A person who kills an estray within twelve months after the straying, and appro- priates it to his own use, is liable to the pen- alty given by the statutes against " any per- son who shall take up or use an estray con- trary to the meaning of the act," this statute referring to any kind of use or disposition which will defeat its general objects. Simp- son v. Talbot, 25 Ala. 469. Failure to notify of delivery, death, or es- cape. — ■ The taker-up of estrays is required by law to give the clerk of the court notice, if any have been delivered to the owner, died, or escaped without his fault, within twelve months, and to account with him for such as he still holds; yet, if he fails to do so, he is not liable beyond the condition of his boHd — that is, one half the appraised value of such as are not reclaimed by the owner or such as have not died or escaped. Lowndes County Ct. v. Anderson, 11 Ala. 410. Insufficient appraisement. — The person who takes up estrays, has them appraised by two persons not freeholders and sold, no cause, providential or otherwise, appearing for not complying with the statute, is liable to the Vol. II penalty prescribed in the Code, § 1436. Walker v. Collier, 61 Ga. 341. Selling at residence instead of court-house. — The taker-up of an estray who sells the animal at his residence instead of at the court-house is liable to the county for one half the value of the animal; and the fact that the party paid into the county treasury one half the proceeds of the sale is no satis- faction of his bond. Erath County v. Rob- inson, 30 Tex. 435. Selling within twelve months. — The fourth section of the Alabama act of 1820 (Clay's Dig. p. 550, § 4), which gives a penalty against any person who shall sell an estray before the expiration of twelve months, ap- plies only to estrays which are taken up and appraised as required by the first section of the act. Smith v. Ewers, 21 Ala. 38. Working an animal which one has received as an estray, from another person who had taken it up but failed to comply with the law in regard to estrays, while rendering the one working it a trespasser, will not make him liable to the statutory penalty. Butler v. Cook, 14 Ala. 576. 37. Houser v. Scott, 65 Ga. 425. 38. Ward v. Tyler, Nott & M. (S. C.) 22. Brought in whose name. — A suit to recover a penalty, under 111. Rev. Stat. c. 50, § 34, giving a penalty for failure to comply with the requisites of the chapter relating to es- trays, may be brought in the name of the in- former, and the state has no interest in the recovery. Such suit should be brought in the name of the informer, for use of himself and the county. Ryder v. Hulscher, 40 111. App. 77. 39. Thus, a declaration upon N. H. Gen. Laws, c. 144, § 10, to recover twice the value of stray beasts found and taken up by defend- ant whereof no notice has been given, must allege that the owner was unknown, since ANIMALS 365 b. Criminal — (i) In General. An indictment charging a person who has taken up an estray with non-compliance with the provisions of the statute must state the particular acts which defendant has omitted to perform. 40 (n) Converting. _ An affidavit and information which charges defendant with the unlawful conversion of estrayed property is sufficient if the charge is made substantially in the language of the statute defining the offense. 41 It should be shown by proper allegations that the animal was the subject of illegal conver- sion ; ® but in describing the conversion the use of the word " convert " is suffi- cient, and alleges a fact the particulars of which need not be set out. 43 (m) Killing. The gist of the offense of unlawfully killing an estray is the unlawful disposition of the animal, and the venue should be laid where such dis- position is made, and not where the animal is estrayed. 44 The indictment should sufficiently charge that defendant did the killing, 45 and should charge that the act was done " without complying with the laws regulating estrays." 46 (iv) Selling.. Under a statute against disposing of an estray before title vests, an indictment for selling an estray must allege that the sale was before the title was vested in the taker-up. 47 (v) Taking Up and Using — (a) In General: Taking up and using an estray without first having legally advertised the same, and without first having made oath and estrayed the same according to law, authorizes a criminal prosecu- tion ; ^ but to constitute the offense the accused must both " take up and use " the animal. It is not enough to use it. 49 no notice is required if the owner is known. Hardy v. Nye, 63 N. H. 612, 3 Atl. 631. And, in an action for the penalty given by the Ala- bama statute against " any person who shall take up or use an estray contrary to the meaning of the act," the complaint or decla- ration should aver that the killing was within twelve months after the appraisement, and since, where the time is alleged under a vide- licet, the pleader is not required to prove it as alleged, when the time of killing an estray is thus alleged, although the time specified is within twelve months after the alleged es- traying, it is not a sufficient averment that it was within the twelve months. Simpson v. Talbot, 25 Ala. 469. 40. Dixon v. State, 4 Blackf. (Ind.) 312. 41. Smith v. State, 85 Ind. 553, wherein it was held that the affidavit and information would not be held bad on motion to quash merely because they contained other matter not sufficient to constitute a charge of know- ingly violating the provisions of the estray law in regard to advertising the taking up of stray property. 42. Thus the Indiana statute provides that no animal shall be taken up between the first day of April and the first day of November unless the same be found in the inclosure of the taker-up; hence an indictment for con- verting estrays must allege that the ani- mals were taken up on a day between the first day of November and the first day of April, or that they were found in the in- closure of the taker-up. Greene v. State, 79 Ind. 537. 43. Greene v. State, 79 Ind. 537. 44. Brogden v. State, 44 Tex. 103. 45. State v, Derossett, 19 Mo. 383; State v. Hutchinson, 26 Tex. Ill, wherein it was held that the omission of the word " did " was a fatal defect which could not be sup- plied by intendment. 46. State v. Hutchinson, 26 Tex. 111. 47. State v. Williams, 19 Mo. 389. Sufficient indictment. — An indictment, al- leging time and place, which charged that de- fendant did wilfully and unlawfully take up and trade off to certain named persons one estray bay gelding, of a brand stated, and of the value of thirty dollars, without having first complied with the laws regulating es- trays, was held to sufficiently charge an of- fense, although it would have been better to have followed more closely the language of the statute. State v. Dunham, 34 Tex. 675. 48. State v. Armontrout, 21 Tex. 472. Extends to what cases. — -"Where the stat- ute provided how estrays ' when on the plan- tation or land of any citizen of this state ' should be taken up by ' sueh citizen ' and dis- posed of ; and, further, ' that any person who shall take up and use any " such estray " con- trary to the intent and meaning of this act shall be guilty of a misdemeanor,' etc., it was held that the penalty was not confined to cases where such estrays were taken up by a citizen on his plantation or land, but ex- tended to all cases where any such estrays were taken up and used contrary to the in- tent and meaning of the act." State v. Apel, 14 Tex. 428. The animal must, however, have bean running at large, and one who takes a horse which was saddled and bridled and hitched to a tree, and uses it without the consent of the owner, cannot be prosecuted under such statute. Cochran v. State, 36 Tex. Crim. 115, 35 S. W. 968. 49. Davis v. State, 30 Tex. 352, holding that a bail-bond describing the indictment as being for " unlawfully using an estray horse " did not describe an offense known to the law. Vol. II 366 ANIMALS (b) Limitations. Prosecutions for unlawfully using an estray must be com- menced within one year after the commission of the offense. 50 (c) Requisites of Indictment — (1) In General. An indictment which charges the offense of taking up and using an estray in the language of the stat- ute is sufficient. 51 (2) Particular Averments — (a) Description of Animal. The indictment need not describe the animal by age, sex, color, marks, and brands. 53 (b) That Animal Was Estray. The indictment must aver that the animal was an estray, and it is not sufficient to describe the animal as " coming within the meaning of an estray." M (c) Value of Animal. Where the punishment depends upon the value of the animal taken up and used, an indictment which fails to aver the value is fatally defective. 54 (d) Naming Owner. The indictment should state the name of the owner of the estray, if known ; K but an allegation that the animal was an " estray " is a sufficient averment that the ownership was unknown. 56 (e) Non-Compliance with Law. The indictment must aver that the taking up and using was done " without complying with the law regulating estrays." 57 (d) Evidence.. The evidence must show that the offense was committed within the county where the indictment was found ; M but beyond this the state has only to prove that the animal was running at large, without a known owner, and that the accused took it up and used it. The burden of proof is then upon the accused to show his compliance with the laws regulating estrays. 59 X. HERDING ON INCLOSED LANDS OF ANOTHER. A. Nature and Elements of Offense. In some jurisdictions it is made a penal offense to knowingly cause cattle to go within the inclosed land of another without his consent. Such a statute is designed for the better protection of agri- 50. Owens v. State, 38 Tex. 555. But see Describing owner as "known to the grand Davis v. State, 2 Tex. App. 162, holding that jury." — Where the indictment charged de- an indictment for unlawfully taking up and fendant with " taking up and using an estray using an estray is not barred by limitation, whose owner was known to the grand jury," after the lapse of one year from the taking it was held that the indictment was improp- up of the animal, if the accused continue to erly quashed, for the fact that the owner of use the animal in violation of law within one the animal had been discovered, and was year before the indictment was found. known when the indictment was found, is no 51. State v. Crist, 32 Tex. 99; Jinks v. proof that the animal was not an estray State, 5 Tex. App. 68. when taken up. State v. Fletcher, 35 Tex. 740. For forms of indictments for taking up and 56. State v. Anderson, 34 Tex. 611. using an estray see State r. Carabin, 33 Tex. 57. Gonzales r. State, 31 Tex. 205. 697 ; State v. Crist, 32 Tex. 99 ; Davis v. " Without estraying in manner prescribed State, 2 Tex. App. 162. by law." — An averment that defendant took 52. State r. Crist, 32 Tex. 99. up and used certain oxen "without estraying Sufficient descriptions. — The following de- them in the manner prescribed by law " is scriptions have been held sufficient: "One equivalent to saying that they were taken up bay horse of the value of one hundred dol- and used " without complying with the laws lars." State v. Carabin, 33 Tex. 697. regulating estrays " in the language of the "One horse of the value of one hundred statute; but it is better to pursue the words dollars, the property of some person whose of the statute, as it precludes all doubt name is to the grand jurors unknown, and about the meaning of the expression used, which horse was then an estray." State v. State v. Moreland, 27 Tex. 726. Ivy, 33 Tex. 646. 58. Tharp v. State, 28 Tex. 696. "A certain stray mule, then and there be- 59. Ashcroft v. State, 32 Tex. 108. ing found branded with a mule-shoe on the insufficient evidence. — Evidence that a left shoulder, and the tip of the right ear off, horse broke into defendant's pasture, and was of the value of one hundred dollars." State there for three years, and that defendant s v. Anderson, 34 Tex. 611. boys were seen to use it. where there is no 53. State )-. Meschac, 30 Tex. 518. evidence that defendant ever handled the 54. Osborn r. State, 33 Tex. 545 : Tharp v. horse, or used it in any way, does not justify State, 28 Tex. 696; State v. McCormack, 22 a conviction for violation of the estray law. Tex. 297. Thompson v. State, 37 Tex. Crim. 654, 40 55. State v. Apel, 14 Tex. 428. S. W. 997. Vol. II ANIMALS 367 culturists against wanton or reckless depredation of live stock upon their crops, by furnishing to such persons another and more efficient remedy than a suit for dam- ages. 60 To render one guilty of the offense it is essential that the inclosed lands be another's ; 61 and that the act be knowingly done. 62 Where the statute makes it a misdemeanor for any person, occupying or cultivating lands under a common fence with others, to " turn stock of any kind into such inclosure, or knowingly suffer such stock to go at large therein, without a sufficient guard to prevent injury to crops," though the inclosing fence should be substantial, it is not neces- sary that it should be a statutory fence. 63 B. Indictment. The indictment is sufficient if it describe the stock as a cer- tain number of " head of cattle," without using the statutory word " drove ; " a and it need not be alleged who owns the land, it being sufficient to charge that accused is not the owner. 65 Where the punishment is determined by the number of hours the stock was herded after notice to leave, the indictment should allege the number of hours the stock was so herded. 66 C. Defenses. It is no defense to a prosecution for this offense that defend- ant's father owned a part of the fence which inclosed the land, nor that part of such land was not owned by the complainant. 67 D. Evidence. On a prosecution for knowingly causing cattle to go within the inclosed land of another, without consent of the owner, it is pertinent to show that defendant had no right, claim, or interest in the pasture, and that the prosecutor was not only the possessor, but the rightful possessor thereof. 68 XI. INJURIES BY ANIMALS. A. In General — 1. Nature and Extent of Liability for — a. Generally — (i) Wild Animals. While it is not in itself unlawful for a person to keep wild beasts, though they may be such as are of a nature fierce, dangerous, and irreclaim- able, 69 yet it is the duty of those who own or keep them to do it in such a manner 60. Cleveland v. State, 8 Tex. App. 44 Insufficient evidence. — Under a statute [quoted with approval in Jones v. State, 18 making it a misdemeanor for any person, Tex. App. 366]. occupying or cultivating land under a com- 61. Thus where accused was convicted of mon fence with others, to " turn stock of any knowingly causing horses to go within the in- kind into such inclosure, or knowingly suffer closed land of one B without his consent, and stock to go at large therein, without a suf- the proof was that he rented from B a part ficient guard to prevent injury to crops," a of a field, and turned his horses upon the conviction cannot be had on proof that de- part he rented, whence they strayed on to the f en dant, acting in good faith, suffered his other part; that the crop had been gathered, hogs to range at large in a woodland adjoin- and nothing was stipulated in the rental con- i ug such i nc losure, where they made their tract upon the subject, it was held that he way into it through defects in the common had the right to pasture his horse on the land fenee Cole v _ state) 72 Ala 2 ie. See also a he had rented and that the conviction was som ewhat similar state of facts, held insuf- not warranted by law. Coggms v. State, 12 fieient to susta in a conviction under the Tex. App. 109. Texas statute, in Clements v. State, 21 Tex. so, too, defendant cannot be punished for ^ 258 17 S W 156 putting more cattle in a pasture than he is Variance.— Where defendant was prose- authorized to do by reason of the quantity cuted f knowi T eausing his horse to go °1 l r\°Z *? h TJ\ e a% w a a/r g ™^™ the inclosSre of one Vinson, without State, 37 Tex. Crim. 357 ,39 S. W. 941. ^ } , g aud ^ f ghowed i , I' w r 77°, U ^ £ St8 S' , w ' flL^i that Vinson and one Vaughn, the defendant's 13 S. W. 775, holding that where defendant . = , ' , ... , , put his cattle into A's lot, supposing it be- «"P.l°yf > separately rented and cultivated longed to B. and with the latter's consent, distinct parts of the same field and that de- the act was not knowingly done. fendant, in disregard of repeated warnings, 63. Cole v State 72 Ala 216 turned his horse loose on his employers part 64! Caldwell v. State, 2 Tex. App. 53. of the field ' whence it passed to, and tres- 65. Caldwell v. State, 2 Tex. App. 53. passed upon, Vinson's crop, there was no 66. Linney v. State 5 Tex. App. 344. variance between the information and the 67. Clayton v. State, (Tex. Crim. 1894) 25 proof, and the conviction was sustained. S. W. 122. Cleveland v. State, 8 Tex. App. 44. 68. Dickens v. State, (Tex. Crim. 1898) 46 69. Muller v. McKesson, 10 Hun (N. Y.) S. W. 246. 44; Scribner v. Kelley, 38 Barb. (N. Y.) 14. Vol. II 368 ANIMALS as will absolutely prevent the occurrence of an injury to others through such vicious acts of the animals as they are naturally inclined to commit.™ For any injury they may do to others the person keeping them is liable, 71 without any par- ticular notice that they did any such things before, 72 such notice being conclusively presumed from the nature of the animal. 73 It seems, however, that evidence of tameness may be received, under some circumstances, in reduction of damages. 74 (n) Domestic Animals — (a) In General. The owner or keeper of a domestic animal not naturally inclined to commit mischief, while bound to exer- cise ordinary care to prevent injury being done by it to another, 75 is not liable for such injury if the animal be rightfully in the place when the mischief is done, 76 unless it is affirmatively shown, not only that the animal was vicious, but that the owner or keeper had knowledge of the fact. 77 "When such scienter exists, the 70. Vredenburg v. Behan, 33 La. Ann. 627; Scribner v. Kelley, 38 Barb. (BT. Y.) 14; Be- sozzi v. Harris, 1 F. & F. 92. The strange appearance of an elephant, whereby plaintiff's horse became unruly, is not such an act of the elephant as to render its keeper liable without showing that such was the effect on horses, generally, and that the keeper knew thereof. Scribner v. Kelley, 38 Barb. (N. Y.) 14. 71. Delaware. — Warner v. Chamberlain, 7 Houst. (Del.) 18, 30 Atl. 638. Illinois. — Moss v. Pardridge, 9 111. App. 490. Louisiana. — Vredenburg v. Behan, 33 La. Ann. 627. Maine. — Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99. New York. — Muller v. McKesson, 73 N. Y. 195, 29 Am. Rep. 123. See 2 Cent. Dig. tit. "Animals," § 227. 72. Maine. — Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99. Missouri. — Bell v. Leslie, 24 Mo. App. 661. New York. — Muller v. McKesson, 10 Hun (N. Y.) 44. Pennsylvania. — Com. v. Fourteen Hogs, 10 Serg. & R. (Fa.) 393. United States. — Congress, etc., Spring Co. v. Edgar, 99 U. S. 645, 25 L. ed. 487. England. — Filburn v. People's Palace, etc., Co., 25 Q. B. D. 258; Rex v. Huggins, 2 Ld. Raym. 1574; Buller N. P. 77; Baker's Case [cited in 1 Hale P. C. 430]. Thus, in an action to recover damages for pergonal injuries, sustained by plaintiff from an elephant which was exhibited by defend- ants, the jury found that defendants did not know the elephant to be dangerous. It was held, however, that defendants were liable, as the animal did not belong to a class which, according to the experience of mankind, is not dangerous to man, and therefore the owner kept such an animal at his own risk, and his liability for damage done by it was not affected by his ignorance of its dangerous character. Filburn v. People's Palace, etc., Co., 25 Q. B. D. 258. 73. Laverone v. Mangianti, 41 Cal. 138, 10 Am. Rep. 269; Moss v. Pardridge, 9 111. App. 490; Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99; Muller v. McKesson, 73 N. Y. 195, 29 Am. Rep. 123; Keenan v. Gutta Pereha, Vol. n etc., Mfg. Co., 46 Hun (ST. Y.) 544 [affirmed in 120 N. Y. 627, 24 N. E. 1096] ; Earl v. Van Alstine, 8 Barb. (N. Y.J 630. 74. Besozzi v. Harris, 1 F. & F. 92. 75. Meredith v. Reed, 26 Ind. 334. 76. Reed v. Southern Express Co., 95 Ga. 108, 22 S. E. 133. 51 Am. St. Rep. 62; Decker D. Gammon, 44 Me. 322, 69 Am. Dec. 99; Johanson v. Howells, 55 Minn. 61, 56 N". W. 460; Morgan v. Hudnell, 52 Ohio St. 552,40 N. E. 716, 49 Am. St. Rep. 741, 27 L. R. A. 862. Injuries by animals while running at large see infra, XI, A, 1, d. Injuries by trespassing animals see infra, XI, A, 1, e. 77. Alaoama. — Kitchens v. Elliott, 114 Ala. 290, 21 So. 965; Smith v. Causey, 22 Ala. 568 ; Durden v. Barnett, 7 Ala. 169. California. — Clowdis v. Fresno Flume, etc., Co., 118 Cal. 315, 50 Pac. 373, 62 Am. St. Rep. 238; Finney v. Curtis, 78 Cal. 498, 21 Pac. 120. Delaware. — Warner v. Chamberlain, 7 Houst. (Del.) 18, 30 Atl. 638. Georgia. — Reed v. Southern Express Co., 95 Ga. 108, 22 S. E. 133, 51 Am. St. Rep. 62. Illinois. — Mareau v. Vanatta, 88 111. 132; Stumps v. Kelley, 22 111. 140; West Chicago St. R. Co. r. Walsh, 78 111. App. 595 ; Moss v. Pardridge, 9 111. App. 490. Indiana. — Klenberg v. Russell, 125 Ind. 531, 25 N. E. 596. Kentucky. — Murray v. Young, 12 Bush (Ky.) 337. Maine. — Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99. Missouri. — Beckett v. Beckett, 48 Mo. 396; Staetter v. McArthur, 33 Mo. App. 218 ; Bell v. Leslie, 24 Mo. App. 661. New Jersey. — Angus v. Radin, 5 N. J. L. 957, 8 Am. Dec. 626. New York. — Moynahan v. Wheeler, 117 N. Y. 285, 22 N. E. 702, 27 N. Y. St. 152; Van Leuven v. Lyke, 1 N. Y. 515, 49 Am. Dec. 346 [affirming 4 Den. (N. Y.) 127]; Vrooman v. Lawyer, 13 Johns. (N. Y.) 339; Lawlor v. French, 2 N. Y. App. Div. 140, 37 N. Y. Suppl. 807; Muller v. McKesson, 10 Hun (N. Y. ) 44; Quinn v. Knickerbocker Ice Co., 2 N. Y. City Ct. 202 note. North Carolina. — Hallyburton v. Burke County Fair Assoc, 119 N. C. 526, 26 S. E. 114, 38 L. R. A. 156. ANIMALS 369 owner or keeper is accountable for all the injury such animal may do, 78 without proof of any negligence or fault in the keeping, 79 and regardless of his endeavors to so keep the animal as to prevent the mischief. 80 Knowledge of such propensity Ohio. — Morgan v. Hudnell, 52 Ohio St. 552, 40 N. E. 716, 49 Am. St. Rep. 741, 27 L. R. A. 862. Oklahoma. — Meegan v. McKay, 1 Okla. 59, 30 Pac. 232. Oreqon. — Dufer v. Cully, 3 Oreg. 377. Pennsylvania. — Com. v. Fourteen Hogs, 10 Serg. & R. (Pa.) 393; Curtis v. Sohlosser, 14 Pa. Co. Ct. 600, 3 Pa. Dist. 598. Wisconsin. — Dearth v. Baker, 22 Wis. 73. United States. — Congress, etc., Spring Co. v. Edgar, 99 U. S. 645, 25 L. ed. 487. England. — Cox v. Burbridge, 13 C. B. N. S. 430, 106 E. C. L. 430 ; Rex v. Huggins, 2 Ld. Raym. 1574; Buller N. P. 77. See 2 Cent. Dig. tit. "Animals," §§ 228 et seq., 288 et seq. Must recognize general propensities of class. — The owner of a domestic animal is bound to take notice of the general propen- sities of the class to which it belongs, and must anticipate and guard against them, if of a nature to cause injury, for he necessarily ■ knows that the act will be committed if op- portunity offers. So the keeper of a, stallion is bound to take notice of the well-known pro- pensities of stallions in general, and to use such degree of care to avoid injury from such propensities as the nature of the ani- mal may reasonably require; but he is under no obligation to guard against injuries which he has no reason to expect from the animal, either on account of the propensities of stal- lions in general, or some disposition of the individual animal of which he has notice. Hammond v. Melton, 42 111. App. 186. There is no general propensity on part of horses to bite persons who come near them, and, if done at all, it is done by one that is exceptionally vicious. No such disposition having been discovered in a horse, the owner is under no obligation to anticipate that it will suddenly bite a passer-by, and is not bound to guard against such an occurrence; and if the horse bites somebody, and is not wrongfully in the place where this happens, the owner will not be held liable for the in- jury. Reed v. Southern Express Co., 95 Ga. 108, 22 S. E. 133, 51 Am. St. Rep. 62. The owner of a cat, which has no known mischievous tendencies other than such as ordinarily belong to its species, is not liable for any damage which it may commit. Mc- Donald v. Jodrey, 8 Pa. Co. Ct. 142. The owner of a cow, accustomed to hook — the vicious propensity being known to her owner — is liable for damage done by her, although it be done in the highway against the land of her owner, and while going to her usual watering-place. Coggswell v. Baldwin, 15 Vt. 404, 40 Am. Dee. 686. The owner of bees is not liable, at all events, for any accidental injury they may do. Earl v. Van Alstine, 8 Barb. (N. Y.) 630. 78. Illinois. — Pickering v. Orange, 2 111. [24] 492, 32 Am. Dec. 35; Norris v. Warner, 59 111. App. 300; Hammond v. Melton, 42 111. App. 186. Indiana. — • Graham v. Payne, 122 Ind. 403, 24 N. E. 216; Partlow v. Haggarty, 35 Ind. 178. Kentucky . — Com. v. Steff ee, 7 Bush ( Ky. ) 161. Maine. — Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99. Michigan.— Knowles v. Mulder, 74 Mich. 202, 41 N. W. 896, 16 Am. St. Rep. 627. New Jersey. — Roehers v. Remhoff, 55 N. J. L. 475, 26 Atl. 860. New York.— Quilty v. Battie, 135 N. Y. 201, 32 N. E. 47, 48 N. Y. St. 413, 17 L. R. A. 521; Kinmouth v. McDougall, 64 Hun (N. Y.) 636, 19 N. Y. Suppl. 771, 46 N. Y. St. 211 {affirmed in 139 N. Y. 612, 35 N E. 204]; Muller v. McKesson, 10 Hun (N. Y.) 44; Koney v. Ward, 2 Daly (N. Y.) 295, 36 How. Pr. (N. Y.) 255; Jacoby v. Ockerhausen, 13 N. Y. Suppl. 499, 37 N. Y. St. 710 [affirmed in 129 N. Y. 649, 29 N. E. 1032]. Vermont. — Oakes v. Spaulding, 40 Vt. 347, 94 Am. Dec. 404; Coggswell v. Baldwin, 15 Vt. 404, 40 Am. Dec. 686. England — 1 Hale P. C. 430. 79. Alabama. — Strouse v. Leipf, 101 Ala. 433, 14 So. 667, 46 Am. St. Rep. 122, 23 L. R. A. 622. Illinois. — Ahlstrand v. Bishop, 88 111. App. 424. Indiana. — Partlow v. Haggarty, 35 Ind. 178. Louisiana. — Montgomery v. Koester, 35 La. Ann. 1091, 48 Am. Rep. 253. Massachusetts. — Popplewell v. Pierce, 10 Cush. (Mass.) 509. Michigan. — Snow v. McCracken, 107 Mich. 49, 64 N. W. 866 ; Brooks v. Taylor, 65 Mich. 208, 31 N. W. 837. Missouri. — Forbes v. Shellabarger, 50 Mo. 558. New Hampshire. — Chickering 'v. Lord, 67 N. H. 555, 32 Atl. 773. New York. — Lynch v. MeNally, 73 N. Y. 347 [affirming 7 Daly (N. Y.) 126]; Kelly v. Til ton, 2 Abb. Dec. (N. Y.) 495; Keenan v. Gutta Percha, etc., Mfg. Co., 46 Hun (N. Y.) 544 [affirmed in 120 N. Y. 627, 24 N. E. 1096] ; Woodbridge v. Marks, 14 Misc. (N. Y.) 368, 36 N. Y. Suppl. 81, 71 N. Y. St. 417; Rogers v. Rogers, 4 N. Y. St. 373. Pennsylvania. — Barry v. Johnston, 16 Wkly. Notes Cas. (Pa.) 35. United States. — Congress, etc., Spring Co. p. Edgar, 99 U. S. 645, 25 L. ed. 487. England. — Jackson t\ Smithson, 15 M. & W. 563 : Card v. Case, 5 C. B. 622, 57 E. C. L. 622; May v. Burdett, 9 Q. B. 101, 58 E. C. L. 101 ; 1 Hale P. C. 430. 80. Hammond v. Melton, 42 111. App. 186; Blackman v. Simmons, 3 C. & P. 138, 14 E. C. L. 491. But see Worthen v. Love, 60 Vt. 285, 14 Atl. 461 (to the effect that one, though he knows of a vicious propensity of Vol. II 370 ANIMALS only at a particular season, as when a mare is in heat, imposes no duty on the owner to restrain the animal at other times. 81 (b) Dogs® — (1) Liability of Ownek ob Keeper — (a) Civilly — aa. In General. By the common law the rule applicable to domestic animals,, gener- ally, 83 was eoually applicable to dogs; 84 but in some jurisdictions it is provided his dog, is not liable for damages caused by the dog if such owner exercises proper care and diligence to secure the animal so that the latter will not injure any one who does not unlawfully provoke or intermeddle with him), and Hayes v. Smith, 62 Ohio St. 161, 56 N. E. 879 (holding that the gist of an action to recover damages for a personal in- jury inflicted by a vicious dog is the keeping of the dog " in a negligent manner " after knowledge of his vicious propensities, rather than the keeping of the animal with such knowledge; but that, where it is shown that the animal has been kept after knowledge of his dangerous character has been acquired, or circumstances have been shown from which the law would imply knowledge, and an in- jury has followed, it is prima facie evi- dence of negligence ) . The reason of the rule is to enable stran- gers to pursue their own objects with security from vicious animals. The public are enti- tled to act upon the presumption that all dangerous animals are properly confined, and people are therefore exonerated from any spe- cial caution against such beasts, except when, without right, persons go upon the land of the owner of such animals, and within the place where the latter may be lawfully kept. Earhart v. Youngblood, 27 Pa. St. 331. Among the ancient Jews an increased lia- bility was recognized in cases of injury by animals known to be vicious, and in Exodus xxi: 28, 29, it is written: "If an ox gore a man or woman, that they die; then the ox shall be surely stoned, and the flesh shall not be eaten; but the owner of the ox shall be quit. But if the ox were wont to push with his horn in time past, and it hath been tes- tified to his owner, and he hath not kept him in, but that he hath killed a man or a wo- man; the ox shall be stoned, and his owner also shall be put to death." 81. Tupper v. Clark, 43 Vt. 200. 82. Peculiar status of dogs. — In Briscoe v. Alfrey, 61 Ark. 196, 199, 32 S. W. 505. 54 Am. St. Rep. 203, 30 L. R. A. 607, the court said: "The status of the dog before the law is smi generis. Bishop Non-Contr. Law, § 1233. The vicious dog, in general, and the odious sheep-killer in particular . . . are un- der the law's especial condemnation. With- out entering upon a discussion of the reasons therefor, it suffices to say that no legislation or decision with reference to injuries by dogs do we regard as analogous to that of the other purely domestic animals of the kind enumerated in our statute." And in Van Horn v. People, 46 Mich. 183, 9 N. W. 246, 41 Am. Rep. 159, it was held that dogs are properly subjected to special and pecu- liar regulations, for the purpose of repressing the mischief likely to be done by them to more valuable property and to persons. Vol. II 83. See supra, XI, A, 1, a, (n), (a). 84. Alabama. — Smith v. Causey, 22 Ala. 568; Durden v. Barnett, 7 Ala. 169. California. — Laverone v. Mangianti, 41 Cal. 138, 10 Am. Rep. 269. Connecticut. — Woolf v. Chalker, 31 Oonn. 121, 81 Am. Dec. 175. Delaware. — Barclay v. Hartman, 2 Marv. (Del.) 351, 43 Atl. 174; Jones v. Carey, 9 Houst. (Del.) 214, 31 Atl. 976; Warner c. Chamberlain, 7 Houst. (Del.) 18, 30 Atl. 638. District of Columbia. — Murphy v. Preston, 5 Maekey (D. C.) 514. Illinois. — Mareau v. Vanatta, 88 111. 132; Kightlinger v. Egan, 75 111. 141; Wormley v. Gregg, 65 111. 251 ; Brent v. Kimball, 60 III. 211, 14 Am. Rep. 35; Stumps v. KeMey, 22 111. 140; Pickering v. Orange, 2 111. 492, 32 Am. Dec. 35; Ahlstrand v. Bishop, 88 111. App. 424; Moss v. Fardridge, 9 111. App. 490. Indiana. — Dockerty v. Hutson, 125 Ind. 102, 25 N. E. 144. Kentucky. — Murray v. Young, 12 Bush (Ky.) 337. Maryland. — Goode v. Martin, 57 Md. 606, 40 Am. Rep. 448. Michigan. — Kennett v. Engle, 105 Mich. 693, 63 N. W. 1009; Elliott v. Herz, 29 Mich. 202. Minnesota. — Cuney v. Campbell, 76 Minn. 59, 78 ST. W. 878. Missouri. — Speckmann v. Kreig, 79 Mo. App. 376; Curtwright v. Crow, 44 Mo. App. 563. Xew Hampshire. — Kittredge v. Elliott, 16 X. H. 77, 41 Am. Dec. 717. Xeio Jersey. — Smith r. Donohue, 49 N. J. L. 548, 10 Atl. 150, 60 Am. Rep. 652; Evans r. McDermott, 49 N. J. L. 163, 6 Atl. 653, 60 Am. Rep. 602; Perkins v. Mossman. 44 2\ . J. L. 579 ; Angus v. Radin, 5 N. J. L. 957, 8 Am. Dec. 626. Veic York. — Muller v. McKesson, 73 X. Y. 195, 29 Am. Rep. 123 [affirming 10 Hun (X. Y.) 44] ; Rider v. White, 65 ST. Y. 54, 22 Am. Rep. 600 ; Strubing v. Mahar, 46 N. Y. App. Div. 409, 61 X. Y. Suppl. 799: O'Con- nell v. Jarvis, 13 N. Y. App. Div. 3, 43 N. Y. Suppl. 129; Fairchild r. Bentlev, 30 Barb. (X. Y.) 147; Wheeler v. Brant, 23 Barb. (X. Y.) 324; Laherty v. Hogan,13Daly (N. Y.> 533, 1 X. Y. St. 84 [affirming 2 X. Y.CityCt. 197] : Lynch r. MeXally, 7 Daly (X. Y.) 126; Van Xess r. Desheimer, 2 X. Y. City Ct. 208 note; Feick v. Andel, 1 N. Y. City Ct. Suppl. 61; Tifft v. Tifft, 4 Den. (N. Y.) 175: Hinckley v. Emerson, 4 Cow. (X. Y.) 351, 15 Am. Dee. 383. Ohio.— Gries v. Zeck, 24 Ohio St. 329 : Job v. Harlan, 13 Ohio St. 485. Pennsylvania. — Sylvester r. Maag, 155 Pa. St. 225, 26 Atl. 392, 35 Am. St. Rep. .878; Mann v. Weiand, 81* Pa. St. 243; Mulherrin ANIMALS 371 by statute that the owner or keeper shall be liable for injuries to person or prop- erty, without regard to his knowledge of the animal's mischievous propensity, 85 while in others such knowledge is not an element of liability when the injury is to sheep or other live stock. 86 Such statutes, however, have been strictly construed, 87 v. Henry, 11 Pa. Co. Ct. 49, 1 Pa. Dist. 607; Zimett v. Hollenback, 9 Kulp (Pa.) 564. Tennessee. — Wheatley v. Harris, 4 Sneed (Term.) 468, 70 Am. Dee. 258; Sherfey v. Bartley, 4 Sneed (Tenn.) 58, 67 Am. Dee. 597. Texas. — Triolo v. Foster, (Tex. Civ. App. 1900) 57 S. W. 698. Wisconsin. — Slinger v. Henneman, 38 Wis. 504; Kertschacke v. Ludwig, 28 Wis. 430. United States. — Shaw v. Craft, 37 Fed. 317. England. — Cox v. Burbridge, 13 C. B. N. S. 430, 106 E. C. L. 430; Hogan v. Sharpe, 7 C. & P. 755, 32 E. C. L. 856; Sareh v. Black- burn, 4 C. & P. 297, 19 E. C. L. 523; Stiles v. Cardiff Steam Nav. Co., 33 L. J. Q. B. 310 ; Mason v. Keeling, 1 Ld. Raym. 606, 12 Mod. 332; Smith v. Pelah, 2 Str. 1264; Fleeming v. Orr, 29 Eng. L. & Eq. 16; Sanders v. Teape, 51 L. T. Rep. N. S. 263; Buller N. P. 77. See 2 Cent. Dig. tit. "Animals," §§ 233 et seq., 283 et seq. Chasing pheasants. — An action lies against the owner of a dog who, knowing the animal to have a propensity for chasing and destroy- ing game, permits it to be at large, and . the dog in consequence " breaks and enters " plaintiff's wood, and chases and destroys young pheasants which are being reared there under domestic hens. Read v. Edwards, 17 C. B. N. S. 245, 112 E. C. L. 245. Following and lying under team. — A per- son who knows that his dog is in the habit of following his teams and watching them after they are hitched and left by him; and that sueh dog is accustomed to attack and bite strangers approaching teams so watched, is liable for any injury done by the dog to a person lawfully approaching the team for the purpose of unhitching it. A man awning such a dog, knowing its character, must se- cure it at home so that it will not follow him. If it follows him, and bites a person rightfully coming to remove the team from an inn-shed where the owner has left it, and where the dog is watching it, such owner is liable in damages. Fairchild v. Bentley, 30 JSarb. (N. Y.) 147. Defendant is not liable where her dog, while following her along the street, ran into an adjoining yard and there seized and killed plaintiff's dog, the act of defendant's dog not being attributable to any active or pas- sive volition on the part of defendant. Buck v. Moore, 35 Hun (N. Y.) 338. ' 85. Connecticut. — Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175. Kentucky. — Koestel r. Cunningham, 97 Ky. 421, 17 Ky. L. Rep. 296, 30 S. W. 970. Massachusetts. — Pressey v. Wirth, 3 Allen (Mass.) 191; Brewer v. Crosby, 11 Gray" (Mass.) 29. Michigan. — Newton v. Gordon, 72 Mich. 642, 40 N. W. 921 ; Elliott v. Herz, 29 Mich. 202. lHew Hampshire. — Orne v. Roberts, 51 N. H. 110. Ohio.— Gries v. Zeck, 24 Ohio St. 329. Wisconsin. — Meracle v. Down, 64 Wis. 323, 25 N. W. 412; Schaller v. Connors, 57 Wis. 321, 15 N. W. 389. Barking and leaping at horse's head. — The keeper of a dog is liable, under the Massa- chusetts statute, for double the amount of damages sustained in consequence of a sud- den attack by the dog upon plaintiff's horse, and barking and leaping at the_ horse's head, and thereby frightening him and rendering him unmanageable. Sherman v. Favour, 1 Allen (Mass.) 191. Causing horse to kick plaintiff. — Under Mich. Comp. Laws (1897), § 5593, providing that the owner or keeper of a dog assaulting, biting, or otherwise injuring any person, while traveling the highway, shall be liable in double the amount of damages sustained, plaintiff was entitled to recover for injuries sustained while traveling on a highway by a dog attacking his horse, causing it to kick him in the face and run away. Jenkinson v. Coggins, 123 Mich. 7, 81 N. W. 974. 86. Illinois. — Brent v. Kimball, 60 111. 211, 14 Am. Rep. 35. Kansas. — Ballou v. Humphrey, 8 Kan. 220. Michigan. — Trompen v. Verhage, 54 Mich. 304, 20 N. W. 53. Missouri. — Jacobsmeyer v. Poggemoeller, 47 Mo. App. 560; Curtwright v. Crow, 44 Mo. App. 563. New Hampshire. — East Kingston v. Towle, 48 N. H. 57, 97 Am. Dee. 575, 2 Am. Rep. 174. New York.— Fish v. Skert, 21 Barb. (N. Y.) 333. Ohio. — Job v. Harlan, 13 Ohio St. 485. Pennsylvania. — Kerr v. O'Connor, 63 Pa. St. 341. Wisconsin. — Slinger v. Henneman, 38 Wis. 504. Canada. — Reg. v. Perrin, 16 Ont. 446. 87.- Apply only to enumerated animals. — The fact that the legislature dispensed with this proof as to " sheep or lamb " is indicative of an intention to leave attacks upon other ani- mals, or upon human beings, to be governed by the common-law rule in regard to scienter. Van Ness v. Desheimer, 2 N. Y. City Ct. 208 note. See also Kertschacke v. Ludwig, 28 Wis. 430, wherein it is doubted if Wis. Laws (1886), c. 110, § 13, changed the common-law rule, except as to injuries done by killing or worrying sheep. But see Wright v. Pearson, L. R. 4 Q. B. 582, holding that the term " cattle " in 28 & 29 Vict. c. 60, § 1, includes horses and mares. Apply only to enumerated injuries. — The statute making the owner of a dog which shall kill or wound sheep liable, without no- tice that he was mischievous, has no applica- tion where the sheep were only chased and Vol. II 372 ANIMALS and scienter continues to be an element of the liability, unless explicitly dispensed with. 88 bb. For Penalty. By some statutes a penalty is imposed for failure to kill a dog within a specified time after notice that it has bitten a person, or killed other domestic animals. Under such statutes it has been held that only the owner is liable for the penalty, 89 and that, where the statute authorizes a supervisor to sue for the penalty in the name of the township, a ward supervisor is not authorized to bring such action where, under the city charter, the ward is a mere territorial division of the municipal corporation, with no treasury of its own, and no capacity of suit. 90 (b) Criminally. It seems that it is an indictable offense to keep a dog accus- tomed to bite mankind, to the terror and common nuisance of the people, 91 and it is competent for a municipal corporation to provide that, if any citizen keep or harbor such an animal, he shall be fined therefor. 92 (2) Liability of Municipal Corporations — (a) In General. The legisla- ture has power to make towns liable for damage done within their limits by dogs, and to give towns a right of action to recover, from the owners of the dogs, the actual damage done ; M and statutes providing for a tax on dogs, and appropriating the resulting fund to the payment of damages done by such dogs, are, constitu- tional, being an exercise of the police power of the state. 94 ^\u \\ appraise before the first day of December the loss caused by dogs, and to transmit before the thirty-first day of December orders to the township treasurer for the payment of such loss, the party suffering the loss may recover the same from the town, in an action founded- on such statute a, demurrer to plaintiff's declaration was improperly overruled. Barber v. Dummerston, 72 Vt. 330, 47 Atl. 1069. Acts held unconstitutional. — The Pennsyl- vania act of June 12, 1S78, for the taxation of dogs and the protection of sheep, and pro- viding that it shall only take effect where a . majority vote for it, is unconstitutional, un- der article 3, section 7, of the constitution, prohibiting local legislation. Bowen v. Tioga County, 6 Pa. Co. Ct. 613. The New Hamp- shire act of July 3, 1863, entitled "An act in relation to damages occasioned by dogs," so far as it undertakes to charge the owner with the amount of damage done by his dog, as fixed by the selectmen of the town, with- out an opportunity to be heard, is unconsti- tutional because it is contrary to natural justice and not within the scope of legislative authority conferred by the constitution on the general court; and also because it is in violation of the provision, in the bill of rights which secures the right of trial by jury in all controversies concerning property, except in cases where it had heretofore been other- wise used and practised. East Kingston v. Towle, 48 N. H. 57, 97 Am. Dec. 575, 2 Am. Rep. 174. But see Fairehild v. Rich, 68 Vt. 202, 34 Atl. 692, holding that the Vermont statute relating to the payment and collec- tion of damages done by dogs to sheep and other domestic animals is not unconstitu- tional because the damages are appraised without notice to the owner of the dogs, such appraisal not being conclusive upon the owner, nor being made with reference to the recovery of damages from him. Additional tax by borough not allowed. — The Pennsylvania acts of April 3, 1867, and worried. In that case there must be proof of the scienter to render defendant liable. Osincup v. Nichols, 49 Barb. (X. Y.) 145; Auehmuty v. Ham, 1 Den. (X. Y.) 495. ^=~ Apply only to owner. — It is only when the declaration alleges defendant to be the owner of the dog that the allegation of knowledge of its vicious propensity, and proof thereof, is dispensed with. Wormley v. Gregg, 65 111. 251. Does not apply to rabid dog. — Mich. Comp. Laws (1871), § 2065, making the owner lia- ble in double damages for the killing, wound- ing, or worrying of domestic animals by a dog, is penal in its consequences, and is not designed for cases where the owner was in no manner in fault. It does not apply to the case of a rabid dog. Elliott v. Herz, 29 Mich. 202. 88. Murphy v. Preston, 5 Mackey (D. C.) 514. holding that the act of congress of June 19, 1878. e. 323, § 5, making the owner of a. dog in the District of Columbia liable in a civil action for any damage done by such animal, does not relieve plaintiff of the neces- sity of averring and proving that the owner had knowledge of the animal's vicious pro- pensities. 89. Williamson v. Carroll, 16 X. J. L. 217. 90. Bixby v. Steketee, 44 Mich. 613, 7 N. W. 229. 91. U. S. v. McDuell, 5 Craneh C. C. (U. S.) 391, 26 Fed. Cas. No. 15,672. 92. Com. v. Steffee, 7 Bush (Ky.) 161. 93. East Kingston v. Towle, 48 X. H. 57, 97 Am. Dee. 575. 2 Am. Rep. 174. 94. Cole i. Hall, 103 111. 30; Longyear v. Buck, 83 Mich. 236, 47 X. W. 234, 10 L. R. A. 43; Van Horn v. People, 46 Mich. 183, 9 N. W. 246, 41 Am. Rep. 159; Fairehild v. Rich, 68 Vt. 202, 34 Atl. 692. Statute not retrospective. — Where plain- tiff's sheep were injured by dogs before the passage of Vt. Stat. (1894), § 4841, provid- ing that, on failure of the town selectmen to Vol. II ANIMALS 373 (b) Rights of Injured Person. Under such statutes the injured person has his election to call upon the town or other corporate body for the actual damage, in which case it is not material to inquire who owns or keeps the dog ; or the injured person" may call directly upon the owner or keeper for double, or sometimes treble, the amount of the damages suffered. 95 The right to recover against a municipal corporation is not confined to persons engaged in sheep husbandry. 96 The claim of owners of sheep to remuneration from the sheep- fund is not affected by the fact that untaxed dogs are kept on the same farm where the sheep were killed, unless the owner had control of the dogs on such farm, 97 or by the fact that the sheep were injured in a township of which the owner was not a resident. 98 Where the intent of the statute is that a permanent fund shall be provided and kept to reimburse owners for all damages done by dogs, if the damages have been properly ascertained 99 they must be paid out of such fund, without reference to the year when the same accrued, 1 such claims being paid in the order of their priority. 2 The injured person cannot maintain an action either of contract or of tort against the town for omission, neglect, Or refusal of its selectmen to draw an order in his favor; 8 but in such case the selectmen may be compelled by mandamus to draw such order. 4 Where an order has been issued, assumpsit is the proper form of action thereon, 5 and mandate against the officer holding the fund is not the proper remedy. 6 Under the Connecticut statute it has been held that the town is liable by direct force of the statute, and that the statute does not create a contract obligation, on the part of the town, to make the payment provided for. 7 A complaint founded on the Indiana statute must allege the filing of a sworn statement with the township trus- tee in accordance with law. 8 In the absence of fraud or mistake on the part of March 20, 1868, impose an annual tax upon all the dogs in Westmoreland county, to cre- ate a fund' to pay damages for sheep killed by dogs. An ordinance passed by the borough of Ligonier, in said county, pursuant to the act of May 15, 1889, annually levies and col- lects an additional tax of like amount on all dogs in the borough. Such additional tax cannot be levied and collected. Crawford v. Ligonier, 20 Pa. Co. Ct. 369, 7 Fa. Dist. 176, 28 Pittsb. Leg. J. (Pa.) 328. Repeal of statute. — The Indiana act of March 5, 1891 (Burns' Rev. Stat. (1894), §§ 2856-2864), which created a method for the taxation of dogs, to the exclusion of all other methods of taxation for such animals, and provided for payment, by township trus- tees, for horses and other animals maimed and killed by dogs, out of the dog-fund raised by such taxation, was impliedly repealed by the act of March 6, 1891 (Burns' Rev. Stat. (1894), §§ 8457, 8654), which provides an- other and antagonistic method of taxing such animals, and makes no provision for payment by township trustees for horses so injured. Flatrock Civil Tp. v. Rust, 18 Ind. App. 282, 47 N. E. 934. 95. Orne v. Roberts, 51 N. H. 110. See 2 Cent. Dig. tit. "Animals," § 314 et seq. 96. Columbia Tp. v. Pipes, 122 Ind. 239, 23 N. E. 750. 97. Wetherill v. Delaware County, 2 Del. Co. (Pa.) 45, 14 Wkly. Notes Cas. (Pa.) 42. 98. Washington v. Applegate, 22 N. J. L. 42. 99. When the statute provides the method by which claims for stock killed by dogs shall be collected, and that payment shall be made upon proof satisfactory to the board of supervisors, the district court has no juris- diction to pass upon such claims. Hodges v. Tama County, 91 Iowa 578, 60 N. W. 185. 1. Morgan v. Tioga County, 17 Pa. Co. Ct. 246 ; Nevin v. Dreher School Dist., 2 Pa. Dist. 565. An unpaid balance of a claim in one year may be carried forward and paid out of the fund collected in the following year. Nevin v. Dreher School Dist., 12 Pa. Co. Ct. 449. Where a permanent fund is not created the township committee for the year 1890 are not charged with the duty of paying dam- ages for the year 1886, the fund for that purpose not going into their hands. Rogers v. Neptune Tp. Committee, 52 N. J. L. 487, 20 Atl. 61. 2. Shelby Tp. v. Randies, 57 Ind. 390. 3. Chenery v. Holden, 16 Gray (Mass.) 125. 4. Osborn v. Lenox, 2 Allen (Mass.) 207. See also Washington v. Applegate, 22 N. J. L. 42, holding that the remedy of the injured person was not by suit against the township, but not deciding whether it was by man- damus, or original suit against the town com- mittee. 5. Jones v. Chester, 67 N. H. 191, 29 Atl. 452. 6. Shelby Tp. v. Randies, 57 Ind. 390. 7. Davis v. Seymour, 59 Conn. 531, 21 Atl. 1004, 13 L. R. A. 210. 8. Columbia Tp. v. Pipes, 122 Ind. 239, 23 N. E. 750. Vol. II 374 AXIMALS the selectmen, whose duty it is to appraise the damages, the town is bound to pay only the amount estimated by them. 9 (c) Rights op Corporation. Where the damage is paid by the town it has a remedy over against the owner or keeper, if a resident, 10 without regard to his knowledge of the animal's vicious propensities. 11 If a non-resident, under some statutes, suit may be instituted against the town where he resides, unless he or such town shall, on notice, pay to the treasurer of the former town the amount of damage. 12 The amount recoverable by the town is the actual damage, 13 not exceeding the amount of the order drawn for the damage by the proper offi- cers, 14 and no more than actual damage can be recovered even when the town has fiaid more. 15 Under some statutes, the total amount of damage may be recovered rom the owner of any one dog, even though part of the damage was done by a ■dog which belonged to the owner of the injured animal. 16 In an action by a town to recover damages paid by it to the owners of sheep alleged to have been killed by dogs, statements of a selectman that he was satisfied that the injury was the work of dogs, and evidence that defendant's dogs were not vicious, and when in the vicinity of sheep did not attack them, whether in the presence of their owners or not, are admissible. 17 b. While Being Driven through Street. A person driving animals through the streets will be liable for injuries inflicted by such animals if he was not in the exercise of due care, 18 and in such case the fact that the animal was never actually vicious up to the time of his attack upon plaintiff, and that the person then driving him had no knowledge of such viciousness, will not bar a recovery. 19 9. Van Hoosear v. Wilton, 62 Conn. 106, 25 Atl. 457. 10. Wilton v. Weston, 48 Conn. 325 ; Orne v. Roberts, 51 N. H. 110; Tenney v. Lenz, 16 Wis. 566. 11. Orne v. Roberts, 51 X. H. 110. 12. Wilton v. Weston, 48 Conn. 325, hold- ing that such a statute was not invalid, on the ground that it did not provide for an adjudication upon the fact and amount of damage, it being fairly implied that, if the matter is not settled without suit, the fact and amount of damage are to be determined in the suits for which the statute provides, or because it required the town to assume the burden of paying the damage in the first in- stance. What constitutes payment. — Where select- men give to a person, whose sheep have been injured by dogs, an order on the town treas- urer, which order was given and received in satisfaction of the claim, it constitutes a payment. Wilton v. Weston. 48 Conn. 325. 13. Fairchild v. Rich, 68 Vt. 202, 34 Atl. 692. Payment to one for several.— Under N. H. Pub. Stat. e. 118, §§ 9-13, which provide that a town may pay the owner of sheep for loss occasioned by reason of the worrying or killing of them by dogs, and recover the amount so paid in an action of assumpsit against the owner of the dogs, in an action by the town to recover money paid to one for loss and injury to his own sheep, as well as those of others which he was pasturing, the town cannot recover more than the actual loss occasioned to the party to whom the money was paid, unless the others are joined as parties to the action or are compelled to file releases, or it is shown that they au- thorized the town to pay damages to the Vol. II party pasturing their sheep. Unity v. Pike, 68 N. H. 71, 44 Atl. 78. The finding by the township auditors, of the ownership of dogs doing damage to sheep, and of the amount of such damage, is not conclusive. An appeal will be allowed in a suit for such damage. Weakland v. Yahner, 2 Pa. Dist. 777. See also Fairchild v. Rich, 68 Vt. 202, 34 Atl. 692. 14. East Kingston r. Towle, 48 N. H. 57, 97 Am. Dec. 575, 2 Am. Rep. 174. 15. Wilton v. Weston, 48 Conn. 325. 16. Worcester County v. Ashworth, 160 Mass. 186, 35 N. E. 773. 17. Dover v. Winchester, 70 Vt. 418, 41 Atl. 445. Evidence in rebuttal. — Where, in such an action, defendants introduced testimony to show that, only the summer before the sheep were killed, their dogs went among their sheep, and did not offer to molest them, it was competent for plaintiff to prove that sheep-killing dogs are not accustomed to at- tack the sheep of their owners, but that they go away to do it. Dover v. Winchester, 70 Vt. 418. 41 Atl. 445. 18. Pfaffinger v. Gilman, 18 Ky. L. Rep. 1071, 38 S. W. 1088 ; Hewes v. McNamara, 106 Mass. 2S1 : Tillett v. Ward, 10 Q. B. D. 17. It is negligence to turn bulls loose in the streets of a city (Byrne v. Morel, 20 Ky. L. Rep. 1311, 49 S. W. 193 : Pfaffinger v. Gilman, 18 Ky. L. Rep. 1071, 38 S. W. 1088), or to drive a vicious and unmanageable stallion into a crowd of vehicles standing in a place set apart for them away from the traveled road, and, knowing the vicious disposition of the animal, to strike him with a whip (Clore v. Mclntire, 120 Ind. 262, 22 N. E. 128). 19. Barnum v. Terpening, 75 Mich. 557, 42 N. W. 967. See also Puechner v. Braun, 10 Pa. Super. Ct. 595. ANIMALS 375 e. While on Owner's Premises. One who puts a dangerous animal upon his own premises, in a place where he knows that others are in the habit of going, is liable for injuries inflicted by such animal, 20 whether such others have a right to go there or not. 31 _ The mere keeping of a ferocious dog, for the purpose of protect- ing one's premises, is not in itself unlawful, 23 though it has been held that if the owner permit it to be at large on his premises, and another person is injured by it in the daytime, the keeper is liable in damages, 33 even though the person injured is at the time a trespasser. 34 . Where, however, the dog is lawfully kept, a tres- passer cannot maintain an action for an injury if he come in the way of the dog. 2 ) If the owner of such a dog keep him properly secured, 28 but another without authority lets him loose and urges him to mischief, the owner is not liable. 37 d. While Running at Large. A person who allows his horses to be at large where they have no right to be, as on a sidewalk, 28 or who allows his cattle to run in a highway, 29 in violation of a statute prohibiting them from running at large therein, is liable in damages for injuries committed by them while so running at large, 30 without reference to the question of the animal's viciousness, 31 and even 20. Melsheimer v. Sullivan, 1 Colo. App. 22, 27 Pac. 17 ; Glidden v. Moore, 14 Nebr. 84, 15 N. W. 326, 45 Am. Rep. 98; Mahoney v. Dwyer, 84 Hun (N. Y.) 348, 32 N. Y. Suppl. 346, 65 N. Y. St. 608 ; Brock v. Copeland, 1 Esp. 203. Freedom of pasture-field. — Where a mis- chievous or vicious animal is given the free- dom of a pasture-field, and thereby afforded an opportunity to injure and molest any per- son who may have occasion to go into, or pass through, the field, the confinement is not such as is regarded in the law. Graham v. Payne, 122 Ind. 403, 24 N. E. 216. 21. Glidden v. Moore, 14 Nebr. 84, 15 N. W. 326, 45 Am. Pep. 98. 22. Woodbridge v. Marks, 17 N. Y. App. Div. 139, 45 N. Y. Suppl. 156; Loomis v. Terry, 17 Wend. (N. Y.) 496, 31 Am. Dec. 306; Sareh v. Blackburn, 4 C. & P. 297, 19 E. C. L. 523; Brock v. Copeland, 1 Esp. 203. 23. Loomis v. Terry, 17 Wend. (N. Y.) 496, 31 Am. Dec. 306. See also Wheeler v. Brant, 23 Barb. (N. Y.) 324, wherein it was held that where such a dog is suffered to go at large on its owner's premises, and attacks and kills the dog of a person lawfully coming .upon the premises where he is, his owner is liable in damages for the value of the dog so killed, where it is shown that such owner had knowledge of the viciousness of his dog. 24. Loomis v. Terry, 17 Wend. (N. Y.) 496, 31 Am. Dec. 306; Sawyer i\ Jackson, 5 N. Y. Leg. Obs. 380. •"25. Loomis v. Terry, 17 Wend. (N. Y.) 496, 31 Am. Dec. 306 ; Sarch v. Blackburn, 4 C. & P. 297, 19 E. C. L. 523. See also Wood- bridge v. Marks, 17 N. Y. App. Div. 139, 45 N. Y. Suppl. 156, holding that the owner of a vicious dog kept to guard his premises need not, as against trespassers, give notice of its vicious character. One is not a trespasser who enters the back-yard of another, through an open gate, on lawful business (Conway v. Grant, 88 Ga. 40, 13 S. E. 803, 30 Am. St. Rep. 145, 14 L. R. A. 196; Riley v. Harris, (Mass. 1900) -58 N. E. 584), or who, having left his horse and buggy in defendant's livery-stable, enters the barn-yard to see that the buggy ia put under shelter, and to get some articles there- from (Shultz v. Griffith, 103 Iowa 150, 72 N. W. 445, 40 L. R. A. 117). 26. Dogs are cautiously used and suffi- ciently confined where they are so chained that they can move along the portion of the premises to be protected, but are secured from reaching p»iy one coming to the house by any of the approaches provided for that purpose. Woodbridge v. Marks, 17 N. Y. App. Div. 139, 45 N. Y. Suppl. 156. But the fact that defendant or defendant's wife may have been able to control a dog, by calling him off or speaking to him when he would run at any one, is not such a restraining as is contemplated by the law. Dockerty v. Hutson, 125 Ind. 102, 25 N. E. 144. 27. Fleming v. Orr, 2 Macq. 14. 28. Hardiman v. Wholley, 172 Mass. 411, 52 N. E. 518, 70 Am. St. Rep. 292; Stern v. Hoffman Brewing Co., 26 Misc. (N. Y.) 794, 56 N. Y. Suppl. 188. See also Jones v. Owen, 24 L. T. Rep. N. S. 587, wherein it was held that, upon a reference of all matters, a find- ing of arbitrators, that defendant was negli- gent in that his two greyhounds, coupled together, rushed against plaintiff on a, high- road, knocked him down, and broke his leg, is good in law, although there was no evidence of scienter. 29. Need not be legally established. — It is not necessary that the highway where the animal was at large be legally established, but it is sufficient to show that the road was open to the public, and used by the public as a highway. Meier v. Shrunk, 79 Iowa 17, 44 N. W. 209. But neither is it sufficient that the animal was running in an inclosure. Scott v. Grover, 56 Vt. 499, 48 Am. Rep. 814. See also Carpenter v. Latta, 29 Kan. 591. 30. Shipley v. Colclough, 81 Mich. 624, 45 N. W. 1106, 21 Am. St. Rep. 546; Bowyer v. Burlew, 3 Thomps. & C. (N. Y.) 362. 31. Connecticut. — Baldwin v. Ensign, 49 Conn. 113, 44 Am. Rep. 205. Iowa. — Meier v. Shrunk, 79 Iowa 17, 44 N. W. 209. Vol. II 376 ANIMALS though the owner did not know that they were in the highway at the time of the injury, 32 unless their presence there is not due to his fault, 33 or constitutes no breach of duty due from defendant to plaintiff, 34 in which latter cases scienter must exist. When a lien is provided for by statute for injuries committed by stock voluntarily allowed to go at large, such lien does not arise by operation of law from the act done, or the injury sustained, but depends upon the subsequent reduction of the claim to judgment, and is subordinate to the lien of a prior recorded mortgage. 35 e. While Trespassing — (i) In General. While knowledge of the animal's vicious propensities is generally necessary to make the owner of a domestic animal liable for his acts, 36 yet, when such an animal breaks into the close of another, unless through defective fences which the latter ought to repair, 37 the owner will be liable without such notice for injuries then committed on the per- son or cattle of such other, 38 or on the cattle of others lawfully in such close. 89 (n) On Railroad. In the absence of a duty on the part of the railroad company requiring it to fence along the line of its road, 40 the owner of cattle trespassing upon such road is liable for the injury done to the company, 41 Massachusetts. — Barnes v. Chapin, 4 Al- len (Mass.) 444, 81 Am. Dec. 710. New York. — Diekson v. McCoy, 39 N. Y. 400. Pennsylvania. — Goodman v. Gay, 15 Pa. St. 188, 53 Am. Dec. 589. But see Klenberg v. Russell, 125 Ind. 531, 25 N. E. 596 (holding that the owner of a domestic animal is not liable because of a negligent failure to keep it confined on his own premises, except for the consequences which may be anticipated because of its well- known disposition and habits, unless it is possessed of a vicious disposition, of which he had notice), and Meegan v. McKay, 1 Okla. 59, 30 Pac. 232 (holding that the laws of Nebraska, in force in Oklahoma by virtue of the organic act, and which provide for the recovery of damages for trespasses committed on cultivated lands by stock running at large, have no application to an injury done by a mule running at large, to a young colt, by which the colt was killed ) . See 2 Cent. Dig. tit. "Animals," § 175. 32. Jewett i. Gage, 55 Me. 538, 92 Am. Dec. 615. 33. Briscoe v. Alfrey, 61 Ark. 196, 32 S. W. 505, 54 Am. St. Rep. 203, 30 L. R. A. 607 (wherein it was held that the owner of an unaltered mule is not liable, under Sandels & H. Dig. Ark. § 7301, to the owner of a filly killed by the mule while at large, where the mule was kept confined in a strong stable, surrounded by a strong, high fence, but had broken out during the night without the owner's knowledge) ; Moynahan v. Wheeler, 117 N. Y. 285, 22 N. E. 702, 27 N. Y. St. 152; Fallon v. O'Brien, 12 R. I. 518, 34 Am. Rep. 713. The owner of a turkey-cock which, without negligence, strays upon the highway, con- trary to a by-law of the municipality, is not liable for damages resulting from a horse taking fright and running away at the sight of the bird acting as turkey-cocks usually do. Zumstein v. Shrumm, 22 Ont. App.<-263. 34. Chase v. McDonald, 25 U. C. C. P. 129. 35. Lehman v. Ferrell, 71 Ala. 458. 36. See supra, XI, A, 1, a, (n), (a). Vol. II 37. Angus v. Radin, 5 N. J. L. 957, 8 Am. Dee. 626; Scott v. Grover, 56 Vt. 499, 48 Am. Rep. 814. 38. Illinois.— Lee v. Burk, 15 111. App. 651 [distinguishing Seeley v. Peters, 10 111. 130]. Maine. — Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99. Massachusetts. — Lyons v. Merrick, 105 Mass. 71. New Jersey. — Angus v. Radin, 5 N. J. L. 957, 8 Am. Dec. 626. New York. — Van Leuven v. Lyke, 1 N. Y. 515, 49 Am. Dec. 346 [affirming 4 Den. (N. Y.) 127] ; Fairehild v. Bentley, 30 Barb. (N. Y.) 147; Dunckle v. Kocker, 11 Barb. (N. Y.) 387; Keshan v. Gates, 2 Thomps. & C. (N Y.) 288; Malone D.Knowl- ton, 15 N. Y. Suppl. 506, 39 N. Y. St. 901. Ohio. — Morgan v. Hudnell, 52 Ohio St. 552, 40 N. E. 716, 49 Am. St. Rep. 741, 27 L. R. A. 862. Pennsylvania. — Dolph v. Ferris, 7 Watts & S. (Pa.) 367, 42 Am. Dee. 246 [citing the un- reported Pennsylvania case of Sample v. Fos- ter] ; Proth v. Wills, 42 Wkly. Notes Cas. (Pa.) 504. Wisconsin. — Chunot v. Larson, 43 Wis. 536, 28 Am. Rep. 567. United States. — Mosier v. Beale, 43 Fed. 358. England. — Ellis v. Loftus Iron Co., L. R- 10 C. P. 10. Where defendant's beast escaped from his field, through an insufficient fence, into the field of A, thence into the field of B, and thence into the field of plaintiff, and injured plaintiff's mare, it was held that defendant was liable for the injuries, although, as be- tween him and A, the latter was bound to keep the fence between their fields in repair, although the fence between plaintiff's field and B's was insufficient, and although de- fendant did not know that the beast was vicious. Lyons v. Merrick, 105 Mass. 71. 39. Green v. Doyle, 21 111. App. 205. 40. Sherman v. Anderson, 27 Kan. 333, 41 Am. Rep. 414. 41. Sinram v. Pittsburgh, etc., R. Co., 28 Ind. 244; New York, etc., R. Co. v. Skinner,. ANIMALS 377 or td a passenger of said company who receives injuries by reason of such trespass. 43 3. What Constitutes Knowledge or Notice — a. In General. The notice of an animal's vicious propensity must be such as to put a prudent man on his guard ; a but there is no rule which requires any particular number of instances of unprovoked injury in order to show knowledge of past mischievous disposi- tion; 44 and, although no injury has been actually committed, the owner or keeper is chargeable with knowledge if he knew that the animal was of a dis- position such as to make it highly probable that it would commit injury. 45 So, too, if a person keeps an animal upon his place and omits to exercise ordinary supervision over it, lets it run, and fails to obtain the knowledge which such supervision would give, he is chargeable with the same knowledge that he would have obtained had he inquired and supervised in the ordinary and usual way ; 46 and if a dog is kept for protection to premises, the purpose for which he is kept charges his master with knowledge that he is of fierce and dangerous charac- ter. 47 Knowledge of the vicious habits of an animal need not refer to circum- stances of the same kind ; w but it has been held that knowledge of a tendency 19 Pa. St. 298, 57 Am. Dec. 654. See also Hannibal, etc., R. Co. v. Kenny, 41 Mo. 271, to the effect that while, by the laws of that state, the owner of animals is not bound to confine his stock within his own inclosures, he may be guilty of such wilfulness or neg- ligence in regard to his animals as to render himself liable to a railroad company for dam- ages caused by their being upon its tracks. Negligence essential to liability. — One whose cattle stray upon a railway, where they are run over by a train, which is dam- aged by the collision, is liable to the railway company therefor if he was negligent in his care of the cattle, but not otherwise. An- napolis, etc.. R. Co. v. Baldwin, 60 Md. 88, 45 Am. Rep. 711. 42. New York, etc., R. Co. v. Skinner, 19 Pa. St. 298, 57 Am. Dec. 654. 43. Pake v. Addicks, 45 Minn. 37, 47 N. W. 450, 22 Am. St. Rep. 716. See 2 Cent. Dig. tit. "Animals," §§ 228 et seg., 288 et seq. 44. Arnold v. Norton, 25 Conn. 92. A single instance of mischievous conduct is sufficient, it seems, to charge the owner or keeper with knowledge of the vicious nature and habits of the animal. Connecticut. — Arnold v. Norton, 25 Conn. 92. Iowa. — Marsel v. Bowman, 62 Iowa 57, 17 N. W. 176. Minnesota. — Cuney v. Campbell, 76 Minn. 59, 78 N. W. 878. NeiD Hampshire. — Kittredge v. Elliott, 16 N. H. 77, 41 Am. Dec. 717. Pennsylvania. — Mann v. Weiand, 81* Pa. St. 243, 34 Leg. Int. (Pa.) 77, 4 Wkly. Notes Cas. (Pa.) 6. Two instances of killing sheep is sufficient to charge defendant with notice of a dog's habits. Buller N. P. 77. From time to time biting people, under cir- cumstances which would not provoke a dog of good temper, is sufficient to charge with knowledge. Charlwood v. Greig, 3 C. & K. 46. 45. Delaware. — Barclay v. Hartman, 2 Marv. (Del.) 351, 43 Atl. 174; Warner v. Chamberlain, 7 Houst. (Del.) 18, 30 Atl. 638. Illinois. — Kolb v. Klages, 27 111. App. 531; Flansburg v. Basin, 3 111. App. 531. Louisiana. — Montgomery v. Koester, 35 La. Ann. 1091, 48 Am. Rep. 253. New Hampshire. — Reynolds v. Hussey, 64 N. H. 64, 5 Atl. 458. N ew Jersey. — Evans v. McDermott, 49 N. J. L. 163, 6 Atl. 653, 60 Am. Rep. 602. New York.— Rider v. White, 65 N. Y. 54, 22 Am. Rep. 600 ; MeGarry v. New York, etc., R. Co., 60 N. Y. Super. Ct. 367, 18 N. Y. Suppl. 195, 45 N. Y. St. 564 [affirmed in 137 N. Y. 627, 33 N. E. 745] ; Rogers v. Rogers, 4 N. Y. St. 373. Vermont.— Godeau v. Blood, 52 Vt. 251, 36 Am. Rep. 751. Washington. — Robinson v. Marino, 3 Wash. 434, 28 Pac. 752, 28 Am. St. Rep. 50. United States. — Shaw v. Craft, 37 Fed. 317. England.— Worth v. Gilling, L. R. 2 C. P. 1. 46. Knowles r. Mulder, 74 Mich. 202, 41 N. W. 896, 16 Am. St. Rep. 627; Turner v. Craighead, 83 Hun (N. Y.) 112, 31 N. Y. Suppl. 369, 63 N. Y. St. 853; Lawlor r. French, 14 Misc. (N. Y.) 497, 35 N. Y. Suppl. 1077, 70 N. Y. St. 721 ; Hayes v. Smith, 62 Ohio St. 161, 56 N. E. 879 [affirming 8 Ohio Dec. 92]. See also Clark v. Hite, Tappan (Ohio) 33, to the effect that the presumption of law is that every man is acquainted with the habits of his domestic animals ; and that, in a case for keeping a dog accustomed to bite, etc., while the scienter is to be averred, knowledge is to be inferred from the fact of domestication. But see Laherty v. nogan, 13 Daly (N. Y.) 533, 1 N. Y. St. 84, to the effect that actual notice is necessary. 47. Goode v. Martin, 57 Md. 606, 40 Am. Rep. 448; Hahnke v. Friederich, 140 N. Y. 224, 35 N. E. 487, 55 N. Y. St. 411; Brice v. Bauer, 108 N. Y. 428, 15 N. E. 695, 2 Am. St. Rep. 454. 48. Alabama. — Strouse v. Leipf, 101 Ala. 433, 14 So. 667, 46 Am. St. Rep. 122, 23 L. R. A. 622. Illinois. — Pickering v. Orange, 2 111. 338. Vol. II 378 ANIMALS to attack mankind is not enough to charge one with knowledge of a tendency to attack animals, 49 and vice versa, that a knowledge of a tendency to attack animals will not charge one with knowledge of such tendency toward mankind. 50 b. Knowledge of Servant of Agent. Knowledge of a servant or agent of an animal's vicious propensities will be imputed to the master when such servant or agent has charge or control over the animal, 51 but not otherwise ; 52 and a wife's knowledge may be sufficient to charge her husband, 53 though the converse is not true, and notice to the husband will not, taken alone, be sufficient proof of scienter to render the wife liable after her husband's death. 54 Notice to one of several joint keepers is notice to all. 56 3. Parties Liable — a. In General — (i) Owner or Keeper. ~No one is liable in damages for injuries by an animal which he does not own, harbor, or control ; 56 but one who keeps, harbors, or has the charge of vicious animals is liable for injuries caused by them, regardless of ownership, 57 and even when Iowa. — Cameron v. Bryan, 89 Iowa 214, 56 N. W. 434. New Hampshire. — Reynolds v. Hussey, 64 N. H. 64, 5 Atl. 458. England. — Jenkins v. Turner, 1 Ld. Raym. 109: Getting v. Morgan, 5 Wkly. Reip. 536; Buller N. P. 77. 49. Coekerham v. Nixon, 33 N. C. 269; Hartley v. Harriman, 1 B. & Aid. 620, S. C. sub nom. Hartley v. Halliwell, 2 Stark. 212, 3 E. C. L. 381. Contra, Getting v. Morgan, 5 Wkly. Rep. 536. 50. Keightlinger v. Egan, 65 111. 235; Os- borne v. Choequeel, 65 L. J. Q. B. 534, [1896] 2 Q. B. 109, 74 L. T. Rep. N. S. 786, 44 Wkly. Rep. 575. 51. California. — Clowdis v. Fresno Flume, etc., Co., 118 Cal. 315, 50 Pae. 373, 62 Am. St. Rep. 238. Delaware. — Brown v. Green, 1 Pennew. (Del.) 535. 42 Atl. 991; Friedmann v. Mc- Gowan, 1 Pennew. (Del.) 436, 42 Atl. 723. New York. — Brice v. Bauer, 108 N. Y. 428, 15 N. E. 695, 2 Am. St. Rep. 454 ; Niland v. Geer, 46 N. Y. App. Div. 194, 61 N. Y. Suppl. 696; Muller v. McKesson, 10 Hun (N. Y.) 44. Vermont. — Corliss v. Smith, 53 Vt. 532. England. — Baldwin v. Casella, L. R. 7 Exch. 325, 41 L. J. Exch. 167, 26 L. T. Rep. N. S. 707. The manager of a stable maintained by » number of persons is the servant of any one of such persons, so that knowledge of the manager of the vicious character of a horse owned by such person, and kept in the stable, is imputed to the owner. Brown v. Green, 1 Pennew. (Del.) 535, 42 Atl. 991. Superintendent of car-stables. — Notice of the vicious character of a horse to the super- intendent of the stable of a horse-car com- pany, and to a superior hostler, of lesser au- thority than the superintendent, having other hostlers under him, is notice to the company. MeGarry v. New York, etc., R. Co., 60 N. Y. Super. Ct. 367, 18 N. Y. Suppl. 195, 45 N. Y. St. 564 {affirmed in 137 N. Y. 627, 33 N. E. 745]. Person employed as driver. — Knowledge of the vicious character of a horse, by one em- ■ ployed to drive it in delivering goods, is im- puted to the owner. Brown v. Green, 1 Pennew. (Del.) 535, 42 Atl. 991. Vol. II 52. Delaware. — Friedmann v. McGowan, 1 Pennew. (Del.) 436, 42 Atl. 723. Maryland. — Twigg v. Ryland, 62 Md. 380, 50 Am. Rep. 226. New York. — Shaver v. New York, etc., Transp. Co., 31 Hun (N. Y.) 55. North Carolina.— Harris v. Fisher, 115 N. C. 318, 20 S. E. 461, 44 Am. St. Rep. 452. England. — Stiles v. Cardiff Steam Nav. Co., 33 L. J. Q. B. 310; Applebee v. Percy, L. R. 9 C. P. 647, 43 L. J. C. P. 365. 53. Barclay v. Hartman, 2 Marv. (Del.) 351, 43 Atl. 174; Muller v. McKesson, 10 Hun (N. Y.) 44; Gladman v. Johnson, 36 L. J. C. P. 153, 15 L. T. Rep. N. S. 476. 54. Miller v. Kimbray, 16 L. T. Rep. N. S. 360. • P 55. Hayes v. Smith, 8 Ohio Dec. 92. 56. Marsh v. Hand, 120 N. Y. 315, 24 N. E. 463, 30 N. Y. St. 1003 [affirmmg 40 Hun (N. Y.) 339]; Fitzgerald v. Brophy, 1 Pa. Co. Ct. 142. The owner of an animal is answerable for the damage he has caused (McGuire v. Ring- rose, 41 La. Ann. 1029, 6 So. 895), even while it is under the control of a kennel club (Bush v. Wathen, 20 Ky. L. Rep. 731, 47 S. W. 599). 57. California. — Wilkinson v. Parrott, 32 Cal. 102. Colorado. — Hornbein v. Blanchard, 4 Colo. App. 92, 35 Pac. 187. Indiana. — Frammell v. Little, 16 Ind. 251. Iowa. — Marsel v. Bowman, 62 Iowa 57, 17 N. W. 176. Maine.- — Smith v. Montgomery, 52 Me. 178. Missouri. — Bell v. Leslie, 24 Mo. App. 661. New York. — Bundschuh v. Mayer, 81 Hun (N. Y.) Ill, 30 N. Y. Suppl. 622, 62 N. Y. St. 597; Keenan v. Gutta Percha, etc., Mfg. Co., 46 Hun (N. Y.) 544 [affirmed in 120 N. Y. 627, 24 N. E. 1096] ; Lawlor v. French, 14 Misc. (N. Y.) 497, 35 N. Y. Suppl. 1077, 70 N. Y. St. 721. Ohio. — Hayes v. Smith, 62 Ohio St. 161, 56 N.-E. 879. Pennsylvania. — Snyder v. Patterson, 161 Pa. St. 98. 34 Wkly. Notes Cas. (Pa.) 288, 28 Atl. 1006. Vermont. — Marsh v. Jones, 21 Vt. 378, 52 Am. Dec. 67. England. — McKone v. Wood, 5 C. & P. 1, 24 E. C. L. 423. ANIMALS 379 such keeping is without the consent and against the wishes of the animal's owner. 58 (n) Who Is Owner on Keeper. Harboring means protecting, 59 and one who treats a dog as living at his house, and undertakes to control his actions, is the owner or keeper within the meaning of the law ; m but the casual presence of an animal on his premises, if not so treated, does not constitute him such owner or keeper. 61 If the head of a family, having possession and control of a house or premises, suffer or permit an animal to be kept on the premises in this way he may be regarded as keeper, 63 whether the animal be owned by his child m or his wife ; M and, where a married woman has all the rights of a feme sole in respect of her separate property, she may be liable as keeper though the animal be actually owned by her husband, 65 though this is not necessarily so. 66 So, too, a corpora- tion, 67 or the officers thereof, 68 an innkeeper, 69 or a ship ™ may be liable. A person who knowingly permits a dog to be kept on his premises, by a servant or agent, is a keeper within the purview of the statute; 71 but this is not true where the employee occupies a separate residence on the employer's premises. 72 The fact that others than defendant had some part in taking charge of an animal does not prevent his being the keeper within the meaning of the statute. 73 Canada. — Wood v. Vaughan, 28 N. Brunsw. 472. See 2 Cent. Dig. tit. "Animals," §§ 242 et seq., 293 et seq. 58. Mitchell v. Chase, 87 Me. 172, 32 Atl. 867; Burnham v. Strother, 66 Mich. 519, 33 N. W. 410; Bell e. Leslie, 24 Mo. App. 661. 59. Fitzgerald v. Brophy, 1 Pa. Co. Ct. 142. 60. Shultz v. Griffith, 103 Iowa 150, 72 N. W. 445, 40 L. R. A. 117; O'Harra v. Mil- ler, 64 Iowa 462, 20 N. W. 760; Burnham v. Strother, 66 Mieh. 519, 33 N. W. 410. 61. O'Harra v. Miller, 64 Iowa 462, 20 N. W. 760; O'Donnell v. Pollock, 170 Mass. 441, 49 N. E. 745. Merely permitting a stray dog to live un- der a building in defendant's coal-yard does not make him a harborer. Fitzgerald v. Brophy, 1 Pa. Co. Ct. 142. And where a dog was brought, by a little son of the steward, upon the farm of the directors of the poor, without authority, and afterward maintained on the farm and left there when that stew- ard was succeeded by another, the ownership of the dog did not thereby become vested in the poor district. Sproat v. Directors of Poor, 145 Pa. St. 598, 23 Atl. 380. 62. Cummings v. Riley, 52 N. H. 368. 63. Jenkinson v. Coggins, 123 Mich. 7, 81 N. W. 974; Plummer v. Ricker, 71 Vt. 114, 41 Atl. 1045. 64. Strouse v. Leipf, 101 Ala. 433, 14 So. 667, 46 Am. St. Rep. 122, 23 L. R. A. 622. 65. Quilty v. Battie, 135 ST. Y. 201, 32 N. E. 47, 48 N. Y. St. 413, 17 L. R. A. 521; Valentine v. Cole, 1 N. Y. St. 719; Shaw v. McCreary, 19 Ont. 39. But see Bundschuh v. Mayer, 81 Hun (N. Y.) Ill, 30 N. Y. Suppl. 622, 62 N. Y. St. 597. 66. McLaughlin v. Kemp, 152 Mass. 7, 25 1ST. E. 18. 67. A horse-railroad company may be held liable for double the amount of damages sus- tained in consequence of the bite of a dog kept by its servants or agents. Barrett v. Maiden, etc., R. Co., 3 Allen (Mass.) 101. A steam-railroad company may be liable, where a steer, which, owing to its crippled condition, has been removed from a car to be killed, is allowed to recover, and, in an ap- parently vigorous condition, roam around the railroad yard, which is open to the public, without any attempt to control it, to one in- jured by the steer while passing through the yard. Texas, etc., R. Co. v. Juneman, 71 Fed. 939, 30 U. S. App. 541, 18 C. C. A. 394. 68. Thus where an animal is used in the business of a corporation, the president and manager, who controls and conducts the busi- ness, and may hire or discharge the animal, is the keeper, and is responsible for any in- jury it may do. Lawlor v. French, 14 Misc. (N. Y.) 497, 35 N. Y. Suppl. 1077, 70 N. Y. St. 721. 69. Under 28 & 29 Vict. u. 60, an inn- keeper is deemed to be the owner of a dog liv- ing in his hotel, and is liable for injuries caused by such dog to other animals, not- withstanding the dog was under control of a guest to whom it had been committed by the real owner. Gardner v. Hart, 44 Wkly. Rep. 527. 70. A ship is liable for injuries inflicted by the bite of a dog, on board by consent of the master and owners, upon a person law- fully on board, and entitled to be carried safely. The Lord Derby, 17 Fed. 265. 71. Jacobsmeyer v. Poggemoeller, 47 Mo. App. 560; Harris v. Fisher, 115 N. C. 318, 20 S. E. 461, 44 Am. St. Rep. 452. Where a toll-keeper was not authorized or required to keep a dog, and it was not needed for the conduct or protection of the business in which the owner of the bridge is engaged, the latter is not liable for an injury caused by such dog. Baker v. Kinsey, 38 Cal. 631, 99 Am. Dec. 438. 72. Auchmuty v. Ham, 1 Den. (N. Y.) 495; Simpson v. Griggs, 58 Hun (N. Y.) 393, 12 N. Y. Suppl. 162, 34 N. Y. St. 899. 73. Grant v. Ricker, 74 Me. 487; Gardner v. Hart, 44 Wkly. Rep. 527. See also Lettis v. Horning, 67 Hun (N. Y.) 627, 22 K. Y. Suppl. 565, 51 N. Y. St. 225. Thus, where a dog is owned by a member of a firm, and is in the keeping of the firm, Vol. II 380 ANIMALS b. Jointly. It seems that, under proper allegations and proof, one who owns and one who harbors a vicious animal may both be made responsible, in the same action, for a resulting injury, 74 and all who take part in harboring a vicious ani- mal may be sned jointly in an action for damages resulting from the vicious con- duct of such animal. 75 Where dogs, belonging to several persons, unite in killing sheep, each owner, in the absence of statute, is liable only for the acts of his own dog; 76 but in some states, by statute, each owner is answerable for the whole damage done in which his dog was jointly engaged. 77 4. Actions — a. Who May Sue. Under the statute a parent may sue for double damages, sustained by him by reason of the loss of his child's services, caused bj injuries inflicted by a dog ; 78 and for injuries inflicted upon cattle a bailee may sue. 79 b. Form of Action. By some statutes the form of the action is prescribed ; * but, in the absence of such statutory provision, case is the proper remedy for an injury sustained from the act of a mischievous animal. 81 But, where an animal is unlawfully in plaintiff's close, the action should be trespass quare clausum f regit, and the particular mischief — for example, the killing of another domestic animal — should be alleged in aggravation of the trespass. 82 A statute giving a right of action for certain injuries does not, however, supersede common-law actions. 83 e. Defenses — (i) Contributory Negligence. In some cases it is held that plaintiff's contributory negligence will bar his right of recovery, 84 while others an action may properly be maintained against the owner, as owner and keeper, under Me. Rev. Stat. e. 30, § 1, for damages done by the dog, and it is not necessary to join the other members of the firm. Grant v. Ricker, 74 Me. 487. 74. Quilty v. Battie, 135 N. Y. 201, 32 N. E. 47, 48 N. Y. St. 413, 17 L. R. A. 521. But see Galvin v. Parker, 154 Mass. 346, 28 N. E. 244, holding that, under Mass. Pub. Stat. c. 102, § 93, making the " owner or keeper " of a dog liable for injuries caused by it, the owner and keeper are not jointly and severally liable as tort-feasors; and, af- ter the recovery of a judgment for such an injury against one of them, which remains unsatisfied by reason of his taking the poor- debtor's oath, an action cannot be maintained against the other for the same injury. 75. Haves v. Smith, 62 Ohio St. 161, 56 N. E. 879 [affirming 8 Ohio Dec. 92] ; Kerr v. O'Connor, 63 Pa. St. 341. A joint owner of a ram is chargeable with damage done by it by butting while in the pasture of his co-owner, although the latter, of his own accord, and without permission of, or consultation with, the former, and in his absence, took the ram, and put it into his pasture, where the injury was done, without trying to restrain it, the first joint owner having given no directions as to restraining the ram, and not having been consulted as to the keeping, care, and management of it. Oakes v. Spaulding, 40 Vt. 347, 94 Am. Dec. 404. 76. Connecticut. — Russell ». Tomlinson, 2 Conn. 20&. Indiana. — Denny v. Correll, 9 Ind. 72. Massachusetts. — Buddington v. Shearer, 20 Pick. (Mass.) 477. New York. — Auchmuty v. Ham, 1 Den. (N. Y.) 495; Van Steenburgh r. Tobias, 17 Wend. (N. Y.) 562, 31 Am. Dec. 310: Car- VoL II roll r. Weiler, 1 Hun (N. Y.) 605, 4 Thomps. & C. (N. Y.) 131. Tennessee. — Dyer v. Hutchins, 87 Tenn. 198, 10 S. W. 194. Vermont. — Rowe v. Bird, 48 Vt. 578; Adams v. Hall, 2 Vt. 9, 19 Am. Dec. 690. See also Flansburg v. Basin, 3 111. App. 531. 77. Kerr v. O'Connor, 63 Pa. St. 341; Remele v. Donahue, 54 Vt. 555; Nelson v. Nugent, 106 Wis. 477, 82 X. W. 287. 78. McCarthy v. Guild, 12 Mete. (Mass.) 291. 79. Mason v. Morgan, 24 U. C. Q. B. 328. 80. Trespass in Maine. Smith v. Mont- gomery, 52 Me. 178. Trespass vi et armis in Pennsylvania. Paff r. Slack, 7 Pa. St. 254; March e. Smith, 11 York Leg. Rec. (Pa.) 42. 81. Durden v. Barnett, 7 Ala. 169: Stumps !-. Kelley, 22 HI. 140; Mulherrin r. Henry, 11 Pa. Co. Ct. 49. 1 Pa. Dist. 607; Fallon v. O'Brien. 12 R. I. 518, 34 Am. Rep. 713. 82. Van Leuven v. Lyke, 1 X. Y. 515, 49 Am. Dec. 346 {affirming 4 Den. (N. Y.) 127] : Dolph r. Ferris, 7 Watts & S. (Pa.) 367, 42 Am. Dec. 246 [citing Sample v. Fos- ter, an unreported case decided at Harris- burg, in June, 1834]. 83. Monroe v. Rose, 38 Mich. 347. 84. Illinois. — Mareau v. Vanatta, 88 111. 132. Indiana. — Dockerty r. Hutson, 125 Ind. 102, 25 N. E. 144; Williams v. Moray, 74 Ind. 25, 39 Am. Rep. 76. Kentucky. — Bush v. Wathen, 20 Ky. L. Rep. 731, 47 S. W. 599. Massachusetts. — Marble i\ Ross, 124 Mass> 44. New Hampshire. — Chickering i\ Lord, 67 N. H. 555, 32 Atl. 773; Quimby r. Woodbury, 63 N. H. 370. ANIMALS 381 hold that the owner will not be relieved from liability by slight negligence or want of ordinary care on the part of the person injured ; but that, to constitute a defense, acts must be proved, witli notice of the character of the animal, which would establish that the injured person voluntarily brought the injury upon himself, 85 or that amount to an unlawful act on plaintiff's part. 86 The fact that plaintiff wantonly provoked the animal, 87 or went within reach of a confined Pennsylvania. — Earhart v. Youngblood, 27 Pa. St. 331. Texas. — Badali v. Smith, (Tex. Civ. App. 1896) 37 S. W. 642. Vermont. — Coggswell v. Baldwin, 15 Vt. 404, 40 Am. Dec. 686. England. — Abbott v. Freeman, 35 L. T. Hep. N. S. 783 ; Sareh v. Blackburn, M. & M. 505. But see Jones v. Carey, 9 Houst. (Del.) 214, 31 Atl. 976 (holding that the owner or harborer of a vicious dog, which was in the habit of running out at travelers passing by on the highway, after he has knowledge of the habit of such dog, is guilty of wilful neg- ligence in longer keeping him at large, and is liable for damages sustained by a traveler passing by on the highway, such damages being occasioned by the dog running out and frightening his horse; and such owner or harborer, being guilty of wilful negligence, cannot set up a plea of contributory negli- gence on the part of the traveler) ; and Vre- denburg v. Behan, 33 La. Ann. 627 (hold- ing that the responsibility of one keeping an animal ferce natures [a bear] is of such strict character that contributory negligence is no defense ) . See 2 Cent. Dig. tit. "Animals," § 238 et seq. Endeavoring to pass in front of an animal, ordinarily muzzled, without observing that he was not then muzzled, is not such con- tributory negligence as will prevent a recov- ery for injuries received. Koney r. Ward, 2 Daly (N. Y.) 295, 36 How. Pr. (N. Y.) 255. Examining cattle in a public stock-pen, in a reasonable and prudent manner, does not make a buyer guilty of contributory negli- gence so as to preclude him from recovering for injuries inflicted bv n vicious animal. Brooks' v. Brooks, 21 Ky. L. Rep. 940, 53 S. W. 645. Failure to inquire a,nd ascertain whether vicious dogs are kept upon premises upon which one is about to enter, especially where he has obtained permission to enter, does not constitute contributory negligence. Sanders v. O'Callaghan, (Iowa 1900) 82 N. W. 969. Going on premises where notice is posted. — It is not necessarily contributory negli- gence to go on premises where a sign of warning is displayed. Svlvester v. Maag, 155 Pa. St. 225, 26 Atl. 392, 35 Am. St. Rep. 878. And see Sarch v. Blackburn, M. & M. 505. Leading a horse behind a wagon on a coun- try road is not such contributory negligence as will preclude the owner from maintaining an action, under Mass. Pub. Stat. c. 102, § 93, against the owner of a dog by whom the horse is bitten while being so led. Boul- ester v. Parsons, 161 Mass. 182, 36 N. E. 790. Remaining on the street, at the time of a runaway, to guard one's own team and its oc- cupants, is not contributory negligence. Hall v. Huber, 61 Mo. App. 384. That plaintiff raised himself to his feet by the reins, when his horses were suddenly at- tacked by dogs, and while in that posture was thrown from the wagon and injured, is held not to show contributory negligence on his part. Meracle v. Down, 64 Wis. 323, 25 N. W. 412. The shying of a horse which contributed to plaintiff's injury does not prevent him from maintaining an action against the owner of a dog where the act of the dog was the sole and proximate cause of such shying. Den- ison v. Lincoln, 131 Mass. 236. 85. Lynch v. McNally, 73 N. Y. 347 [af- firming 7 Daly (N. Y.) 126]; Muller v. Mc- Kesson, 73 N. Y. 195, 29 Am. Rep. 123; Rog- ers v. Rogers, 4 N. Y. St. 373. 86. Shultz v. Griffith, 103 Iowa 150, 72 N. W. 445, 40 L. R. A. 117. Throwing stones at dog some months be- fore.— Under Iowa Code (1873), § 1485, pro- viding that the owner of a dog shall be liable to the party injured for all damages done by his dog, except when the party injured is do- ing an unlawful act, it is no defense to an action for injuries from a bite of defendant's dog to show that several months before the injury the plaintiff threw stones at the dog. Van Bergen v. Eulberg, (Iowa 1900) 82 N. W. 483. 87. Illinois. — Mareau v. Vanatta, 88 111. 132; Keightlinger v. Egan, 65 111. 235. Michigan. — Brooks v. Taylor, 65 Mich. 208, 31 N. W. 837. Minnesota. — Fake v. Addicks, 45 Minn. 37, 47 N. W. 450, 22 Am. St. Rep. 716. New Hampshire. — Chickering v. Lord, 67 N. H. 555, 32 Atl. 773. New York. — Rogers v. Rogers, 4 N. Y. St. 373. Oregon. — Dufee v. Cully, 3 Oreg. 377. But see May v. Burdetl 9 Q. B. 101, 58 E. C. L. 101, which was aa action for per- sonal injury inflicted by a monkey, wherein it was doubted if it would be a defense that the injury was occasioned solely by the wil- fulness of plaintiff, after warning. * If plaintiff's dog provoked the quarrel and caused the fight, defendant, as the owner of the other dog, cannot be made responsible for the consequences. Wiley v. Slater, 22 Barb. (N. Y.) 506. Accidentally stepping upon a dog is not such a provocation as will constitute a de- fense. Fake v. Addicks, 45 Minn. 37, 47 N. W. 450, 22 Am. St. Rep. 716; Smith v. Pelah, 2 Str. 1264; Buller N. P. 77. Acts of children not imputed to teacher. — Mischievous conduct of school-children, dur- Vol. II 382 ANIMALS animal, known by him to be vicious, is a defense. 88 "Where a child is injured, it is no defense that he did not act with the discretion and judgment of a person of mature years, and the defendant will be liable if the child used such care as is usual with children of his age; 89 and the negligence of a parent cannot be imputed to the child. 90 (n) General Good Character of Animal. The fact that an animal of a dangerous character is generally inoffensive, and had never attacked any one prior to the injury sued for, will not bar a recovery. 91 (in) Injury Done in Play. It is no defense to an action under the statute that the injury done by a dog was done in play, and without any vicious intent. 92 (iv) Plaintiff or Animal Trespassing at Time of Injury. It is no defense that plaintiff, at the time of the injury, was a technical trespasser upon defendant's premises, 93 such fact being material, if at all, upon the question of damages. 94 Nor is it a defense that plaintiff's sheep were trespassing upon defendant's premises when injured by the latter's dog, 95 or that the animals of both plaintiff and defendant were technically trespassing upon the land of another person. 96 (v) That Defendant Was Not Keeper. A denial that defendant kept the animal which caused the injury is, if made good, a perfect bar to the action. 97 (vi) That Ordinance Violated by Defendant Was Dead Letter. Where a complaint, in an action to recover for injuries inflicted by a vicious horse, alleged that defendant permitted the horse to run at large, in violation of a city ordinance, a plea to such complaint, that the ordinance was not being enforced at the time the alleged wrong was committed, is bad. 98 (vii) That Plaintiff was Unlawfully Traveling on Sunday. The plaintiff's right to recover for injuries sustained by reason of attacks by defend- ant's dog is not affected by the fact that the injury occurred while plaintiff was unlawfully traveling on Sunday. 99 (vin) Want of Scienter. Where scienter is an essential ingredient of lia- bility a want thereof is a bar to the action, and defendant may avail himself of such want of knowledge under the general issue. 1 ing recess, without their teacher's knowledge Not applicable to dog attacking another. — or consent, in vexing a ram, which attacked The cases in which dogs have attacked hu- and injured the teacher, cannot be imputed man beings, although trespassers, and their to her in an action by her for injuries. Kin- owners have been held liable, are not ap- mouth v. MeDougall, 64 Hun (N. Y.) 636, plicable to the case of one dog attacking an- 19 N. Y. Suppl. 771, 46 N. Y. St. 211 [of- other. Wiley v. Slater, 22 Barb. (N. Y.) firmed in 139 N. Y. 612, 35 N. E. 204]. 506. 88. Buckley v. Gee, 55 111. App. 388 ; Far- 94. Pierret v. Moller, 3 E. D. Smith (N. Y.) ley v. Picard, 78 Hun (N. Y.) 560, 29 N. Y. 574. Suppl. 802, 61 N. Y. St. 516; Werner v. Win- 95. Grange v. Silcock, 77 L. T. Rep. N. S. terbottom, 56 N. Y. Super. Ct. 126, 1 N. Y. 340. Suppl. 417, 17 N. Y. St. 751. See also Logue 96. Hill v. Applegate, 40 Kan. 31, 19 Pac. v. Link, 4 E. D. Smith (N. Y.) 63; Sawyer 315. v. Jackson, 5 N. Y. Leg. Obs. 380. 97. Strouse v. Leipf, 101 Ala. 433, 14 So. 89. Plumley v. Birge, 124 Mass. 57, 26 667, 46 Am. St. Pep. 122, 23 L. R. A. 622. Am. Rep. 645 ; Munn v. Reed, 4 Allen (Mass.) Defendant is estopped from denying owner- 431 ; Meibus v. Dodge, 38 Wis. 300, 20 Am. slip where he represented himself to be the Rep. 6. owner for the purpose of misleading plaintiff, 90. Fye v. Chapin, 121 Mich. 675, 80 N. W. who thereby lost his right of action against 797. the true owner. Baind v. Vaughn, (Tenn. 91. Barnum v. Terpening, 75 Mich. 557, 1890) 15 S. W. 734. 42 N. W. 967; Buckley v. Leonard, 4 Den. 98. Kitchens r. Elliott, 114 Ala. 290, 21 (N. Y.) 500. So. 965. 92. Hathaway v. Tinkham, 148 Mass. 85, 99. Sehmid v. Humphrey, 48 Iowa 652, 30 19 N. E. 18. Am. Rep. 414; White v. Lang, 128 Mass. 598, 93. Marble e. Ross, 124 Mass. 44; Pierret 35 Am. Rep. 402. v. MolW, 3 E. D. Smith (N. Y.) 574; Sher- 1. Hogan t\ Sharpe, 7 C. & P. 755. 32 E. C. fey r. Bartley, 4 Sneed (Tenn.) 58, 67 Am. L. 856: Card r. Case, 5 C. B. 622, 57 E. C. L. Dec. 597 ; Dandurand v. Pinsonnault, 7 L. C. 622 ; Thomas r. Morgan, 2 C. M. & R. 496, 5 Jur.,131. Tyrw. 1085. Vol. II ANIMALS 383 d. Jurisdiction. Under the Massachusetts statute it has been held that if a dog, owned and kept in that state, strays into another state and there bites a per- son, an action lies in Massachusetts against the owner or keeper for such injury. 2 e. Pleading 3 — (i) In General. Where plaintiff seeks to recover under a statute he must aver facts bringing his case within the provisions thereof ■; 4 but, though a petition be insufficient as a pleading framed on the statute, if it set forth a good cause of action at common law it will not be demurrable merely because it asks for double damages. 5 (n) Particular Averments — (a) As to Defendant's Negligence. "Where negligence on the part of defendant need not be shown to fix his liability, 6 it is unnecessary for plaintiff to aver negligence. 7 (b) As to Scienter. Where defendant's knowledge of the animal's vicious propensities is an essential element of his liability, 8 scienter must be alleged ; 9 2. Le Forest V. Tolman, 117 Mass. 109, 19 Am. Rep. 400. 3. Fotms. — For form of declaration for personal injuries inflicted by a bear see Mar- quet v. La Duke, 96 Mich. 596, 55 N. W. 1006. For form of declaration for personal in- juries inflicted by a bull see Brooks v. Tay- lor, 65 Mieh. 208, 31 N. W. 837. For forms of complaints or declarations for personal injuries inflicted by dogs see: Delaware.- — Friedmann v. McGowan, 1 Pen- new. (Del.) 436, 42 Atl. 723. Indiana. — Clanin v. Fagan, 124 Ind. 304, 24 N. B. 1044 ; Partlow v. Haggarty, 35 Ind. 178. Kansas. — Hahn v. Kordula, 5 Kan. App. 142, 48 Fac. 896. Maine. — Mitchell v. Chase, 87 Me. 172, 32 Atl. 867 ; Hussey v. King, 83 Me. 568, 22 Atl. 476; Fitzgerald v. Dobson, 78 Me. 559, 7 Atl. 704. Massachusetts. — Searles v. Ladd, 123 Mass. 580. -Michigan. — French v. Wilkinson, 93 Mich. 322, 53 N. W. 530. England. — Curtis v. Mills, 5 C. & P. 489, 24 E. C. L. 670. For forms of complaints or declarations for personal injuries inflicted by a horse see Kitchens v. Elliott, 114 Ala. 290, 21 So. 965; Popplewell v. Pierce, 10 Cush. (Mass.) 509. For form of declaration for injury to a horse, inflicted by another horse running at large, see Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99. For form of declaration for injuries to sheep, inflicted by a dog, see Smith v. Mont- gomery, 52 Me. 178. 4. Monroe v. Rose, 38 Mich. 347. - r " Hurried " for " worried." — In an action brought against the owner of dogs to recover damages for killing and " worrying " plain- tiff's sheep, founded on Mich. Comp. Laws, § 1645, it was held that the words " drove, chased, and hurried," used in plaintiff's dec- laration, are equivalent to, or within the meaning of, the word " worried," as used in said section, and an allegation that the sheep were pasturing on plaintiff's farm and in his possession when the wrong was done suffi- ciently alleges that they were out of defend- ant's inclosure. Dorr v. Loueks, 2 Mich. N. P. 182. 5. Kneale v. Price, 21 Mo. App. 295. 6. See supra, XI, A, 1, a,, (I), (n). 7. Massachusetts. — Popplewell v. Pierce, 10 Cush. (Mass.) 509. Michigan. — Snow v. McCracken, 107 Mich. 49, 64 N. W. 866 ; Brooks v. Taylor, 65 Mich. 208, 31 N. W. 837. Missouri. — Forbes v. Shellabarger, 50 Mo. 558. New Hampshire. — Chickering v. Lord, 67 N". H. 555, 32 Atl. 773. New York. — Woodbridge v. Marks, 5 N. Y. App. Div. 604, 40 N. Y. Suppl. 728, 75 N. Y. St. 126 [affirming 14 Misc. (N. Y.) 368, 36 N. Y. Suppl. 81, 71 N. Y. St. 417]. United States. — Congress, etc., Spring Co. v. Edgar, 99 U. S. 645, 25 L. ed. 487. Sufficient averment. — In an action to re- cover damages for an injury inflicted on plaintiff's horse by defendant's bull, an aver- ment that, by reason of the negligence and default of defendant in failing to keep his part of a line fence in repair, the horse passed into defendant's pasture and was gored, was a sufficient averment that the re- sults charged were caused by defendant's neg- ligence. Burke v. Daley, 32 111. App. 326. 8. See supra, XI, A, 1, a, (n), (a), (b). 9. A labama. — Smith v. Causey, 22 Ala. 568 ; Durden v. Barnett, 7 Ala. 169. California. — Laverone v. Mangianti, 41 Cal. 138, 10 Am. Rep. 269. District of Columbia. — Murphy v. Pres- ton, 5 Mackey (D. C.) 514. Illinois. — Mareau v. Vanatta, 88 111. 132; Stumps v. Kelley, 22 111. 140; Moss v. Par- dridge, 9 111. App. 490. Maine. — Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99. Missouri. — Beckett v. Beckett, 48 Mo. 396. New York. — Laherty v. Hogan, 13 Daly (N. Y.) 533, 1 N. Y. St. 84 [affirming 2 N. Y. Citv Ct. 197] ; Van Ness v. Desheimer, 2 N. Y. City Ct. 208 note. Oklahoma. — Meegan v. McKay, 1 Okla. 59, 30 Pac. 232. United States. — Congress, etc., Spring Co. v. Edgar, 99 U. S. 645, 25 L. ed. 487. England. — Buxendin v. Sharp, 2 Salk. 662 ; Fleeming v. Orr, 29 Eng. L. & Eq. 16. Canada. — Chase v. McDonald, 25 U. C. C. P. 129. Insufficient averment. — An averment "that the defendant heretofore," etc., " was the Vol. II 384 ANIMALS but this is unnecessary where scienter is dispensed with by statute, 10 and, if averred, may be treated as mere surplusage. 11 (o) Negativing Contributory Negligence. In some states the plaintiff need not aver his freedom from contributory negligence, 12 while in others such an averment is necessary, 13 though it is sufficient to do so in general terms, with- out setting forth specific facts. 14 (d) Negativing Plaintiff's Engagement in Unlawful Act. The petition, in an action, under the Kentucky statute, to recover damages for injuries from the bite of a dog owned and kept by defendants, need not allege that the injury did not occur upon the premises of the owners after night, or . that plaintiff was not engaged in some unlawful act during the daytime, these exceptions to the statute being matters of defense. 15 (b) Place of Keeping Animal. The place of keeping the animal need not be stated. 16 (f) That Animal Was Not Confined. In an action for injuries sustained from being attacked by a vicious animal it is not necessary to allege that the animal was not confined, that being an affirmative defense, to be alleged and proved by defendant. 17 (g) Viciousness of Animal. Unless defendant's liability has been enlarged by statute, 18 if the injury is inflicted by a vicious animal, plaintiff's pleading should show that the animal was possessed of such vicious propensity ; w but this may appear from the facts set out, without a specific allegation. 20 It has also been held that the plaintiff should state the particular mischief which the animal had done before. 21 (h) Contra Formam Statuti. Where the action is brought under a statute it has been held necessary to allege that the acts were done contrary to the form of the statute ; K but a declaration in common-law form is amendable by owner and possessor, in the District of Co- lumbia, of a vicious dog, which dog was well known to the defendant but which was un- known to the plaintiff," is ambiguous in meaning and is insufficient. Murphy v. Pres- ton, 5 Mackey (D. C.) 514, 516. 10. Pressey v. Wirth, 3 Allen (Mass.) 191; Newton v. Gordon, 72 Mich. 642, 40 N. W. 921; Gries v. Zeek, 24 Ohio St. 329; Job v. Harlan, 13 Ohio St. 485. 11. Jacobsmeyer v. Poggemoeller, 47 Mo. App. 560. 12. Hussey v. King, 83 Me. 568, 22 Atl. 476 ; Brooks v. Taylor, 65 Mich. 208, 31 N. W. 837. 13. Eberhart v. Reister, 96 Ind. 478 ; Wil- liams v. Moray, 74 Ind. 25, 39 Am. Rep. 76; Gregory v. Woodworth, 93 Iowa 246, 61 N. W. 962. 14. Gregorv v. Woodworth, 93 Iowa 246, 61 N. W. 962. 15. Wolff v. Lamann, 21 Ky. L. Rep. 1780, 56 S. W. 408 ; Bush v. Wathen, 20 Ky. L. Rep. 731, 47 S. W. 599. 16. Brooks v. Taylor, 65 Mich. 208, 31 N". W. 837. 17. Graham V. Payne, 122 Ind. 403, 24 N. E. 216. 18. Where statutes have enlarged the com- mon-law liability of owners or keepers of dogs it is no longer necessary to allege that the dog was, in fact, accustomed to bite. Pressey v. Wirth, 3 Allen (Mass.) 191. 19. Klenberg v. Russell, 125 Ind. 531, 25 N. E. 596 ; Meegan v. McKay, 1 Okla. 59, 30 Pae. 232. Vol. II 20. Graham v. Payne, 122 Ind. 403, 24 N. E. 216. 21. Jenkins v. Turner, 1 Ld. Raym. 109, holding, however, that an averment that de- fendant kept a boar, which he knew was ac- customed to bite animals, was good after verdict. But see Hartley v. Harriman, 1 B. & Aid. 620, S. C. sub nom. Hartley v. Halli- well, 2 Stark. 212, 3 E. C. L. 381 (from which it seems that an averment that dogs were of a ferocious disposition would be suf- ficient, without alleging specifically that they were accustomed to bite and worry sheep) ; and Guenther v. Fohey, (Ind. App. 1901) 59 N. E. 182 (holding that where the complaint averred the dog's fierce disposition, and de- fendant's knowledge of the same, it was suf- ficient without allegations showing it was the dog's habit to bite mankind). 22. Cockfield v. Singletary, 15 Rich. (S. C.) 240. But see Mitchell r. Clapp, 12 Cush. (Mass.) 278, holding that, in an action upon Mass. Rev. Stat. c. 58, § 13, to recover double damages for an injury by a dog, judgment will not be arrested because the declaration does not set forth that the acts were done contra formam statuti. Sufficient count. — A count alleging in sub- stance that defendant's dog, by him owned and kept, at a time and place named, did worry and wound plaintiff's sheep, in conse- quence whereof some died, etc., to the great damage of plaintiff, and contrary to the form, force, and effect of section 9, chapter 104, of the General Statutes, is a declaration on the statute. Rowe v. Bird, 48 Vt. 578. ANIMALS adding an averment thereto that the action is brought under the statute which allows the recovery of double damages. 83 (in) Joinder of Counts. A count on a statute, for double damages, may be joined with a count at common law for damages of like kind, where the form of action given by the statute is the same as that at common law. 24 Where plaintiff, having declared in one count for entering his close, and there destroying his mare, and in another in case for keeping the bull which did the damage, knowing his vice, etc., plaintiff having recovered a general verdict, is not bound to elect upon which count to take his verdict. 25 f. Evidence — (i) Burden of Proof. Plaintiff must show that defendant was the keeper or owner of the animal, within the meaning of the statute ; 26 neg- ligence on the part of defendant ; w and, where contributory negligence must be negatived, his own freedom from such negligence. 28 Plaintiff need not show the place of the biting, as alleged in the declaration, unless it is made issuable by defendant's pleading. 29 Where plaintiff has made out a prima facie case the burden is cast on defendant of showing that he was not at fault. 30 (n) Admissibility - As tending to show the attacks thereby, 31 or proof that defendant had warned a person to beware of him lest such person be injured, 32 is admissible ; but such character cannot be shown by evidence of the general reputation of the animal for viciousness, 33 or by evi- dence as to the character of a breed of dogs, it not being shown that defendant's dog was of such breed. 3 * Where scienter is not necessary, 35 or where the facts ■(a) As to Character of Animal — (1) Lsr General. : vicious character of the animal, evidence of specific 23. Mitchell v. Chase, 87 Me. 172, 32 Atl. 867. 24. Fairfield v. Burt, 11 Pick. (Mass.) 244. Where there are three counts in a declara- tion in trespass to recover damages for per- sonal injuries received by plaintiff from the dogs of defendants, two of which counts are founded on the common-law liability for such injury, and the other based upon a, special statute, it cannot be said, as a legal propo- sition, that they are all for the same cause of action. And where, in such action, the verdict is for defendant upon the two counts Tjased upon the common-law liability, and for plaintiff upon the other count, it cannot be claimed, in the absence of any motion in the court below for judgment in favor of defend- ants, that the court erred in not awarding judgment for defendants on the whole record, upon the ground that the verdict rendered in their favor on the two counts was incon- sistent with any verdict against them on the other count, for the reason that all were for the same cause of action; nor that the court erred in not awarding costs to defendants upon the issues found in their favor. Swift v. Applebone, 23 Mich. 252. 25. Mason v. Morgan, 24 U. C. Q. B. 328. 26. Strang v. Newlin, 38 How. Pr. (N. Y.) 304. 27. Curtis v. Schlosser, 14 Pa. Co. Ct. 600, 3 Pa. Dist. 598. 28. Stuber v. Gannon, 98 Iowa 228, 67 N. W. 105. 29. Friedmann v. McGowan, 1 Pennew. (Del.) 436, 42 Atl. 723. 30. Ficken v. Jones, 28 Cal. 618; Wood- bridge v. Marks, 14 Misc. (N. Y.) 368, 36 N. Y. Suppl. 81, 71 N. Y. St. 417. 31. Kentucky. — Murray v. Young, 12 Bush (Ky.) 337. [25] Maine. — Fitzgerald v. Dobson, 78 Me. 559, 7 Atl. 704. Massachusetts. — Broderick v. Higginson, 169 Mass. 482, 48 N. E. 269, 61 Am. St. Rep. 296. New York. — Rogers v. Rogers, 4 N. Y. St. 373. Washington. — Robinson v. Marino, 3 Wash. 434, 28 Fac. 752, 28 Am. St. Rep. 50. Plaintiff may show by a former owner that the dog was vicious, although the vicious acts he testifies to did not come to defend- ant's knowledge, there being other evidence that defendant knew the dog was vicious. Plummer v. Ricker, 71 Vt. 114, 41 Atl. 1045. Must be attacks of same character. — In an action for damages resulting from the bite of a dog, under a declaration charging that he was " accustomed to attack and bite man- kind," it is error to admit, over the objection of defendant, evidence showing that the dog was vicious toward other dogs, and was ac- customed to attack them. Norris v. Warner, 59 111. App. 300. But see Cheney v. Russell, 44 Mich. 620, 7 N. W. 234, wherein, in an action before a justice against the owner of a dog for injury done by the dog to a quan- tity of fresh meat, it was held not improper to receive testimony as to the dog's vicious character and roving propensities as having some bearing on the probabilities. Such evidence is not prejudicial even when the statute makes one liable for injuries by a dog, even when the owner is without knowl- edge of the dog's viciousness. Sanders v. O'Callaghan, (Iowa 1900) 82 N. W. 969. 32. 114. 33. 34. 38 N. 35. 12. Judge v. Cox, 1 Stark. 285, 2 E. C. L. Norris v. Warner, 59 111. App. 300. Lynt v. Moore, 5 N. Y. App. Div. 487, Y. Suppl. 1095. Kelly v. Alderson, 19 R. I. 544, 37 Atl. Toll. 386 ANIMALS that plaintiff has been injured and that defendant knew of previous injuries by the animal have been established, evidence to prove the general good behavior of the animal is inadmissible, 36 even in mitigation of damages. 37 Evidence of an animal's treatment after the injury is admissible to show his previous character; 38 and evidence that he subsequently manifested a similar disposition is competent to prove that his previous conduct was not accidental or unusual, but the result of a fixed habit. 39 Where, in an action for injuries received while harnessing a vicious horse, plaintiff's evidence is confined to showing that it was vicious while being harnessed, evidence that it was gentle while being driven is inadmissible. 40 (2) Bringing Animal into Court. A dog may be brought into court, and shown to the jury, in order to assist them in judging of his temper and disposition. 41 (3) Cause of Ferocity. Evidence tending to show what made a dog savage is inadmissible, it being immaterial what tended to make him so. 42 (b) As to Character of Injury. Evidence to prove the extent of plaintiff's injury, and his corporal suffering and pain, is admissible, 43 provided a proper foundation for such proof is laid in the declaration. 44 (c) As to Contributory Negligence. Evidence as to the character and gen- eral reputation of an animal as being vicious, and as to what had been told plain- tiff on that subject, is admissible as bearing on the question of plaintiff's contribu- tory negligence; 45 but testimony as to character of a dog is inadmissible to show that he probably would not have bitten plaintiff had he not been assaulted by him. 46 (d) As to Defendant's Negligence. Evidence of how defendant's grounds are occupied, 47 that defendant knew that his dog broke away and, unprovoked, bit a child only a short time before the injury complained of, 48 or that the animal never before had attacked anyone, 49 is admissible as bearing on the question of defend- ant's negligence. 36. Knickerbocker Ice Co. v. De Haas, 37 111. App. 195; Willet v. Goetz, (Mich. 1901) 84 N. W. 1071 ; Kennett v. Engle, 105 Mich. 093, 63 N. W. 1009; Caldwell v. Snook, 35 Hun (N. Y.) 73; Buckley v. Leonard, 4 Den. (N. Y.) 500; Mann v. Weiand, 81* Pa. St. 243, 34 Leg. Int. (Pa.) 77, 4 Wkly. Notes Cas. (Pa.) 6. 37. Kelly v. Alderson, 19 E. I. 544, 37 Atl. 12. 38. Carroll r. Weiler, 1 Hun (N. Y.) 605, 4 Thomps. & C. (N. Y.) 131; Webber v. Hoag, 8 N. Y. Suppl. 76, 28 N. Y. St. 630. 39. Kennon v. Gilmer, 131 U. S. 22, 9 S. Ct. 696, 33 L. ed. 110. See also Brown v. Green, 1 Pennew. (Del.) 535, 42 Atl. 991, holding that, in an action to recover for in- juries from a vicious horse, testimony of a horse-breaker, who took charge of the horse two days after the injury complained of, as to its character at that time, is admissible. But testimony as to the behavior or disposi- tion of a horse shortly subsequent to an acci- dent, offered to show his vicious disposition at the time of the accident, should be ex- cluded. Stone v. Langworthy, 20 R. I. 602, 40 Atl. 832. 40. Brown v. Green, 1 Pennew. (Del.) 535, 42 Atl. 991. 41. Line v. Taylor, 3 F. & F. 731. 42. Kolb v. Klages, 27 111. App. 531. 43. Arnold v. Norton, 25 Conn. 92. Exclamations of plaintiff. — In giving evi- dence of plaintiff's nervousness from the in- jury, it is competent to show that she sprang from bed and exclaimed, " There is Hoag's Vol. II [defendant's] dog! " as bearing on the ques- tion of her injury. Webber v. Hoag, 8 N. Y. Suppl. 76, 28 N. Y. St. 630. Fright at sight of dog. — In an action for an injury, done by a dog to a child four years and eleven months old, in which facts, tend- ing to show a shock to the child's nervous system, have been testified to, evidence is ad- missible that, ever since his injury, he has shown signs of fright and excitement at the sight of any dog. Roswell v. Leslie, 133 Mass. 589. It is relevant to ask plaintiff whether he has not been afraid of hydrophobia ever since bitten by the dog. Friedmann v. McGowan, 1 Pennew. (Del.) 436, 42 Atl. 723. 44. French v. Wilkinson. 93 Mich. 322, 53 N. W. 530. 45. Meier v. Shrunk, 79 Iowa 17, 44 N. W. 209. Irrelevant evidence. — Evidence that plain- tiff and his daughter had observed the dog when strangers were on the premises, and that it never offered to bite such strangers as long as they walked about quietly, is ir- relevant to the issue of plaintiff's contribu- tory negligence. Sanders v. O'Callaghan, (Iowa 1900) 82 N. W. 969. 46. Kelly v. Alderson, 19 R. I. 544, 37 Atl. 12. 47. Marquet v. La Duke, 96 Mich. 596, 55 N. W. 1006. 48. Worthen v. Love, 60 Vt. 285, 14 Atl. 461. 49. Barnum v. Terpening, 75 Mich. 557, 42 N. W. 967. ANIMALS 387 (e) As to Habits of Other Animals. Evidence as to the habits of another animal, not owned or kept by defendant, but admittedly resembling his animal, is inadmissible. 60 (f) As to Registration of Dog. In an action for damages for being bitten by a dog, evidence that the dog was not registered, as required by a city ordinance, is not admissible. 51 (g) To Show Cause of Injury. The fact that defendant's animal caused the injury complained of must be established by competent evidence, 63 and, since defendant is not liable for injuries committed by other animals, any evidence tending to show that others committed the injuries complained of would be com- petent evidence to go to the jury. 63 When the injury is admitted, and defendant claims that plaintiff was hurt by stones upon which the dog threw him in play, evidence that a similar injury was caused to another boy, by his being thrown from a velocipede upon the ground near the same place, is rightly excluded. 64 (h) To Show Defendant Was Owner or Keeper. Where the ownership is in question evidence of what was said by drovers, as to wherefrom and whereto they were driving the animals, is admissible, 66 as is evidence of defendant's treatment of the animals. 66 (i) To Show Scienter. Admissions made by defendant after the injury, 57 admissions that defendant's animal did the injury, accompanied by offers from defendant of recompense — although to be received with caution 68 — evidence of notice to defendant's agent, 59 evidence as to how a dog was kept, and why, 60 and evidence of the general reputation of the animal as being vicious and danger- ous, 61 are competent, as tending to raise an inference that the owner had knowl- General reputation of animal. — Evidence that a dog, fastened in a public place by » station porter of a railroad company, was no- toriously of a vicious reputation in the town is competent to show notice to defendant's agents who lived in same place, and as bear- ing on the question of negligence in fasten- ing such a dog in such a place. Trinity, etc., R. Co. v. O'Brien, 18 Tex. Civ. App. 690, 46 S. W. 389. 50. Meracle v. Down, 64 Wis. 323, 25 N. W. 412. See also Rowe v. Bird, 48 Vt. 578. Where, however, plaintiff, by mistake, named the wrong animal in his petition, and defendant's own evidence showed that the animal actually causing the injury was vi- cious, such evidence was not improperly ad- mitted. Joseph Schlitz Brewing Co. v. Black- lay, 18 Ohio Cir. Ct. 359, 10 Ohio Cir. Dec. 17. 51. Barclay v. Hartman, 2 Marv. (Del.) 351, 43 Atl. 174. 52. Former acts of mischief incompetent. — By the statute, the owner of a dog is made liable for the damage done, whether the dog was accustomed to kill and worry sheep . or not. We are not acquainted with any rule of evidence which will allow the character of the dog, or the fact that he had killed or worried sheep before, to be admitted as evi- dence that he did the damage complained of in this suit. To show that he did this mis- chief it is not competent to prove that he had done similar mischief before, more than it would be to prove that a defendant, sued for an assault and battery, had beaten other men before, or the same man. East Kingston v. Towle, 48 N. H. 57, 97 Am. Dec. 575, 2 Am. Rep. 174. 53. Ballou v. Humphrey, 8 Kan. 220. 54. Hathaway v. Tinkham, 148 Mass. 85, 19 ST. E. 18. 55. Baird v. Vaughn, (Tenn. 1890) 15 S. W. 734. 56. O'Harra v. Miller, 64 Iowa 462, 20 1ST. W. 760; Manger v. Shipman, 30 Nebr. 352, 48 K. W. 527. 57. Linnehan v. Sampson, 126 Mass. 506, 30 Am. Rep. 692 ; Hudson v. Roberts, 6 Exch. 679, 20 L. J. Exch. 299. 58. Briee v. Bauer, 108 N. Y. 428, 15 N. E. 695, 2 Am. St. Rep. 454; Thomas v. Morgan, 2 C. M. & R. 496, 5 Tyrw. 1085; Ma- son v. Morgan, 24 TJ. C. Q. B. 328. 59. Keenan v. Gutta Percha, etc., Mfg. Co., 46 Hun (N. Y.) 544 [affirmed in 120 N. Y. 627, 24 N. E. 1096] ; Corliss v. Smith, 53 Vt. 532. Manner of leading. — Proof that the ani- mal was led by a chain, attached to a ring in his nose, and with a stick attached to the chain, in order to keep him away from the man in charge, such facts being known to de- fendant, is competent as bearing upon defend- ant's knowledge of the viciousness of the animal. Brooks v. Taylor, 65 Mich. 208, 31 N. W. 837. 60. Plummer v. Ricker, 71 Vt. 114, 41 Atl. 1045. 61. Cameron v. Bryan, 89 Iowa 214, 56 N. W. 434; Murray v. Young, 12 Bush (Ky.) 337; Fake v. Addicks, 45 Minn. 37, 47 N. W. 450, 22 Am. St. Rep. 716; Triolo v. Foster, (Tex. Civ. App. 1900) 57 S. W. 698. A report that the dog had been bitten by a mad dog, particularly where defendant, by tying the dog up, showed some knowledge or suspicion of the fact, is admissible on the Vol. II 388 ANIMALS edge of his vicious propensities ; but statements made by defendant's servant are inadmissible to prove defendant's scienter.® (j) To Show That Animal Was Allowed at Large. In an action for personal injuries inflicted by an animal while running at large, evidence to the effect that defendant frequently permitted it to run at large in the road is admissible as bearing on the question whether it was at large with defendant's permission at the time of the injuries. 63 (m) Sufficiency — (a) As to Cause of Injury. Circumstantial evidence will be sufficient to establish the fact that the injury was done by defendant's ani- mal, 64 and a dog may be found to have attacked a horse upon a highway, although the dog did not leave his master's premises, nor go within fifteen feet of the horse, nor bark or make any noise. 65 The fact that certain dogs killed sheep in one place by attacking them in a certain way is no evidence that they killed, in another place, sheep which appear to have been killed in the same way, since the two facts are not a part of the same transaction, nor related to each other by the chain of cause and effect. 66 (b) As to Character of Animal. Evidence that plaintiff's dog, though muz- zled, was accustomed to attack people, 67 that defendant's servant said he would not dare go into the place even though the dog knew him, and that defendant's wife told plaintiff that she did not want him to go in for fear of the dog, 68 or that plain- tiff, in stepping out of the house, was attacked and bitten without the slightest warning, 69 is sufficient to show the vicious character of the animal. -question of scienter. Jones v. Perry, 2 Esp. 482. 62. Shaver v. New York, etc., Transp. Co., 31 Hun (N. Y.) 55. 63. Meier v. Shrunk, 79 Iowa 17, 44 N. W. 209. 64. Thus, where defendant's bull, with blood on his horns, was running at large in the neighborhood shortly after the death of plaintiff's mare (Arnold v. Diggdon, 20 Nova Scotia 303), and where defendant's dog was seen with another dpg worrying sheep, and the same day the shepherd found four dead lambs near the place (Lewis v. Jones, 49 J. P. 198), the evidence has been deemed suf- ficient. So, too, where the evidence was that defendant's horse, unattended and unhar- nessed, was improperly upon the highway, near the house of plaintiff's father, that screams were heard and plaintiff was first seen lying back of the horse's heels and, after- ward, near the horse, running toward the house, screaming, covered with blood, and holding his hand to his face, and that the wound was such as might have been caused by a blow from a horse's shoe, the jury was warranted in finding that the injury was caused by a kick of defendant's horse (Mars- land v. Murray, 148 Mass. 91, 18 N. E. 680, 12 Am. St. Rep. 520) ; and a finding that de- fendant's dog killed plaintiff's sheep before » specified date is sustained by evidence that on such date he was found killing plaintiff's sheep, and that, before that time, he was Tieard, with another dog, barking in plain- tiff's pasture, and that after he was sent away no further sheep were killed (Williams v. Woodworth, 32 Nova Scotia 271). Where, on the morning a number of plaintiff's sheep liad been killed by dogs, tracks of a dog were traced in the snow to defendant's house, and lis dog presented an incriminating appear- Vol. II ance, a verdict against defendant for the loss of the sheep will not be reversed on appeal, as not supported by the evidence. Nelson v. Nugent, 106 Wis. 477, 82 N. W. 287. 65. Denison v. Lincoln, 131 Mass. 236. See also Campbell v. Brown, 1 Grant (Pa.) 82, holding that, under the Pennsylvania act of March 23, 1809, it is not necessary that a dog should have been seen tearing sheep with his teeth, but that it is sufficient that he has been observed to follow them with a hostile intent, and that the owner knew of his pro- pensity. 66. Dover v. Winchester, 70 Vt. 418, 41 Atl. 445. 67. Kessler v. Lockwood, 16 N. Y. Suppl. 677, 42 N. Y. St. 563. 68. Jacoby v. Ockerhausen, 13 N. Y. Suppl. 499, 37 N. Y. St. 710 [affirmed in 129 N. Y. 649, 29 N. E. 1032]. 69. Webber v. Hoag, 8 N. Y. Suppl. 76, 28 N. Y. St. 630. Insufficient evidence. — In Genenz v. De For- est, 49 Hun (N. Y.) 364, 15 N. Y. Civ. Proc. 145, 147, 2 N. Y. Suppl. 152, 17 N. Y. St. 523, the court, commenting on the evidence, said: "There is little, if any, evidence of viciousness in the dog prior to the accident. Two girls were passing along the highway. The dog ran out and barked, and ran toward them, but did nothing. They were frightened. So they might have been at a mouse; but it would not follow that the mouse was vicious. The dog grabbed a coat hanging down from a man's shoulder. The dog was tied in a wood- shed and jumped for Mrs. Genenz's shoulder when she went in. Reynolds, who worked for the defendant and who brought the dog to defendant's house, kept him chained. This is substantially all the proof of viciousness. And it shows little but the playfulness of a, puppy, which the animal was." So, too, evi- ANIMALS 389 (c) As to Negligence. The mere presence of defendant's horse in a highway, without showing how he came there, what induced him to kick plaintiff, or that he was accustomed to kick, is insufficient to show negligence in defendant, 70 unless declared so by statute. 71 But an averment of negligence is sustained by proof that cattle were being driven very fast by a man on horseback, that they were running in a wild manner, and were foaming at the month, feverish, and overheated. 73 (d) As to Ownership or Keeping. Evidence that a dog was kept in a stable leased by defendant to the owner of the dog is not sufficient to charge defendant with liability ; 73 but, where a dog is kept about defendant's stable by one employed to take charge thereof, such keeping being with the knowledge and implied assent of defendant, a jury may properly find that defendant kept such dog. 74 The evidence is also sufficient to justify a finding that defendant was the owner or keeper where it appears that the animal was brought to defendant's premises by one formerly residing there, and continued to remain on such premises after the latter's departure, 75 as is evidence that defendant appeared in the action by attorney, summoned witnesses, and made a vigorous defense, but did not himself testify, nor explain such omission. 76 (e) As to Scienter. Whatever is calculated to establish the dangerous pro- pensity of animals in a sufficient degree tends to support the allegation that the owner had actual knowledge of the same ; 77 but any specific demonstration of the denee that a dog attacked a bicycle the first time one ever passed his house (Cuney v. Campbell, 76 Minn. 59, 78 N. W. 878), and evidence that a bull, though ordinarily gentle, was vicious when ill-treated (Erickson v. Bronson, (Minn. 1900) 83 N. W. 988), was held insufficient. 70. Cox v. Burbridge, 13 C. B. N. S. 430, 106 E. C. L. 430. 71. Fallon v. O'Brien, 12 R. I. 518, 34 Am. Rep. 713, holding that R. I. Gen. Stat. c. 96, makes the presence in the highway of a loose and unattended horse prima facie evidence of negligence. 72. Eichel v. Senhenn, 2 Ind. App. 208, 28 N. E. 193. 73. Jennings v. D. G. Burton Co., 73 Hun (N. Y.) 545, 26 K. Y. Suppl. 151, 57 N. Y. St. 268. 74. Barrett v. Maiden, etc., R. Co., 3 Al- len (Mass.) 101. 75. Kessler v. Lockwood, 16 N. Y. Suppl. 677, 42 N. Y. St. 563 ; Vaughan v. Wood, 18 Can. Supreme Ct. 703. But see Collingill v. Haverhill, 128 Mass. 218, holding that the facts that a dog, owned by, and licensed in the name of, the superintendent of a poor- farm of a city, is kept at the farm, with the knowledge of one of the overseers of the poor of the city, and, without objection by him, is fed with food furnished by the city for com- mon use at the farm, and, during a portion of the time, is allowed the run of the farm, do not, as matter of law, show that the city is a keeper of the dog, within Mass. Gen. Stat. e. 88, § 59. 76. MeCormack v. Martin, 71 Conn. 748, 43 Atl. 194. 77. McCaskill v. Elliott, 5.Strobh. (S. C.) ' 196, 53 Am. Dee. 706. Confining, and muzzling while at large. — Evidence that the keeper of a dog had been told by his neighbors that it was unsafe to allow it to run at large, and that he kept it confined a part of the time, and muzzled it a part of the time when he allowed it to run at large, is sufficient. Godeau v. Blood, 52 Vt. 251, 36 Am. Rep. 751. Evidence that the dog habitually assailed people, on the street near defendant's prem- ises, before plaintiff was bitten; that he had attacked a driver on a wagon; that plain- tiff's employer informed defendant of this habit of the dog; and that he was also in- formed that the dog had assailed another person, and torn his coat, is sufficient to charge defendant with knowledge of the dog's viciousness (Webber v. Hoag, 8 N. Y. Suppl. 76, 28 N. Y. St. 630), as is evidence that a dog, on two occasions previouslj', rushed at persons in a vicious manner, and that the owner was obliged to call him off (McConnell v. Lloyd, 9 Pa. Super. Ct. 25. 43 Wkly. Notes Cas. (Pa.) 245). So, too, where several witnesses testify that the dog had always been kept chained; that he would bark and jump at persons going near him, and endeavor to get loose; that, on one occasion, when at large, he ran after and seized a woman's dress as she escaped through the gate; that he sprang upon plaintiff as she went to defendant's house, and bit and bruised her savagely, and that defendant had stated to a neighbor that he was afraid the dog would get loose and bite the neighbor's child, there is sufficient testimony to go to the jury on the points of the ferocious dis- position of the dog, and the owner's knowl- edge thereof. Robinson v. Marino, 3 Wash. 434, 28 Pae. 752, 28 Am. St. Rep. 50. Insufficient evidence. — Evidence that a pair of horses had, to the knowledge of the owner, run away on an occasion ten days before is not sufficient to invoke the rule as to lia- bility for harboring animals of known vicious propensities, where it is also shown that the horses, for several years, had been driven on street-cars, appearing during that time to be Vol. II 390 ANIMALS animal's ferocious disposition must be brought to defendant's knowledge. 78 The fact that an animal is commonly kept confined by the owner is evidence from which the jury may infer such knowledge on the part of the owner, 79 and an admission of knowledge by defendant is, of course, sufficient. 80 (iv) Variance. Where the statute provides that every " owner or keeper " of any dog shall forfeit, etc., and the declaration alleged that defendants were the " owners and keepers " of a dog, it has been held that plaintiff must prove that defendants were both " owners and keepers ; " 81 but it has also been held that proof that some of the dogs were owned by one of defendants separately, and some by the other defendants separately, does not constitute a material variance. 82 g. Trial — (i) Nonsuit. Where, in an action to recover for personal injuries caused by a domestic animal, it does not appear that the animal ever injured any one before or since, or that any one ever had any difficulty with it other than that on which plaintiff founds his suit, nonsuit should be granted, since there is no evidence that defendant had knowledge of the vicious character of the animal. 83 (n) Instructions — (a) As to Cause of Injury. Where there was evidence that the dog was muzzled, and could not, with the muzzle on, have bitten plain- tiff, and that the muzzle had two buckles on it, and plaintiff testified that the dog bit her, and that the buckles did not cause the injury, an instruction that, if the dog wounded plaintiff by biting her, the action could be maintained, but, unless it was proved that the dog bit plaintiff, the action could not be maintained, was correct, and plaintiff had no ground of exception to the instructions; and it was not open to her to contend that the instructions were erroneous, because the jury might have found that the injury was caused by the buckles. 84 (b) As to Character of Animal. It is error to instruct the jury that if they believed from the evidence that plaintiff was bitten by defendant's dog, and that said dog was of a savage and ferocious disposition, and known by defendant to be such, they should find for plaintiff, where the evidence was not confined to proof of the dog's disposition toward persons, but evidence was admitted of the dog's attacking a horse, and that witnesses considered him a cross and unsafe dog. 85 (c) As to Contributory Negligence. An instruction that plaintiff could not recover because of contributory negligence is properly refused, that being a ques- tion for the jury. 86 In instructing as to contributory negligence it is error to kind and gentle. Benoit v. Troy, etc., R. Co., testified that they had been in the habit of 154 N. Y. 223, 48 N. E. 524 [reversing 40 passing and repassing the place frequently, N. Y. Suppl. 1140]. without having been molested. Earl v. Van Evidence that a horse balked and kicked, Alstine, 8 Barb. (N. Y.) 630. while on the road, is not sufficient to show 79. Warner v. Chamberlain, 7 Houst. (Del.) knowledge, on the part of the owner, of a 18, 30 Atl. 638. propensity to kick while' standing in a stall. 80. Solomon v. Miller, 3 N. Y. Suppl. 660, Bennett v. Mallard, 33 Misc. (N. Y.) 112, 67 22 N. Y. St. 39, holding, however, that the X. Y. Suppl. 159. admission was not established. Evidence that, for some time prior to the Insufficient admission. — Admissions, made injury, a horse had been seen to snap at per- by defendant some years before, are insuffi- sons, and had kicked a stableman when it was cient to show scienter. McKenzie v. Black- punched with sticks, and also when tickled more, 19 Nova Scotia 203. and teased, is insufficient to show scienter on 81. Buddington v. Shearer, 20 Pick. (Mass.) the part of the owner. McHugh v. New York 477. City, 31 N. Y. App. Div. 299, 52 N. Y. Suppl. 82. McAdams v. Sutton, 24 Ohio St. 333. 623. 83. O'Connell v. Mooney, 32 Misc. (N.Y.) 78. Rogers v. Rogers, 4 N. Y. St. 373. 041, 66 N. Y. Suppl. 486. The idea of scienter is rebutted where, in 84. Searles v. Ladd, 123 Mass. 580. an action against the owner of bees for an in- 85. Keightlinger i>. Egan, 65 111. 235. jury done by them to the plaintiff's horses 86. Sanders v. O'Callaghan, (Iowa 1900) while the horses were traveling along the 82 N. W. 969. And see infra, XI, A, 4, g, highway past the place where the bees were ( in ) . kept, it appeared that the bees had been kept Where, in an action to recover for an in- in the same situation for eight or nine years, jury inflicted upon a child by a dog, the case and there was no proof of any injury ever is submitted to the jury, under instructions Tiaving been done by them, but, on the con- requiring them to find that neither the fault trary, witnesses residing in the neighborhood of the child nor of the mother, who had care Vol. II ANIMALS 391 ignore directions, given by defendant to plaintiff, as to the use of certain prem- ises near which the animal causing the injury was confined, 87 to inform the jury that they may consider, in passing upon this question, the instinct which usually exists in the human breast for self-preservation, 88 or to instruct the jury that plaintiff was guilty of negligence if, " when he might have prevented it," he suf- fered an animal to follow him. 89 The court should also instruct the jury that, if plaintiff's position at the time he was injured was such as might have been assumed by a person of ordinary sense and prudence, he could recover. 90 (d) As to /Scienter. Where there are several facts in evidence tending to prove the scienter, it is not the duty of the court to instruct the jury what the consequences would have been if only one of those facts had been' in evidence. 91 (in) Province of Jury. The questions whether a dog had such a peculiar bark or voice that witnesses acquainted with the animal could satisfactorily iden- tify it by merely hearing it bark in the night ; 92 whether defendant owned or kept the animal which committed the injury; 93 and whether he was chargeable with knowledge of the animal's vicious propensities, 94 or negligent in its management, 95 or in the care of his part of a division fence, 96 are all properly left to the jury. So likewise is the question of plaintiff's contributory negligence, 97 and also whether plaintiff has signified his intention to proceed against the town in such a manner that he could not afterward proceed against defendant. 98 It is also the province of the jury to assess the amount of damage done. 99 h. Amount Recoverable — (i) In General. Where the jury finds for plain- tiff he is entitled to such damages as necessarily arise from the injury sustained. 1 If the injury be the death of an animal, the value of such animal would be a just measure of damages. 2 If the injury be to the person he may recover for of the child, contributed to the injury, a verdict for plaintiff will not be set aside be- cause the judge refused to instruct the jury, at the request of defendant, that it is 'prima facie evidence of want of care for a mother to allow her child to play with a strange dog. Munn v. Reed, 4 Allen (Mass.) 431. 87. Dvorak v. Maloch, 41 111. App. 131. 88. Ellis v. Leonard, 107 Iowa 487, 78 N. W. 246. 89. Shehan v. Cornwall, 29 Iowa 99. 90. Wooldridge v. White, 20 Ky. L. Rep. 1144, 48 S. W. 1081. 91. Keenan v. Hayden, 39 Wis. 558. 92. Wilbur v. Hubbard, 35 Barb. (N. Y.) 303. 93. Murray v. Young, 12 Bush (Ky.) 337; Boylan v. Everett, 172 Mass. 453, 52 N. E. 541; Whittemore v. Thomas, 153 Mass. 347, 26 N. E. 875; McLaughlin v. Kemp, 152 Mass. 7, 25 N. E. 18; Snyder v. Patterson, 161 Pa. St. 98, 34 Wkly. Notes Cas. (Pa.) 288, 28 Atl. 1006. 94. Kentucky. — Murray v. Young, 12 Bush (Ky.) 337. Michigan. — Knowles v. Mulder, 74 Mieh. 202, 41 N. W. 896, 16 Am. St. Rep. 627. New York. — Bauer v. Lyons, 23 N. Y. App. Div. 204, 48 N. Y. Suppl. 729 ; MeGarry v. New York, etc., R. Co., 60 N. Y. Super. Ct. 367, 18 N. Y. Suppl. 195, 45 N. Y. St. 564 {affirmed in 137 N. Y. 627, 33 N. E. 745]. North Carolina. — Cockerham v. Nixon, 33 N. C. 269. Pennsylvania. — McConnell v. Lloyd, 9 Pa. Super. Ct. 25, 43 Wkly. Notes Cas. (Pa.) 245. Wisconsin. — Keenan v. Hayden, 39 Wis. 558. 95. Barnum v. Terpening, 75 Mich. 557, 42 N. W. 967; Putnam v. Wigg, 59 Hun (N. Y.) 627, 14 N. Y. Suppl. 90, 37 N. Y. St. 304; Snyder v. Patterson, 161 Pa. St. 98, 34 Wkly. Notes Cas. (Pa.) 288, 28 Atl. 1006; Mcll- vaine v. Lantz, 100 Pa. St. 586, 45 Am. Rep. 400; Puechner v. Braun, 10 Pa. Super. Ct. 595. 96. Saxton v. Bacon, 31 Vt. 540. 97. Indiana. — Eichel v. Senhenn, 2 Ind. App. 208, 28 N. E. 193. Iowa. — Sanders v. O'Callaghan, (Iowa 1900) 82 N. W. 969; Meier v. Shrunk, 79 Iowa 17, 44 N. W. 209. Kentucky. — Wolff v. Lamann, 21 Ky. L. Rep. 1780, 56 S. W. 408. Massachusetts. — Raymond v. Hodgson, 161 Mass. 184, 36 N. E. 791 ; Matteson v. Strong, 159 Mass. 497, 34 N. E. 1077; Marsland v. Murray, 148 Mass. 91, 18 N. E. 680, 12 Am. St. Rep. 520; Linnehan v. Sampson, 126 Mass. 506, 30 Am. Rep. 692 ; Marble v. Ross, 124 Mass. 44. New York. — Putnam v. Wigg, 59 Hun (N. Y.) 627, 14 N. Y. Suppl. 90, 37 N. Y. St. 304. Pennsylvania. — Earhart v. Youngblood, 27 Pa. St. 331. England.— Curtis v. Mills, 5 C. & P. 489, 24 E. C. L. 670. 98. Remele v. Donahue, 54 Vt. 555. 99. Murray v. Young, 12 Bush (Ky.) 337; Fox v. Williamson, 20 Ont. App. 610. 1. Warner v. Chamberlain, 7 Houst. (Del.) 18, 30 Atl. 638. 2. Dolph v. Ferris, 7 Watts & S. (Pa.) 367, 42 Am. Dec. 246. Death of sheep not necessary. — The owner of a dog is liable for the full value of each Vol. II 392 AXIMAZS nursing, medical attendance, pain, suffering in body, and fear and apprehension of hydrophobia, if such be shown to have been incurred or felt. 3 Recovery is not limited to such damages as have been sustained before the institution of suit, where it is pleaded and proved that plaintiff is liable to continued suffering, expenditures, and loss of employment from the same cause. 4 (n) Double Damages. By some statutes double, and by still others treble, damages may be recovered by one injured, in his person or property, by a dog. 5 The proper course to pursue to double the damages is to have the jury instructed to assess the amount of single damages, and state the same in their verdict, and for plaintiff then to apply to the court, after verdict, for judgment in double the amount of damages so found by the jury. 6 There is no ground of exception, however, where the jury are directed, after having ascertained the actual dam- ages, to render their verdict for double the amount, for it is immaterial whether the amount of damages be doubled by the court or the jury, and the practice has not been uniform. 7 (hi) Exemplary or Punitive Damages. It seems that, in an action against the owner of a dog, the owner not being present at the time of the injury, plain- tiff is not, as a matter of course, entitled to recover punitive damages ; 8 but where one knowingly keeps a vicious animal and permits it to run at large, with a reckless disregard of the rights of the public, he is liable in some jurisdictions for exemplary or punitive damages to one injured thereby. 9 (iv) Apportionment of Damages. Where two dogs do damage in company, the dogs being owned by different persons, one of whom is sued, the jury may find that defendant's dog did more damage than the other, and their apportion- ment of the damages, not being shown to be incorrect, will be conclusive. 10 One whose dog kills sheep, in company with another dog less capable of doing mis- chief, cannot complain because he is compelled to pay half the value of the sheep killed. 11 B. Trespasses upon Land — l. Duties and Liabilities of Stock-Owner — a. In General — (i) At Common Law. It is well settled that at common law every man was bound, at his peril, to keep his cattle within his own close, and, if he failed to do so, was liable for their trespasses upon the lands of another, whether the lands trespassed upon were inclosed or not, 12 unless the owner of sheep or lamb wounded by his dog, and, to Missouri. — Von Fragstein v. Windier, 2 entitle their owner to recover their value, it Mo. App. 598. is not necessary for him to show that they Texas. — Triolo v. Foster, (Tex. Civ. App. died of their wounds. Osincup v. Xichols, 49 1900) 57 S. W. 698. Barb. (X. Y.) 145. Wisconsin.— Meibus v. Dodge, 38 Wis. 300, 3. Warner v. Chamberlain, 7 Houst. (Del.) 20 Am. Rep. 6; Pickett v. Crook, 20 Wis. 358. 18, 30 Atl. 638; Godeau v. Blood, 52 Vt. 251, Canada. — Falardeau v. Couture, 2 L. C. 36 Am. Rep. 751; The Lord Derby, 17 Fed. Jur. 96. 265. In Kentucky the owner of a dog is liable, If, by reason of unskilful treatment of the under the statute ( Ky. Stat. § 68 ) , for com- wound by plaintiff's physician, plaintiff suf- pensatory damages to any person who is bit- fered increased pain and was subjected to ten by the dog; and the jury may give puni- additional expense, defendant is not respon- tive damages if the owner had knowledge of sible therefor. Moss v. Pardridge, 9 111. App. the fact, prior to the injury, that the dog 490. was vicious toward persons. Koestel v. Cun- 4. Meier e. Shrunk, 79 Iowa 17, 44 X. W. ningham, 97 Ky. 421, 17 Ky. L. Eep. 296, 30 209 ; Lemoine v. Cook, 36 Mo. App. 193. S. W. 970. 5. So under Me. Rev. Stat. c. 30, § 1. 10. Wilbur v. Hubbard, 35 Barb. (X. Y.) Smith r. Montgomery, 52 Me. 178. 303. 6. Swift v. Applebone, 23 Mich. 252. 11. Williams v. Woodworth, 32 Nova 7. Pressey v. Wirth, 3 Allen (Mass.) Scotia 271. 191. 12. Alabama. — Joiner v. Winston, 68 Ala. 8. Keightlinger v. Egan, 65 111. 235. 129. 9. Iowa. — Cameron v. Bryan, 89 Iowa 214, Arkansas. — Little Rock, etc., R. Co. v. 56 N. W. 434. Finley, 37 Ark. 562. Kansas. — Hahn v. Kordula, 5 Kan. App. Colorado. — Morris v. Fraker, 5 Colo. 425. 142, 48 Pac. 896. Connecticut. — Hine v. Munson, 32 Conn. Vol. n ANIMALS 393 such lands was bound, by prescription, agreement, or assignment, to fence bis lands. 13 (n) In the United States — (a) Generally. In several states of the 219; Wright v. Wright, 21 Conn. 329; Stud- well v. Ritch, 14 Conn. 292. Dakota. — Sprague v. Fremont, etc., R. Co., 6 Dak. 86, 50 N. W. 617. Florida. — Savannah, etc., R. Co. v. Geiger, 21 Fla. 669, 58 Am. Rep. 697. Georgia. — Bonner v. De Loach, 78 Ga. 50, 2 S. E. 546. Illinois. — Bulpit v. Matthews, 145 111. 345, 34 N. E. 525, 22 L. R. A. 55 {.affirming 42 111. App. 561]; D'Arcy v. Miller, 86 111. 102, 29 Am. Rep. 11; McBride v. Lynd, 55 111. 411; Galena, etc., R. Co. v. Crawford, 25 111. 529; McCormick v. Tate, 20 111. 334; Misner v. Lighthall, 13 111. 609; Seeley v. Peters, 10 111. 130; MeKowan v. Harmon, 56 111. App. 368; Selover v. Osgood, 52 111. App. 260; McNeer v. Boone, 52 111. App. 181. Indiana. — Cincinnati, etc., R. Co. v. Hiltz- hauer, 99 Ind. 486 ; Pittsburgh, etc., R. Co. v. Stuart, 71 Ind. 500; Indianapolis, etc., R. Co. v. Harter, 38 Ind. 557 ; Indianapolis, etc., R. Co. v. McClure, 26 Ind. 370, 89 Am. Dec. 467 ; Brady v. Ball, 14 Ind. 317 ; Page v. Hollings- worth, 7 Ind. 317 ; Lafayette, etc., R. Co. v. Shriner, 6 Ind. 141 ; Williams v. New- Albany, etc., R. Co., 5 Ind. 111. Iowa. — Frazier v. Nortinus, 34 Iowa 82 ; Wagner v. Bissell, 3 Iowa 396. Kansas. — Wells v. Beal, 9 Kan. 597 ; Baker i'. Bobbins, 9 Kan. 303. Kentucky. — Crawford v. Hughes, 3 J. J. Marsh. (Ky.) 433. Maine. — Webber v. Closson, 35 Me. 26; Little p. Lathrop, 5 Me. 356. Maryland. — Baltimore, etc., R. Co. v. Lam- born, 12 Md. 257; Richardson i>. Milburn, 11 Md. 340. Massachusetts. — McDonnell (:. Pittsfield, etc., R. Corp., 115 Mass. 564; Eames v. Sakm, etc., R. Co., 98 Mass. 560, 96 Am. Dec. 676. Missouri. — O'Riley v. Diss, 41 Mo. App. 184. Nebraska. — Lorrance p. Hillyer, 57 Nebr. 266, 77 N. W. 755. Nevada. — Chase v. Chase, 15 Nev. 259. New Hampshire. — Glidden v. Towle, 31 N. H. 147, 168. New Jersey. — Vandegrift c. Rediker, 22 N. J. L. 185, 51 Am. Dec. 262. New York. — Tonawanda R. Co. v. Munger, 5 Den. (N. Y.) 255, 49 Am. Dee. 239; Staf- ford v. Ingersol, 3 Hill (N. Y.) 38; Harden- burgh v. Lockwood, 25 Barb. (N. Y.) 9. North Dakota. — Bostwiek v. Minneapolis, etc., R. Co., 2 N. D. 440, 51 N. W. 781. Ohio. — O'Neal v. Blessing, 34 Ohio St. 33; Marietta, etc., R. Co. v. Stephenson, 24 Ohio St. 48; Cleveland, etc., R. Co. v. Elliott, 4 Ohio St. 474; Kerwhaker v. Cleveland, etc., R. Co., 3 Ohio St. 172, 62 Am. Dec. 246; Northcott v. Smith, 4 Ohio Cir. Ct. 565. Oregon. — Walker v. Bloomingcamp, 34 Oreg. 391, 43 Pac. 175, 56 Pac. 809; Camp- bell v. Bridwell, 5 Oreg. 311. Pennsylvania. — Barber v. Mensch, 157 Pa. St. 390, 33 Wkly. Notes Cas. (Pa.) 152, 27 Atl. 708; Gregg v. Gregg, 55 Pa. St. 227; Dolph v. Ferris, 7 Watts & S. (Pa.) 367, 42 Am. Dec. 246; Adams v. McKinney, Add. (Pa.) 257; Race v. Snyder, 10 Phila. (Pa.) 533, 30 Leg. Int. (Pa.) 361; Thompson v. Kyler, 9 Pa. Co. Ct. 205; Arthurs v. Chat- field, 9 Pa. Co. Ct. 34. Rhode Island. — Tower v. Providence, etc., R. Co., 2 R. I. 404. Texas. — Clarendon Land, etc., Co. v. Mc- Clelland, 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105; Pace v. Potter, 85 Tex. 473, 22 S. W. 300. Vermont. — Holden v. Shattuck, 34 Vt. 336, 80 Am. Dee. 684; Jackson v. Rutland, etc., R. Co., 25 Vt. 150, 60 Am. Dec. 246. West Virginia. — Blaine v. Chesapeake, etc., R. Co., 9 W. Va. 252. United States.— Buford v. Houtz, 133 U. S. 320, 10 S. Ct. 305, 33 L. ed. 618. England. — Fletcher v. Rylands, L. R. 1 Exch. 265; Sanders v. Teape, 51 L. T. Rep. N. S. 263; 3 Bl. Comm. 211; Comyns Dig. tit. Droit, M, 2; Dyer 3726. Canada. — Crowe v. Steeper, 46 U. C. Q. B. 87. \ See 2 Cent. Dig. tit. "Animals," § 327. Not applicable to dogs. — A dog jumping into a field without the consent of its master will not subject the latter to an action of trespass guare clausum (Brown v. Gil.' 1 C. & P. 118, 12 E. C. L. 79; Sanders v. Te;"-.?. 51 L. T. Rep. N. S. 263) ; but if the owmr trespass and, while on the land, his dog, un- bidden, and against his will, does mischief, that action will lie (Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175). " The rule was not founded on any arbi- trary regulation of the common law, but was an incident to the right of property. It is a part of that principle which allows every man the right to enjoy his property free from molestation or interference by others; it is simply the recognition of a natural right. A person owning and occupying land is not vested with the right to enjoy it upon con- dition that he inclose it by a palisade strong enough to keep his neighbors and their stock from breaking into and destroying the fruits of his labors. Property is not held in civil- ized communities by so insecure a tenure; but the law surrounds it by an ideal, in- visible palladium, more potent than any me- chanical paling that can be constructed. The rule in question did not require to be adopted in order to be in force. It always exists where the right of private dominion over things real is recognized. It pertains to ownership." Bileu v. Paisley, 18 Oreg. 47, 51, 21 Pac. 934, 4 L. R. A. 840. 13. Colorado. — Morris v. Fraker, 5 Colo. 425. Illinois.— D'Arcy v. Miller, 86 111. 102, 29 Am. Rep. 11. Vol. II 394 ANIMALS Union the common-law doctrine is recognized as being in force either exjproprio vigore, or by reason of statutes declaratory thereof, 14 except so far as statutes or local regulations permit animals to run at large, 15 or require landowners to fence Kentucky. — Crawford v. Hughes, 3 J. J. Marsh. (Ky.) 433. Maine. — Little v. Lathrop, 5 Me. 356. Massachusetts. — Thayer v. Arnold, 4 Mete. (Mass.) 589. New Hampshire. — Glidden v. Towle, 31 N. H. 147, 168. Vermont. — Jackson v. Rutland, etc., R. Co., 25 Vt. 150, 60 Am. Dec. 246. 14. Illinois. — Bulpit r. Matthews, 145 111. 345, 34 N. E. 525, 22 L. R. A. 55 [affirming 42 111. App. 561]; MeNeer v. Boone, 52 111. App. 181 ; Birket v. Williams, 30 111. App. 451. Indiana. — Anderson v. Worley, 104 Ind. 165, 3 X. E. 817; Lyons r. Terre Haute, etc., R. Co., 101 Ind. 419; Stone r. Kopka, 100 Ind. 458 ; Pittsburgh, etc., R. Co. v. Stuart, 71 Ind. 500; Indianapolis, etc., R. Co. v. Harter, 38 Ind. 557 ; Michigan Southern, etc., R. Co. v. Fisher, 27 Ind. 96; Indianapolis, etc., R. Co. v. McClure, 26 Ind. 370, 89 Am. Dec. 467; Page v. Hollingsworth, 7 Ind. 317; Lafayette, etc., R. Co. v. Shriner, 6 Ind. 141 ; Crum r. Conover, 14 Ind. App. 264, 40 N. E. 644, 42 X. E. 1029. Maine. — Webber v. Closson, 35 Me. 26. Maryland. — Baltimore, etc., R. Co. v. Lam- born, 12 Md. 257; Richardson v. Milburn, 11 Md. 340. Massachusetts. — Lyons v. Merrick, 105 Mass. 71. Michigan. — Wood v. La Rue, 9 Mich. 158; Williams v. Michigan Cent. R. Co., 2 Mich. 259, 55 Am. Dec. 59. Minnesota. — Locke v. First Div. St. Paul, etc., R. Co., 15 Minn. 350. New Jersey. — Vandegrift v. Rediker, 22 ST. J. L. 185, 51 Am. Dec. 262; Chambers v. Matthews, 18 N. J. L. 368. New York. — Wells v. Howell, 19 Johns. (N. Y.) 385; Holladay v. Marsh, 3 Wend. (N. Y.) 142, 20 Am. Dee. 678; Phillips v. Covell, 79 Hun (X. Y.) 210, 29 N. Y. Suppl. 613, 61 N. Y. St. 156; Pierce v. Hosmer, 66 Barb. (N. Y.) 345; Taber v. Cruthers, 13 N. Y. Suppl. 446, 38 N. Y. St. 331. North Dakota. — Bostwiek v. Minneapolis, etc., R. Co., 2 N. D. 440, 51 N. W. 781. Pennsylvania. — Barber r. Mensch, 157 Pa. St. 390, 33 Wkly. Notes Cas. (Pa.) 152, 27 Atl. 708; Stewart v. Benninger, 138 Pa. St. 437, 27 Wkly. Notes Cas. (Pa.) 381, 21 Atl. 159; Thompson v. Kyler, 9 Pa. Co. Ct. 205; Arthurs v. Chatfield, 9 Pa. Co. Ct. 34. Rhode Island. — Tower v. Providence, etc., R. Co., 2 R. I. 404. Vermont.— Holden v. Shattuck, 34 Vt. 336, 80 Am. Dec. 684; Jackson v. Rutland, etc., R. Co., 25 Vt. 150, 60 Am. Dec. 246. Wisconsin. — Stone v. Donaldson, 1 Pinn. (Wis.) 393. See 2 Cent. Dig. tit. "Animals," § 327. Not applicable to pent roads. — The statu- tory provision that the owners of lands bor- dering upon highways need not fence the same along such highways does not apply to Vol. II pent roads. Carpenter v. Cook, 67 Vt. 102, 30 Atl. 998, 71 Vt. 110, 41 Atl. 1038. In Illinois, prior to the act of 1874, the ter- ritory in which domestic animals were pro- hibited from running at large was an excep- tion out of the general rule, but by that statute the rule was abrogated and the rule stated in the text established. Bulpit v. Matthews, 145 111. 345, 34 N. E. 525, 22 L. R. A. 55 [affirming 42 111. App. 561]. The rule was first laid down in Seeley v. Peters, 10 111. 130, that the common law, requiring the owner of cattle to keep them upon his own land, had never been in force in Illinois. This case was followed in Misner v. Light- hall, 13 111. 609; Chicago, etc., R. Co. v. Patchin, 16 111. 198, 61 Am. Dec. 65; Galena, etc., R. Co. r. Crawford, 25 111. 529: Headen v. Rust, 39 111. 186; Westgate v. Carr, 43 111. 450; Stoner v. Shugart, 45 111. 76; Illi- nois Cent. R. Co. v. Arnold, 47 111. 173; Oil v. Rowley, 69 111. 469. Both the act of 1874 and the act of Jan. 13, 1872, referred to in Fredrick v. White, 73 111. 590, are now re- pealed. 111. Rev. Stat. (1899), c. 8, § 6. In Maine the common law was changed by the statute of 1834, c. 137; but, by the Re- vised Statutes, all preceding legislation on this subject was repealed and the rights of parties remain as at common law, except so far as they may be modified by the provisions of such statutes. Webber v. Closson, 35 Me. 26. In Pennsylvania, until the act of April 4, 1889, was passed, the first section of the act of 1700 was in force throughout the state, and the owner of lands was required to fence against the cattle of others. Barber v. Mensch, 157 Pa. St. 390, 33 Wkly. Notes Cas. (Pa.) 152, 27 Atl. 708; Gregg v. Gregg, 55 Pa. St. 227; Knight v. Abert, 6 Pa. St. 472, 47 Am. Dec. 478; Adams v. McKinney, Add. (Pa.) 257. Though it seems that, prior to the decision of Gregg v. Gregg, 55 Pa. St. 227, the common law was universally held to be the law in the northern counties of the state. Race v. Snyder, 10 Phila. (Pa.) 533, 30 Leg. Int. (Pa.) 361. 1 5. Dakota. — Sprague v. Fremont, etc., R. Co., 6 Dak. 86, 50 N. W. 617. Illinois. — Bulpit v. Matthews, 145 111. 345, 34 N. E. 525, 22 L. R. A. 55 [affirming 42 111. App. 561]; Selover v. Osgood, 52 111. App. 260. Indiana. — Anderson v. Worley, 104 Ind. 165, 3 N. E. 817; Lyons v. Terre Haute, etc., R. Co., 101 Ind. 419; Stone v. Kopka, 100 Ind. 458; Pittsburgh, etc., R. Co. v. Stuart, 71 Ind. 500; Indianapolis, etc., R. Co. v. Harter, 38 Ind. 557 ; Michigan Southern, etc., R. Co. v. Fisher, 27 Ind. 96; Crum v. Con- over, 14 Ind. App. 264, 40 N. E. 644, 42 N. E. 1029. Minnesota. — Locke v. First Div. St. Paul, etc., R. Co., 15 Minn. 350. New York. — Hardenburgh v. Lockwood, 25 Barb. (N. Y.) 9. ANIMALS 395 against roving stock. 16 In many others, however, the doctrine is not deemed applicable to the conditions of the country or in accordance with the customs of the people, 17 or is deemed not in harmony with legislative action. 18 In these states it is held that permitting cattle to range at will on uninclosed lands will subject the owner to no liability, 19 in the absence of statute or local regulations Wisconsin. — Stone v. Donaldson, 1 Pinn. (Wis.) 393. It is competent for the legislature to de- clare that an action shall not be maintained, for a trespass committed by cattle, in favor of the owner of lands which are not securely fenced. Myers v. Dodd, 9 Ind. 290, 68 Am. Dec. 624; Poindexter v. May, 98 Va. 143, 34 S. E. 971, 47 L. R. A. 588. The county commissioners may direct, by an order of the board, what animals may pasture or run at large on uninclosed lands or public commons within the bounds of any township in their respective counties. Pitts- burgh, etc., R. Co. v. Stuart, 71 Ind. 500. Authorized by popular vote. — The people by affirmative vote, authorized by the stat- ute to be taken, may decide to let stock run at large in counties or towns. Bulpit v. Matthews, 145 111. 345, 34 N. E. 525, 22 L. R. A. 55 [affirming 42 111. App. 561] ; Sel- over v. Osgood, 52 111. App. 260. Statute exempting certain counties consti- tutional. — In Sprague v. Eremont, etc., R. Co., 6 Dak. 86, 50 N. W. 617, it was held that Dak. Spec. Laws (1885), c. 17, § 16, exempting certain Black Hills counties from the operation of Code Civ. Proc. § 747, as amended by Laws (1883), c. 115, which de- clared owners liable for all damages done by their stock while trespassing on the lands of another, is not unconstitutional by reason of its applying specially to such counties, as the law comes within the police power of the legislature. 16. Bonner v. De Loach, 78 Ga. 50, 2 S. E. 546; Indianapolis, etc., R. Co. v. Harter, 38 Ind. 557; Wood v. La Rue, 9 Mich. 158; Wil- liams v. Michigan Cent. R. Co., 2 Mich. 259, 55 Am. Dec. 59. 17. Alabama. — Mobile, etc., R. Co. v. Wil- liams, 53 Ala. 595. Arkansas. — Little Rock, etc., R. Co. v. Fin- ley, 37 Ark. 562. Iowa. — Frazier v. Nortinus, 34 Iowa 82; Wagner v. Bissell, 3 Iowa 396. Ohio. — Cincinnati, etc., R. Co. v. Waterson, 4 Ohio St. 424 ; Kerwhaker v. Cleveland, etc., R. Co., 3 Ohio St. 172, 62 Am. Dec. 246; Cranston t>. Cincinnati, etc., R. Co., 1 Handy (Ohio) 193. Texas.— Pace v. Potter, 85 Tex. 473, 22 S. W. 300. 18. Alabama. — Joiner v. Winston, 68 Ala. 129; Mobile, etc., R. Co. v. Williams, 53 Ala. 595; Nashville, etc., R. Co. v. Peacock, 25 Ala. 229. Arkansas. — Little Rock, etc., R. Co. v. Fin- ley, 37 Ark. 562. California. — Merritt v. Hill, 104 Cal. 184, 37 Pac. 893; Waters v. Mos3, 12 Cal. 535, 73 Am. Dec. 561. Missouri. — Gorman v. Pacific R. Co., 26 Mo. 441, 72 Am. Dec. 220; O'Riley v. Diss, 41 Mo. App. 184. Nevada. — Chase v. Chase, 15 Nev. 259. Ohio. — Cleveland, etc., R. Co. v. Elliott, 4 Ohio St. 474; Cincinnati, etc., R. Co. v. Waterson, 4 Ohio St. 424; Kerwhaker v. Cleveland, etc., R. Co., 3 Ohio St. 172, 62 Am. Dec. 246; Northeott v. Smith, 4 Ohio Cir. Ct. 565. Texas. — Pace v. Potter, 85 Tex. 473, 22 S. W. 300. 19. Alabama. — Hurd v. Lacy, 93 Ala. 427, 9 So. 378, 33 Am. St. Rep. 61; Wilhite v. Speakman, 79 Ala. 400; Joiner v. Winston, 68 Ala. 129; Mobile, etc., R. Co. v. Williams, 53 Ala. 595; Nashville, etc., R. Co. v. Pea- cock, 25 Ala. 229. Arkansas. — Little Rock, etc., R. Co. v. Fin- ley, 37 Ark. 562. California. — Merritt v. Hill, 104 Cal. 184, 37 Pac. 893; Logan v. Gedney, 38 Cal. 579; Waters v. Moss, 12 Cal. 535, 73 Am. Dec. 561. Colorado. — Nuckolls v. Gant, 12 Colo. 361, 21 Pac. 41 [following Morris v. Fraker, 5 Colo. 425]. Connecticut. — Hine v. Munson, 32 Conn. 219; Wright v. Wright, 21 Conn. 329; Stud- well v. Ritch, 14 Conn. 292. Florida. — Savannah, etc., R. Co. v. Geiger, 21 Fla. 669, 58 Am. Rep. 697. Georgia. — Georgia R., etc., Co. v. Neely, 56 Ga. 540; Macon, etc., R. Co. v. Lester, 30 Ga. 911. Idaho. — Johnson v. Oregon Short-Line R. Co., (Ida. 1900) 63 Pac. 112. Iowa.— Harrison v. Adamson, 76 Iowa 337, 41 N. W. 34; Frazier v. Nortinus, 34 Iowa 82; Camp r. Flaherty, 28 Iowa 520; Herold v. Meyers, 20 Iowa 378 ; Russell v. Hanley, 20 Iowa 219/89 Am. Dec. 535; Alger v. Mis- sissippi, etc., R. Co., 10 Iowa 268 ; Wagner v. Bissell, 3 Iowa 396. Kansas. — Fillmore v. Booth, 29 Kan. 134; Darling v. Rodgers, 7 Kan. 592; Larkin v. Taylor, 5 Kan. 433. Kentucky. — Louisville, etc., R. Co. v. Sim- mons, 85 Ky. 151, 8 Ky. L. Rep. 896, 3 S. W. 10. Mississippi. — Anderson v. Locke, 64 Miss. 283, 1 So. 251; Montgomery v. Handy, 62 Miss. 16; New Orleans, etc., R. Co. v. Field, 46 Miss. 573; Vicksburg, etc., R. Co. v. Pat- ton, 31 Miss. 156, 66 Am. Dec. 552. Missouri. — Mann v. Williamson, 70 Mo. 661 ; Hannibal, etc., R. Co. v. Kenney, 41 Mo. 271; Gorman v. Pacific R. Co., 26 Mo. 441, 72 Am.. Dec. 220; O'Rilev v. Diss, 41 Mo. App. 184; Heald v. Grier,*12 Mo. App. 556; Kertz v. Dolde, 7 Mo. App. 564 ; Kaes v. Mis- souri Pac. R. Co., 6 Mo. App. 397. Nebraska. — Delaney v. Errickson, 11 Nebr. 533, 10 N. W. 451. Vol. II 396 ANIMALS forbidding it, 20 uninclosed lands in such cases being regarded as common of pasturage. 21 Nevada. — Chase v. Chase, 15 Nev. 259. North Carolina. — Burgwyn r. Whitfield, 81 X. C. 261; Laws v. North Carolina R, Co., 52 X. C. 468. Ohio. — Marietta, etc., R. Co. v. Stephen- son, 24 Ohio St. 48; Cleveland, etc., R. Co. v. Elliott, 4 Ohio St. 474; Cincinnati, etc., R. Co. v. Waterson, 4 Ohio St. 424; Ker- whaker v. Cleveland, etc., R. Co., 3 Ohio St. 172, 62 Am. Dec. 246; Cranston v. Cincin- nati, etc., R. Co., 1 Handy (Ohio) 193; Xorth- cott v. Smith, 4 Ohio Cir. Ct. 565. Oregon. — Walker v. Bloomingcamp, 34 Oreg. 391, 43 Pac. 175, 56 Pac. 809; Camp- bell v. Bridwell, 5 Oreg. 311. South Carolina. — Murray v. South Caro- lina R. Co., 10 Rich. (S. C.) 227, 70 Am. Dec. 219. Texas. — Clarendon Land, etc., Co. v. Mc- Clelland, 89 Tex. 483, 34 S. W. 98, 35 S. W. 474, 59 Am. St. Rep. 70, 31 L. R. A. 669, 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105; Pace v. Potter, 85 Tex. 473, 22 S. W. 300; Davis v. Davis, 70 Tex. 123, 7 S. W. 826; Clauneh r. Osborn, (Tex. Civ. App. 1893) 23 S. W. 937; Haskins r. Huling, 2 Tex. App. Civ. Cas. § 161. Virginia. — Poindexter i: May, 98 Va. 143, 34 S. E. 971, 47 L. R. A. 588. 'West Virginia. — Blaine v. Chesapeake, etc., R. Co., 9 W. Va. 252. United States. — Lazarus r. Phelps, 152 U. S. 81, 14 S. Ct. 477, 38 L. ed. 363; Buford r. Houtz, 133 U. S. 320, 10 S. Ct. 305, 33 L. ed. 618. See 2 Cent. Dig. tit. "Animals," § 327. The statutes of Oregon, which require fields and inelosures to be inclosed with certain kinds of fence, and provide a remedy in case stock or swine shall break into the same when so fenced, do not apply to ditches con- structed across public lands in the state for mining purposes. Bileu r. Paislev, 18 Oreg. 47, 21 Pac. 934, 4 L. R. A. 840. Sufficiency of fences. — Where fences are required it has been held that the owner of cattle will not be liable unless all parts of the inclosure trespassed upon are surrounded by a statutory fence (Polk v. Lane, 4 Yerg. (Tenn.) 35) ; but, by the weight of author- ity, it is sufficient that the fences substan- tially comply with the statute (Comerford v. Dupuy, 17 Cal. 308; Scott v. Buck, 85 111. 334: Smith v. Williams, 2 Mont. 195; Race v. Snyder, 10 Phila. (Pa.) 533, 30 Leg. Int. (Pa.) 361). See also Willard v. Mathesus, 7 Colo. 76, 1 Pac. 690. 20. Alabama. — Wilhite v. Speakman, 79 Ala. 400; Joiner v. Winston, 68 Ala. 129. California — Merritt v. Hill, 104 Cal. 184, 37 Pac. 893 ; Hahn v. Garratt, 69 Cal. 146, 10 Pac. 329. Colorado. — Morris v. Fraker, 5 Colo. 425. Georgia. — Bonner v. De Loach, 78 Ga. 50, 2 S. E. 546. Iowa. — Hallock v. Hughes, 42 Iowa 516; Little v. McGuire, 38 Iowa 560, 43 Iowa 447. Vol. II Kansas. — Wells v. Beal, 9 Kan. 597; Win- grove v. Williams, 6 Kan. App. 262, 51 Pac 52. Oregon. — Strickland v. Geide, 31 Oreg. 373, 49 Pac. 982. Constitutionality of statute. — In Darling v . Rodgers, 7 Kan. 592, it was held that Kan. Laws (1870), c. 115, which attempted to ex- empt certain counties from the operation of the fence laws, was unconstitutional, as vio- lating a constitutional provision that all laws of a general nature shall have a uniform op- eration throughout the state. Common law reenacted as to hogs. — In Kansas the statutes have reenacted the com- mon law as to hogs, though giving to each township the right to suspend this law by vote. Wells v. Beal, 9 Kan. 597. Forbidden on improved lands. — By Iowa Laws (1870), c. 26, the owner of stock is made liable for their trespasses on improved lands, whether inclosed or not, and this act was held to be in force without submission to a vote of the county. Hallock v. Hughes, 42 Iowa 516 [following Little v. McGuire, 38 Iowa 560, 43 Iowa 447]. See also Lorance v. Hillyer, 57 Xebr. 266, 77 X. W. 755. Local act applicable only to enumerated cattle. — Though a local law requires the owner of lands in Umatilla county, Oregon, to fence against certain specified kinds of stock, such law does not apply to sheep, which are not enumerated therein. French r. Cresswell, 13 Oreg. 418, 11 Pac. 62. What are not improved lands. — The cast- ing of a single furrow around an eighty-acre tract of wild and unimproved land, the cul- tivating of three acres for a garden, the breaking of eight acres, and the cutting of some brush on a portion of the remainder, do not make the whole tract improved land. Otis i . Morgan. 61 Iowa 712, 17 X. W. 104. Where there is no actual inclosure and it is sousht to bring lands within the provisions of Nebr. Comp. Stat. c. 2, art. 3, § 8, there must be u. strip at least one rod in width plowed around such land; and two furrows, plowed one rod from each other, is not a compliance with the statute. Brown v. Syl- vester, 37 Xebr. S70, 56 X. W. 709. This statute is applicable to cultivated lands within the limits of cities of the metropolitan class, notwithstanding the charters of such cities grant power to the mayors and coun- cils to provide by ordinance for impounding animals running at large. Lingonner v. Am- bler, 44 Xebr. 316, 62 N. W. 486. Where townships have adopted rules pro- hibiting stock from running at large, and there are no regulations requiring fences, the owners of cattle will be liable for injuries oc- casioned by their stock going upon unfenced fields. Westgate v. Carr, 43 111. 450. 21. Wilhite v. Speakman, 79 Ala. 400; Joiner v. Winston, 68 Ala. 129; Mobile, etc., R. Co. r. Williams, 53 Ala. 595; Nashville, etc., R. Co. v. Peacock, 25 Ala. 229. ANIMALS 397 (b) With Respect to Adjoining Landowners — (1) G-enekally. The com- mon-law rule 33 is applicable to adjoining landowners. 23 unless there has been an obligatory division for the maintenance of a partition fence u by prescription, 23 by covenant, 26 or by statutes relating to partition, line, or division fences. 27 Where there is an obligation to maintain partition fences, a party who removes snch fences will be liable for the trespasses of his cattle, 28 and the same is true if the cattle break through a portion of the fence which the owner of the cattle is bound to repair. 29 If both are equally bound to maintain such fences, there will be no liability for an injury through an insufficient fence, 30 nor is there liability if 22. See supra, XI, B, 1, a, (I). 23. Illinois.— Headen v. Rust, 39 111. 186. Indiana. — Cook v. Morea, 33 Ind. 497 ; Crisman v. Masters, 23 Ind. 319; Brady v. Ball, 14 Ind. 317. Maine. — Sturtevant v. Merrill, 33 Me. 62. Missouri. — O'Riley v. Diss, 41 Mo. App. 184. • Michigan. — Johnson v. Wing, 3 Mich. 163. N ew Hampshire. — Tewksbury v. Bucklin, 7 N. H. 518. New Jersey. — Coxe v. Robbins, 9 N. J. L. 384. New York.— Angell v. Hill, 64 Hun (N. Y.) 033, 18 N. Y. Suppl. 824, 45 N. Y. St. 83. Pennsylvania. — Rangier v. McCreight, 27 Pa. St. 95 ; Noel v. Brown, 3 Pa. Co. Ct. 204. Vermont. — Carpenter v. Cook, 71 Vt. 110, 41 Atl. 1038, 67 Vt. 102, 30 Atl. 998. 24. Sturtevant v. Merrill, 33 Me. 62; Ayles- worth v. Herrington, 17 Mich. 417. Voluntary maintenance of fence. — The rule is not dislodged though the adjoining owners may have maintained a line fence by severally building such parts as to be satis- factory to each other. The wrongful removal by plaintiff of the part of the fence built by defendant will not constitute a license for defendant's cattle to cross the undivided line, after there has been such a lapse of time as to give to defendant a reasonable opportu- nity of building a new fence. Sturtevant v. Merrill, 33 Me. 62. 25. D'Arcy v. Miller, 86 111. 102, 29 Am. Rep. 11; Knox v. Tucker, 48 Me. 373, 77 Am. Dec. 233; Little v. Lathrop, 5 Me. 356; Thayer v. Arnold, 4 Mete. (Mass.) 589. No prescriptive obligation to maintain any separate and distinct part of a, partition fence can arise from the maintenance of such a fence, jointly, by the owners of adjoining land, for however long a period. Webber v. Closson, 35 Me. 26. 26. D'Arcy v. Miller, 86 111. 102, 29 Am. Rep. 11 ; Knox v. Tucker, 48 Me. 373, 77 Am. Dec. 233; Little v. Lathrop, 5 Me. 356; Thayer v. Arnold, 4 Mete. (Mass.) 589; Aylesworth v. Herrington, 17 Mich. 417. Agreement should be in writing. — An agree- ment for the division of the line fence, by adjoining owners, must be in writing in or- der to be binding on them and their privies. Knox v. Tucker, 48 Me. 373, 77 Am. Dec. 233. 27. Illinois.— D'Arcy v. Miller, 86 111. 102, 29 Am. Rep. 11; Selover v. Osgood, 52 111. App. 260; McNeer v. Boone, 52 111. App. 181; Dexter v. Heaghney, 47 111. App. 205. M ame.— Bradbury v. Gilford, 53 Me. 99; Knox v. Tucker, 48 Me. 373, 77 Am. Dec. 233 ; Eastman v. Rice, 14 Me. 419 ; Gooch v. Stephenson, 13 Me. 371; Little v. Lathrop, 5 Me. 356. Massachusetts. — Thayer v. Arnold, 4 Mete. (Mass.) 589. Michigan. — Aylesworth v. Herrington, 17 Mich. 417. New York. — Stafford v. Ingersol, 3 Hill (N. Y.) 38. Rhode Island. — Tower v. Providence, etc., R. Co., 2 R. I. 404. The legislature has constitutional power to regulate by statute the relative rights and responsibilities of the proprietors of inclosed land, and of the owners of stock going at large or kept in adjacent inelosures, as is done in Ky. Rev. Stat. c. 50, and the act of 1863 amendatory thereof. Wills v. Walters, 5 Bush (Ky.) 351. Where lands are so situated that a division fence cannot be maintained on the dividing line, as when they are divided by a non- navigable river, it is a case not provided for in the statute, and must be governed by the principles of reason and justice; and, under such circumstances, he who keeps cattle must so keep them as to prevent their injuring the property of others. Bissel v. Southworth, 1 Root (Conn.) 269. But see Pripp v. Hasell, 1 Strobh. (S. C.) 173, holding that a deep, navigable stream is equivalent to a, fence. Where the statute requires a partition fence to be such as will inclose and restrain sheep, unless the parties should agree to build a fence to restrain or inclose only horses, mules, or cattle, so far as hogs are con- cerned, the statute does not change the com- mon law requiring owners of domestic ani- mals to keep them within their own in- elosures. Enders v. McDonald, 5 Ind. App. 297, 31 N. E. 1056. Waiver of right to insist on fence. — One landowner, having waived the duty on the part of his neighbor to maintain fences in consideration of his neighbor's waiver of his duty, is estopped from denying his own duty of keeping up his cattle. Milligan v. Weh- inger, 68 Pa. St. 235. See also Perkins v. Perkins, 44 Barb. (N. Y.) 134. 28. Stoner v. Shugart, 45 111. 76; Claunch v. Osborn, (Tex. Civ. App. 1893) 23 S. W. 937. 29. D'Arcy v. Miller, 86 111. 102, 29 Am. Rep. 11 ; Ozburn v. Adams, 70 111. 291 ; Sel- over v. Osgood, 52 111. App. 260. 30. Walker v. Watrous, 8 Ala. 493; My- ers v. Dodd, 9 Ind. 290, 68 Am. Dec. 624; Aylesworth v. Herrington, 17 Mich. 417. Vol. II 398 ANIMALS the injury is through a portion of the fence which the adjacent owner was bound to maintain, 31 provided the animals are lawfully on the adjoining land. 32 (2) Occupying Inclosure without • Partition Fence. Under some statutes, where owners of adjoining lands fence in common, without building any par- tition fence between them, each owner is required to take care of his own cattle, and he cannot permit them to wander from his own premises upon the land of the other. 33 b. Unruly Cattle. In states where a landowner is required to fence out cattle, the statutes with regard to fences have left the common law as to the duty of owners of cattle to restrain them still in force as to unruly cattle that will not be restrained by ordinary fences. 34 c. Wilful Trespasses. The owner of cattle who wilfully turns them on to land of another, without his consent, is liable without regard to the question of fences, 35 and in some cases may be held criminally for such trespass. 36 d. Involuntary Trespasses. A person driving domestic animals along the highway, and exercising due care in so doing, is not liable for the injuries which they commit by escaping from his control and entering private ground. 37 31. Connecticut. — Studwell c. Ritoh, 14 Conn. 292. Illinois. — McKowan v. Harmon, 56 1.1. App. 368 ; Selover v. Osgood, 52 111. App. 260. Indiana. — Baynes r. Chastain, 68 Ind. 376 ; Hinshaw v. Gilpin, 64 Ind. 116. Missouri. — Hopkins v. Ott, 5" Mo. App. 292. New Hampshire. — Page v. Olcott, 13 N. H. 399. New York. — Tonawanda R. Co. v. Munger, 5 Den. (N. Y.) 255, 49 Am. Dec. 239; Deyo v. Stewart, 4 Den. (N. Y.) 101; Stafford v. Ingersol, 3 Hill (N. Y.) 38; Shepherd v. Hees, 12 Johns. (N. Y.) 433; Van Slyck v. Snell, 6 Lans. (N. Y.) 299; Cowles v. Balzer, 47 Barb. (N. Y.) 562; Griffin v. Martin, 7 Barb. (N. Y.) 297. North Carolina. — Runyan v. Patterson, 87 N. C. 343. Ohio. — Phelps v. Cousins, 29 Ohio St. 135. Rhode Island. — Tower v. Providence, etc., B. Co., 2 B. I. 404. Texas. — Heironimus v. Duncan, 11 Tex. Civ. App. 610, 33 S. W. 287. Vermont. — Watkins v. Bist, 67 Vt. 284, 31 Atl. 413, 68 Vt. 486, 35 Atl. 431 ; Hitchcock v. Tower, 55 Vt. 60. Wisconsin. — Boach v. Lawrence, 56 Wis. 478, 14 N. W. 595. 32. Illinois. — MePherson v. James, 69 111. App. 337. Iowa. — Herold v. Meyers, 20 Iowa 378. Kansas. — Osborne i\ Kimball, 41 Kan. 187, 21 Pae. 163: Rice v. Nagle, 14 Kan. 498. Maine. — Lord v. Wormword, 29 Me. 282, 50 Am. Dee. 586. Massachusetts.— McDonnell v. Pittsfield, etc., B. Corp., 115 Mass. 564; Lyman v. Gip- son, 18 Pick. (Mass.) 422; Bust v. Low, 6 Mass. 90; Melody v. Beab, 4 Mass. 471. See also Stackpole v. Healy, 16 Mass. 33, 8 Am. Dec. 121. New Hampshire. — Lawrence v. Combs, 37 N. H. 331, 72 Am. Dec. 332; Cornwall v. Sullivan R. Co., 28 N. H. 161. Vermont. — Wilder v. Wilder, 38 Vt. 678. 33. Markin v. Friddy, 39 Kan. 462, 18 Pac. 514; Baker v. Robbins, 9 Kan. 303; Mont- Vol. II gomery t\ Handy, 63 Miss. 43. But see, contra, Fort v. McGrath, 4 111. App. 233; Hooper v. Kittredge, 16 Vt. 677. What constitutes fencing in common. — Where two owners of adjoining farms have the same inclosed by uniting the outside line fences, and there is no partition fence be- tween their farms, each using his farm in severalty, their farms, in law, are fenced in common. Markin v. Priddy, 40 Kan. 684, 20 Pae. 474 [correcting 39 Kan. 462, 18 Pac. 514]. 34. Connecticut. — Hine v. Wooding, 37 Conn. 123. Iowa.— McManus v. Finan, 4 Iowa 283. New Hampshire. — Avery v. Maxwell, 4 N. H. 36. Tennessee. — Smith v. Jones, 95 Tenn. 339, 32 S. W. 200. Texas. — Clarendon Land, etc., Co. v. Mc- Clelland, 86 Tex. 179, 23 S. W. 576, 1100, 22 L. B. A. 105. 35. California. — Merritt v. Hill, 104 Cal. 184, 37 Pac. 893; Martin v. Jacobs, (Cal. 1884) 3 Pac. 122; Logan v. Gedney, 38 Cal. 579. Iowa. — Harrison v. Adamson, 76 Iowa 337, 41 N. W. 34; Erbes v. Wehmeyer, 69 Iowa 85, 28 N. W. 447; Otis v. Morgan, 61 Iowa 712, 17 N. W. 104. Kansas. — Powers r. Kindt, 13 Kan. 74; Larkin v. Taylor, 5 Kan. 433. Montana. — Monroe v. Cannon, (Mont. 1900) ei Pae. 863. Nebraska. — Delaney v. Errickson, 11 Nebr. 533, 10 N. W. 451. Oregon. — Bileu v. Paisley, 18 Oreg. 47, 21 Pac. 934, 4 L. B. A. 840. Pennsylvania. — Dolph v. Ferris, 7 Watts & S. (Pa.) 367, 42 Am. Dec. 246; Adams v. MeKinney,' Add. (Fa.) 257. Texas. — Ohio Wool-Growing Co. v. Bogel, 3 Tex. App. Civ. Cas. § 273; Dignowitty v. Ballantyne, 3 Tex. App. Civ. Cas. § 194. Virginia. — Poindexter r. May, 98 Va. 143, 34 S.E. 971, 47 L. R. A. 588. 36. See supra, X. 37. Cool v. Crommet, 13 Me. 250; McDon- nell v. Pittsfield, etc., R. Corp., 115 Mass. ANIMALS 399 2. Rights and Remedies of Landowner — a. In General. A landowner whose premises have been invaded by trespassing cattle may drive them off his premises, 38 distrain or impound them, 89 maintain an action of trespass against their owner or keeper, 40 or, under some circumstances, treat them as estrays. 41 And statutes giving a remedy for such trespass by proceedings in rem, or by giving the injured person a right to take possession of such animals, are not to be consid- ered, ordinarily, as taking away any previously existing common-law remedy. 42 But it is not permissible to recover part of the damages by proceedings under a statute and another part by means of an action at law. 43 b. To Drive Off. Cattle trespassing upon the lands of another may be driven off by the use of all reasonable means and necessary force, either by the land- owner 44 or by members of his family, 45 even when such cattle are on uninclosed lands in jurisdictions where, to maintain an action^ landowners are required to fence against their neighbor's cattle. 46 It seems that one who finds cattle doing damage upon his premises may confine them during the night, if neces- sary to protect his crops, and in the morning turn them into the highway whence they came. 47 A landowner exercising such right must use reasonable care to avoid unnecessary injury. 48 If he exercise such care he will not be liable if the 564; Hartford v. Brady, 114 Mass. 466, 19 Am. Rep. 377 ; Rightmhe v. Shepard, 12 N. Y. Suppl. 800, 36 N. Y. St. '7 68; Erdman v. Gott- shall, 9 Pa. Super. Ct. 295, 43 Wkly. Notes Caa. (Pa.) 405. Where horses, frightened by a locomotive, become uncontrollable, run away, go upon land of another, and break a post there, the owner of the horses is not liable for the damage if it was not caused by any fault on his part. Brown v. Collins, 53 N. H. 442, 16 Am. Rep. 372. 38. See infra, XI, B, 2, b. 39. See infra, XI, B, 2, c. 40. See infra, XI, B, 2, d. 41. See supra, IX. 42. California. — Trescony v. Brandenstein, 66 Cal. 514, 6 Pac. 384. Hawaii. — Miyagawa v. Ferreira, 10 Hawaii 23. Kansas. — Prather v. Reeve, 23 Kan. 627. Nebraska.- — ■ Lorance v. Hillyer, 57 Nebr. 266, 77 N. W. 755; Laflin v. Svoboda, 37 Nebr. 368, 55 N. W. 1049 ; Keith v. Tilford, 12 Nebr. 271, 11 N. W. 315. Neto York. — Stafford v. Ingersol, 3 Hill (N. Y.) 38; Colden v. Eldred, 15 Johns. (N. Y.) 220. Pennsylvania. — Robison v. Fetterman, (Pa. 1888) 14 Atl. 245; Mitchell v. Wolf, 46 Pa. St. 147; Adams v. McKinney, Add. (Pa.) 257. Texas. — Finley v. Bradlev, (Tex. Civ. App. 1893) 21 S. W. '609. Statutory remedy exclusive. — The Dela- ware act of March 2, 1893 (Del. Rev. Code, p. 482 ) , providing a remedy for one who is damaged by the cattle of another escaping and trespassing on the former's uninclosed land, is exclusive of the former commonrlaw remedy (Hill v. Ginn, (Del. 1899) 43 Atl. 608) ; and the Indiana statutes regulating the enforcement of claims for damages from trespassing animals supersede the common- law remedy for such damages by distress (Little v. Swafford, 14 Ind. App. 7, 42 N. E. 245). 43. De la Guerra v. Newhall, 53 Cal. 141. 44. Delaware. — Richardson v. Carr, 1 Harr. (Del.) 142, 25 Am. Dec. 65. Illinois. — Spray v. Ammerman, 66 111. 309; Snap v. People, 19 111. 80, 68 Am. Dee. 582. Indiana. — Knour v. Wagoner, 16 Ind. 414. Maryland. — Knott v. Digges, 6 Harr. & J. (Md.) 230. Massachusetts. — Bonney v. Smith, 121 Mass. 155; Stevens v. CurtiB, 18 Pick. (Mass.) 227. New Hampshire. — Cory v. Little, 6 N. H. 213, 25 Am. Dec. 458. New York. — Carney v. Brome, 77 Hun (N. Y.) 583, 28 N. Y. Suppl. 1019, 60 N. Y. St. 453. Pennsylvania. — Palmer v. Silverthorn, 32 Pa. St. 65. Tennessee. — Medlin v. Balch, 102 Tenn. 710, 52 S. W. 140. Vermont. — Clark v. Adams, 18 Vt. 425, 46 Am. Dec. 161 ; Humphrey v. Douglass, 11 Vt. 22, 34 Am. Dec. 668, 10 Vt. 71, 33 Am. Dec. 177. England. — Millen v. Fandrye, Popham 161 : Bacon Abr. tit. Trover, D. See 2 Cent. Dig. tit. "Animals," § 371 et seq. 45. Spray v. Ammerman, 66 111. 309. 46. A laoama. — Wilhite v. Speakman, 79 Ala. 400. Ioioa. — Russell v. Hanley, 20 Iowa 219, 89 Am. Dec. 535. Michigan. — Wood v. La Rue, 9 Mich. 158. Missouri. — Heald v. Grier, 12 Mo. App. 556. Vermont.— Clark v. Adams, 18 Vt. 425, 46 Am. Dec. 161. 47. Tobin v. Deal, 60 Wis. 87, 18 N. W. 634, 50 Am. Rep. 345. 48. Wilhite v. Speakman, 79 Ala. 400; Richardson v. Carr, 1 Harr. (Del.) 142, 25 Am. Dec. 65; Snap v. People, 19 111. 80, 68 Am. Dec. 582; Totten v. Cole, 33 Mo. 138, 82 Am. Dec. 157; Heald v. Grier, 12 Mo. App. 556. Vol. II ; 400 ANIMALS animals are lost, 49 or for any injuries they may subsequently sustain; 50 but if he use unnecessary force he may render himself liable to criminal prosecution 51 as well as civilly liable to the owner. 53 There is nothing illegal in driving such cattle from the premises with dogs, if no unnecessary injury is done to the stock ; K but the landowner has no right to drive the animals away to any considerable dis- tance, 54 and, when the presence of cattle on a landowner's premises is due to defects in fences which he is bound to repair, he has no right to drive them ofi into the highway. 55 e. To Distrain, Impound, or Take Up — (i) The Right — (a) At Common Law. At the common law, where cattle trespassed on the lands of another, the landowner was permitted to distrain the cattle thus damage feasant till their owner should make him satisfaction. 56 (b) Under Statutes — (1) In General. The right to distrain as at common law does not exist in all the states of the Union, 57 and in many of them the matter is regulated by statute. 53 In those jurisdictions where a landowner is required to 49. Cory v. Little, 6 X. H. 213, 25 Am. Dec. 458; Humphrey v. Douglass, 10 Vt. 71, 33 Am. Dec. 177, 11 Vt. 22, 34 Am. Dec. 668. 50. Richardson v. Carr, 1 Harr. (Del.) 142, 25 Am. Dec. 65; Avery v. People, 11 111. App. 332; Carney v. Brome, 77 Hun (X. Y.) 583, 28 X. Y. Suppl. 1019, 60 X. Y. St. 453 ; Palmer v. Silverthorn, 32 Pa. St. 65. One who commits a trespass, by turning the cattle of another out of an inelosure on to the public lands, cannot be made liable to the owner for the loss of the cattle, caused by starvation for want of grass after they have thus been turned out of the inelosure, if the owner had been notified to take care of them. Story r. Robinson, 32 Cal. 205. 51. See infra, XII, B. 52. See infra, XII, A, 1, a, (i), (a). 53. Spray v. Ammerman, 66 111. 309; Car- ney r. Brome, 77 Hun (X. Y.) 583, 28 X. Y. Suppl. 1019, 60 X. Y. St. 453 : Smith v. Wal- dorf, 13 Hun (X. Y.) 127; Davis v. Camp- bell, 23 Vt. 236; Clark v. Adams, 18 Vt. 425, 46 Am. Dec. 161. 54. Knour v. Wagoner, 16 Ind. 414; Knott v. Digges, 6 Harr. & J. (Md.) 230; Harris v. Brummell, 74 Mo. App. 433; Gilson v. Fisk, 8 X. H. 404. 55. Knour v. Wagoner, 16 Ind. 414: Morse v. Glover, 68 X. H. 119, 40 Atl. 396; Roby r. Reed, 39 X. H. 461; Carruthers v. Hollis, 6 A. & E. 113, 35 E. C. L. 507. 56. Delaicare. — Richardson v. Carr, 1 Harr. (Del.) 142, 25 Am. Dec. 65. Florida. — Savannah, etc., R. Co. r. Geiger, 21 Fla. 669, 58 Am. Rep. 697. Georgia. — Bonner v. De Loach, 78 Ga. 50, 2 S. E. 546. Illinois. — Snap v. People, 19 111. 80, 68 Am. Dee. 582. Iowa. — Wagner v. Bissell, 3 Iowa 396. Kentucky. — Jarman v. Patterson, 7 T. B. Mon. (Ky.') 644, 647. Michigan. — Hamlin v. Mack, 33 Mich. 103. New York. — Cook v. Gregg, 46 X. Y. 439. Ohio. — Northcott v. Smith, 4 Ohio Cir. Ct. 565. England. — 3 Bl. Comm. 211; Bacon Abr. tit. Trover, D; Comyns Dig. tit. Droit, M, 2; Dyer 372&. Vol. n No right to distrain exists under an agree- ment whereby defendants, by an agreement under seal with one Staples, acquired a right of user in certain land for the purpose of pasturing their cattle, there being no de- mise, or right of distress, or anything in the agreement to make defendants tenants of Staples, although there was a covenant that Staples would not allow his own animals, or those of others, to enter upon the land in question. Graham v. Spettigue, 12 Ont. App. 261. But where plaintiff's cattle, having broken into defendant's lot and been im- pounded by him, the damages and costs were paid by plaintiff, who thereupon said to de- fendant that he should leave his cattle in his lot adjoining that of defendant, and if they got into the latter's lot again to send him word, and he would come and take care of them, and that he did not want them im- pounded again, to which defendant, though unintentionally, gave plaintiff to understand he assented; this conversation constituted no estoppel to prevent defendant from legally impounding the cattle afterward, nor any contract that he would not do so. Holden r. Torrev, 31 Vt. 690. 57. Cutts v. Hussey, 15 Me. 237; Eastman r. Rice, 14 Me. 419; Xorthcott v. Smith, 4 Ohio Cir. Ct. 565. See 2 Cent. Dig. tit. "Animals," § 390 et seq. 58. Maine. — Mosher v. Jewett, 59 Me. 453, 63 Me. 84; Cutts v. Hussey. 15 Me. 237. Massachusetts. — Conners v. Loker, 134 Mass. 510. New York.— Cook r. Gregg, 46 X. Y. 439; Boyce v. Perry, 26 Misc. (X. Y.) 355, 57 X. Y. Suppl. 214 ; Cowles i>. Balzer, 47 Barb. (N. Y.) 562. Pennsylvania. — Com. v. Fourteen Hogs, 10 Serg. & R. (Pa.) 393. Vermont.— Porter v. Aldrich, 39 Vt. 326; Harriman r. Fifield, 36 Vt. 341. Wisconsin. — Taylor v. Welbey, 36 Wis. 42. Statutes not derogatory of common law.— The right of distress damage feasant existed at common law and is not a creature of the statute, though legislation has been adopted to regulate its exercise so that it is inac- ANIMALS 401 fence against the cattle of others no right to distrain cattle on uninclosed lands exists, 59 such presence not being an actionable trespass, 60 and the right to distrain not existing where there is no liability to compensate for damage. 61 When the presence of cattle on uninclosed lands is actionable 62 the right to distrain on uninclosed lands exists also. 63 So, too, where one is bound, by prescription or otherwise, to repair a distinct part of a division fence, and animals lawfully on an adjoining close enter through defects in such fence, no right to distrain exists ; M though it does if the entry be through a portion which the owner of the cattle was bound to repair, 65 even though the balance of the fence is insufficient. 66 Since, however, one is bound, by prescription, agreement, or assignment under the statute, to maintain a fence against an adjoining close only against such cattle as are rightfully on that close, if the fence be not in fact made, the owner of either close, thus adjoining, may distrain the cattle escaping from the adjoining close, and not rightfully there. 67 (2) Power of Legislature to Authorize. The legislature has power to authorize cattle taken damage feasant to be impounded by a landowner and curate to speak of this remedy as something merely statutory and in derogation of the common-law rights of property. Hamlin v. Mack, 33 Mich. 103. But see Dent v. Ross, 52 Miss. 188, holding that the right is purely statutory and stricti juris. Statutes apply only to trespasses from highway. — The provision of the New York act of 1867 amending the act to prevent ani- mals from running at large upon the high- ways (Laws (1867), c. 814, § 2), which gives a remedy for injuries by cattle tres- passing, applies only to cattle trespassing upon premises from the highway and has no application to the case of a trespass by the cattle of another gaining access through a division fence to the lands of an adjoining owner. Jones v. Sheldon, 50 N. Y. 477. 59. Connecticut. — Wright v. Wright, 21 Conn. 329. Illinois.— Oil v. Rowley, 69 111. 469. Indiana. — Anderson v. Worley, 104 Ind. 165, 3 N. E. 817; Olark v. Stipp, 75 Ind. 114; Blizzard v. Walker, 32 Ind. 437. Iowa. — Syford v. Shriver, 61 Iowa 155, 16 N. W. 56 ; Wagner v. Bissell, 3 Iowa 396. Maine. — Cutts v. Hussey, 15 Me. 237. Mississippi. — Dent v. Ross, 52 Miss. 188 ; Vicksburg, etc., R. Co. v. Patton, 31 Miss. 156, 66 Am. Dec. 552; Dickson v. Parker, 3 How. (Miss.) 219, 34 Am. Dec. 78. Missouri. — Mackler v. Schuster, 68 Mo. App. 670; Storms v. White, 23 Mo. App. 31. Pennsylvania. — Irwin v. Mattox, 138 Pa. St. 466, 27 Wkly. Notes Cas. (Pa.) 382, 21 Atl. 209. Vermont.— Porter v. Aldrich, 39 Vt. 326. Canada. — Ives v. Hitchcock, Draper (U. C.) 247. But see McStoy v. Smith, 26 Ont. 508, 510, wherein Boyd, C, said : " The law laid down in Ives v'. Hitchcock does not appear applica- ble to the present time, because of the changes made in the terms of the statute as to impounding. At that time (1830) the statute limited the right to impound in the case of animals allowed to be at large to cases in which they broke through a lawful and sufficient fence. That clause in the stat- ute has now disappeared and there seems_ to be the right to impound cattle trespassing [26] and doing damage, but with this condition — that if it is found that the fence broken is not a lawful fence, then no damages can be obtained by the impounding, whatever may be done in an action of trespass. The law is by no means clear in the revised statute, but that is the best meaning I can gather from a consideration of Ont. Rev. Stat. c. 195, §§ 2, 3, 6, 20 and 21." 60. See supra, XI, B, 1, a, (n), (a). The word " inclosure," as used in the Wis- consin statute, means a tract of land sur- rounded by an actual fence, together with such fence, and does not include that part of a public highway of which the fee belongs to the owner of such adjoining inclosure. A by-law of a town prohibiting cattle from run- ning at large, and inflicting a pecuniary pen- alty upon the owner of cattle violating the law, confers no right upon the owner in fee of the land included in » highway in such town to distrain cattle grazing upon such highway. Taylor v. Welbey, 36 Wis. 42. 61. Wilhite v. Speakman, 79 Ala. 400 ; Oil v. Rowley, 69 111. 469; Dickson v. Parker, 3 How. (Miss.) 219, 34 Am. Dec. 78. 62. See supra, XI, B, 1, a, (n), (a). 6-3. Drew v. Spaulding, 45 N. H. 472; Mills v. Stark, 4 N. H. 512, 17 Am. Dec. 444 ; Davis v. Campbell, 23 Vt. 236, all of which cases were decided under statutes not requir- ing landowners to fence against highways. 64. Illinois. — Akers v. George, 61 111. 376. Iowa. — -Barrett v. Dolen, 71 Iowa 94, 32 N. W. 189. Maine. — Webber v. Closson, 35 Me. 26 ; Eastman v. Rice, 14 Me. 419. Massachusetts. — Minor v. Deland, 18 Pick. (Mass.) 266. Michigan. — Cox v. Chester, 77 Mich. 494, 43 N. W. 1028. New Hampshire. — York v. Davis, 11 N. H. 241. Vermont. — Mooney v. Maynard, 1 Vt. 470, 18 Am. Dec. 699. 65. Ladue v. Branch, 42 Vt. 574. 66. Hine v. Munson, 32 Conn. 219. 67. Little v. Lathrop, 5 Me. 356. Vol. II 402 ANIMALS detained until the damages and costs are paid, and to give such landowner a lien on the animals to secure such damages, and costs; 68 and a statute authorizing the sale of such animals if not redeemed after reasonable notice is a police regulation within the scope of governmental powers, the exercise of which may be delegated to a municipal or other corporation ; 69 but a statute authorizing a sale, without provision for any trial or hearing, has been held unconstitutional.™ (n) Who Mat Distrain. Only one in actual possession of the land tres- passed upon is justified in distraining, 71 although an agent or servant may distrain for, and at the direction of, such person. 72 (m) What Animals May JBe Distrained — (a) In General. While Blackstone lays down the rule that as everything which is distrained is presumed to be the property of the wrong-doer, it follows that such things wherein no man can have an absolute and valuable property — as dogs, cats, rabbits, and all animals ferce naturae — cannot be distrained, 73 it was held in a very early English case that greyhounds or ferrets, chasing and killing rabbits in a warren, might be distrained damage feasant.™ (b) Animals in Actual Care of Person. It is well established that a land- owner cannot distrain an animal while it is in the actual possession, and under the personal care, of another person, as such distraint would perpetually lead to breaches of the peace ; 75 but this is not true of dogs. 76 68. Rood v. MeCargar, 49 Cal. 117. The California statute of 1877-78, p. 176, § 3, is constitutional. Wigmore v. Buell, 122 Cal. 144, 54 Pac. 600. 69. Dillard v. Webb, 55 Ala. 468. 70. The New York act of 1862, c. 459, was held unconstitutional for this reason so far as it authorizes the taking up and selling of cattle found trespassing in a private in- closure. Rockwell v. Nearing, 35 N. Y. 302 [reversing Hart l: bearing, 44 Barb. (N. Y.) 472]. This act was amended by the New York act of 1867, which was designed to remedy the defects pointed out in the above decision, and, although the constitutionality of this latter act was at one time doubted (Leavitt v. Thompson, 56 Barb. (N. Y.) 542 1 McCon- nell v. Van Aerman, 56 Barb. (N. Y.) 534), its constitutionality has since been affirmed (Leavitt v. Thompson, 52 N. Y. 62; Cook v. Gregg, 46 N. Y. 439; Campbell v. Evans, 54 Barb. . (N. Y.) 566; Squares v. Campbell, 41 How. Pr. (N. Y.) 193; Fox v. Dunckel, 38 How. Pr. (N. Y.) 136). 71. Alabama. — Wilhite V. Speakman, 79 Ala. 400. Connecticut. — Herskell v. Bushnell, 37 Conn. 36, 9 Am. Rep. 299. Massachusetts. — Phillips v. Bristol, 131 Mass. 426. New York. — Orser v. Storms, 9 Cow. CN. Y.) 687, 18 Am. Dee. 543. South Carolina. — Holliday t". Holliday, 30 S. C. 613, 9 S. E. 104. Landlord and tenant in joint occupation. — Where A let his farm to B on shares, and both lived in the house on the farm, the oc- cupation of B as tenant did not exclude the occupation of A, and A, under the statute, could seize and take into his custody cattle trespassing upon the farm and was not bound to act jointly with B in seizing the cattle. Herskell v. Bushnell, 37 Conn. 36, 9 Am. Rep. 299. Vol. II Pending forcible entry and detainer pro- ceedings a landlord cannot enter upon the premises in the actual possession of his ten- ant for the purpose of seizing and removing animals of the tenant. Such an entry is a trespass even though the tenant is wrong- fully holding over. Wright v. Mahoney, 61 111. App. 125. One fencing government land with his own, as one inclosure, thereby violating the act of congress of Feb. 25, 1885, prohibiting the fencing of public land, cannot, by detaining cattle found upon his land within such in- closure. avail himself of the provisions of Utah Sess. Laws (1890), p. 82, authorizing the impounding of trespassing animals. Tay- lor v. Buford, 8 Utah 113, 29 Pac. 880. 72. Bearinger v. O'Hare, 26 Iowa 259; Barrows v. Fassett, 36 Vt. 625. Defendant, while at home on a visit to his father, impounded plaintiff's cattle on his father's land, but with the approbation of his father and with the assistance of a boy sent by the father for that purpose, he and his father having previously consulted about the expediency of such action. It was held that, in impounding the cattle, defendant acted in the capacity of a servant for his father and was entitled to the same immunity as his father would have been in his place. Bar- rows v. Fassett, 36 Vt. 625. 73. 3 Bl. Comm. 7. Trespassing chickens could be impounded at common law. State v. Neal, 120 N. C. 613, 27 S. E. 81, 58 Am. St. Rep. 810. 74. Y. B. 1 Edw. II, 18, pi. 2 [cited in Boden v. Roscoe, [1894] 1 Q. B. 608] ; See also Bunch v. Kennington, 1 Q. B. 679, 41 E. C. L. 726. 75. Field v. Adames, 12 A. & E. 649, 40 E. C. L. 324; Storey v. Robinson, 6 T. R. 138. But see, contra, 3 Bl. Comm. 7. 76. Bunch v. Kennington, 1 Q. B. 679, 41 E. C. L. 726. ANIMALS 403 (iv) What Damage Justifies Distress. The right to distrain cattle dam- age feasant does not depend upon the particular kind of injury done, or the place where it is committed ; " it is not confined to damage to the freehold, but extends to all kinds of damage done by such animals while trespassing, including injuries to personal property. 78 One cannot rightfully impound, however, for damages done on any other occasion than that at which the catttle are taken by him to be impounded ; 79 and some actual damage must be shown to justify the impounding of cattle taken damage feasant,® although it seems that very slight damage is sufficient. 81 (v) Proceedings by Distrainer — (a) In General. One proceeding to distrain trespassing animals must at least substantially ffi comply with the provis- ions of the statute, even if he fails to do so fully and entirely. 83 (b) Must Take Animals in Act. The distrainer must seize the animals in the act of doing damage, 84 for, if they escape, or are driven out of the land, though after view, he cannot distrain them. 85 "Where, however, at the precise moment when taken they are trespassing on a different part of the land from that upon which they were first discovered, both reason and authority warrant the holding that they are still damage feasant and liable to be impounded. 86 (o) Animals — How Kept — (1) In General. The duty devolves upon the distrainer to feed, water, and care for the stock taken up by him ; 87 but in the performance of such duty he is required to exercise only such care as would be exercised by a person of ordinary prudence under the circumstances, 88 and, if he impounds the stock in a town pound, he is not liable for any injury which they may receive from cattle confined therein. 89 (2) Where Kept. When cattle are distrained the statutes contemplate their strict confinement, 90 and the mere restraining of cattle taken damage feasant, 77. Hale v. Clark, 19 Wend. (N. Y.) 498. Breaking fences. — The right of distress of beasts, for breaking fences, does not exist in Missouri, a remedy for such cases being ex- pressly given by statute by suit before a jus- tice of the peace. Crocker v. Mann, 3 Mo. 472, 26 Am. Dee. 684. But see Pettit v. May, 34 Wis. 666, holding that where plaintiff's horse, being in the street, was destroying the fence _ surrounding defendant's inelosure, he was liable to be distrained as " doing damage within the inolosure," under Wis. Rev. Stat, c. 51, § 1. 78. Lyman v. Gipson, 18 Pick. (Mass.) 422; Boden v. Roscoe, [1894] 1 Q. B. 608; Y. B. 1 Edw. II, 18, pi. 2. 79. New Hampshire. — Melntire v. Mar- den, 9 N. H. 288. New Jersey. — Warne v. Oberly, 50 N. J. L. 108, 11 Atl. 146. Vermont. — Holden v. Torrey, 31 Vt. 690. Wisconsin. — Warring v. Cripps, 23 Wis. 460. Canada. — Graham v. Spettigue, 12 Ont. App. 261; Buist v. McCombe, 8 Ont. App. 598. 80. Dunton v. Reed, 17 Me. 178 ; Osgood v. Green, 33 N. H. 318 ; Dudley v. McKenzie, 54 Vt. 394. 81. MeConnell v. Cate, (N. H. 1900) 47 Atl. 266. See also Pierce v. Hosmer, 66 Barb. (N. Y.) 345, holding that some damage is al- ways presumed from a trespass on land. 82. Sloan v. Bain, 47 Nebr. 914, 66 N. W. 1013; Hanseom v. Burmood, 35 Nebr.. 504, 53 N. W. 371; Deirks v. Wielage, 18 Nebr. 176, 24 N. W. 728; Bucher v. Wagoner, 13 Nebr. 424, 14 N. W. 160, holding that otherwise he will acquire no lien on the stock taken up. Effect of unnecessary acts. — Entering cat- tle upon the town-book and notifying a jus- tice, as required in the statute relating to estrays, are unnecessary acts when cattle are taken damage feasant, and do not convert the latter proceedings into the former, nor estop one from claiming that he sought the statu- tory remedy of distraining the cattle. Blair v. Small, 55 Mich. 126, 20 N. W. 821. 83. Morse v. Reed, 28 Me. 481; Irwin v. Mattox, 138 Pa. St. 466, 27 Wkly. Notes Cas. (Pa.) 382, 21 Atl. 209; Fitzwater v. Stout, 16 Pa. St. 22, holding that if he fail to do so he will be deemed a trespasser ab initio. See also Strauser v. Kosier, 58 Pa. St. 496; Ladue v. Branch, 42 Vt. 574. 84. Harriman v. Fifield, 36 Vt. 341; Lin- don v. Hooper, Cowp. 414. 85. Ohio. — Northcott v. Smith, 4 Ohio Cir. Ct. 565. Vermont.— Holden v. Torrey, 31 Vt. 690. Wisconsin. — Warring v. Cripps, 23 Wis. 460. • England. — Clement v. Milner, 3 Esp. 95 ; Lindon v. Hooper, Cowp. 414. Canada. — Mclntyre v. Lockridge, 28 U. C. Q. B. 204 ; Graham v. Spettigue, 12 Ont. App. 261. 86. McKeen v. Converse, 68 N. H. 173, 39 Atl. 435. 87. Richardson v. Halstead, 44 Nebr. 606, 62 N. W. 1077. 88. Richardson v. Halstead, 44 Nebr. 606, 62 N. W. 1077. 89. Brightman v. Grinnell, 9 Pick. (Mass.) 14. 90. Harriman v. Fifield, 36 Vt. 341, hold- ing that animals were not sufficiently im- Vol. II 404 ANIMALS without placing them in a pound, does not constitute an impounding, 91 even though there is no usable public pound in the town where the cattle are taken up. 92 "Where there is a public pound the animals should be confined therein, 93 and should be driven there in a reasonable time after they are taken up ; w but the taker-up need not personally drive them to the pound or deliver them to the pound-keeper, but may employ others to perform that service. 95 "Where there is no pound or pound-keeper in the town, a person may legally detain the animals upon his own premises, 96 or in the inclosure of another person, 97 and, if there be no pound, they may be kept in the barn of the pound-keeper 98 or of a field-driver. 99 (d) Notice of Taking Up — (1) To Ownek — - (a) Necessity op. In the case of a known owner, 1 one who takes up an animal damage feasant must give notice thereof 2 to the owner 3 within the time prescribed by statute, 4 or within a reason- able time, 5 unless such notice is waived. 6 Neglect to give notice works a forfeit- ure of all damages, and entitles the owner to immediate possession of the animal, without recompense to the party injured, 7 and, under some circumstances, such neglect may render the impounder a trespasser ab initio* or subject him to a penalty. 9 (b) Requisites or — aa. Whether Written or Oral. Even where the statute prescribes that the notice which must be given shall be given in writing 10 pounded when they were allowed to run at large in fields and pastures, and to gather their own living for themselves. 91. Conners v. Loker, 134 Mass. 510; How- ard r. Bartlett, 70 Vt. 314, 40 Atl. 825. 92. Howard v. Bartlett, 70 Vt. 314, 40 Atl. 825. 93. Mosher v. Jewett, 59 Me. 453, 63 Me. 84. 94. Drew i\ Spaulding, 45 N. H. 472; Moore v. Bobbins, 7 Vt. 363. In New York the distrainer is not entitled to impound the cattle in a public pound until after the damages have been ascertained by fence-viewers, according to the directions of the statute. Merritt v. O'Neil, 13 Johns (N. Y.) 477; Hopkins v. Hopkins, 10 Johns. (N. Y.) 369; Sackrider v. McDonald, 10 Johns. (N. Y.) 253; Pratt r. Petrie, 2 Johns. (N. Y.) 191. 95. Eastman v. Hills, 18 Me. 247. 96. Mosher v. Jewett, 63 Me. 84, 59 Me. 453; Hamlin v. Mack, 33 Mich. 103. 97. Biker v. Hooper, 35 Vt. 457, 82 Am. Dec. 646. 98. Biker v. Hooper, 35 Vt. 457, 82 Am. Dec. 646. 99. Pierce v. 415. 1. Haffner v. Josselyn, 17 Pick. (Mass.) Barnard, 123 Ind. 429. 24 N. E. 152; Bucher v. Wagoner, 13 Nebr. 424, 14 X. W. 160; Vandamayer v. Wood, 1 Ashm. (Pa.) 203. 2. Indiana. — Haffner v. Barnard, 123 Ind. 429, 24 X. E. 152. Nebraska. — Hanscom v. Burmood, 35 Nebr. 504, 53 N. W. 371; Bucher v. Wagoner, 13 Nebr. 424, 14 X. W. 160. New York.— Cook v. Gregg, 46 ST. Y. 439. Ohio.— Xorthcott v. Smith, 4 Ohio Cir. Ct. 565. Pennsylvania. — Vandamaver v. Wood, 1 Ashm. (Pa.) 203. 3. Notice to person in charge. — Where the statutory notice is given to the person who Vol. II has charge of the animal, as well as to the one having charge of the farm on which it is usually kept, it is sufficient, under Iowa Code, §'§ 1543, 1544, to give the township trustees jurisdiction to appraise the damages done by the animal, though the owner has not been notified. Lyons v. Van Gorder, 77 Iowa 600, 42 N. W. 500. 4. Haffner v. Barnard, 123 Ind. 429, 24 N. E. 152 ; Harriman v. Fifield, 36 Vt. 341 ; Moore v. Bobbins, 7 Vt. 363. 5. Hanscom v. Burmood, 35 Nebr. 504, 53 N. W. 371 ; Haggard v. Wallen, 6 Nebr. 271. The question of reasonableness of the no- tice is generally one of fact, depending upon the circumstances of the particular case. Sloan r. Bain, 47 Nebr. 914, 66 N. W. 1013. 6. Hanscom v. Burmood, 35 Nebr. 504, 53 N. W. 371; Shroaf v. Allen, 12 Nebr. 109, 10 N. W. 551. 7. Haffner v. Barnard, 123 Ind. 429, 24 N. E. 152; Vandamayer v. Wood, 1 Ashm. (Pa.) 203. 8. Porter v. Aldrich, 39 Vt. 326. But see Young v. Band, 18 N. H. 569, and Kimball v. Adams, 3 N. H. 182, holding that an omis- sion of one who has impounded a beast dam- age feasant to give the notice required is a non-feasance which does not make him a trespasser ab initio. 9. The Vermont statute allows fifty cents for every twenty-four hours' neglect to give notice of the impounding of beasts, and where defendant impounded eighty sheep belonging to plaintiff for three days, without giving him notice, it was held that plaintiff could recover only fifty cents for each day, and not fifty cents for each one of the eighty sheep each day. Dudley r. McKenzie, 54 Vt. 394. 10. Written notice is required by How. Anno. Stat. Mich. § 8362, which plainly im- plies that a written notice shall be given by the person impounding beasts to the owner or person in charge of them, if known and hv ANIMALS 405 the necessity for such written notice may be waived by the person entitled thereto. 11 bb. Contents. The notice should contain a statement of the trespass and the amount of damages assessed 12 or claimed ; 18 should describe all of the animals impounded; 14 and should name a person selected by the impounder as arbitrator in case the owner deems the amount claimed as damages to be excessive. 15 So, too, if the notice is to appoint appraisers, it should be so specified. 16 Defects in the notice may be waived. 17 (2) To Pound-Keeper — (a) Necessity of. "Where the person taking up and impounding cattle is required to give notice to, or leave a certificate with, the pound-keeper, a failure so to do will render him liable as a trespasser ab initio.™ It is sufficient, however, that such notice or certificate is left with the pound- keeper within a reasonable time after the impounding. 19 (b) Requisites op. The notice or certificate left with the pound-keeper should state the town in which the impounder resides, and the town in which the inclosure wherein the damage has been done is situated ; w should state the cause of the impounding, 21 and the sum that is demanded. 22 Such certificate should be the personal act of the impounder, or, if he employs the hand of another to make it, it should be done in the name of the party impounding. 23 (3) Advertisement. Where an advertisement of the impounding is required, it should state the time of impounding. 24 Such advertising or posting is not required in cases where personal notice is given. 25 (e) Appraisement of Damages — (1) Peovisions foe. At common law, where the amount of compensation was not agreed upon, disinterested appraisers were chosen to assess it, 26 and provision is made by statute for the appointment of appraisers to ascertain the amount of damage done, 27 or for the appointment of arbitrators for such purpose ; M and in some jurisdictions provision is made for ing within six miles of the place of impound- ing. Jones v. Dashner, 89 Mich. 246, 50 N. W. 849. By leaving " word in writing," as the stat- ute expresses it, the impounder is protested, whether the word eomes to the knowledge of the owner or not. By taking any other course he must not only be sure that the notice is given and received, but also that he can prove it by satisfactory evidence when the fact is put in issue. Moore v. Robfeins, 7 Vt. 363. See also Hooper v. Kittredge, 16 Vt. 677. 11. Parks v. Kerstetter, 113 Mich. 529, 71 N. W. 865. 12. Haffner v. Barnard, 123 Ind. 429, 24 N. E. 152. 13. Bucher v. Wagoner, 13 Nebr. 424, 14 N. W. 160. Claiming additional damages after notice. — There is do provision in the statute for adding, after the service of notice, to the damages claimed. Allen v. Van Ostrand, 19 Nebr. 578, 27 N. W. 642. 14. Brown v. Smith, 1 N. H. 36, holding that any not so described may be replevied. Describing as " estray." — Where the im- pounder sent to the owner of the horse » notice containing these words : " I have taken up as an estray, doing damage in my inclo- sure, a horse belonging to you, and my dam- ages are six dollars," it was held that a sale of the horse in the manner prescribed by statute, in cases of animals taken up dam- age feasant, was nevertheless valid, the word "estray" not being used technically in such notice. Lyman v. Gripson, 18 Pick. (Mass.) 4i2Jfia 15. Bucher v. Wagoner, 13 Nebr. 424, 14 N. W. 160. 16. Harriman v. Fifield, 36 Vt. 341; Moore v. Robbins, 7 Vt. 363. 17. Smith v. Ladd, Smith (N. H.) 244. 18. Eastman v. Rice, 14 Me. 419; Merrick v. Work, 10 Allen (Mass.) 544. 19. Rollins v. Jones, 39 N. H. 475. See also Mellen v. Moody, 23 Vt. 674, holding that, if the damages are not ascertained within forty-eight hours, but are subsequently ascertained, and a certificate of their amount is furnished to the pound-keeper, the owner of the beasts cannot sustain replevin against the pound-keeper until he has first paid the damages, together with all fees and costs. 20. Morse v. Reed, 28 Me. 481. 21. Newhouse v. Hatch, 126 Mass. 364; Sherman v. Braman, 13 Mete. (Mass.) 407. 22. Sherman v. Braman, 13 Mete. (Mass.) 407. 23. Eastman v. Hills, 18 Me. 247, holding that the certificate determines who is to be regarded as the impounder, and that the ac- tion of replevin may be rightly brought against the person who signs such certificate in his own name. See also Hills v. Rioe, 17i Me. 187. 24. Morse v. Reed, 28 Me. 481. 25. Haffner v. Barnard, 123 Ind. 429, 24 N. E. 152. 26. Northeott v. Smith, 4 Ohio Cir. Ct. 565. 27. Mosher v. Jewett, 59 Me. 453, 63 Me. 84 ; Cook v. Gregg, 46 N. Y. 439 ; Armbruster v. Wilson, 43 Hun (N. Y.) 261. 28. The object of the provision for arbitra- tion is to afford a, speedy and inexpensive Vol TI 406 ANIMALS complaint to a justice of the peace, and a hearing before him for the assessment of such damages. 29 (2) Application fok. The application for the appointment of appraisers must be made within the time prescribed by statute, 30 and such application need not be joined with an application for the sale or appraisal of the animal, which may be done afterward by separate application. 31 (3) Who May Act as Appraiser. The nephew of a distrainer is not within the meaning of the statute a disinterested person, to whom a warrant may issue to appraise beasts taken damage feasant.® (4) Notice to Owner. The owner should receive notice of the time, place, and purpose of the appraisement ; M but a verbal notice of the appraiser's meeting is sufficient. 34 N"o notice is required of the time and place when the appraiser's report will be delivered to the justice. 35 Failure to give notice of the appoint- ment of appraisers does not render the distrainer a trespasser ah initio.® (5) Requisites of Justice's Summons. The summons, on complaint to a jus- tice for damages by trespassing animals, should show upon its face that the animals have been impounded by plaintiff, that there was a disagreement between plain- tiff and defendant as to the amount of damages claimed, and as to the amount claimed for feeding and caring for the animals. 37 (6) Requisites and Sufficiency of Appraisement. The appraisement must not include damages done at some previous time, 38 or damages which are not visi- ble to the appraisers and cannot be determined without the intervention of proof by witnesses ; m but it need not be limited to the amount of damages claimed by the landowner in the notice given by him to the owner of the cattle. 40 All of the appraisers must act, and appraisement by two of three appraisers is insuffi- cient. 41 Failure of the appraisers to take the prescribed oath before issuing notice of their sitting may be waived by the appearance of the party, without objecting, after notice of such omission. 42 (7) Conclusiveness of Appraisement. The report of appraisers, when made according to the provisions of the statute, and without fraud, is conclusive as to the trespass and the quantum of damages. 43 (vi) Right of Distrainer — (a) To Zien — (1) In General. The right mode of ascertaining the damages sustained 29. Delk v. Pickens, 84 Ga. 76, 10 S. E. by trespass of stock upon cultivated lands. 596. Haggard v. Wallen, 6 Nebr. 271. 30. Fettit v. May, 34 Wis. 666. The authority of arbitrators appointed un- 31. Drew v. Spaulding, 45 N. H. 472. der the herd law is merely to appraise the 32. Hasceig v. Tripp, 20 Mich. 216. damages and costs sustained by the land- 33. Bair v. Diller, 18 Pa. Co. Ct. 521; owner, and, therefore, any right of action Shugar v. Meily, 4 Pa. Co. Ct. 77. which may accrue to the owner of the stock 34. Healy v. Jordan, 103 Iowa 735, 72 by reason of the former's negligence in keep- N. W. 495. ing the same is not barred by the fact that 35. Osgood v. Green, 33 X. H. 318. the statutory arbitration was had, and dam- 36. Keith v. Bradford, 39 Vt. 34. _ ages assessed and paid. Richardson v. Hal- 37. Delk v. Pickens, 84 Ga. 76, 10 S. E. stead, 44 Nebr. 606, 62 N. W. 1077. 596. Failure to appoint arbitrator. — Where the For form of summons on complaint to jus- taker-up of trespassing stock refuses, upon tice of the peace for damages from trespass- the application of the owner so to do, to ap- ing animals see Delk v. Pickens, 84 Ga. 76, point an arbitrator for the purpose of ascer- 10 S. E. 596. taining the damage done, after an arbitrator 38. Warring v. Cripps, 23 Wis. 460. has been selected upon the part of the owner, 39. Warn* v. Oberly, 50 N. J. L. 108, 11 but demands the payment of a specific sum Atl. 146. of money, he thereby loses his right to the 40. Lyman v. Gipson, 18 Pick. (Mass.) possession of the stock, and the owner may 422. maintain replevin therefor. Deirks v. Wiel- 41. Barrett v. Dolen, 71 Iowa 94, 32 N. W. age, 18 Nebr. 176, 24 N. W. 728. If the cat- 189: Drew v. Spaulding, 45 N. H. 472. tie-owner fail for twenty-four hours to ap- 42. Drew r. Spaulding, 45 N. H. 472. point an arbitrator the amount claimed must 43. Smith r. Ladd, Smith (N. H.) 244; be deemed satisfactory to him. Allen v. Van Harriman r. Fifield, 36 Vt. 341. See also Ostrand, 19 Nebr. 578, 27 N. W. 642. Nelson r. Stewart, 6 X. C. 298. Vol. II ANIMALS 407 to distrain until satisfaction made 44 extends only to the landowner's damages and expenses, 45 and, upon a recaption after a pound breach, the costs are the same as upon the original impounding. 48 (2) How Enforced. Under some statutes the animals may be sold, under certain conditions, for the payment of the distrainer's claim, 47 while other statutes provide for an action in rem against the animals when their owner is unknown. 48 Before a party impounding cattle can sell the same at auction he must protect himself by a legal warrant of sale, 49 and the magistrate must have jurisdiction and authority to issue the same. 50 The sale may be invalidated by proof of an unauthorized appraisement of damages done at a previous time. 51 (3) How waived oe Extinguished. The distrainer's lien may be waived by the release of the stock, 52 or by a purchase of the cattle by the distrainer at a sale void for want of the required notice, 53 and is instantly extinguished by a tender of the amount of damages done. 54 (b) To Use Animal. The party distraining cannot use the distress unless to preserve it, as by milking a cow. 55 (vn) Remedies foe Wrongful Distress — (a) Peaceable Recaption. Where one without legal authority has distrained another's cattle as damage feasant, the latter may peaceably reclaim them, 56 but he cannot lawfully fight himself into legal possession. 57 (b) Replevin — (1) Right to Maintain. "Where the original taking was unlawful, or the subsequent detention is unlawful by reason of failure to comply with the statutes, replevin is an appropriate remedy for the recovery of the animals distrained ; w and, where the statute allows a writ of replevin, and provides for a 44. See supra, XI, B, 2, c, (i), (a). 45. Mosher v. Jewett, 63 Me. 84, 59 Me. 453; Phillips v. Bristol, 131 Mass. 426; Har- riman v. Fifield, 36 Vt. 341. Where a landowner makes claim for dam- ages, but none for expenses, and refuses to surrender possession to the owner solely be- cause the latter declines to pay the claim made for damages, and the former thereafter brings suit for the damages, in whioh he fails to recover anything, he is not entitled to any 'compensation for beeping the stock pending the suit for damages. Hamil v. Cox, 90 Ga. 54, 16 S. E. 346. 46. Bills v. Vose, 27 N. H. 212. 47. Miller v. Dale, 72 Iowa 470, 34 N. W. 214; Anderson v. Locke, 64 Miss. 283, 1 So. 251 ; Cook v. Gregg, 46 N. Y. 439 ; Harriman v. Fifield, 36 Vt. 341. 48. Hanley v. Sixteen Horses, etc., 97 Cal. 182, 32 Pac. 10 [followed in Hilton v. Hanly, (CaL 1893) 32 Pac. 11]. Where a trespass is committed by the ani- mals of several persons, those of one person cannot be sold to pay the damages caused by animals of others, that one person not having any control over them, and not having con- tributed to the cause of their trespassing, and no authority for such sale being given by the California act of March 7, 1878, concerning trespassing of animals. Dooley v. Seventeen Thousand and Five Hundred Head of Sheep, (Cal. 1894) 35 Pac. 1011. 49. Cate v. Cate, 44 N. H. 211. Mere delay by the party distraining to ob- tain an order «f sale does not make him a wrong-doer ah initio. Drew v. Spaulding, 45 N. H. 472. 50. To give jurisdiction to the magistrate the party responding is bound to show that the prior proceedings of himself and the pound-keeper have been regular, and in con- formity with the law. Cate v. Cate, 44 N. H. 211. In order to give a justice jurisdiction of an application to sell animals, seized, under N. Y. Laws (1862), u. 459, as amended by N. Y. Laws (1867), e. 814, while trespassing upon the lands of the applicant, the com- plaint must allege that the animals escaped upon the land from the highway, and it is improper to allow the complaint to be amended by the insertion of this allegation after de- fendant has answered, and the case has been called for trial. Coles v. Burns, 21 Hun (N. Y.) 246. 51. Warring v. Cripps, 23 Wis. 460. 52. Dunbar v. De Boer, 44 111. App. 615. 53. Chase v. Putnam, 117 Cal. 364, 49 Pac. 204. 54. MePherson v. James, 69 111. App. 337 ; Leavitt v. Thompson, 52 N. Y. 62. 55. Com. v. Fourteen Hogs, 10 Serg. & R. (Pa.) 393; Bagshawe v. Goward, Cro. Jac. 147. 56. Taylor v. Welbey, 36 Wis. 42, holding that, even if he reclaim them forcibly, the distrainer cannot maintain replevin against him. 57. Bowman v. Brown, 55 Vt. 184. When a person is engaged in a lawful at- tempt to impound cattle he has the right to defend his possession of them for the purpose for which he has them in charge, and to the same extent that a sheriff has to defend the possession of property taken by him on legal process. Barrows v. Fassett, 36 Vt. 625. 58. Indiana. — Clark v. Stipp, 75 Ind. 114. Kansas. — Johns v. Head, 41 Kan. 282, 21 Pac. 236. Vol. II 408 ANIMALS special proceeding therein, replevin in any other manner than is therein provided will not lie. 59 (2) Time to Commence Suit. A statute which requires that the owner of beasts impounded shall replevy or redeem them within forty-eight hours after he shall have notice of the impounding must be construed as fixing that limit, if the damages can be ascertained within that time ; and, if they cannot, the statute requires that the owner shall replevy, or redeem, as soon as they are ascertained. 6 " (3) Parties. The statute in regard to the replevying of beasts distrained does not contemplate that the writ shall be brought against the pound-keeper, but against the impounder, although it may be brought against the former if his act is wrongful. 61 (4) Jurisdiction. Some statutes give to justices of the peace jurisdiction in replevin for beasts distrained. 63 (5) Pleading — (a) Avowry. In replevin for beasts impounded defendant can justify only as at common law, under an avowry setting forth the facts relied upon. 63 Such avowry need not state the manner in which notice was given to the owner of the cattle, 64 nor need it contain any specification of defendant's title further than to describe the locus in quo as his inclosure ; 65 if the avowry fail to give a sufficiently clear description of the premises, such defect will be waived by plaintiff admitting that the cattle were taken within the premises mentioned, and taking issue upon the sufficiency of a fence. 66 Where fences are required the premises should be described as an inclosure, and not as a close. 67 (b) Plea in Bab. Where plaintiff pleads, in bar to the avowry, that defend- ant refused to give up the cattle unless plaintiff paid the amount of a void appraisal and all costs, he should further aver a demand for the cattle, accom- panied with a tender of the legal charges and the expenses of impounding them. 68 A plea that the cattle escaped from a, public highway into the locus in quo through a defect of fences is fatally defective unless it aver that the cattle were passing by on the highway. 69 A plea that the animal, at the time of the trespass, was in the actual possession and under the personal care of plaintiff need not aver any actual danger of a breach of the peace. 70 (6) Evidence — (a) Burden of Proof. Where the statute makes it the duty of county commissioners to build and keep in repair the fence around a certain territory, the presumption is that the fence is in good order, and the burden of showing the contrary is on the party alleging it. 71 (b) Admissibility. Evidence as to conversation and dealings between plain- tiff and the distrainer are admissible to show the latter's course with refer- ence to consenting or refusing to give up the cattle. ra It is error t"o exclude Michigan. — Cox v. Chester, 77 Mich. 494, 65. Mclntire v. Marden, 9 N. H. 288. 43 N. W. 1028. 66. Loomis v. Tyler, 4 Day (Conn.) 141. Mississippi. — Dent v. Ross, 52 Miss. 188. 67. Porter v. Aldrich, 39 Vt. 326. New Hampshire. — Dame v. Dame, 43 N. H. 68. Keith v. Bradford, 39 Vt. 34. 37; Osgood v. Green, 33 N. H. 318; York v. 69. Dovaston v. Payne, 2 H. Bl. 527. Davis, 11 N. H. 241; Kimball v. Adams, 3 70. Field v. Adames, 12 A. & E. 649, 40 N. H. 182 ; Brown v. Smith, 1 N. H. 36. E. C. L. 324. New York.— Cook v. Gregg, 46 N. Y. 439; 71. Coor v. Rogers, 97 N. C. 143, 1 S. E. Hopkins v. Hopkins, 10 Johns, (N. Y.) 369; 613. Leavitt v. Thompson, 56 Barb. (N. Y.) 542. 72. Toomey v. Woodruff, 50 Mich. 31, 14 Vermont. — Ladue v. Branch, 42 Vt. 574. N. W. 689. England. — Lindon v. Hooper, Cowp. 414. Action against purchaser. — Where a horse 59. Cox v. Chester, 77 Mich. 494, 43 N. W. was impounded as damage feasant by the 1 028 ; Campau v. Konan, 39 Mich. 362 ; John- owner of the land, and subsequently sold at son v. Wing, 3 Mich. 163. See also Hamlin auction, in due form of law, for the indemni- v. Mack, 33 Mich. 103. fication of such landowner, it was held, in an 60. Mellen v. Moody, 23 Vt. 674. action of replevin brought by the original 61. Melien v. Moody, 23 Vt. 674. owner of the horse against the purchaser, 62. Pistorius v. Swarthout, 67 Mich. 186, that the declarations of the owner of the land, 34 N. W. 547. offered in evidence to show that the impound- 63. Howard v. Black, 49 Vt. 9. ing was illegal, were not admissible, espe- 64. Keith v. Bradford, 39 Vt. 34. daily declarations such as were made after Vol. II ANIMALS 409 evidence offered by plaintiffs as to the actual amount of damages sustained by the landowner by reason of the trespass. 73 Evidence offered by a landowner to prove that, although the inclosure was not such as good husbandmen generally keep, yet it was such as was kept in the locality wherein the land was situated, to avoid the spring freshets, is not admissible. 74 (7) Instructions. The right of a landowner to distrain cattle depends upon the circumstances of the case, and an instruction which assumes the existence of such a right is erroneous. 75 (8) Judgment. Plaintiff, if successful, can recover only the loss suffered from being deprived of the use of his property during the time of detention. 76 If unsuccessful, the distrained property may be remanded to the distrainer, 77 who may have an assessment covering every claim arising out of the distress and dam- ages done him by the beasts distrained. 78 (c) Payment of Damages and Action against Distrainer. Where the owner of cattle does not choose to replevy, but is desirous of having his cattle immedi- ately redelivered, he may make amends, and then sue the distrainer in trespass for taking his cattle, particularly charging the money so paid by way of amends as an aggravation of the damage occasioned by the trespass. 79 d. To Maintain Trespass — (i) In General. One whose lands have been injured by the trespasses of cattle or animals belonging to another may maintain an action of trespass therefor. 80 (n) Persons Liable — (a) Generally — (1) Person Having Custody. One who has the use, care, and control of cattle, although not the absolute owner, is liable for their trespasses, 81 even though such person be a gratuitous bailee. 83 The owner, when his cattle are so in the custody of a third person, is not liable. 83 Neither is one liable in trespass for damages done by cattle of another, 84 unless done by the former's agency. 85 the sale. Lyman v. Gipson, 18 Pick. (Mass.) 422. 73. Gilbert v. Stephens, 6 Okla. 673, 55 Pac. 1070. 74. Blizzard v. Walker, 32 Ind. 437. 75. Ruter v. Foy, 46 Iowa 132. 76. Hill v. Ginn, (Del. 1899) 43 Atl. 608. 77. Syford v. Shriver, 61 Iowa 155, 16 N. W. 56. 78. Sterner v. Hodgson, 63 Mich. 419, 30 ST. W. 77; Marx v. Woodruff, 50 Mich. 361, 15 N. W. 510; Holden v. Torrey, 31 Vt. 690. 79. Linden v. Hooper, Cowp. 414, holding that an action for money had and received would not lie to recover back money paid for the release of cattle damage feasant, though the distress was wrongful. 80. Alabama. — Gresham v. Taylor, 51 Ala. 505. Delaware. — Richardson v. Carr, 1 Harr. (Del.) 142, 25 Am. Dee. 65. Florida. — Savannah, etc., R. Co. v. Geiger, 21 Fla. 669, 58 Am. Rep. 697. Georgia. — Bonner v. De Loach, 78 Ga. 50, 2 S. E. 546. Iowa. — Wagner v. Bissell, 3 Iowa 396. Ohio.— O'Neal v. Blessing, 34 Ohio St. 33. England. — 3 Bl. Comm. 211. Trespass — When not a proper remedy. — Trespass is not the proper remedy to re- cover damages for injury done to plaintiff's crops, by reason of the horses and mules of defendant being breachy and entering plain- tiff's fields, and thereby letting in others not owned by him, defendant not being liable, in that form of action, for injury occasioned by the stock not his own, unless they were, at the time, under his management and control. Durham v. Goodwin, 54 111. 469. 81. California. — Faber v. Cathrin, (Cal. 1884) 2 Pac. 879. Connecticut. — Smith v. Jaques, 6 Conn. 530. Illinois. — Ozburn v. Adams, 70 111. 291; Eck v. Hocker, 75 111. App. 641. Nebraska. — Laflin v. Svoboda, 37 Nebr. 368, 55 N. W. 1049. New Hampshire. — Kennett v. Durgin, 59 N. H. 560; Noyes v. Colby, 30 N. H. 143; Tewksbury v. Bucklin, 7 N. H. 518. Vermont. — Moulton v. Moore, 56 Vt. 700. Where a stranger turns out defendant's cow into the highway, whence it strays on to plaintiff's premises, trespass will lie against the owner of the cow. Noyes v. Colby, 30 N. H. 143. 82. Laflin v. Svoboda, 37 Nebr. 368, 55 N. W. 1049. 83. Eck v. Hocker, 75 111. App. 641; At- water v. Lowe, 39 Hun (N. Y.) 150 [follow- ing Van Slyek v. Snell, 6 Lans. (N. Y.) 299]. 84. Illinois. — Durham v. Goodwin, 54 111. 469. Indiana. — Cook v. Morea, 33 Ind. 497. Iowa. — Little v. McGuire, 43 Iowa 447, 38 Iowa 560. Kentucky. — Crawford v. Hughes, 3 J. J. Marsh. (Ky.) 433. Massachusetts. — Pool v. Alger, 11 Gray (Mass.) 489, 71 Am. Dec. 726. 85. Crawford v. Hughes, 3 J. J. Marsh. (Ky.) 433. Vol. II 410 ANIMALS (2) Husband foe Wife. A husband is liable for the trespasses of his wife's cattle when he has the separate custody and control of them. 86 (3) Persons Bound to Maintain Gates in Road. It is the duty of persons for whose accommodation a road subject to gates is laid to maintain such gates ; for a neglect to do so, such persons, and not the town, are liable for injuries caused by cattle escaping upon plaintiff's land from the land adjoining, provided the cattle were rightfully on such adjoining land. 87 (b) Jointly. A joint action for trespass and damage by stock cannot be main- tained, ordinarily, against the several owners of /the stock ; * but where the cattle, though owned severally, are under the joint control of all the owners, a joint liability exists. 89 (in) Action — (a) Jurisdiction. An action before a justice of the peace, to recover damages caused by defendant's stock breaking through a fence and destroying plaintiff's crops growing on lands of which he was a tenant in posses- sion, is an action of trespass to real estate within the meaning of a statute which limits the jurisdiction of justices to cases in which the damages claimed do not exceed one hundred dollars. 90 (b) Defenses — (1) Agreement of Plaintiff to Pasture. In an action for trespass by defendant's cattle in plaintiff's garden and oat-field, plaintiff's existing agreement to pasture said cattle is no defense unless it appear that the cattle strayed into the garden and field through some fault of plaintiff. 91 ' (2) Agreement with Third Person to Keep Fence in Repair. It is no protection to defendant that he had made a bargain with some third person, in no way connected with plaintiff, to keep the fence in good repair for the pur- pose of restraining the cattle. 92 (3) By-Law Authorizing Animals at Large. A by-law authorizing certain animals to run at large upon the highways and common lands of the town is no excuse for suffering the animals to break through plaintiff's fence and depasture his meadow. 93 (4) Contributory Negligence. Plaintiff's failure to use ordinary care and prudence to avoid the injury may bar the action. 94 (5) License from One Occupant of Common Inclosure. It is no defense that one of two persons who occupy adjoining lands, inclosed with one fence and forming one field, authorized defendant to turn cattle into the inclosure, repre- senting to defendant that he owned the whole field. 95 (6) Want of Fences. In a township in which the hog law has not been sus- pended it is no defense to an action for damages done to a crop by hogs suffered to run at large, that the crop is not inclosed by a legal and sufficient fence. 98 So, too, where adjacent owners have fields inclosed in common, it is no defense, in an 86. Cram v. Dudley, 28 N. H. 537 ; Arthurs and has no joint interest with the other de- v. Chatfield, 9 Pa. Co. Ct. 34. fendant in, or control over, the cattle doing 87. Proctor v. Andover, 42 N. H. 362. the damage, such facts should be set up in 88. Westgate v. Carr, 43 111. 450 ; Cogswell the answer and proved on the trial. Sickles v. Murphy, 46 Iowa 44; Fartenheimer v. Van v. Gould, 51 How. Pr. (N. Y.) 22. Order, 20 Barb. (N. Y.) 479. 90. O'Neal v. Blessing, 34 Ohio St. 33. 89. Smith v. Jacques, 6 Conn. 530; Ozburn —»■ 91. Myers v. Parker, 74 Hun (N. Y.) 129, v. Adams, 70 111. 291 ; Jack v. Hudnall, 25 26 N. Y. Suppl. 308, 56 N. Y. St. 423. Ohio St. 255, 18 Am. Rep. 298. 92. Cassem v. Olson, 45 111. App. 38. In an action, brought in a justice's court, ^ 93. White v. Scott, 4 Barb. (N. Y.) 56. for trespass, caused by defendant's cattle by 94. Little v. McGuire, 43 Iowa 447, 38 breaking into and entering the close of plain- Iowa 560; Hassa v. Junger, 15 Wis. 598, in tiff and destroying the crops of the latter, which latter case it was so held, where plain- where the evidence is sufficient to sustain the tiff sued for damages to his crop by cattle in action, a joint liability against the two de- consequence of defendant's removal of what fendants is prima facie made out; and where plaintiff alleged was a division fence, but it it does not appear that one of defendants appeared that plaintiff had sown his crop is a married woman, she must be treated as some time after the fence was removed. a feme sole. If defendants claim a nonsuit 95. Daniels v. Aholtz, 81 111. 440. on the ground that she is a married woman, 96. Wells v. Beal, 9 Kan. 597. Vol. II ANIMALS 411 action by one against the other, for wilfully and intentionally allowing his stock to run in the inclosure and upon plaintiff's crops, that the fence surrounding the inclosure was not a lawful fence. 97 (c) Pleading — (1) Complaint oe Declaration 98 — (a) Act Purposely Done. A complaint for trespass on uninclosed lands, in a portion of the state in which the fence law applies, should allege that defendant purposely drove his animals on such lands, or intentionally retained the animals thereon, for the special object of depasturing plaintiff's land. 99 (b) Appraisal of Damages. In New Jersey, where the plaintiff intends to pro- ceed under the statute he must set out the appraisement, and all the other requisites of the statute. 1 (c) Contlnuando. Any number of trespasses may properly be alleged as having been committed on a day named, and on divers other days and times between that day and the commencement of the suit. 2 (d) Demand for Damages. In an action before a justice of the peace for damages sustained from trespassing animals, it is not necessary to aver that a demand has been made for such damages. 3 (e) Description of Land. It should be averred upon whose land the damage was done; 4 but, if it be averred that the lands trespassed on are situated in the county, no other description of them is necessary. 5 (f) Existence of Fences. "Where the common law obtains, and there is no order or local statute allowing animals to run at large, it is not necessary to allege the existence of fences ; 6 but, where cattle are allowed to run at large on unin- closed lands, plaintiff must set forth facts showing an inclosure built in substantial compliance with the statute. 7 (g) Knowledge of Animal's Propensity to Roam. It need not be averred that defendant knew of the propensity of his cattle to wander and roam about, such knowledge being presumed. 8 (h) Negligence. It is unnecessary to allege that defendant was negligent, or that plaintiff was not guilty of contributory negligence, where the common law obtains, and no order or statute exists allowing animals to run at large. 9 (2) Plea. Where defendant relies upon the insufficiency of plaintiff's fences to turn ordinary stock, such defense must be specially pleaded ; 10 and where the damage arose by reason of the removal of a partition fence, of which removal plaintiff had been notified, the plea should show that notice of such removal was given in due time, and to a proper person, and an averment that plaintiff had reasonable notice thereof is insufficient. 11 (d) Process. A warrant is the proper process in this form of action, and it is sufficient if the locus vnquo be reasonably certain in the description. 12 (e) Evidence — (1) Judicial Notice. The court cannot take judicial notice as to whether a partition fence sufficient to restrain and inclose sheep will also restrain and inclose hogs, 13 nor of an order by the board of commissioners permit- 97. Broadwell v. Wilcox, 22 Iowa 568, 92 3. Smith v. McFall, 1 Ind. 127. Am. Dec. 404. See also Noble v. Chase, 60 4. Voorheis v. Perrine, 16 N. J. L. 359. Iowa 261, 14 N. W. 299. 5. Jean v. Sandiford, 39 Ala. 317. 98! For forms of complaints for trespasses 6. Atkinson v. Mott, 102 Ind. 431, 26 N. E. by cattle see Joiner v. Winston, 68 Ala. 129 ; 217 ; Cook v. Morea, 33 Ind. 497. Jean v. Sandiford, 39 Ala. 317. 7. Nichols v. Dobbin, 2 Mont. 540; Camp- 99. Fry v. Hubner, 35 Oreg. 184, 57 Pac. bell v. Bridwell, 5 Oreg. 311. 420; Walker v. Bloomingcamp, 34 Oreg. 391, 8. Beckett v. Beckett, 48 Mo. 396. . 56 Pac. 809 [affirming 34 Pac. 175, 43 Pac. .9. Atkinson v. Mott, 102 Ind. 431, 26 N. E. 175]. 217. 1. Voorheis v. Perrine, 16 N. J. L. 359; 10. Sturman v. Colon, 48 111. 463. Brittin v. Van Camp, 3 N. J. L. 240; Jessup 11. McCormick v. Tate, 20 111. 334. v. Sharp, 2 N. J. L. 324; Boyle v. Lindsley, 12. Harrison v. Brown, 5 Wis. 27. 2 N. J. L. 234. 13. Enders v. McDonald, 5 Ind. App. 297, 2. Richardson v. Northrup, 66 Barb. (N. Y.) 31 N. E. 1056. 85. Vol. II 412 ANIMALS ting domestic animals to run at large ; this fact must be shown like any other fact, and, unless proven, it will be assumed that no such order has been made." (2) Bueden of Pkoof. When the board of commissioners makes an order permitting stock to run at large, if stock so running at large enters upon inclosed lands, the burden rests upon the landowner to show that the fence through which the stock entered was such as good husbandmen generally keep ; 15 but, though no right of action exists unless the entry was through a lawful fence, it is not incum- bent on plaintiff to show that the entire fence inclosing the field was a lawful fence, but only that the part where the entry was made was lawful. 16 Where cattle are not allowed to run at large, if it is admitted that defendant's animals were upon plaintiff's land, the burden is upon defendant to show some justifica- tion or excuse. 17 (3) Admissibility — (a) To Show Amount of Damage. Plaintiff may prove, by the ordinary character of evidence, the damage sustained by him ; 1S he may prop- erly testify as to the proportion of his crops destroyed, and their probable pro- duction, if not injured, 19 but he cannot state the money value of the damage done. 20 So, too, testimony showing that, by reason of the injury, plaintiff's stock had to be fed with hay is admissible, 21 as is evidence of the good condition of the feed in defendant's pasture during the time in question. 23 (b) To Show Manner op Entry. Where a part of the division fence, between plaintiff's and defendant's lands, was sufficient, which part it was plaintiff's duty to maintain, and defendant's horse, having jumped in over some part of the fence, was found in plaintiff's inclosure, evidence that the horse jumped back over a part of the fence that was of lawful height is admissible to show that at the time of the injury he was unruly, and not to be restrained by an ordinary fence J 23 and, where defendant claims that the injury was through plaintiff's insufficient fence, plaintiff may offer evidence that defendant's cattle were unruly, for the purpose of rebutting this defense. 24 (c) To Show Sufficiency and Character of Fences. Where there is no stat- ute making fence-viewers the sole judges of the sufficiency of a fence, its suffi- ciency may be proved like any other fact, 25 and parol proof of usage in the main- tenance and repair of separate portions of a partition fence is admissible to show a prescription. 26 (d) To Show Title of Crops Injured in Third Person- Evidence offered to show title or an interest in the damaged crops in a third person is properly excluded, where it appears that plaintiff was in the exclusive possession of the premises and property damaged, bare possession being sufficient to maintain trespass against a wrong-doer. 27 (4) Sufficiency — (a) In General. Proof that defendant's swine, while run- ning at large, trespassed upon the cultivated fields of plaintiff, and destroyed his grain, does not, by itself alone, establish a liability upon defendant, but plaintiff 14. Atkinson v. Mott, 102 Ind. 431, 26 20. Richardson v. Northrup, 66 Barb. (N. Y.) N. E. 217. 85. 15. Crum v. Conover, 14 Ind. App. 264, 40 21. Faber v. Cathrin, (Cal. 1884) 2 Pac. 879. N. E. 644, 42 N. E. 1029. 22. Watkins v. Rist, 68 Vt. 486, 35 Atl. 16. Cram v. Ellis, 31 Iowa 510. 431, 67 Vt. 284, 31 Atl. 413. 17. Hodson v. Kilgore, 77 Me. 155. 23. Hine v. Wooding, 37 Conn. 123. It is matter of defense, to be shown by de- 24. Barnum v. Vandusen, 16 Conn. 200. fendant, that a fence which plaintiff was 25. Noble v. Chase, 60 Iowa 261, 14 N. W. bound to keep in repair was defective. Col- 299. den v. Eldred, 15 Johns. (N. Y.) 220. Evidence to show existence of legal fence 18. Quinton v. Van Tuyl, 30 Iowa 554, should be received when offered by plaintiff, holding that the statute making the fence- even though the burden of showing that fact viewers appraisers to find and certify the is not, in the first instance, upon him. Tay- damages applied only in cases where plaintiff lor v. Young, 61 Wis. 314, 21 N. W. 408. elects to distrain the animal. 26. Heath v. Ricker, 2 Me. 72. 19. Seamans v. Smith, 46 Barb. (N. Y.) 27. Sickles v. Gould, 51 How. Pr. (N. Y.) 320. 22. Vol II ANIMALS 413 must show, in addition, that the fields were in a township in which the hog law was in force, or show some other matter of equal effect. 28 (b) As to Character of Fences. Proof that a fence, at the place of breach, was of lawful height and strength is insufficient where the law requires the entire inclosure to be surrounded by a lawful fence. 29 A certificate of appraisers is prima facie evidence as to the sufficiency of a fence. 30 (p) Trial — (1) Dismissal. Where the evidence discloses that a third person had an interest in the crops injured, it is error for the court to summarily dismiss the action because of the non-joinder of such third person, for his interest might be consistent with plaintiff's right to recover for the trespass ; at most, it could operate only as a partial failure of proof. 81 (2) Instructions. Where the court has instructed the jury that a fence was good and sufficient if it would prevent the breaking in of stock not breachy, it is not error to refuse an instruction that the fence is sufficient if it would turn ordinary stock ; 32 nor is it error to refuse instructions that, if other cattle than defendant's were in the habit of trespassing on plaintiff's premises, the jury could not find that defendant's animals did all the damage, or that the jury must be satisfied what amount of damage defendant's animals had done before they could find for plaintiff. 33 It is error to instruct the jury that, where one man's stock trespassed upon another's land, the law implies a promise on the part of the stock- owner to pay all damage done. 84 Where a third person has testified that he was the owner of an undivided interest in the injured crop, it is not error for the court to refer, in its instructions, to the ownership claimed by the witness. 85 (3) Questions of Law and Fact. What is a sufficient fence, or what kind of navigable stream or deep water is to be deemed sufficient instead of a fence, is a question of law for the court ; 86 whether plaintiff's fence was good and sufficient, 37 what was the amount of damage sustained by plaintiff, 38 and whether plaintiff exercised ordinary care to prevent the damage, 39 are all questions of fact for the 28. Scott v. Lingren, 21 Kan. 184. Where there is a general usage in a neigh- borhood to let cattle run at large upon the highway and uninclosed lands adjoining such highways, if any one adopts the usage, this i3 evidence of » license on his part to let the cattle of others run at large on his lands so situated. Wheeler v. Rowell, 7 N. H. 515. There is sufficient evidence to be submitted to the jury when plaintiff and defendant lived on, and cultivated, adjoining plantations, sur- rounded by a common inclosure, and cattle belonging to, or in charge of, defendant were turned into the inclosure and destroyed plain- tiff's cotton, and on several occasions defend- ant's cattle were driven out of plaintiff's cotton-field, and had been driven home by him (Knott v. Brewster, (Miss. 1900) 27 So. 758 ) ; or where it appeared that defend- ant resided upon a farm with his father, of which defendant had a deed and his father a life-lease, and plaintiff's evidence tended to show that the cows kept upon the farm had trespassed upon plaintiff's premises, but that defendant owned but one cow, which was also kept upon the farm (Cram v. Dudley, 28 N. H. 537). 29. Stovall v. Emerson, 20 Mo. App. 322. 30. 323. 31. Shaver v. Catrin, 2 Overt. (Tenn.) 253. Washburn v. Case, 1 Wash. Terr. 32. Scott v. Wirshing, 64 111. 102. Where defendant does not defend on the ground of defects in plaintiff's fence, it is not incumbent on plaintiff to show that his fence was legal in order to make out his right of recovery; and hence a charge "that, there being no evidence tending to show that the plaintiff's fence was not a legal fence, or satisfactory to the defendant, or that the de- fendant's cattle ever went on to the plain- tiff's land by reason of the plaintiff not having a legal fence, the presumption is that the plaintiff's fence was legal," could work no detriment to defendant, and was not sub- ject to exception. Sorenberger v. Houghton, 40 Vt. 150. "Discretion" for "judgment." — Where the court, having defined specifically what con- stituted a lawful fence, told the jury that such matter was entirely in their discretion, the fair meaning of the word " discretion," as used by the court, was " judgment," and the instruction was not erroneous. MeManus v. Finan, 4 Iowa 283. 33. MeManus v. Finan, 4 Iowa 283. 34. Van Valkenburg v. McCauley, 53 Cal. 706. 35. Hinshaw v. Gilpin, 64 Ind. 116. 36. State v. Lamb, 30 N". C. 229. 37. Scott v. Wirshing, 64 111. 102; Erd- man v. Gottshall, 9 Pa. Super. Ct. 295, 43 Wkly. Notes Cas. (Pa.) 405. 38. Richardson v. Northrup, 66 Barb. (N. Y.) 85. 39. Little v. McGuire, 38 Iowa 560, 43 Iowa 560. Vol. II 414 ANIMALS (g) Amount Recoverable — (1) In General. Plaintiff can recover only the actual damages for the trespass, 40 not exceeding the amount claimed, 41 the meas- ure of damages being the value of his crops at the time of their destruction. 48 Judgment for damages will not bar a subsequent action for other damages, resulting from the same trespass, which had not accrued at the time of, and were not included in, the former judgment. 43 (2) Exemplary Damages. Exemplary damages cannot be allowed in an action for trespass by animals, where the declaration claims no such damages, even though' defendant has by force recovered the animals from plaintiff's keeping. 44 (3) Apportionment of. Where crops are destroyed by trespassing cattle belonging to two parties under such circumstances that it is impossible to distin- guish between the trespass of one lot of cattle and that of the other, or to deter- mine the actual amount of damage done by either separately, if the damages are apportioned according to the number of cattle belonging to the respective parties, and the owner of the crops is allowed to recover in an action against one party only the proportion of damages given by such apportionment, plaintiff cannot complain of the amount of the judgment. 45 XII. INJURIES TO ANIMALS. A. Civil Liability — 1. In General — a. Domestic Animals — (i) Gener- ally — (a) Trespassing Animals — (1) In General. "While a landowner, by the exercise of necessary force, may drive from his premises trespassing animals, 46 he will be liable to the owner for any injury which is the natural or proximate consequence of a wrongful act on his part ; t7 and, unless otherwise provided, it 40. North v. McDonald, 47 Barb. (N. Y.) 528, holding that he cannot shut up the ani- mals and, in the same action, recover pay for their keeping. See also Hickox c. Thurstin, 7 Lans. (N. Y.) 421, wherein plaintiff sued for trespass done by cattle, with a claim for taking the cattle from plaintiff's possession after he had them in custody as permitted by statute, and it was held error to instruct that the jury might allow as damages, if they found for plaintiff, a certain sum per head for the animals retaken, besides the in- jury to crops. 41. Thus, where plaintiff sued for damages to his growing wheat, and the justice decided that plaintiff was not entitled to recover for damage thereto, it was held erroneous to en- ter judgment for damage to his grass. Hassa v. Junger, 15 Wis. 598. Recovery of less than claimed. — Where the action was for damages for several alleged trespasses by cattle of defendant, the jury rendered a verdict for plaintiff, but for a less sum than claimed. On exceptions by plain- tiff to the charge of the lower court, defend- ant urged that, as the jury found for plain- tiff, they must have found the fence through which the cattle entered sufficient, and that plaintiff had suffered nothing for which he could bring error; but it was held that, as successive trespasses were complained of, the court could not say that the jury did not find the fence sufficient at one time, and in- sufficient at another. Aylesworth v. Herring- ton, 17 Mich. 417. 42. Gresham v. Taylor, 51 Ala. 505; Grip- ton v. Thompson, 32 Kan. 367, 4 Pac. 698; Richardson v. Northrup, 66 Barb. (N. Y.) 85. Vol. II 43. Thus, where the damages recovered in the former action were for injuries to the close itself on account of defendant's stallion breaking into it, this will not bar a subse- quent action for damages resulting to plain- tiff in consequence of his mare, running in said close, having been gotten with foal by said stallion, the fact of her being with foal not being known, and the damage to plaintiff therefrom not having accrued when the former action was tried. Hagan v. Casey, 30 AVis. 553. 44. Sherman v. Kilpatriek, 58 Mich. 310, 25 K. W. 298. Exemplary damages are not justified where there is no evidence as to any damages sus- tained by plaintiff except that he " was all tore up about it," and that he would not have consented to defendant's live stock being in his pasture for two hundred dollars. Claunch v. Osborn, (Tex. Civ. App. 1893) 23 S. W. 937. 45. Powers v. Kindt, 13 Kan. 74. 46. See supra, XI, B, 2, b. 47. Alabama. — Wilhite v. Speakman, 79 Ala. 400. Delaware. — Richardson v. Carr, 1 Harr. (Del.) 142, 25 Am. Dec. 65. Georgia.— Cantrell v. Adderholt, 28 Ga. 239. Illinois.— Painter v. Baker, 1.6 111. 103; Reis p, Stratton, 23 111. App. 314. /ndtana.— Amick v. O'Hara, 6 Blackf . (Ind.) 258. Massachusetts. — Clark t\.Keliher, 107 Mass. 406. Missouri.— Totten v. Cole, 33 Mo. 138, 82 Am. Dec. 157. Ye io Hampshire. — Mcjntire v. Plaisted, 57 N. H. 606. ANIMALS 415 is immaterial whether the lands are inclosed or not, or whether the animals are doing or have done damage. 48 There are decisions, however, to the effect that the right to defend and preserve property will authorize the killing of trespassing animals engaged in damaging or destroying property ; m but this right must be exercised in a reasonable manner. 50 (2) By Use of Dogs. While a dog may be used in driving off trespassing animals, 51 if there is anything in the size, character, or habits of the dog, or in the mode of setting him on, or of his pursuit, which negatives the idea of the exercise of ordinary care or prudence, the person so using such dog will be liable for the injuries sustained by the trespassing animals. 58 (3) "While in Custody of Takee-Up. One who, in the exercise of the right to impound trespassing animals, injures them while taking or confining them, 53 or by the mode of their confinement, 54 or kills them while in his possession, or so injures them that they afterward die, 55 is liable as a trespasser. (b) Vicious Animals. One may kill a vicious animal in the necessary defense of himself or the members of his household, 56 or under circumstances which indi- cate danger that property will be injured or destroyed unless the aggressor is killed, 57 New York. — Carney v. Brome, 77 Hun (N. Y.) 583, 28 N. Y. Suppl. 1019; 60 N. Y. St. 453; Matthews v. Fiestel, 2 E. D. Smith (N. Y.) 90. North Carolina. — Bost v. Mingues, 64 N. C. 44. Pennsylvania. — Palmer v. Silverthorn, 32 Pa. St. 65. Texas. — Champion v. Vincent, 20 Tex. 811. The injury must be wilful or wanton, or there can be no recovery. Union Pac. R. Co. v. Rollins, 5 Kan. 167. 48. Wilhite v. Speakman, 79 Ala. 400; Thompson v. State, 67 Ala. 106, 42 Am. Rep. 101 ; Bost v. Mingues, 64 N. C. 44 ; Morse v. Nixon, 51 N. C. 293 ; Hobson v. Perry, 1 Hill (S. C.) 277; Ford v. Taggart, 4 Tex. 492. Under the Mississippi code one who is a joint owner of a, partition fence failing to keep his part in repair, by reason of which his animals get upon the land of the co-owner of the fence, loses his right to recover damages for injuries inflicted by the latter upon the trespassing animals. McCain v. White, 67 Miss. 243, 7 So. 222. An agreement to dispense with a partition fence is not such equivalent of a legal fence as to justify the killing of stock escaping by the negligence of one of the parties and depre- dating on the premises of the other. Tumlin v. Parrott, 82 Ga. 732, 9 S. E. 718. That a fence was sufficient to exclude other animals of the kind killed is not a justifica- tion of the killing. Hamilton v. Howard, 68 Ga. 288. Statutory provisions defining as an offense the killing of stock on cultivated lands in- closed by an insufficient fence are not appli- cable in counties which have prohibited the running at large of such stock, and made it unnecessary to fence against the animals named. McCampbell v. State, (Tex. Crim. 1898) 45 S. W. 711. 49. Anderson v. Smith, 7 111. App. 354; Morse v. Nixon, 53 N. C. 35. Pigeons. — At common law, a man may kill pigeons coming on his land (Dewell v. Saun- ders, Cro. Jac. 490), and under a statute protecting them it is a defense to a charge for unlawfully killing pigeons doing damage that the person charged had notified their owner, requesting their destruction, or that he prevent them doing further injury to the crops of defendant, which the owner failed to do (Taylor v. Newman, 4 B. & S. 89, 116 E. C. L. 89). 50. Trivial damage. — A landowner is not justified in killing a valuable animal found destroying property of comparatively little value. Anderson v. Smith, 7 111. App. 354. Use of poison. — Although a landowner has notified an owner of trespassing fowls that he would place poisoned meal on his premises, the defendant is not justified in the use of such deadly means. Johnson v. Patterson, 14 Conn. 1, 35 Am. Dec. 96. 51. See supra, XI, B, 2, b. 52. Alabama. — Thompson v. State, 67 Ala. 106, 42 Am. Rep. 101. Delaicare. — Richardson v. Carr, 1 Harr. (Del.) 142, 25 Am. Dec. 65. Indiana. — Amiek v. O'Hara, 6 Blackf. (Ind.) 258. Iowa. — Aspegren v. Kotas, 91 Iowa 497,59 N. W. 273. Michigan. — Wood v. La Rue, 9 Mich. 158. New Hampshire. — Mclntire v. Plaisted, 57 N. H. 606. Vermont.— Davis v. Campbell, 23 Vt. 236 ; Clark v. Adams, 18 Vt. 425, 46 Am. Dec. 161. But see Smith v. Waldorf, 13 Hun (N. Y.) 127, holding that there could be no recovery for injuries sustained by a cow, in conse- quence of her jumping a fence to escape a pursuing dog which did not touch her. 53. Harris v. Brummell, 74 Mo. App. 433. 54. Wilhite v. Speakman, 79 Ala. 400. 55. Cannon v. Horsey, 1 Houst. (Del.) 440. 56. As an enraged bull. Russell v. Bar- row, 7 Port. (Ala.) 106. 57. Anderson v. Smith, 7 111. App. 354. A wild and vicious buffalo bull, which has broken into a close, may be killed. Canefox ». Crenshaw, 24 Mo. 199, 69 Am. Dec. 427. An ass, permitted to run at large by its Vol. II 416 ANIMALS but it seems that such a killing is justified only where the animal is actually doing injury. 68 (n) Dogs — (a) In General — (1) Intentional Injuby oe Killing 59 — (a) In General. A dog may not be wantonly destroyed, 60 nor killed on mere sus- picion of wrongdoing, unless there is statutory authority for such killing. 61 Neither may a dog be destroyed merely because he is trespassing, 62 although, in the opinion of his slayer, he is about to injure or destroy such person's property. 68 Nor may a person wilfully kill a dog which is not vicious or dangerous in its dis- position and habits, and is not engaged in doing damage, although he may have been guilty of trivial offenses. 64 (bj In Protection op Property — aa. Stock. Every person has a natural right to defend and protect his animate property — as cattle, stock, and fowls — from injury or destruction by dogs, and in pursuance of that object may kill dogs engaged in doing injury to such animals owned by him; 65 but there must exist owner, who is aware of its vicious habits, may be killed when it is found in the act of injur- ing a, cow which it has thrown down. Wil- liams v. Dixon, 65 N. C. 416. A sow addicted to eating fowls may be killed. Morse t'. Nixon, 53 N. C. 35. Knowledge of owner. — The castration of a troublesome mule, whose habits were unknown to his owner, is not justified by the fact that he was permitted to run at large. Norris v. Banta, 21 Tex. 427 [distinguishing Custard v. Burdett, 15 Tex. 456, wherein the owner of the stallion castrated had knowledge]. 58. Ulery v. Jones, 81 111. 403. 59. Mad dogs. — Right to kill, see supra, VI, C, 2, a. 60. Brill v. Flagler, 23 Wend. (N. Y.) 354. Except a dog is discovered in the act of killing, wounding, or chasing sheep or other animals, or under such circumstances as to satisfactorily show that he has been recently so engaged, being the cases provided for by the statute, or where he has been recently bitten by another dog which is mad, or may be reasonably supposed to be so, or where a dog is ferocious and attacks persons, no one besides the master has a right to kill it. Hinckley v. Emerson, 4 Cow. (N. Y.) 351, 15 Am. Dec. 383. 61. Brent v. Kimball, 60 111. 211, 14 Am. Bep. 35; Anderson v. Smith, 7 111. App. 354; Marshall v. Blackshire, 44 Iowa 475. Association with dogs which may be killed does not, it seems, justify the killing of an innocent dog. Barret v. Utley, 12 Bush (Ky.) 399. 62. Brent V. Kimball. 60 111. 211, 14 Am. Bep. 35 ; Marshall v. Blackshire, 44 Iowa 475; Fenton v. Bisel, 80 Mo. App. 135: Har- ris r. Eaton, 20 E. I. 81, 37- Atl. 308. See also Tyner v. Cory, 5 Ind. 216. 63. 'Ten Hopen v. Walker, 96 Mich. 236, 55 N. W. 657, 35 Am. St. Rep. 598. Placing baited traps on one's own land so near to a highway or to the premises of an- other as to attract thereto dogs on the high- way or on the adjoining premises is unlaw- ful. Townsend v. Wathen, 9 East 277. Setting poison. — A person has no right to place poisoned meat on his premises, with the intention of killing trespassing dogs which threaten his sheep. Gillum v. Sisson, 53 Mo. App. 516. Vol. II 64. Jacquay v. Hartzell, 1 Ind. App. 500, 27 N. E. 1105 [citing Dinwiddie v. State, 103 Ind. 101, 2 N. E. 290; Lowell v. Gathright, 97 Ind. 313] ; Dodson v. Mock, 20 N. C. 234, 32 Am. Dee. 677 ; Decker v. Holgate, 5 Lack. Leg. N. (Pa.) 56. Facts insufficient to justify killing. — The killing of a valuable dog because he left tracks on a freshly painted porch, was found once in the hen-house, came about the house at night, chased eats, and barked (Bowers v. Horen, 93 Mich. 420, 53 N. W. 535, 32 Am. St. Rep. 513, 17 L. R. A. 773) ; or for stealing an egg, snapping at one man's heel and bark- ing at another's horse, and the being sus- pected of having, years before, worried a sheep (Dodson v. Mock, 20 N. C. 234, 32 Am. Dec. 677), will not put a dog out of the pale of the law and justify any person in killing him. 65. Connecticut. — Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175. Illinois. — Spray v. Ammermam, 66 111. 309 ; Lipe v. Blackwelder, 25 111. App. 119; Ander- son v. Smith, 7 111. App. 354. Iowa. — Marshall v. Blackshire, 44 Iowa 475. Massachusetts. — Nesbett v. Wilbur, (Mass. 1900) 58 N. E. 586. Missouri. — Brauer v. English, 21 Mo. App. 490. New York. — Hinckley v. Emerson, 4 Cow. (N. Y.) 351, 15 Am. Dec. 383; Leonard v. Wilkins, 9 Johns. (N. Y.) 233. North Carolina. — Morse v. Nixon, 53 N. C. 35; Parrott r. Hartsfield, 20 N. C. 203, 32 Am. Dec. 673. Rhode Island. — Harris v. Eaton, (R. I. 1897) 37 Atl. 318. Wisconsin. — Miller r. Spaulding, 41 Wis. 221. England. — Janson r. Brown, 1 Campb. 41 ; Protheror r. Mathews, 5 C. & P. 581, 24 E. C. L. 718; Wells v. Head, 4 C. & P. 568, 19 E. C. L. 653; Vere v. Cawdor, 11 East 568; Wadhurst v. Dame, Cro. Jac. 45; Bar- rington v. Turner, 3 Lev. 25. Right cumulative. — The right to an action against the owner of a dog for the injury done is merely cumulative to the prior right of making a reasonable defense to protect property from such assailants. Anderson v. Smith, 7 111. App. 354. ANIMALS 417 an apparent necessity for such a course, and the destruction of the dog must be reasonably necessary under the circumstances. 66 bb. Other Dogs. It seems that, under some circumstances, a person is justified in killing a dog which has attacked and is wounding and injuring his dog, if such killing is necessary to save the latter from serious injury ; 67 but not if the killing is done unnecessarily, or as an act of vengeance. 68 - cc. Inanimate Property. The right to kill dogs, in order to protect inanimate property, is based upon the same considerations.® (c) Mischievous Dogs. A dog which habitually haunts a dwelling-house by day and night, and disturbs the peace and quiet of the inmates, by bark- ing and howling, which annoyances cannot be otherwise prevented, may be killed.™ (d) Vicious Dogs. A ferocious and vicious dog roaming at large, which is accustomed to bite mankind and animals, or which is endangering the safety of persons and property, is a common enemy and a public nuisance, and may be lawfully killed. 71 It is also justifiable to kill a dog which, without provocation, Common-law right as affected by statutes. — Statutes authorizing the killing of dogs found worrying certain designated animals do not take away the common-law right to kill a dog in defense of other property. Nes- bett v. Wilbur (Mass. 1900) 58 N. E. 586. Comparison of values. — Where the right to Mil a trespassing animal is statutory, the right is not affected by the consideration of the animal's value as compared with the value of the property. Simmonds v. Holmes, ■61 Conn. 1, 23 Atl. 702, 15 L. R. A. 253. Manner of killing immaterial. — Under the Missouri statute allowing the killing of a. sheep-killing dog, if it appears that the dog was guilty it is immaterial that he was killed by poison set out by defendant. Gillum v. Sisson, 53 Mo. App. 516. 66. Lipe v. Blackwelder, 25 111. App. 119; Anderson v. Smith, 7 111. App. 354; Hubbard ■V. Preston, 90 Mich. 221, 51 N. W. 209, 30 Am. St. Rep. 426, 15 L. R. A. 249 ; King v. Kline, 6 Pa. St. 318. The fact that defendants' fowls were fright- ened at a dog's appearance, and ran from it, will not authorize the dog's destruction un- less it was worrying or killing the fowls. Marshall v. Blackshire, 44 Iowa 475. Driving off cattle. — An owner of cattle cannot kill a dog because it drove them from his owner's land, which they had entered be- cause of a defect in the division fence, such defect being attributable to the fault of the owner of the land trespassed on. Spray v. Ammerman, 66^111. 309. In Deane v. Clayton, 7 Taunt. 489, 2 B. C. L. 461, it appeared that defendant, the owner of woodland, divided from the woodland of another who had licensed plaintiff to hunt thereon, to preserve hares in his land fastened dog-spikes to trees therein, and that plain- tiff's dog, pursuing a hare into and over such land, was impaled on a spike and killed. It also appeared that plaintiff had put up no- tices outside the land to the effect that spikes liad been placed therein, and the court di- vided on the question of defendant's liabil- ity. 67. Boecher v. Lutz, 2 N. Y. City Ct. 205 ■note, wherein the dog killed attacked a muz- zled dog, and, after being driven away once, [27] made a second attack. ,And see Parrott v. Hartsfield, 20 N. C. 203, 32 Am. Dec. 673. ■"* Inability to separate. — Where a mastiff, falls on another dog, the owner of the latter dog cannot justify the killing of the mastiff unless there was no other way to save his dog, as that he could not take off the mastiff, etc. Wright v. Ramscot, 1 Saund. 84, 3 Salk/ 139. / 68. Boecher v. Lutz, 2 N. Y. City Ct. 205 note. And see Parrott v. Hartsfield, 20 N. C. 203, 32 Am. Dec. 673. 69. It is justifiable to kill a dog running through a wheat-field (Lipe v. Blackwelder, 25 111. App. 119), lying on a bed of young garden plants (Simmonds v. Holmes, 61 Conn. 1, 23 Atl. 702, 15 L. R. A. 253 ) , or purloining provisions (Dunning v. Bird, 24 111. App. 270; King v. Kline, 6 Fa. St. 318). Insecure premises. — The justification for killing a dog destroying property in defend- ant's building is not affected by the fact that the building was insecure. Dunning v. Bird, 24 111. App. 270. 70. Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175 ; Meneley v. Carson, 55 111. App. 74; Hubbard v. Preston, 90 Mich. 221, 51 N. W. 209, 30 Am. St. Rep. 426, 15 L. R. A. 249; Brill v. Flagler, 23 Wend. (N. Y.) 354. See also Hubbard v. Preston, 90 Mich. 221, 51 N. W. 209, 30 Am. St. Rep. 426, 15 L. R. A. 249, wherein defendant was absolved from lia- bility where it appeared that, after suffering for a long time from dogs congregating on his lawn and there barking, quarreling, and fight- ing, he shot among them, but not at any par- ticular dog, and killed plaintiff's animal. 71. Alabama. — Parker v. Mise, 27 Ala. 480, 62 Am. Dec. 776. Connecticut. — Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175; Johnson v. Patterson, 14 Conn. 1, 35 Am. Dec. 96. Illinois.— Brent v. Kimball, 60 111. 211, 14 Am. Rep. 35 ; Meneley v. Carson, 55 111. App. 74. Indiana. — Jacquay v. Hartzell, 1 Ind. App. 500, 27 N. E. 1105. Maine. — State v. Harriman, 75 Me. 562, 46 Am. Rep. 423. New Hampshire. — Aldrieh v. Wright, 53 N. H. 398, 16 Am. Rep. 339. Vol. II 418 ANIMALS assails a person on a public highway, 75 although the dog previous to that time was not accustomed to attack persons and was not regarded as ferocious. 73 But previous acts of ferocity or injury to property will not justify killing a dog, if for a long time he has ceased to be dangerous, 74 nor is a killing justified when the danger is past and the dog is running away. 75 (2) Inadvertent Injury or Killing of Dogs. The accidental killing of a dog;, 76 or its destruction because of its resemblance to a wolf, 77 or the fact that the intent was merely to scare off the animal, 78 will not relieve the wrong-doer from liability. (b) Under Statutory or Municipal Authority — (1) In General. In the exercise of its police power a legislative body may regulate the keeping of dogs, under the penalty of having them destroyed without prior adjudication, 79 and it may prescribe summary proceedings of the most stringent character for the destruction of dogs kept contrary to municipal regulations. 80 (2) Dogs Running at Large. Statutes and ordinances permitting peace offi- cers or private persons to kill dogs running at large will authorize the destruction of such dogs only where the prescribed state of facts exists. 81 A'ew York. — Dunlap v. Snyder, 17 Barb. (N. Y.) 561; Maxwell v. Palmerton, 21 Wend. (N. Y.) 407; Loomis v. Terry, 17 Wend. (N. Y.) 496, 31 Am. Dee. 306; Putnam v. Payne, 13 Johns. (N. Y.) 312; Hinckley r. Emerson, 4 Cow. (N. Y.) 351, 15 Am. Dec. 383; Boecher r. Lutz, 2 X. Y. City Ct. 205 note; Laverty i: Hogan, 2 N. Y. City Ct. 197. Xorth Carolina. — Perry v. Phipps, 32 N. C. 259, 51 Am. Dec. 387; Dodson v. Mock, 20 N. C. 234, 32 Am. Dec. 677. Pennsylvania. — King v. Kline, 6 Pa. St. 318; Bowers r. Fitzrandolph, Add. (Pa.) 215; Decker r. Holgate, 5 Lack. Leg. N. (Pa.) 56. Vermont. — Brown v. Carpenter, 26 Vt. 638, 62 Am. Dee. 603. It is the duty of a police officer to kill a vicious dog. People v. Board of Metropolitan Police, 15 Abb. Pr. (N. Y.) 167, 24 How. Pr. (N. Y.) 481. The fact that a dog is licensed will not de- feat the right to kill it when the circum- stances justify such a course. Simmonds v. Holmes, 61 Conn. 1, 23 Atl. 702, 15 L. R. A. 253. " 72. Reynolds v. Phillips, 13 111. App. 557; Credit v. Brown, 10 Johns. (N. Y.) 365; Perry v. Phipps, 32 N. C. 259, 51 Am. Dec. 387. Previous biting. — A man may kill as a nuisance a dog which has bitten him a few minutes before. Bowers v. Fitzrandolph, Add. (Pa.) 215. So, too, under R. I. Pub. Stat, e. 93, § 6, providing that "Any person may kill any dog that may suddenly assault him, or any person of his family or in his com- pany, while the person so assaulted is out of the inelosure of the owner or keeper of such dog," the right to kill is not limited to the immediate time and place of the assault. Spaight v. MeGovern, 16 R. I. 658, 19 Atl. 246, 7 L. R. A. 388. Sudden assault. — One bitten while attempt- ing to separate two fighting dogs is not sud- denly assaulted within the meaning of a stat- ute permitting any person to kill a dog which may suddenly assault him. Spaight v. Me- Govern, 16 R. I. 658, 19 Atl. 246, 7 L. R. A. 388. Vol. II 73. Reynolds v. Phillips, 13 111. App. 557. 74. Boecher r. Lutz, 2 N. Y. City Ct. 205 note; Harris v. Eaton, 20 R. I. 81, 37 Atl. 308. 75. Perry v. Phipps, 32 N. C. 259, 51 Am. Dec. 387 ; Morris v. Nugent, 7 C. & P. 572, 32 E. C. L. 764. 76. Rawson v. Kitner, 31 111. App. 241. 77. Wright v. Clark, 50 Vt. 130, 28 Am. Rep. 496. 78. Harris v. Eaton, 20 R. I. 81, 37 Atl. 308. 79. Blair v. Forehand, 100 Mass. 136, 97 Am. Dee. 82, 1 Am. Rep. 94, affirming the constitutionality of the Massachusetts act of 1867, c. 130, § 7, providing that any person may, and every police officer and constable shall, kill or cause to be killed all dogs, when- ever or wherever found, which are not licensed and tagged according to other provisions of the act. Constitutionality of New Hampshire act. — A statute exempting from liability any per- son killing a dog not wearing a collar in- scribed with the name of its owner does not deprive the owner of his property without due process of law. Morey v. Brown, 42 X. H. 373. 80. Julienne v. Jaekson, 69 Miss. 34, 10 So. 43, 30 Am. St. Rep. 526. Under 34 & 35 Vict. c. 56, § 2, a court of summary jurisdiction may order a dangerous dog to be destroyed, without giving the owner the option of keeping it under proper control. Pickering v. Marsh, 43 L. J. M. C. 143, 22 Wkly. Rep. 798. The corporation of the city of Toronto has power to pass by-laws for the destruction of dogs found running at large. McKenzie !'. Campbell, 1 U. C. Q. B. 241. For form of warrant authorizing a con- stable to kill a dog see Blair v. Forehand, 100 Mass. 136, 97 Am. Dec. 82, 1 Am. Rep. 94. 81. Swann v. Bowie, 2 Cranch C. C. (U. S.) 221, 23 Fed. Cas. No. 13,672. A dog is at large, within the meaning of an ordinance ordering all dogs to be confined, though it has escaped from its owner and is ANIMALS 419 (o) Necessity of Acting at Time of Mischief. Where, as at common law, or by force of statutes, a dog may be killed only when engaged in mischief, it is not enough that he has previously done damage, or that there is a belief or apprehen- sion that he intends to so do ; to justify his destruction he must be killed in the very act, 82 or immediately thereafter, 83 or under circumstances that satisfactorily show that the dog has recently been so engaged. 8 * Under some circumstances, however, though a dog may not be actually engaged in doing mischief, if his con- duct is such as to create a reasonable apprehension of serious injury, or a renewal of former attacks, he may be destroyed. 85 (d) Who May Kill — (1) In General. A private person who sustains an injury from an unlicensed dog, which injury is not peculiar to himself and distinct from the injury to the public, cannot destroy a dog as a public nuisance ; 86 nor will the mere fierceness of a dog and his attempts to bite, or even his actual bit- ing, justify another person than the one chased or bitten in killing the dog at a different time. 87 (2) Undek Statutory or Municipal Authority. Statutes or ordinances providing for the killing by peace officers of unlicensed dogs, or dogs without collars or unmuzzled, impliedly forbid a killing by private persons ; M but a statute being pursued to return it to confinement. Julienne v. Jackson, G9 Miss. 34, 10 So. 43, 30 Am. St. Rep. 526. A dog on a city street, and unattended, is ■within a statute authorizing the killing of dogs found roaming about the country unat- tended by the owner. Walker v. Towle, (Ind. 1901 ) 59 N. E. 20. Roaming on another's premises. — By stat- ute in Kentucky, if a dog is found roaming on the premises of another, unattended by his owner or keeper, he may be killed by the owner of the premises on which he is found, however innocent such dog may be. Brad- ford v. McKibben, 4 Bush (Ky.) 545. A dog is not at large when called by an officer from its owner's premises, where it is playing with its master's son. McAneany v. Jewett, 10 Allen (Mass.) 151. A dog kept for hunting is, when pursuing a fox, not running at large if followed by his master and a fellow huntsman, although out of his master's sight and hearing. Wright v. Clark, 50 Vt. 130, 28 Am. Rep. 496. Validity of statute. — A proviso in a stat- ute, that dogs taxed shall be property, is not inconsistent with another portion of the act authorizing any person to kill a dog " at large away from the premises occupied by the owner, and unaccompanied by any per- son " where " the proviso itself implies that there may be a lawful killing of such animal, and circumstances under which there may be such lawful killing are described in the gen- eral scope of the act." Griggs v. Dittoe, 52 Ohio St. 601, 602, 40 N. E. 891. 82. California. — Johnson v. McConnell, 80 Cal. 545, 22 Pae. 219. Iowa. — Marshall v. Blaekahire, 44 Iowa 475. Maine. — Chapman v. Decrow, 93 Me. 378, 45 Atl. 295, 74 Am. St. Rep. 357. Missouri.— Carpenter v. Lippitt, 77 Mo. 242; Brauer v. English, 21 Mo. App. 490. New York. — Hinckley v. Emerson, 4 Cow. (N. Y.) 351, 15 Am. Dee. 383; Brown v. Ho- burger, 52 Barb. (N. Y.) 15; Dunlap v. Sny- der, 17 Barb. (N. Y.) 561. North Carolina. — Parrott v. Hartsfield, 20 N. C. 203, 32 Am. Dec. 673. England. — Janson v. Brown, 1 Campb. 41. A dog that is chasing deer may be shot, 'although such . shooting may not be abso- lutely necessary for the preservation of the ■^feer, and although the dog may not have been chasing deer at the moment when it was shot, if the chasing and the shooting were one and the same transaction. Protheron v. Mathews, 5 C. & P. 581, 24 E. C. L. 718. 83. Thus, under the Missouri Revised Stat- utes, it is not necessary that the dog should be upon the premises of the owner of the sheep, or in the act of killing more than one such animal, or that the owner of the dog should have had notice that the dog had killed any sheep. Carpenter v. Lippitt, 77 Mo. 242. And in Johnson v. McConnell, 80 Cal. 545, 22 Fac. 219, it was said that though the statute only permits the killing at the time, " if it had been shown that the dogs were found by defendant worrying the sheep, and that he had immediately followed them up and killed them, without allowing them to escape or get out of his sight, we think the killing would have been justifiable." 84. Brent v. Kimball, 60 111. 211, 14 Am. Rep. 35. But see Wells v. Head, 4 C. & P. 568, 19 E. C. L. 653, wherein it was held that the shooting of a dog after he had left the sheep, and was in a, third field from where he had worried theni, could not be justified as a protection of property. 85. Marshall v. Blackshire, 44 Iowa 475; Chapman v. Decrow, 93 Me. 378, 45 Atl. 295, 74 Am. St. Rep. 357 ; Livermore v. Batchel- der, 141 Mass. 179, 5 N. E. 275; Parrott v. Hartsfield, 20 N. C. 203, 32 Am. Dec. 673. 86. Chapman v. Decrow, 93 Me. 378, 45 Atl. 295, 74 Am. St. Rep. 357; Corthell v. Holmes, 87 Me. 24, 32 Atl. 715. 87. Perry v. Phipps, 32 N. C. 259, 51 Am. Dec. 387. 88. Lowell v. Gathright, 97 Ind. 313; Chap- man v. Decrow, 93 Me. 378, 45 Atl. 295, 74 Am. St. Rep. 357 ; Smith r. St Paul City R. Co., 79 Minn. 254, 82 N. W. 577. Vol. II 420 ANIMALS authorizing any person to kill dogs which are unlicensed and without a collar, whenever or wherever found, empowers the killing, without a warrant, of a licensed dog having no collar, provided a person can do so without trespassing. 89 Actual notice of the ownership of such a dog will not render liable a person authorized by law to kill it. 90 (c) Killing on Land of Owner or Another — (1) In General. One has no right to go on the premises of the owner of a dog and there kill the animal, 91 though its killing might otherwise be justifiable; 93 but the owner of the dog can- not contend that the person assaulted had no right to go on the premises of a third person and kill it. 9S (2) Unlicensed Dogs. Although a peace officer, acting under a' warrant issued in pursuance of statutory authority, may kill unlicensed and untagged dogs, and, in accordance with the provisions of the statute, may go upon the premises of the owner for that purpose, 94 private citizens, although authorized to kill such dogs whenever and wherever found, are not authorized by the statute to hunt or pursue them into their owners' dwellings without leave of such owners. 95 b. Protected Wild Animals. It is justifiable, in defense of, and to preserve, property, to kill wild fur-bearing animals protected by statute, when the killing is done under a reasonable necessity. 96 2. Persons Liable — • a. Claimant of Land. One who wounds cattle pasturing on an uninclosed range claimed by him, but as to which he has no title or right, is liable to the owner of the animals. 97 b. Joint oWner of Land. Where land is owned by several, the owners who were the actual perpetrators of the act are alone liable. 98 e. Occupant of Land. One who uses and controls premises is liable under a statute prescribing a penalty for the killing or wounding of animals by any person not having a lawful fence. 99 d. Master for Act of Servant. For the voluntary killing or injury of an animal- by a servant, in the ordinary prosecution and scope of his business, the master is ordinarily liable ; * but a master is not liable for the wilful act of his 89. Morewood v. Wakefield, 133 Mass. 240. act of 1867, c. 137, for the killing of an un- ' Conversion. — Such a statute will not au- licensed dog. thorize a person to convert a collarless dog 95. Kerr v. Seaver, 11 Allen (Mass.) 151; td his own use. Cummings v. Perham, 1 Bishop v. Fahay, 15 Gray (Mass.) 61. Mete. (Mass.) 555. 96. Aldrich v. Wright, 53 N. H. 398, 16 A killing by a dog is not a killing by " any Am. Rep. 339. person." Heisrodt v. Hackett, 34 Mich. 283, 97. McCoy v. Phillips, 4 Rich. (S. C.) 463. 22 Am. Rep. 529. 98. McKay v. Woodle, 28 N. C. 352. 90. Morey v. Brown, 42 N. H. 373. 99. Jones v. Hood, 4 Bush (Ky.} 80. Dog at large with owner. — Under a statute One whose farm is inclosed with another empowering any person to kill a dog without by a common fence, and who uses a barn a collar, a killing is justified if the dog is out within the inclosure, but standing on the of the inclosure of his owner, without a col- other farm, and who kills cattle trespassing lar, although he be under the immediate care in such barn, is within a statute making li- of the owner, and this is known to the per- able the owner of an inclosure not lawfully son killing the dog. Tower v. Tower, 18 fenced who shall kill cattle breaking in, etc. Pick. (Mass.) 262. Crawford v. Crawford, 88 Ga. 234, 14 S. E. 91. Uhlein v. Cromack, 10» Mass. 273; 609. Kerr v. Seaver, 11 Allen (Mass.) 151; Perry 1. Cantrell 1). Adderholt, 28 Ga. 239; Schmidt v. Phipps, 32 N. C. 259, 51 Am. Dec. 387 ; v . Adams, 18 Mo. App. 432. See also Lee v. Decker v. Holgate, 5 Lack. Leg. N. (Pa.) 56. Nelms, 57 Ga. 253, in which it was said " care 92. Gibbons v. Van Alstyne, 9 N. Y. Suppl. should be taken not to cast on him [the mas- 156, 29 N. Y. St. 461. ter] responsibility for torts of that class 93. Spaight ;;. MeGovern, 16 R. I. 658, 19 without sufficient evidence that the servant Atl. 246, 7 L. R. A. 388. committed them in the prosecution and scope 94. Blair v. Forehand, 100 Mass. 136, 97 of such business; more especially where the Am. Dec. 82, 1 Am. Rep. 94. But see Cozzens measure of damages may go far beyond com- v. Nason, 109 Mass. 275, holding that, unless pensation for the actual injury, and operate the owner consent, a constable has no right as a penalty." to enter a dwelling-house for the purpose of Mere negligence of a servant, acting in the executing a warrant under the Massachusetts ordinary business of his master, will not au- Vol. II ANIMALS 421 servant 2 unless such servant has acted under the command or direction of his master. 3 e. Parent fop Act of Child. A parent is not liable for injury to a third person's animals by the act of his own child unless he expressly or impliedly directed or authorized the wrong. 4 3. Actions — a. Who May Sue — (i) Owner. For the unjustifiable injury or killing of any animal which is the property of another, its owner may maintain an action and recover the damages sustained by him, 5 whether or not he was in the actual physical possession of the animal at the time of the killing or injury. 6 The liability depends upon whether or not the death or injury was the natural and proximate consequence of the wrongful act. 7 (n) Bailee or Person in Possession. A mere bailee of animals may maintain an action for wrongfully killing or injuring them, 8 as likewise may one who has an actual and exclusive, though wrongful, possession. 9 b. Form of Action — (i) Trespass or Case. There are two forms of action for injuring or killing animals : trespass or trespass vi et armis, where the act itself is immediately injurious to the animal and therefore necessarily accompanied with some degree of force ; 10 and a special action on the case lies where the act is thorize a recovery against the master, al- though the damage actually results from such negligence, where by statute it is necessary that the injury should have arisen out of some act done or commanded. Smith v. Causey, 22 Ala. 568. 2. Steele v. Smith, 3 E. D. Smith (N. Y.) 321. 3. The mere fact that the owner of a dog, set on by his servant, stood near, will not warrant a judgment against him without proof that the servant acted by his command or direction, especially where the owner, so Boon as he saw the act, gave immediate or- ders to take off the dog. Steele v. Smith, 3 E. D. Smith (N. Y.) 321. If one agrees that his servant may assist another to drive animals from the field of the latter, he is not liable for the wilful and wan- ton infliction of injury by his servant and such other, but otherwise if he knows or had reason to believe that such injury would be inflicted. Mardree v. Sutton, 47 N. C. 146. 4. Tifft v. Tifft, 4 Den. (N. Y.) 175; James v. Caldwell, 7 Yerg. (Tenn.) 37. 5. Alabama. — White v. Brantley, 37 Ala. 430. Connecticut. — Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175. Georgia. — Bailey v. State, 65 Ga. 410. Illinois. — Spray v. Ammerman, 66 111. 309. Indiana. — Amick v. O'Hara, 6 Blaekf . (Ind.) 258. Texas. — Heiligmanh v. Rose, 81 Tex. 222, 16 S. W. 931, 26 Am. St. Rep. 804, 13 L. R. A. 272; Champion v. Vincent, 20 Tex. 811. Feathered animals not ferw natural are protected to the same extent as other domes- tic animals. Reis v. Stratton, 23 111. App. 314. 24 & 25 Vict. c. 96, § 23, which denounces the unlawful killing or wounding of doves or pigeons under such circumstances as shall not amount to larceny at common law, is in- tended to forbid the killing of such birds, un- der such circumstances as that, but for the peculiar doctrine of the law relating to prop- erty in pigeons, etc., it would be larceny. Taylor v. Newman, 4 B. & S. 89, 116 E. C. L. 89. Negligence. — When the liability prescribed is for acts done or caused to be done, there is no responsibility for mere negligent acts or omissions. Maltby v. Dihle, 5 Kan. 430. Waiver of right. — One who takes and uses his hogs after they have been wrongfully killed does not waive his right to damages for the trespass, but only his claim for the value of the animals. Champion v. Vincent, 20 Tex. 811. 6. White v. Brantley, 37 Ala. 430, where, at the time of killing, plaintiff's dog was in possession of a person to whom he had loaned it. 7. Wilhite v. Speakman, 79 Ala. 400, wherein defendant tied a trespassing horse to a tree, and it was found dead thereafter, apparently having been choked to death. 8. Hare v. Fuller, 7 Ala. 717. 9. Criner v. Pike, 2 Head (Tenn.) 397. Necessity of actual possession. — The fact thal^ the animal was on its usual range, or had gone to defendant's, which was in the neighborhood, would not destroy the posses- sion so as to defeat the right of action. Criner v. Pike, 2 Head (Tenn.) 397. 10. Alabama. — White v. Brantley, 37 Ala. 430. Delaware. — Cannon v. Horsey, 1 Houst. (Del.) 440. Illinois. — Painter v. Baker, 16 111. 103. Indiana. — Amick v. O'Hara, 6 Blaekf. (Ind.) 258. New Jersey. — Dilts v. Kinney, 15 N. J. L. 130; Sinnickson v. Dungan, 8 N. J. L. 226. Michigan. — Wood v. La Rue, 9 Mich. 158. North Carolina. — Dodson v. Mock, 20 N. C. 234, 32 Am. Dec. 677. South Carolina. — McCoy v. Phillips, 4 Rich. (S. C.) 463. Tennessee. — James v. Caldwell, 7 Yerg. (Tenn.) 37. Vermont. — Waterman v. Hall, 17 Vt. 128, 42 Am. Dec. 484. See also 3 Bl. Comm. 153. Vol. II 422 ANIMALS in itself indifferent and the injury only consequential and therefore arising without a breach of the peace. 11 If the injury is forcible and was effected by means flowing from the act of defendant, but not operating by the very force and impulse of that act, either trespass or case will lie. 12 (n) Trover. If a person having impounded animals damage feasant kill them while so in his possession, or injure them so that they afterward die when set at large, the act amounts to a conversion in law of the property, and trover will he. 13 e. Defenses — (i) Contributory Negligence. Contributory negligence is a bar to a recovery. 14 (n) Notice — (a) .Posted Notices.] Posting notices that trespassing dogs will be destroyed will not justify their destruction. 15 (b) To Owner. Where the statute provides that if a dog has killed or worried sheep, and its owner has had notice of , the fact for twenty-four hours, any person may kill the dog if thereafter found out of the inclosure or immediate care of its owner or keeper, a written notice to the owner is not required to justify such kill- ing. 16 And notice to restrain a trespassing dog, although not a complete defense justifying his destruction, may be c6nsidered in determining the reasonableness of or necessity for destroying him. 17 (in) Permission to Kill. Permission, by the owner, to kill a troublesome or vicious animal is a complete defense. 18 d. Set-Off. If the injury or killing was illegal, the wrong-doer cannot set off the injury sustained by the trespass of the animal. 19 e. Pleading — (i) Complaint, Declaration, or Petition' 10 — (a) In Gen- eral. Faulty language in the declaration will not render it defective, if the wrongful act is sufficiently charged. 21 However, to authorize the recovery of a statutory penalty for injuring or killing cattle or stock within an inclosure not having a lawful fence, the declaration or complaint must be framed on the stat- ute ; a it must state not only the circumstances necessary to bring the case within the statute and specially count thereon, 23 but it must also substantially negative 11. Alabama. — Smith v. Causey, 22 Ala. 568. JN ew Jersey. — Dilts r. Kinney, 15 X. J. L. 130; Wales v. Ford, 8 X. J. L. 267. North Carolina. — Dodson c. Mock, 20 >.. C. 234, 32 Am. Dec. 677. Pennsylvania. — Leary v. Harter, 1 Leg. Gaz. (Pa.) 20. Tennessee. — Childress r. Yourie, Meigs (Tenn.) 561. Vermont. — Waterman r. Hall, 17 Vt. 128, 42 Am. Dec. 484. England. — Townsend v. Wathen, 9 East 277. See also 3 Bl. Comm. 153. 12. Ridge r. Featherston, 15 Ark. 159; Waterman i. Hall, 17 Vt. 128, 42 Am. Dec. 484. 13. Cannon r. Horsey, 1 Houst. (Del.) 440. If one is chasing a beast with a little dog, out of his land, and another kill the dog, an action of trover lies; because there is an election to chase the beast out, or to restrain it damage feasant; but if the chasing is with a mastiff dog and the dog is killed this action does not lie, because the chasing with such a dog is not lawful. Bacon Abr. tit. Trover (D). 14. Cook v. Pickrel, 20 Xebr. 433, 30 X. W. 421. 15. Corner v. Champneys, 2 Marsh. 584. 16. Miller c. Spauldiug, 41 Wis. 221. Vol. n 17. Hodges v. Causey, 77 Miss. 353, 26 So. 945, 78 Am. St. Rep. 525, 48 L. R. A. 95. 18. Meneley v. Carson, 55 111. App. 74. Killing long subsequent to permission. — A statement made in a heated discussion by the owner of an animal, to one complaining of trespasses, and in reply to a threat to kill it : " Go and kill him if you want to ! " will not authorize a killing four or five months there- after. Ulery v. Jones, 81 111. 403. 19. Hamilton r. Howard, 68 Ga. 288. 20. For forms of complaints, declarations, or petitions for injuring or killing: Dogs, see Townsend r. Wathen, 9 East 277; Deane v. Clayton, 7 Taunt. 489, 491, 2 E. C. L. 461. Horses, see Totten r. Cole, 33 Mo. 138, 82 Am. Dec. 157 : James v. Caldwell, 7 Yerg. (Tenn.) 37: Waterman t. Hall, 17 Vt. 128, 132, 42 Am. Dec. 484. 21. Dorr v. Loucks, 2 Mich. X. P. 182, where the language was that defendants, with their dogs, " drove, chased, and hurried " plaintiff's sheep, and it was held that the words were equivalent to a charge in the statutory language of ""' worrying." In a justice's court an informal pleading will be sufficient, if the record shows the de- mand to be " for stock killed." Early v. Fleming, 16 Mo. 154, wherein plaintiff's state- ment was " for three hogs." 22. Tankersly r. Wedgworth, 22 Ala. 677. 23. Lee r. Xelms, 57 Ga. 253; McKay v. Woodle, 28 X. C. 352. ANIMALS 423 the performance by defendant of the duties required of him by the act 24 — as, for example, that defendant's inclosure was not protected as required by law. 85 But this rule is not applicable where the statute is simply remedial, and gives an easier or cumulative remedy for a loss for which there was a common-law remedy. 26 A count in trespass in common-law form may be amended by the insertion of allega- tions bringing the case within the terms of the statute ; w although a declaration, under a statute giving triple damages for the killing of cattle in an inclosure not protected by a lawful fence cannot be amended by the addition of a count for exemplary damages independent of the statute. 38 (b) Negativing Circumstances which Make Killing Lawful. An averment that the animal was unlawfully killed is sufficient, without negativing the circum- stances under which the killing might have been lawful. 29 1 (o) Wilfulness or Malice. Where, to impose a liability, the act must have been wilful or malicious, plaintiff must aver that the killing or injury was of that character. 30 (n) Answer or Plea 31 — (a) In General. Distinct allegations in an answer that a dog was doing mischief when killed, and that he was a stray dog running at large, separately state no defense, and though, if considered together, facts are stated which by statute permit the destruction of a dog, yet the pleading is defec- tive ; but the defect is waived by failure to except. 83 (b) Necessity of Killing. The plea must set forth the necessity for the killing. 33 (o) Plaintiff's Knowledge of Animal's Character. In an action for the kill- ing of a ferocious dog, defendant need not allege, and consequently need not prove, scienter of the owner. 84 f. Evidence — (i) Burden of Proof. Where animals are killed on plain- tiff's land, he need not show property in them ; M nor need he, in the first instance, prove that a dog killed had been assessed and the tax paid on him. 36 Where defendant seeks to justify under a statute permitting the killing of a dog found 24. Sinniokson v. Dungan, 8 N. J. L. 226. 33. Vere v. Cawdor, 11 East 568 (wherein 25. Lee v. Nelms, 57 Ga. 253. a plea that a dog was killed while running 26. McKay v. Woodle, 28 N. C. 352, hares, in a close for the preservation of hares, wherein, in an action for worrying, maim- was held insufficient because not setting ing, and killing plaintiff's hogs while tres- forth the necessity of killing the dog to passing on inclosed grounds not having a preserve the hares) ; Wright v. Ramscot, 1 sufficient fence, as required by NV C. Rev. Saund. 84, 1 Sid. 336, 1 Lev. 216, 2 Keb. 333 Stat. c. 48, an objection, that the declaration (an action for killing a mastiff, wherein it did not refer to the statute, was held to be was held insufficient to state that the dog unavailable, for the reason that plaintiff had killed " ran violently upon defendant's dog a remedy at common law. and bit him," without stating further that If a case is not made out under the statute, defendant could not otherwise separate the there may be » recovery for the common-law mastiff from his dog ) . trespass. Stewart v. Jewell, 7 T. B. Mon. Nuisance. — A plea that "the hogs were (Ky.) 110. an intolerable nuisance," both to defendants 27. Hurd v. Chesley, 55 N. H. 21. and the public, sets up no defense. Ussery v. 38. Tumlin v. Parrott, 82 Ga. 732, 9 S. B. Pearee, 1 Tex. App. Civ. Cas. § 54. 718. 34. Woolf v. Chalker, 31 Conn. 121, 81 29. Lowell v. Gathright, 97 Ind. 313. Am. Dec. 175; Maxwell v. Falmerton, 21 30. Ridge v. Featherston, 15 Ark. 159; Wend. (N". Y.) 407; Parrott v. Hartsfield, 20 Tifft v. Tifft, 4 Den. (N. Y.) 175, wherein ST. C. 203, 32 Am. Dec. 673. the declaration charged the wrong to have Amendment. — Where evidence as to the been done by defendant or his family, noth- owner's knowledge of his dog's viciousness ing being stated to show defendant's liability has been received without objection, though for acts of the family, and there was no the question is not properly raised by the proof of defendant's presence at, or approval pleadings, the defect therein may be remedied of the act by a member of his family. by amendment before or after judgment, and 31. For forms of pleas justifying the kill- will be disregarded on appeal. Miller v. ing of a dog see Prothenor v. Mathews, 5 Spaulding, 41 Wis. 221. C. & P. 581, 24 E. C. L. 718; Barrington v. 35. Leonard v. Wilkins, 9 Johns. (N. Y.) Turner, 3 Lev. 25. 233. 32. Simmonds v. Holmes, 61 Conn. 1, 23 36. Jordan v. McGill, 43 N. Y. App. Div. Atl. 702, 15 L. R. A. 253. 264, 60 N. Y. Suppl. 33. Vol. II 424 AXIMALS chasing or worrying sheep, the burden is on him to show that the dog was so engaged when killed. 37 The defendant need not, however, prove plaintiffs knowl- edge of the inischievons disposition of the dog killed, nor need defendant prove that he had no other mode of protecting his property than by the killing charged. 38 (n) Admissibility — (a) Acquittal of Criminal Charge. The record of defendant's acquittal of a charge of malicious mischief in killing cattle is inad- missible in a civil action to recover triple damages for the same killing. 39 (b) Apprehension of Injury. "Where the killing is unjustifiable, evidence of defendant's apprehension that the animal was about to destroy property is inad- missible to mitigate the actual damages to which the animal's owner is entitled. 40 (c) Character of Animal. Evidence of the former objectionable conduct of a dog, or previous acts of ferocity, is competent, 41 and evidence of bad habits, other than those relied on to justify the killing, is admissible, not in bar, but in mitiga- tion, of damages. 42 But evidence that, at a prior time, defendant's animals were worried by dogs is not competent, unless the dog in question is connected there- with, 43 nor may a witness be asked whether, from his knowledge of a dog, he did or did not consider him a nuisance. 44 Where defendant has justified by showing that the dog attacked him, and that he was accustomed to attack and bite man- kind, plaintiff may prove the general quietness of the dog. 45 (d) Damages Sustained by Defendant. In mitigation of damages, defendant may show damages wrongfully sustained by him, immediately connected with the transaction for which he is sued, but not for injury sustained which was reason- ably necessary. 46 (e) Special Damages. It is improper to aamit eviaence 01 consequential and special damages under a complaint seeking to recover merely the value of an ani- mal killed. 47 (f) Statements and Admissions. Statements by a servant, accompanying or explanatory of the acts done, 48 or of past wrongful acts, 49 are inadmissible to charge the master. And, where it is sought to charge the defendant with acts of his servant in driving off animals, he will be permitted to prove that he directed the latter not to kill or injure the animals. 50 (g) Tender of Compensation. A tender of compensation may oe proved in mitigation of damages. 51 (h) Value of Animal. If dogs of a particular breed or class have any fixed or general market value, opinion evidence is admissible to fix such value ; M but opinions as to the value of dogs which have no' standard or market value, and which value is founded on mere taste or fancy, are incompetent. 53 If there is no 37. Cole r. Van Syekle, 7 Northampt. Co. 44. Parker v. Mise, 27 Ala. 480, 62 Am. Rep. (Pa.) 45, 8 Pa. Dist. 362, 13 York Leg. Dec. 776. Kee. (Pa.) 105. 45. Clark c. Webster, 1 C. & P. 104, 12 So, too, allegations in a plea to an action E. C. L. 71. for shooting a dog, that he attacked defend- 46. Spray v. Ammerman, 66 111. 309. ant, and was accustomed to attack and bite 47. Teagarden v. Hetfield, 11 Ind. 522, mankind, are material, and must be proved. where, under a complaint to recover the value Clark v. Webster, 1 C. & P. 104, 12 E. C. L. of a mare, plaintiff was erroneously permft- 71. ted to prove damages for trouble and expense 38. Parrott v. Hartsfield, 20 N. C. 203, 32 in earing for two colts she was suckling, and Am. Dee. 673. also for care and expense in caring for the 39. Yumlin r. Parrott, 82 Ga. 732, 9 S. E. wounded animal until her death. 718. See also Irvin v. State, 7 Tex. App. 78. 48. Ridge v. Featherston, 15 Ark. 159. 40. Ten Hopen r. Walker, 96 Mich. 236, 55 49. Lee v. Xelms, 57 Ga. 253. N. W. 657, 35 Am. St. Rep. 598. 50. Mardree v. Sutton, 47 N. C. 146. 41. Meneley v. Carson. 55 111. App. 74; 51. Cole v. Tucker, 6 Tex. 266. Eoecher p. Lutz, 2 N. Y. City Ct. 205 note. 52. Brown v. Hoburger, 52 Barb. (N. Y.) 42. Reynolds v. Phillips, 13 111. App. 557; 15. Dunlap v. Snyder, 17 Barb. (N. Y.) 561; 53. Smith v. Griswold, 15 Hun (N. Y.) 273 ; Lentz v. Stroh, 6 Serg. & R. (Pa.) 34. Brown v. Hoburger, 52 Barb. (N. Y.) 15. 43. Gibbons v. Van Alstyne, 9 N. Y. Suppl. Opinion evidence, not based on any facts as 156, 29 N. Y. St. 461. to market value or use, is insufficient. Heil- Vol. II ANIMALS 425 market value, the special value of a dog may be shown by proof of his characteris- tics, qualities, and special ability. 54 Where plaintiff gives evidence of the qualities and value of a dog killed, ordinarily defendant may show in reduction of dam- ages that the animal was of little or no value. 55 (in) Sufficiency— (k) As to Ownership. The fact that a collar on a dog killed bears plaintiff's name is not conclusive of such dog's ownership, but is only evidence which the jury may consider in determining that fact. 56 (b) As to Value. The pecuniary value of a dog need not be proved to sus- tain an action for its destruction. The injury imports damages. 57 (c) As to Wrongful Act. The evidence must show such conduct on the part of defendant as will amount to a positive wrongdoing, 58 and must connect him with the wrong charged. 59 (d) As to Justification. Where a statute is relied on as a justification by the alleged wrong-doer, he must bring himself exactly within its protection. 60 Where, under the statute, the killing of a dog can be justified only when he is actually wounding, worrying, or killing sheep, evidence that the sheep were running about the field in a greatly agitated and frightened manner, pursued by the dog, which was apparently worrying and injuring them, and that the effect of chasing was to greatly worry and injure them, is not sufficient. 61 (iv) Variance. The declaration or complaint must be supported by appro- priate proof. Thus, the venue of the offense must be proved as alleged, 6 ^ and an allegation of injury to cattle is not supported by proof of injury to mules. 63 Nor when the averment is that defendant or his family killed a hog by setting on a dog, and the proof is that the wrong was done by defendant's daughter in his absence, will a judgment against defendant be justified. 64 g. Trial — (i) instructions — (a) As to Liability. It is erroneous to base instructions on facts not in evidence, as, for example, to instruct that defendant would not be liable if he acted prudently, when the statute imposes a liability for killing in any mode, and the testimony shows a lack of prudence, 65 or to leave to the jury the question whether or not the animal killed was a public nuisance, having informed them that if so its destruction was justified, where the evidence fails to show any liability. 66 But an erroneous instruction as to defendant's liability under stated circumstances is immaterial if the evidence warrant the conviction. 67 igmann v. Rose, 81 Tex. 222, 16 S. W. 931, 26 Am. St. Rep. 804, 13 L. R. A. 272. 54. Anson v. Dwight, 18 Iowa 241, Hodges v. Causey, 77 Miss. 353, 26 So. 945, 78 Am. St. Rep. 525, 48 L. R. A. 95 ; Brill v. Flagler, 23 Wend. (N. Y.) 354. Where the dog killed was chiefly valuable for his ability to herd cattle and horses, farmers who have knowledge of his character- istics and qualities, and of the value of such an animal, may testify to his value. Bow- ers v. Horen, 93 Mich. 420, 53 N. W. 535, 32 Am. St. Rep. 513, 17 L. R. A. 773. 55. Lentz v. Stroh, 6 Serg. & R. (Pa.) 34. 56. Leonard v. Wilkins, 9 Johns. (N. Y.) 233 57. Brent v. Kimball, 60 111. 211, 14 Am. Rep. 35; Dodson v. Mock, 20 N. C. 234, 32 Am. Dec. 677. Contra, Parker v. Mise, 27 Ala. 480, 62 Am. Dec. 776; Heiligmann v. Rose, 81 Tex. 222, 16 S. W. 931, 26 Am. St. Rep. 804, 13 L. R. A. 272. 58. Carney v. Brome, 77 Hun (N. Y.) 583, 28 N. Y. Suppl. 1019, 60 N. Y. St. 453. 59. Evidence that a trespassing hog was uninjured when first seen, that she was then shot, and that about an hour afterward an- other shot was heard, that the animal squealed, that the smoke of the gun was seen, and also defendant, with the gun pointed toward where the hog lay, is sufficient to au- thorize the jury to infer that he fired the first shot. Landell v. Hotchkiss, 1 Thomps. & C. (N. Y.) 580. But a habit of a colt to trespass in neighboring corn-fields, unaccom- panied by other evidence, would not tend to show that the person or persons so trespassed on killed the animal; hence, evidence of such facts is properly excluded. Dean v. Black- well, 18 111. 336. Approval of wrongful act. — Where the wrongful act was committed in the presence of defendant, but the evidence shows neither assent or dissent from the act on his part, a verdict against him will not be disturbed. James v. Caldwell, 7 Yerg. (Tenn.) 37. 60. Early v. Fleming, 16 Mo. 154. 61. Johnson v. McConnell, 80 Cal. 545, 22 Pac. 219, three judges dissenting. 62. Woods v. State, 27 Tex. App. 586, 11 S. W. 723. 63. Brown v. Bailey, 4 Ala. 413. 64. Tifft v. Tifft, 4 Den. (N. Y.) 175. 65. Jones v. Hood, 4 Bush (Ky.) 80. 66. Morse v. Nixon, 51 N. C. 293. 67. Amick v. O'Hara, 6 Blackf. (Ind.) 258. Vol. II 426 ANIMALS (b) As to Value. An instruction that the value of a dog should be found from the evidence of his qualities rather than from the opinions of witnesses, is erroneous, because the jury have the right to consider both kinds of evidence, and, furthermore, because it excludes from their consideration any question of commercial value and loss of services. 63 Likewise, it is erroneous to assume that dogs have no established commercial value in a particular county, 69 or to require that plaintiff must have shown by a preponderance of evidence that the dog killed had some pecuniary value. 70 (c) As to Justification. Instructions are erroneous where too high a degree of proof as to justification is imposed, 71 or which refer, too broadly and in a manner calculated to mislead, to matters of justification which were not proven. 72 Where facts amounting to a justification are shown, it is error to take the con- sideration of such facts from the jury. 73 But the refusal of a proper instruction as to the right to eject trespassing cattle in such a manner as to cause their drowning will not be deemed prejudicial error where a more favorable instruc- tion on the same subject is given. 74 (u) Pbotixce of Jury. The necessity for the injury or killing, or the reasonableness of the means or measures resorted to, are questions for the jury, 75 so likewise is the character of the animal killed — that is, as to whether he was or was not a nuisance. 76 (in) Verdict. 71 In a common-law action for injury to a trespassing animal a verdict which is warranted only in an action based on a statute is erroneous, 78 and, where defendant attempts to justify, a verdict finding the damages to be equal and dividing the costs is irresponsive and will not sustain a judgment. 79 But a gen- eral verdict for plaintiff is not inconsistent with a special finding that the dog killed was in the habit of annoying persons and animals on the highway. 80 h. Amount Recoverable — (i) Damages — (a) In General. For a wrongful injury to, or destruction of, an animal the owner may recover the amount of damage to which he shows himself entitled ; 81 and, if the right of property in the 68. Spray v. Ammerman, 66 111. 309. 69. Spray v. Ammerman, 66 111. 309. 70. Brent v. Kimball, 60 III. 211, 14 Am. Hep. 35. 71. Reynolds v. Phillips, 13 111. App. 557. 72. Spray v. Ammerman, 66 111. 309. 73. King v. Kline, 6 Pa. St. 318. 74. Jobe v. Houston, (Tex. Civ. App. 1893) 23 S. W. 408. 75. Illinois. — Lipe v. Blaekwelder, 25 111. App. 119. Michiaan. — Hubbard r. Preston, 90 Mich. 221, 51 "N. W. 209, 30 Am. St. Rep. 426, 15 L. R. A. 249. New Hampshire. — Aldrieh r. Wright, 53 N. H. 398, 16 Am. Rep. 339. New York. — Leonard v. Wilkins, 9 Johns. (N. Y.) 233. Pennsylvania. — King v. Kline, 6 Pa. St. 318; Cole v. Van Syckle, 7 Northampt. Co. Rep. (Pa.) 45, 8 Pa. Dist. 362, 13 York Leg. Ree. (Pa.) 105. England. — Hamvay v. Boultbee, 4 C. & P. 350, 19 E. C. L. 549. Matters to be considered. — In determining these questions the value of the animal, the mischief likely to be wrought, the probability of the success of less severe measures, and the necessity of immediate action, are ele- ments to be considered. Lipe v. Blaekwelder, 25 111. App. 119. The mode of securing an impounded ani- mal, by tying and other circumstances, may Vol. II be considered in determining whether its death, by choking, was the natural and prox- imate consequence of securing and leaving it tied. Wilhite v. Speakman, 79 Ala. 400. That defendant notified plaintiff to restrain his dog may be considered by the jury in de- termining the reasonableness or necessity of a killing. Hodges v. Causey, 77 Miss. 353, 26 So. 945, 78 Am. St. Rep. 525, 48 L. R. A. 95. 76. King r. Kline, 6 Pa. St. 318. Mitigation. — The habits of a dog may be considered in mitigation of damages. Wells v. Head, 4 C. & P. 568, 19 E. C. L. 653. 77. For form of special verdict in an ac- tion to recover for the killing of a dog see Deane v. Clayton, 7 Taunt. 489. 78. Lee v. Nelms, 57 Ga. 253. A verdict based on an improper amendment to a count of a declaration for triple dam- ages under a statute, praying for exemplary damages independently of the statute, will not be disturbed when it awards much less than would have been proper under the orig- inal declaration and proofs. Yumlin v. Par- rott, 82 Ga. 732, 9 S. E. 718. 79. Ford v. Taggart, 4 Tex. 492. 80. Jacquay v. Hartzell, 1 Ind. App. 500, 27 N. E. 1105. 81. The fair (Jacquay v. Hartzell, 1 Ind. App. 500, 27 N". E. 1105) or market value (Uhlein i\ Cromaek, 109 Mass. 273). The measure of damages for causing mares to lose their foals is the reduced value of the ANIMALS 427 animal is recognized, the law implies a right in the owner to damages — nominal, at least — for its destruction. 82 (b) Exemplary Damages. "Where the killing is done or the injurious act committed wilfully and under circumstances of aggravation, showing a violent, reckless, and lawless spirit, the law, in some jurisdictions, allows exemplary dam- ages, 83 although the animal had no pecuniary' value. 84 (c) Statutory Damages. In some of the states double damages, or penal damages, based on the value of the animal, are permitted for injury to stock within an inclosure. 85 But such statutes, when highly penal, must be strictly construed. 86 (n) Costs. A tender of compensation to the owner of the animal will not affect the right to the costs of a subsequent action for the injury. 87 4. Special Proceedings. A special statutory proceeding, before a justice and freeholders, for an award of damages for the abuse or killing of trespassing cattle, is a remedy which must be strictly pursued. 88 B. Criminal Prosecution for Causing- Injury to Animals — l. Nature and Elements of Offense — a. Domestic Animals Generally — (i) At Common Law. Whether or not the killing or wounding of a domestic animal constitutes an offense at common law is by no means clear. There are decisions to the effect that such acts are indictable because of their tendency to provoke a breach of the peace, 89 and that maiming or wounding is a common-law offense ; 90 there are dicta to the same effect, and cases wherein the right to indict for killing an ani- mal has not been questioned. 91 On the other hand, it is denied in some cases that the destruction of an animal is a criminal offense, unless made so by statute, 92 and still other cases, while apparently conceding that the killing of an animal may be punished, even though not prohibited by statute, refuse to extend the doctrine to instances of wounding or maiming. 93 animals. Baker v. Mims, 14 Tex. Civ. App. 413, 37 S. W. 190. 82. Brent v. Kimball, 60 111. 211, 14 Am. Rep. 35. A dog which is a nuisance cannot be said to have a value. Dunlap v. Snyder, 17 Barb. (N. Y.) 561. 83. Champion v. Vincent, 20 Tex. 811. The Texas act of 1840 [Hartley's Dig. p. 436] giving to the injured party " full sat- isfaction for all damages sustained,", does not limit the recovery to mere compensation, but permits exemplary damages when warranted by the circumstances. Cole v. Tucker, 6 Tex. 266. Liability to a criminal prosecution will not relieve from exemplary damages. Cole v. Tucker, 6 Tex. 266. 84. Parker v. Mise, 27 Ala. 480, 62 Am. Dec. 776. 85. Wilhite v. Speakman, 79 Ala. 400; Thompson v. State, 67 Ala. 106, 42 Am. Eep. 101. To authorize such damages, under the Ken- tucky act, the animal must have been in- jured within the defendant's inclosure. Stew- art v. Jewell, 7 T. B. Mon. (Ky.) 110. 86. Smith v. Causey, 22 Ala. 568. 87. Cole v. Tucker, 6 Tex. 266. 88. Bailey v. Bryan, 48 N. C. 357, 67 Am. Dec. 246. A report of freeholders, in statutory pro- ceedings to assess damages for the abuse and killing of cattle, is erroneous if it awards damages for injuries of which no complaint is made, and in such a case the judgment can be no more than for the damages claimed. Bailey v. Bryan, 48 N. C. 357, 67 Am. Dec. 246. 89. New Hampshire. — State v. McDuffie, 34 N. H. 523, 69 Am. Dec. 516. New York.— People v. Smith, 5 Cow. (N. Y.) 258. North Carolina. — State v. Manuel, 72 N". C. 201, 21 Am. Rep. 455. Pennsylvania. — Respublica v. Teischer, 1 Dall. (Pa.) 335. Tennessee. — State v. Council, 1 Overt. (Tenn.) 305. 90. State V. Briggs, 1 Aik.(Vt.) 226. 91. Com. v. Leach, 1 Mass. 59; State v. Latham, 35 N. C. 33 ; State v. Scott, 19 N. C. 35. 92. Bailey v. State, 65 Ga. 410 ; State v. Mease, 69 Mo. App. 581 ; State v. Beekman, 27 N. J. L. 124, 72 Am. Dec. 352; State v. Wheeler, 3 Vt. 344, 23 Am. Dec. 212. The use of the words "wilfully, malici- ously," etc., in an indictment to describe the act, will not have the effect of making such act a public offense. State v. Wheeler, 3 Vt. 344, 23 Am. Dec. 212. 93. State v. Beekman, 27 N. J. L. 124, 72 Am. Dec. 352; State v. Manuel, 72 N. C. 201, 21 Am. Rep. 455. No case can be found in England "where, independent of statute, it has been held to be a, public offense to maim cattle, whether with or without malice toward the owner. Both the elementary writers and the decisions hold Vol. II 428 ANIMALS (n) Under Statutes — (a) In General. The killing or wounding of ani- mals which are the property of another is now generally an offense by statutes. 94 These are designed to protect the owners rather than the animals themselves. 95 To constitute the offense, the particular form of injury must have been inflicted or the circumstances of the killing or injury must have been such as are contem- plated by the statute, 96 and the animal wounded or killed must belong to the designated kind or class. 97 (b) Malice, Wilfulness, and Intent — (1) In General. The statutes gener- ally, in denouncing this offense, require that malice, wilfulness, or an unlawful intent to injure or kill should exist, and such a requirement imports a criminal motive, intent, or purpose, 98 as distinguished from accident or inadvertence, 99 action in good faith, 1 or acts done to protect property, 2 and the existence of such first- mentioned conditions is absolutely necessary to constitute the offense. 3 It is not that such offense is not indictable, but is a civil trespass only (4 Bl. Comm. 244; 2 East P. C. c. 21, § 16; 2 Russell Crimes 479; Reg. v. Wallace, Cr. & Dix Abr. Cas. 403); and no precedent of such a form of indictment, at common law, or independent of statute, is to be found." State v. Manuel, 72 N. C. 201, 202, 21 Am. Rep. 455. 94. Bailey v. State, 65 Ga. 410; State v. Grimes, 101 Mo. 188, 13 S. W. 956. Repeal of statute. — The first section of the South Carolina act of 1857, making it an in- dictable offense "wilfully, unlawfully, and maliciously " to " cut, shoot," etc., " any horse," etc., was not repealed by the twenty- first section of the act of 1865, declaring " every wilful trespass " to be a misdemeanor. State v. Alexander, 14 Rich. ( S. C.) 247. The South Carolina act of 1789, in the clause imposing » penalty for the second of- fense created by the act, obviously uses the word " kill " by mistake instead of the word " marked," and the killing of cattle is not an indictable offense under this act. Frierson v. Hewitt, 2 Hill (S. C.) 499. 95. State v. Broeker, 32 Tex. 611; Daniel v. Janes, 2 C. P. D. 351. 96. Cutting off the mane and docking the tail of a horse has been held to be within a statute prohibiting malicious injury (Ovi- att v. State, 19 Ohio St. 573) or disfigure- ment of designated animals (Boyd v. State, 2 Humphr. (Tenn.) 39) ; but not within a statute denouncing the marking, branding, or disfigurement of horses, where the evident in- tent of the act is directed against the oblit- eration or disfigurement of brands and marks (State v. Smith, Cheves (S. C.) 157). Maiming. — The statutory offense of maim- ing is not committed by shooting an animal. Patton v. State, 93 Ga. Ill, 19 S. E. 734, 24 L. R. A. 732; Bailey v. State, 65 Ga. 410. Poisoning. — The scattering of poison ac- cessible to the cattle of another, with intent that it shall be taken by them, is the offense of poisoning animals denounced by N. Y. Pen. Code. § 600, and not that of the malicious de- struction of property denounced by section 654. People v. Knatt, 156 N. Y. 302, 50 N. E. 835 {reversing 19 N. Y. App. Div. 628, 46 ST. Y. Suppl. 1098]. The placing of poisoned flesh in an in- closed garden, for the purpose of destroying Vol. II a dog which is in the habit of straying there, is not an offense punishable under 24 & 25 Vict. e. 97, § 41. But semble, that it is within 27 & 28 Vict. e. 115, § 2. Daniel v. Janes, 2 C. P. D. 351. The word " land " in section 2 of the poi- soned flesh act of 1864 applies to inclosed gardens, buildings, and dwelling-houses. Rog- ers v. Hull, 60 J. P. 584. Injuring and secreting horse. — Where one section of a statute makes it a criminal of- fense to destroy, injure, or secrete goods of another, an indictment will lie for injuring and secreting a horse, though other sections forbid the " killing, maiming, and disfiguring of horses," and the " tormenting, beating, mutilating, or overdriving animals." State v. Phipps, 95 Iowa 491, 64 N. W. 411. In insufficient inclosure. — In Texas, a prose- cution for killing hogs within an inclosure cannot be maintained where the hog law is in force, since the hog law requires no fence against such stock, and furnishes a remedy to the owner of the premises by the impound- ing of stock. Gerdes v. State, (Tex. Crim. 1896) 34 S. W. 268. • 97. Cattle. — Horses or mares are "cattle" within a statute inhibiting injury thereto (State v. Clifton, 24 Mo. 376; State v. Ham- bleton, 22 Mo. 452), and so are pigs (Rex v. Chappie, R. & R. 57 ) ; but a domesticated buffalo bull is not ( State v. Crenshaw, 22 Mo. 457 ) . In the North Carolina statutes, how- ever, " cattle " embraces the bovine species only, other animals being specifically desig- nated. State v. Credle, 91 N. C. 640. Dumb animal. — A dog which has an owner is a, " dumb animal " within the Texas stat- ute forbidding the killing of " dumb ani- mals." McDaniel v. State, 5 Tex. App. 475. 98. Com. v. Brooks, 9 Gray (Mass.) 299. 99. Lane v. State, 16 Tex. App. 172. 1. Taylor v. Newman, 4 B. & S. 89, 116 E. C. L. 89. 2. Thomas v. State, 30 Ark. 433. And see State v. Landreth, 4 N. C. 331, where the injury was inflicted to prevent a repetition of the mischief. 3. Johnson v. State, 37 Ala. 457; State v. Toney, 15 S. C. 409; Parmer v. State, 21 Tex. App. 423, 2 S. W. 767. An animal is killed unlawfully if a tres- pass on the part of the slayer is also in- ANIMALS 429 enough that the act was prompted by passion excited against the animal, or by the sudden resentment of an injury. 4 (2) Towaed Owner. At common law it was necessary that the malice involved in the commission of the offense should be against the owner of the animal, and not against it or another person. 6 Whether or not malice toward the owner is an element of the statutory offense is by no means agreed. Thus, in some jurisdictions, either by force of the statute creating the offense, or because the statute is regarded as declaratory of the common law, malice of this character must exist ; 6 while in others it is held that, if the object of the statute is to denounce as unlawful acts intentionally or wantonly done, malice against the owner is not an ingredient, though there may have been a deliberate intent to till, disable, or injure the animal. 7 b. Dogs. At common law, and in the absence of statute, it is not an offense to kill a dog, 8 and in many cases it is made lawful to kill a dog, 9 as where he has become a public nuisance, 10 is running at large, 11 or is trespassing and doing damage ; n volved in the killing. Thompson v. State, 67 Ala. 106, 42 Am. Rep. 101. Intent to convert. — That the animal was killed openly is immaterial, if the motive was to feloniously convert it. State v. Credle, 91 N. C. 640. 4. U. S. v. Gideon. 1 Minn. 292; State v. Latham, 35 N. C. 33; State v. Landreth, 4 N. C. 331. 5. See Bishop New Crim. L. § 996; and supra, XII, B, 1, a, (i). 6. Alabama. — Hobson v. State, 44 Ala. 380; Burgess v. State, 44 Ala. 190; North- cot v. State, 43 Ala. 330. Arkansas. — Chappell v. State, 35 Ark. 345. Iowa. — State v. Phipps, 95 Iowa 491, 64 N. W. 411. Minnesota. — U. S. v. Gideon, 1 Minn. 292. North Carolina. — State v. Newby, 64 N. C. 23. Tennessee. — Stone v. State, 3 Heisk. (Tenn.) 457. Texas. — State v. Rector, 34 Tex. 565; Dover v. State, 32 Tex. 84. See also Turman v. State, 4 Tex. App. 586. Toward bailee. — It is enough if the malice is toward the bailee of the animal, though there be no malice toward the general owner. Stone v. State, 3 Heisk. (Tenn.) 457. TowaTd owner's son. — Malice toward the owner's son is insufficient. Northcot v. State, 43 Ala. 330. If the injury is inflicted without malice to the owner it is a mere trespass. Northcot v. State, 43 Ala. 330. Killing trespassing animal. — The infliction of injury on a hog in' an inclosed field of growing corn belonging to defendant, and to protect his crops, is not the unlawful inflic- tion of injury with intent to injure the owner, within the terms or spirit of a statute de- nouncing the infliction of injury under such circumstances. State v. Waters, 51 N. C. 276. 7. Alabama.— Roe v. State, 82 Ala. 68, 3 So. 2 ; Tatum v. State, 66 Ala. 465. Dakota. — Territory v. Crozier, 6 Dak. 8, 50 N. W. 124. Georgia.— Mosely v. State, 28 Ga. 190. Missouri. — State v. Hambleton, 22 Mo. 452. Ohio. — Brown v. State, 26 Ohio St. 176. South Carolina. — State v. ,Toney, 15 S. C. 409; State v. Doig, 2 Rich. (S. C.) 179. Tennessee. — State v. Council, 1 Overt. (Tenn.) 305. Texas. — Manes v. State, 20 Tex. 38; Nutt v. State, 19 Tex. 340. England. — Reg. v. Tivey, 1 Den. C. C. 63. Ignorance of the ownership of the animal is immaterial if the maiming was intentional. Bromage v. Prosser, 4 B. & C. 247, 10 B. C. L. 563. 8. State v. Sumner, 2 Ind. 377; State v. Mease, 69 Mo. App. 581. A dog is not within a statute making it an offense to injure or kill "beasts" (U. S. v. Gideon, 1 Minn. 292 ) , " domestic animals " (State v. Harriman, 75 Me. 562, 46 Am. Rep. 423), "inanimate property" (Patton v. State, 93 Ga. Ill, 19 S. E. 734, 24 L. R. A. 732), "other property" (State v. Marshall, 13 Tex. 55 ) , or " personal property " ( Com. v. Maclin, 3 Leigh (Va.) 809; Davis v. Com., 17 Gratt. (Va.) 617). 9. See also supra, XII, A, 1, a, (n) 10. State v. Harriman, 75 Me. 562, 46 Am. Rep. 423; Nehr v. State, 35 Nebr. 638, 53 N. W. 589, 17 L. R. A. 771. 11. The words "running at large," in a statute authorizing the killing of a dog run- ning at large without a collar, mean running on the public road, or off from the owner's premises, without the attendance of any per- son claiming an interest in the dog. Nehr p. State, 35 Nebr. 638, 53 N. W. 589, 17 L. R. A. 771. Dog wearing collar. — A statutory declara- tion that no person shall be liable for killing any dog unprovided with a collar as pre- scribed by law is equivalent to forbidding the killing of dogs having the required collar. State v. McDuffie, 34 N. H. 523, 69 Am. Dec. 516. Statute repealed. — Ind. Rev. Stat. (1881), § 2646, permitting the killing of all dogs at large, was repealed by the act of 1881, p. 395, and was not revived by the repeal of the latter act by the act of 1883. Dinwiddie v. State, 103 Ind. 101, 2 N. E. 290. 12. A dog listed for taxation cannot be lawfully killed in Indiana unless while en- Vol. II 430 ANIMALS but if dogs are regarded as property, or their killing is forbidden, their destruction will constitute an offense. 13 2. Jurisdiction. Jurisdiction to try prosecutions for this offense exists in all courts, and justices who have jurisdiction of criminal offenses generally have jurisdiction, 14 provided the punishment does not exceed that which the statute empowers them to inflict. 15 3. Indictment, Information, or Complaint 16 — a. Charging Offense — (i) In General. It is ordinarily sufficient to describe the offense in the words of the statute, 17 and if this is done it is immaterial that the language is slightly inaccu- rate, 18 or somewhat confused. 19 gaged in damaging property of another than his owner, or where he is known to be a sheep-killing dog. Dinwiddie v. State, 103 Ind. 101, 2 X. E. 290. The fact that a dog has previously tres- passed in company with other dogs gives no right to kill it, whether doing damage or not. Sosat r. State, 2 Ind. App. 586, 28 N. E. 1017. 13. Tottleben v. Blankenship, 58 111. App. 47; State v. Latham, 35 N. C. 33; Dodson i: Mock, 20 N. C. 234, 32 Am. Dec. 677. Unlisted dogs — Repeal. — The Indiana act of 1883 forbidding the malicious injury or killing of any dog listed for taxation, did not render inapplicable Ind. Rev. Stat. (1881), § 1955, punishing the malicious killing of an unlicensed dog. Sosat !". State, 2 Ind. App. 586, 28 N. E. 1017. 14. Proceedings in the criminal court of Pike county, Alabama, are governed by the statute regulating proceedings in the county court. Therefore a warrant of arrest, re- turnable before such criminal court, may be issued by a justice of the peace. Walker v. State, 89 Ala. 74, 8 So. 144. An indictment for poisoning cattle is within the jurisdiction of a court of sessions which has exercised the authority for so long a time as to afford a strong presumption that the English statutes on that point were adopted as a part of the criminal law. Com. v. Leach, 1 Mass. 59. 15. State v. Towle. 48 N. H. 97; TJecker v. State, 4 Tex. App. 234. 16. For forms of indictments, informa- tions, or complaints for injuring or killing animals see the following eases: A labam a. — Caldwell r. State, 49 Ala. 34. Indiana.— Sample v. State, 104 Ind. 289, 4 K. E. 40; Kinsman r. State, 77 Ind. 132; State r. Slocum, 8 Blackf. (Ind.) 315; State v. Merrill, 3 Blackf. (Ind.) 346. Iowa.— State v. Phipps, 95 Iowa 492, 64 N. W. 411; State r. Enslow, 10 Iowa 115. Kansas. — State v. Lowe, 56 Kan. 594, 44 Pac. 20. Maine. — State v. Bucknam, (Me. 1886) 5 Atl. 529. Massachusetts. — Com. v. Sowle, 9 Gray (Mass.) 304, 69 Am. Dee. 289;' Com. v. Brooks, 9 Gray (Mass.) 299; Com. v. Wal- den, 3 Cush. (Mass.) 558. Minnesota. — U. S. v. Gideon, 1 Minn. 292. Mississippi. — Thompson f. State, 51 MisS. 353; Duncan v. State, 49 Miss. 331. Missouri. — State t. Woodward, 95 Mo. 129, Vol. II 8 S. W. 220; State v. Hambleton, 22 Mo. 452 454. New Hampshire. — State v. Towle, 48 N. H. 97; State v. McDuffie, 34 N. H. 523, 69 Am. Dee. 516. North Carolina. — State v. Credle, 91 N. C. 640 ; State v. Painter, 70 N. C. 70 ; State V. Allen, 69 X. C. 23; State v. Scott, 19 N. C. 35. Ohio. — Brown v. State, 26 Ohio St. 176; Oviatt v. State, 19 Ohio St. 573. South Carolina. — State v. Cantrell, 2 Hill (S. C.) 389. Tennessee. — Taylor v. State, 6 Humphr. (Tenn.) 284; Boyd v. State, 2 Humphr. (Tenn.) 39. Texas. — State v. Brocker, 32 Tex. 611; Lane v. State, 16 Tex. App. 172; McDaniel v. State, 5 Tex. App. 475. Vermont. — State r. Labounty, 63 Vt. 374, 21 Atl. 730; State v. Abbott, 20 Vt. 537. Wisconsin. — State v. Delue, 2 Pinn. (Wis.) 204, 1 Chandl. (Wis.) 166. 17. Arkansas. — Lemon v. State, 19 Ark. 171. California. — People v. Kelley, 81 Cal. 210, 22 Pac. 593. Massachusetts. — Com. v. Sowle, 9 Gray (Mass.) 304, 69 Am. Dec. 289. North Carolina. — State v. Credle, 91 5J". C. 640; State r. Staton, 66 N. C. 640. South Carolina. — State v. Cantrell, 2 Hill (S. C.) 389. When insufficient. — In State v. Hill, 79 N. C. 656, it was said that it is not always sufficient to follow the words of the statute, but that the charge should be as specific as the proof adduced in its support must be. And see State r. Jackson, 7 Ind. 270, holding that the nature of the offense should be stated specifically. Negativing exceptions. — An indictment un- der 111. Crim. Code, §.205, for injuring horses, need not aver that the animals were not in- jured by poison put out to destroy sheep- killing dogs, which averment might be neces- sary in an indictment for injuring dogs. Swartzbaugh r. People, 85 111. 457. 18. Thus an affidavit charging that defend- ant "kill one cow," instead of "killed," or " did kill," is sufficient foundation for a war- rant of arrest. Walker v. State, 89 Ala. 74, 8 So. 144. 19. Semple v. State, 104 Ind. 289, 4 ST. E. 40. So, an indictment framed on a statute pro- viding that " every person who shall mali- ANIMALS 431 (n) Time of Injury. The day and month of the commission of the offense should be alleged. 20 (in) Place of Injury. The place where the offense was committed should be alleged with reasonable particularity, 21 and where the statutory offense consists of injuring or killing within an inclosure, it must be alleged that such injury or kill- ing was so committed ; w but the ownership of the land need not be averred, 28 nor, unless it is a part of the statutory offense, that the place was inclosed with a law- ful fence. 24 (iv) Describing Animal — (a) In General. The animal injured or killed should be so described as to reasonably inform defendant of the charge against him ; ^ but a specific designation of the animal will be sufficient if it is apparent that the animal is included in the kind or class whose injury the statute forbids. 26 (b) Value. Unless the act requires it or unless the punishment depends on the value of the animal, its value need not be averred ; ^ but otherwise, if the pun- ishment is based upon the value. 28 If more than one animal has been destroyed, their collective value may be stated. 29 (c) Ownership. If the offense consists in injuring or killing an animal which is the property of another, the name of the owner must be disclosed, 30 or it oiously or mischievously destroy or injure, or cause to be destroyed or injured, any prop- erty of another," etc., shall be deemed guilty, etc., and which charges that defendant did destroy and injure, or cause to be destroyed and injured, a certain mare, is not multi- farious or uncertain. State v. Slocum, 8 Blackf. (Ind.) 315. 20. Bailey v. State, 65 Ga. 410. 21. Reference to the venue of the indict- ment will be sufficient. State v. Slocum, 8 Blackf. (Ind.) 315: Taylor v. State, 6 Humphr. (Tenn.) 284. Particular grounds. — It need not be averred that the killing was in any particular grounds. Dean v. State, 37 Ark. 57. Deposit of poison. — Where it was made an offense to deposit poison within two hundred rods of a field or improved land, an indict- ment charging a deposit in a certain field, without stating its distance from any other field or improved land, etc., was held good. State v. Bucknam, (Me. 1886) 5 Atl. 529. 22. Charging stock to have been injured in " the field " of a person named is insufficient. State v. Staton, 66 N. C. 640. 23. State v. Painter, 70 N. C. 70; State v. Allen, 69 N". C. 23, wherein it is said, how- ever, that the better practice requires such an averment as a part of the description of the offense, and as » defense to a second conviction. 24. Dean v. State, 37 Ark. 57. 25. State v. Credle, 91 N. C. 640; State v. Hill, 79 N. C. 656. 26. " Cattle beast." — A charge of killing a " cattle beast " is sufficient under the North Carolina statute. State v. Credle, 91 N. C. 640. " Certain cattle." — Charging the killing of " certain cattle " is not sufficient without stating the kind of cattle. Rex v. Chalkley, E. & E. 193. "Cow." — An indictment for maliciously killing a " cow " is good, without adding that the animal killed was a beast. Taylor v. State, 6 Humphr. (Tenn.) 284. "Mare." — A charge of killing "a certain horse beast, to wit, one mare," sufficiently charges the killing of " sattle." State v. Hambleton, 22 Mo. 452. And see State v. Clifton, 24 Mo. 376. And such an indict- ment need not aver that the mare was a " domestic animal." Swartzbaugh v. People, 85 111. 457. " Sow." — To charge the killing of a " sow " is a sufficient charge of killing " cattle " or other domestic beasts (State v. Enslow, 10 Iowa 115), and is a sufficient charge of shoot- ing "any hog" (Shubrick V. State, 2 Rich. (S. C.) 21). " Steer."— A charge of injuring a " steer "is a sufficient charge of injuring " neat cattle " (State v. Lange, 22 Tex. 591), or "cattle or other beast " (State v. Abbott, 20 Vt. 537 ) . Listed dog. — An averment that a dog, killed in March, 1887, was duly listed for taxation in the year 1886 shows that he was listed at the time he was killed, where it further ap- pears that he could not be again listed until April, 1887. Hewitt V. State, 121 Ind. 245, 23 N. E. 83. 27. Caldwell v. State, 49 Ala. 34; Sample v. State, 104 Ind. 289, 4 N. E. 40 ; Dinwiddie v. State, 103 Ind. 101, 2 N. E. 290 ; Manes v. State, 20 Tex. 38. Contra, U. S. v. Gideon, 1 Minn. 292. 28. Caldwell v. State, 49 Ala. 34; State v. Garner, 8 Port. (Ala.) 447. 29. Com. v. Falvey, 108 Mass. 304. 30. State v. Pierce, 7 Ala. 728; State v. Jackson, 7 Ind. 270. Reasons for requirement. — The ownership should be averred to identify the animal and because, on conviction, the defendant would become liable to the owner for the value of the animal killed. Stone v. State, 3 Heisk. (Tenn.) 457. Mortgaged animal. — Though a debt, secured by a mortgage on a cow, is past due, the own- ership is properly laid in the mortgagor. Walker v. State, 89 Ala. 74, 8 So. 144. Laying ownership in different persons. — If the identity of the owner is known, but there is a doubt as to his true name, it may be averred in different forms in separate counts, Vol. II 432 ANIMALS must at least be stated that the animal was the property of some one whose name is unknown. 31 (v) Ma lice, Wilfulness, and Intent — (a) In General. If the unlawful, wilful, malicious, or mischievous intent with which the injury or killing was done is a necessary ingredient of the offense, it must be averred either in the words of the statute, or by equivalent language. 32 So, too, if the statute requires that, to constitute the offense, the act be wilfully and maliciously committed, it must be so charged, and the omission of either word will be fatal. 33 If the injury or killing is made a felony, it should be charged that it was " feloniously " done. 34 (b) Toward Owner. Where malice toward the owner, or an intent to injure him, is an element of the offense, it must be charged that the defendant was so actuated, 35 or the offense must be fully described ; M but otherwise if malice or intent of this character is not an element. 37 (vi) Means of Injury — (a) In General. It is not necessary to describe the means or manner of inflicting the injury or killing. 38 (b) Use of Poison. Where it is charged that poison was used, it will be suf- ficient to aver, in the statutory language, the use of a poisonous substance, without specifying the substance ; an averment that the substance would kill, or was sufficient to kill, is unnecessary. 39 (vii) Amount of Injury to Owner. If the amount of damage done to the owner is an element in fixing the punishment, it must be distinctly alleged, and an allegation of the value of the animal injured or killed is not sufficient. It is though this is, probably, unnecessary. But where the ownership is laid in more than one, and in separate counts, and the evidence dis- closes two or more distinct offenses, one ap- plicable to each count, a case of election is presented, and there can be a conviction of only one offense. Bass v. State, 63 Ala. 108. 31. State v. Pierce, 7 Ala. 728, holding that, under the Alabama statute, if there is no known proprietor the killing will not con- stitute malicious mischief. 32. Iowa. — State v. Lightfoot, 107 Iowa 344, 78 N. W. 41. Massachusetts. — Com. v. Brooks, 9 Gray (Mass.) 299. Mississippi. — Thompson v. State, 51 Miss. 353. North Carolina. — State v. Tweedy, 115 N. C. 704, 20 S. E. 183; State v. Parker, 81 N. C. 548 ; State v. Hill, 79 N. C. 656. Tennessee. — Boyd v. State, 2 Humphr. (Tenn.) 39. Texas. — State v. Rector, 34 Tex. 565 ; Uecker v. State, 4 Tex. App. 234. Guilty knowledge. — It is not necessary to supplement the statutory language with a specific charge of guilty knowledge. Com. v. Falvey, 108 Mass. 304. Sufficient charge. — An indictment framed under Mass. Gen. Stat. u. 161, § 80, and c. 168, § 8, charging that defendant attempted " un- lawfully, wilfully, and maliciously to admin- ister " poison, " and in such attempt " did an overt act, charges an unlawful, wilful, and malicious attempt and intent. Com. v. Mc- Laughlin, 105 Mass. 460. 33. State v. Delue, 2 Pinn. (Wis.) 204, wherein a charge that the killing was " felo- nious, unlawful, and malicious " was held to be defective. Intent to convert animal. — Though the stat- ute in defining the offense uses the word " wil- Vol. II ful," if the averments of the information show that the killing was with the intent and purpose of stealing the carcass, a wilful kill- ing is sufficiently charged. State v. Lowe, 56 Kan. 594, 44 Pac. 20. 34. State v. Deffenbacher, 51 Mo. 26. But see People v. Keeley, 81 Cal. 210, 22 Pac. 593, holding that poisoning, though it may be pun- ished by imprisonment in the state prison, need not be averred to have been done feloni- ously. 35. State v. Hill, 79 N. C. 656; State i: Jackson, 34 N. C. 329; State v. Rector, 34 Tex. 565. 36. State v. Jackson, 34 ST. C. 329. 37. State v. Hambleton, 22 Mo. 452 ; State v. Scott, 19 N. C. 35; State r. Simpson, 9 N. C. 460 ; Manes v. State, 20 Tex. 38. 38. Indiana.— State v. Merrill, 3 Blaekf. (Ind.) 346. Massachusetts. — Com. v. Falvey, 108 Mass. 304; Com. v. Sowle, 9 Gray (Mass.) 304, 69 Am. Dec. 289. Missouri. — State v. Hambleton, 22 Mo. 452. South Carolina. — State r. Cantrell, 2 Hill (S. C.) 389. Wyoming. — Fein v. Territory, 1 Wyo. 376. England. — Rex v. Whitney, 1 Moody 3. "Force and arms." — The omission of the words " with force and arms " is not a fatal defect. Taylor v. State, 6 Humphr. (Tenn.) 284. 39. People v. Keeley, 81 Cal. 210, 22 Pac. 593; State v. Labounty, 63 Vt. 374, 21 Atl. 730. The words " Paris green " import a poison- ous substance. State ('. Labounty, 63 Vt. 374, 21 Atl. 730. 40. Harness v. State, 27 Ind. 425; Uecker r. State, 4 Tex. App. 234; Nicholson r. State, 3 Tex. App. 31. ANIMALS 433 only necessary, however, to state the amount of damage to the animal or to its owner. 41 _ b. Separate Counts. Where injury to different animals is charged, such injuries should be set out in separate counts, though they may be charged in the alternative in one count; 42 but where the killing of different animals is charged in one count, and the evidence shows^that the killing was at different times, the indictment is defective. 43 e. Conclusion. An indictment for maliciously killing an animal may con- clude as at common law ; M but an indictment based on a statute should conclude contra formam statuti. 45 d. Indorsement of Prosecutor's Name. Although the statute declares that no indictment shall be found for injuring or killing certain animals except upon com- plaint of the owner thereof or his lawful agent, an indictment will not be struck from the files on motion because the name of the owner is not indorsed on it as prosecutor. 46 4. Defenses — a. Animal Running at Large. It is no defense that the injured animal was at large in contravention of a statute making it unlawful to permit stock to run at large. 47 b. Animal Trespassing. The mere fact that animals are trespassing gives no right to the landowner to injure or destroy them; 48 but, by some statutes, the accused may defend on the ground that the animal killed was trespassing' on land inclosed by a lawful fence ; 49 but defendant will not be exempted from statutory penalties for killing trespassing stock unless the fence is such as the law requires. 50 It has been held, however, that the injury or destruction of an animal which is damaging property is justifiable. 51 e. Delivery of Dead Animal to Owner. It is no defense that the accused, after killing the animal, delivered it to its owner. 52 d. License to Kill. The accused may defend by showing that the killing was under a license or authority from the owner ; M but it is no defense that a third person authorized, the killing, unless his authority can be traced to the owner ; nor is it a defense u that defendant, a minor, was directed to kill the animal by his father, with whom he resided, and that the animal had previously done mis- chief while trespassing. 55 e. Tender of Compensation. "Where, by statute, a tender of full compensation to the owner before commencement of prosecution, followed by the refusal of 41. Sample v. State, 104 Ind. 289, 4 N. E. had previously trespassed in company with 40. other dogs gives the right to kill it, whether It is immaterial whether the injury is it was doing damage or not, is properly re- charged ty> be to the damage of the property, fused. Sosat v. State, 2 Ind. App. 586, 28 or of its owner. Kinsman v. State, 77 Ind. N. E. 1017. 132. 49. Dean v. State, 37 Ark. 57. And see Lessening of value. — It need not be shown Bass v. State, 63 Ala. 108, holding that, under how much the value of the animal was les- a statute providing that one injuring cattle sened. State v. Merrill, 3 Blackf. (Ind.) 346. engaged in damaging growing crops within a i 42. Burgess v. State, 44 Ala. 190. lawfully inclosed field may show the facts in 43. Election as remedy of defect. — The extenuation or justification, the jury may election of the prosecuting attorney to prose- reduce the statutory fine prescribed for the cute for the killing of one animal will not injury to the minimum, and, further, that to remedy the defect. Thomas v. State, 111 Ala. avail of this defense it is unnecessary to show 51, 20 So. 617. that the fence was removed and the stock 44. State v. Scott, 19 N. C. 35; State v. turned in by their owner. Simpson, 9 N. C. 460. 50. Chappell v. State, 35 Ark. 345 ; State v. 45. State v. Hill, 79 N. C. 656. Council, 1 Overt. (Tenn.) 305 ; Jones v. State, 46. Ashworth v. State, 63 Ala. 120. 3 Tex. App. 228. 47. State v. Eivers, 90 N. C. 738. 51. Rex v. Wansey, 8 Hawaii 115; Farmer 48. Snap v. People, 19 111. 80, 68 Am. Dec. v. State, 21 Tex. App. 423, 2 S. W. 767. 582; State v. Rivers, 90 N. C. 738; Com. v. 52. Wallace v. State, 30 Tex. 758. Fourteen Hogs, 10 Serg. & R. (Pa.) 393. 53. See Ashworth v. State, 63 Ala. 120. Trespassing dog. — A requested instruction 54. Wallace v. State, 30 Tex. 758. which assumes that the mere fact that a dog 55. McDaniel v. State, 5 Tex. App. 475. [28] Vol II 434 ANIMALS such compensation by him, is a bar, defendant must tender a sufficient sum, and he must determine the amount at his own risk. 56 An actual tender must be shown, or a sufficient excuse given for not making a tender, and the money must be brought into court ; 57 but the actual production of the money may be waived by a declaration that it will not be accepted. 58 5. Witnesses — Competency — a. Proseeutor. While it has been held that, when the fine imposed is for the benefit of the party injured, the latter cannot be examined on behalf of the state, 59 it has also been held that his interest, because of his right to damages on a conviction, goes to his credit only, and not to his competency. 60 b. To Show Extent of Injury. A witness, acquainted with an animal both before and after the injury, may state his opinion as to the extent of the damage, though he is not shown to possess any medical or veterinary skill. 61 6. Evidence — a. Burden of Proof and Presumptions — (i) As TO Malice, Wilfulness, and Intent. "Where malice, wilfulness, or intent is an element of the offense charged it must be proved by the state. 68 Such malice or wrongful intent will be presumed from wanton or reckless acts, or from attendant circum- stances which show a disposition to do mischief, and there are no circumstances to repel such presumption, 63 as where the means employed will ordinarily cause death, 64 or the act itself is illegal. 65 The mere perpetration of the act may authorize a presumption of intent to injure the owner. 66 Such a presumption will not arise, however, where the act is indifferent. 67 As in other cases, the pre- sumption may be rebutted, 68 and, under certain circumstances, the presumption of malice may shift the burden of proof from the prosecution to the defense upon that particular question. 69 However, if the intention cannot be inferred from the act itself, other circumstances must be proved from which the jury may reasonably infer that the act was done wantonly. 70 (u) As to Value. In the absence of proof, the court will not infer that the dog killed was of no value. 71 b. Admissibility — (i) To Show Listing for Taxation. Parol evidence is admissible to show the listing of a dog for taxation. 73 (n) To Show Motive. On trial of a veterinary surgeon, for injuring a horse in a peculiar manner, so that he might be called to treat it professionally 56. Ashworth v. State, 63 Ala. 120, hold- and this though the fence around the field be ing, further, that the fact that the owner de- not such as the statute requires. Chappell v. manded more than defendant claimed to be State, 35 Ark. 345. full compensation, or refused to say what he 64. Hobson v. State, 44 Ala. 380; Hill v. would accept, will not excuse the failure to State, 43 Ala. 335; Com. v. Walden, 3 Cush. make a tender. (Mass.) 558. 57. Ashworth v. State, 63 Ala. 120. 65. State©. Council, 1 Overt. (Tenn.) 305. 58. Roe v. State, 82 Ala. 68, 3 So. 2. 66. Lane v. State, 16 Tex. App. 172. 59. Northcot v. State, 43 Ala. 330. 67. State v. Council, 1 Overt. (Tenn.) 60. Lemon v. State, 19 Ark. 171. 305. 61. Johnson v. State, 37 Ala. 457. The carelessness with which an act was 63. Dover v. State, 32 Tex. 84 ; Hoak v. done may supply the place of criminal intent, State, (Tex. Crim. 1894) 26 S. W. 508; as where defendant recklessly shot at cattle Farmer v. State, 21 Tex. App. 423, 2 S. W. in his field, to frighten them out, and un- 767. wittingly killed the prosecutor's mule, which Malice toward special owner. — That the he did not see. State v. Barnard, 88 N. C. animal is described as the property of the 661. general owner will not restrict the state to 68. As by showing that a gun used was so proof of malice toward him, but will admit loaded that it was not likely to kill or do proof that the malice was toward the special great bodily harm. Com. v. Walden, 3 Cush. owner. Stone v. State, 3 Heisk. (Tenn.) 457. (Mass.) 558. 63. Hobson v. State, 44 Ala. 380 ; Chappell 69. Fein v. Territory, 1 Wyo. 376. v. State, 35 Ark. 345 ; Mosely v. State, 28 Ga. 70. As where a trespassing animal is killed 190; Wallace v. State, 30 Tex. 758. to protect property. Branch V. State, 41 Tex. But if there he such circumstances, as if 622; Jones v. State, 3 Tex. App. 228. the injury be done while the animal is tres- 71. Harness v. State, 27 Ind. 425. passing in the field and destroying the crop 72. Hewitt v. State, 121 Ind. 245, 23 N. E. of the accused, express malice must be proved; 83. Vol. II ANIMALS 435 evidence of similar injuries at the same time to other horses in the same locality is admissible and is competent to show motive. _It is not to be excluded because it may tend to prove the commission of other and distinct offenses. 73 (in) To Show Ownership. A conviction will not be disturbed because of the erroneous admission, under objection, of incompetent testimony to show ownership, where that fact is otherwise sufficiently proved. 74 (iv) To Show Value and Amount of Damage. Evidence of the value of an animal at the time and in its immediate neighborhood is competent and admissible, and so is evidence of its value at other near and accessible markets. 75 Where the accused, if convicted, is liable for the damages sustained by the owner, and to imprisonment in addition, it is competent to prove expenses incurred by the owner, as well as the value of the animal. 76 e. Sufficiency. While guilt may be sufficiently established by circumstantial evidence, 77 a statement by defendant, in answer to an inquiry why he shot a mare, that he " did not shoot her with shot," is not sufficient to establish a confession, nor is it inconsistent with innocence. 7 * d. Variance. If the gist of the offense is properly proved, an immaterial variance will be disregarded ; 79 but it has been held that a charge of injury to one kind of an animal is not sustained by proof of injury to another kind of the same species; 80 and an indictment laying the ownership in more than one is not sustained by proof of exclusive ownership in one. 81 So, too, if a single offense is charged in one count, evidence of two separate and distinct offenses is a fatal variance, 82 and if injury to two or more animals at different times is charged in a single count in the conjunctive, or is charged to have been inflicted at the same time and by one act, the charge must be proved as laid, or the variance is fatal. 83 7. Trial — a. Instructions — (i) In General. The court must charge the jury in accordance with the facts proven, and the law applicable thereto. 84 It may define the offense substantially in the words of the statute, 85 and should correctly interpret the language thereof. 86 73. Brown v. State, 26 Ohio St. 176. with bran saturated with the poison, without 74. Nutt v. State, \9 Tex. 340, wherein a the potato itself being saturated) ; State v. witness was permitted to prove the brand of Briggs, 1 Aik. (Vt. ) 226 (wherein the proof an animal by repeating the declarations of of the terminus of a way into which injured the alleged owner. animals were driven differed from the aver- 75. Walker v. State, 89 Ala. 74, 8 So. 144. ment in the indictment). Exclusion of unnecessary proof. — The ex- 80. Thus a charge of injuring a cow is not elusion of evidence as to the value of a dog sustained by proof of injuring an ox (State killed is immaterial when the statute upon v. Hill, 79 N. C. 656), nor a charge of killing which the prosecution is based does not re- a horse by proof of killing a gelding (Ghols- quire such proof. Dinwiddie v. State, 103 ton v. State, 33 Tex. 342), or a charge of Ind. 101, 2 N. E. 290. killing a mare by proof of killing a oolt whose 76. Lemon v. State, 19 Ark. 171. sex is not shown (Rex v. Chalkley, R. & R. 77. Causing fowls to eat poison. — Evi- 193). dence that fowls ate poison, placed by defend- Contra, Fein j;. Territory, 1 Wyo. 376. ant with the intent that they should find and 81. State v. Hill, 79 N. C. 656. eat it, will sustain an averment that he 82. Thomas v. State, 111 Ala. 51, 20 So. caused them to eat it. Com. v. Falvey, 108 617. Mass. 304. 83. Thomas v. State, 111 Ala. 51, 20 So. Proof of threats to shoot plaintiff's stock, 617 ; Burgess v. State, 44 Ala. 190. the firing of two shots in defendant's field, 84. On trial of an indictment charging in the fact that the animals were shot, the find- one count injuries to two animals, which in- ing of a recently discharged gun, and shot in juries the evidence showed were committed a pouch corresponding to that found in the at different times, it is error to refuse a re- animals, and evasive and unsatisfactory ans- quest to charge that " if the state had failed wers by defendant when interrogated, is suffi- to prove that the mare and ox were injured cient to warrant a conviction. State v. at the same time, or so near each other as to Wholeham, 22 Iowa 297. constitute the same offense, then the defend- 78. Dover v. State, 32 Tex. 84. ant is not guilty, as charged in the indict- 79. Com. v. McLaughlin, 105 Mass. 460 ment." Burgess v. State, 44 Ala. 190. (where, to sustain a charge of filling and 85. State V. Allen, 69 N. C. 23. saturating a potato with poison, with intent 86. As the meaning of the word " mali- to give it to a horse, evidence was introduced ciously." Com. v. Walden, 3 Cush. (Mass.) that a hole was made in the potato and filled 558. Vol. II 436 ANIMALS (n) As TO Malice. The jury should be informed of their right to infer malice from the means used. 87 (in) .As to Mode of Death. The court may not instruct that the jury must find beyond a reasonable doubt that death was caused in one of two ways possible, in the absence of any evidence to prove or disprove one of the modes of death. 88 (iv) As to Justification. "Where the use of unnecessary force in protect- ing property is only important to determine the wilfulness of the act, it is error to permit the jury to determine the guilt or innocence of the accused on the issue as to whether or not such force was used. 89 b. Province of Court and Jury. The court cannot assume that authority to kill the animal was given by its owner when the language of the authority relied on is doubtful and ambiguous, but should leave that question to the jury. 90 The fact of the killing, the value of the animal, the sufficiency of a fence to protect crops, and the questions of malice 91 or good faith of defendant, 92 as well as the capacity of a minor under fourteen years of age to commit the offense, 93 are also proper questions for the jury. e. Verdict. A verdict finding the accused guilty of a wilful and unlawful killing, not done in a spirit of mischief, revenge, or wanton cruelty, is an acquittal of a charge of an unlawful, wilful, and malicious killing, out of wanton cruelty. 94 8. Punishment. On conviction the accused may be punished in the mode pre- scribed by statute. 95 XIII. Purchasing animals without bill of sale. By statute in Texas, for a sale of live stock not running at large on the range, a bill of sale is required as evidence of title, and in default thereof the prima facie presumption obtains that the possession by one claiming to be a purchaser is illegal ; % but this presumption may be rebutted by proof that the possession is fair and legal. 97 If the live stock consists of cattle running on the range a bill of sale and record thereof are absolutely prerequisite to the acquisition of title ; and if the instrument be not recorded it does not take effect in favor of any one for any purpose. 98 This statute is constitutional. 99 The venue of the offense of purchasing and receiving cattle without taking a bill of sale is the county in which 87. Com. v. Walden, 3 Cush. (Mass.) 558. half the fine, the judgment should be in favor 88. Irvin v. State, 7 Tex. App. 109, of the state, for the use of the county, for wherein defendant shot but did not instantly the full amount, and should be collected as kill a hog which was afterward found dead fines on convictions for misdemeanors. The in an overflow of water. judgment cannot be severed, nor can there be 89. Farmer v. State, 21 Tex. App. 423, 2 an execution as in a civil action. Bass v. S. W. 767. State, 63 Ala. 108. 90. Ashworth v. State, 63 Ala. 120. 96. Black v. Vaughan, 70 Tex. 47, 7 S. W. 91. Dean v. State, 37 Ark. 57. 604. 92. State v. Credle, 91 N. C. 640. A retroactive operation cannot be given to 93. State v. Toney, 15 S. 0. 409. this rule of evidence, for such an application 94. Duncan v. State, 49 Miss. 331. of the rule would be ex post facto, and if war- 95. The California Penal Code, § 596, pun- ranted by the act would make it unconstitu- ishes the offense of administering poison to tional. Espy r. State, 32 Tex. 375. an animal, or maliciously exposing any poi- Time of taking bill of sale. — The section of sonous substance with the intent that the the penal code requiring the purchaser of cat- same shall be taken or swallowed by any such tie to obtain a bill of sale therefor has been animal, by imprisonment in the state prison construed to require the execution of the bill or the county jail; therefore, on a conviction of sale at the time of delivery of the cattle, of placing a poisonous substance in a water- Houston v. State, 13 Tex. App. 595. ing-trough with an mtent that it shall be 97. Black v. Vaughan, 70 Tex. 47, 7 S. W. taken and swallowed by horses, a judgment 604; Wells v. Littlefield', 59 Tex. 556; Flore of imprisonment in the state prison is war- r. State, 13 Tex. App. 665. ranted. People v. Keeley, 81 Cal. 210, 22 98. Black v. Vaughan, 70 Tex. 47, 7 S. W. Pac. 593. 604. Where the person injured is entitled to one 99. Faith v. State, 32 Tex. 373 Vol. II ANIMALS 437 the cattle were purchased, 1 and the indictment should allege in whom the owner- ship of the cattle existed. 3 Where the animals were purchased and received by an agent, and the indictment is against the principal it must be shown that the agent acted under his direction, and, also by his direction, purchased and received the animals without taking a bill of sale ; otherwise there can be no conviction. 3 XIV. ANIMALS RUNNING AT LARGE. 4 A. Legislative and Municipal Control — 1. In General. The legislature may enact laws, or may confer upon local authorities the power to enact ordi- nances or by-laws for the restraint of animals, for taking them up and impounding them, and for the imposition of fines and penalties upon the owners thereof for suffering them to go at large; 5 but unless the power is conferred the local author- ities have no power to make such provisions. 6 2. Municipal Regulations — a. Concerning Animals Generally — • (i) In General. In pursuance of a general power to abate nuisances or to provide for the general welfare of the territory within their jurisdiction, municipal and quasi- municipal corporations may authorize the taking up of animals at large, and may impose fines and penalties on their owners or others for permitting the animals to go at large. 7 (n) Suspension of General by Local Law. ' Where apolitical division of the state adopts resolutions or by-laws prohibiting cattle and other animals from running at large, such action excludes from that territory the operation of a gen- eral law on the subject. 8 (in) Validity of Ordinances — (a) In General. Ordinances or by-laws 1. Brockman v. State, 16 Tex. App. 54. 2. Houston v. State, 13 Tex. App. 595. For form of indictment for buying cattle without bill of sale see Long v. State, 6 Tex. App. 643. 3. Broekman v. State, 16 Tex. App. 54; Houston v. State, 13 Tex. App. 595. 4. For injuries by animals running at large see supra, XI, A, 1, d. 5. Alabama.- — Dillard v. Webb, 55 Ala. 468. Connecticut.- — Whitloek v. West, 26 Conn. 406. Illinois.— Roberts v. Ogle, 30 111. 459, 83 Am. Dec. 201. Iowa. — Gosselink v. Campbell, 4 Iowa 296. Kentucky. — McKee v. McKee, 8 B. Mom (Ky.) 433. Missouri. — Spitler v. Young, 63 Mo. 42. New York. — Campbell v. Evans, 54 Barb. (N. Y.) 566 [affirmed in 45 N. Y. 356]. North Carolina. — Hogan v. Brown, 125 N. C. 251, 34 S. E. 411. Repeal of statute. — Ind. Rev. Stat. (1881) § 2639, providing that domestic animals running at large, in the absence of an order of the county commissioners authorizing them to be pastured on the uninclosed lands of the township^ may be taken up and im- pounded by any resident of the township, is not inconsistent with, or repealed by, the act of March 7, 1887, p. 38, making it the duty of the road supervisors, upon view or infor- mation, to cause certain specified animals running at large, which are not authorized to run at large by order of the county commis- sioners, to be impounded. Frazier v. Goar, 1 - Ind. App. 38, 27 N. E. 442. 6. Slessman v. Crozier, 80 Ind. 487; Miles v. Chamberlain, 17 Wis. 446. Repeal. — An act which regulates the going at large of all cattle and stock, and which is evidently intended as a substitute for a former statute relating to the restraint of one particular species of animal, operates to repeal it. Berkshire v. Missouri Pae. R. Co., 28 Mo. App. 225. 7. Illinois. — Roberts v. Ogle, 30 111. 459, 83 Am. Dec. 201; Quincy v. O'Brien, 24 111. App. 591. Indiana. — Slessman v. Crozier, 80 Ind. 487. Massachusetts. — Com. v. Curtis, ' 9 Allen (Mass.) 266. South Carolina. — Crosby v. Warren, 1 Rich. (S. C.) 385; Kennedy v. Sowden, 1 MeMull. (S. C.) 323. Tennessee. — Moore v. State, 11 Lea (Tenn.) 35. Wisconsin. — Miles v. Chamberlain, 17 Wis. 446. Under 4 Wm. IV, c. 26, incorporating the town of Port Hope, the corporation had power to enforce regulations preventing cattle, swine, and other animals from running at large, by impounding and selling them, as well to liquidate damage occasioned by their so doing, as a fine imposed. Smith v. Rior- dan, 5 U. C. Q. B. O. S. 647. Effect of specifying particular animals. — It seems that a by-law enacting that certain animals shall not run at large does not im- pliedly allow other animals not named to do so, contrary to the common law. Jack v. On- tario, etc., R. Union Co., 14 U. C. Q. B. 328. 8. Swander v. Wakefield, 84 111. App. 426. Vol. II 438 ANIMALS respecting the impounding of animals, and their subsequent disposition or sale, are invalid unless they accord to the owner all his substantial rights, and furnish him adequate means of relief by his payment of proper charges. 9 (b) Authorizing Sale without Adjudication — (1) Foe Expenses. The impounding of animals running at large, and their sale for expenses without judicial inquiry or determination, are within the authority conferred by a munici- pal charter. Such matters are the proper subject of municipal enactment in the exercise of the police power, to afford due protection to the public at large in the use and enjoyment of the public streets. They are not unconstitutional because authorizing the taking of property without due process of law. 10 (2) Foe Penalty. Ordinances or by-laws forfeiting animals, or authorizing their sale as a penalty for the violation of such ordinances or by-laws, are invalid unless such powers are especially granted by the legislature. 11 Where such powers have been granted, ordinances or by-laws authorizing the imposition of fines and penalties for permitting animals to go at large, their seizure, impounding, and sale without personal notice, judicial inquiry, or determination, have in some cases been held to be not unconstitutional, because authorizing a forfeiture or confisca- tion of property without due process of law or without compensation ; n while in others the imposition of a penalty by way of fine on the owner, and making it a charge on the animal, to be deducted out of the proceeds of the sale or exacted before the surrender of the animal before sale, without a prior adjudication as to the violation of the enactment, have been held to be in conflict with constitutional provisions for the protection of property. 13 It has also been held that failure to provide for a judicial inquiry and determination does not deprive the owner of his day in court, where he has remedies — as replevin — by which the regularity of the impounding and the proceedings subsequent thereto may be ascertained. 14 (iv) Provisions fob. Notice. Ordinances or by-laws of this character must provide for such reasonable notice to the owner of the animal, or public notice of 9. Dillard v. Webb, 55 Ala. 468. White v. Tallman, 26 N". J. L. 67 ; Rosebaugh 10. Alabama. — Dillard v. Webb, 55 Ala. v. Saffin, 10 Ohio 31. 468. 12. Colorado. — Brophy v. Hyatt, 10 Colo. Kansas. — Gilchrist v. Sohmidling, 12 Kan. 223, 15 Pae. 399. 263. Iowa. — Gosselink v. Campbell, 4 Iowa 296. Michigan. — Campau v. Langley, 39 Mich. New York. — Campbell v. Evans, 45 N. Y. 451, 33 Am. Rep. 414; Grover v. Huekins, 26 356 [affirming 54 Barb. (N. Y.) 566]. Mich. 476. North Carolina. — Rose v. Ilardie, 98 N. C. North Carolina.— Whitfield v. Longest, 28 44, 4 S. E. 41 ; Hellen v. Noe, 25 N. C. 493. N. C. 268. Pennsylvania. — Conier v. Whitney, 9 Phila. Wisconsin. — Wilcox v. Hemming, 58 Wis. (Pa.) 184, 31 Leg. Int. (Pa.) 98. 144, 15 N. W. 435, 46 Am. Rep. 625. South Carolina.— Crosby v. Warren, 1 Rich. Necessity of imposition of penalty. — The (S. C.) 385. power to provide for a sale for costs of im- Tennessee. — Knoxville v . King, 7 Lea (Tenn.) pounding and keeping having been super- 441. added to the power to sell for a penalty, it is Texas. — Paris v. Hale, (Tex. Civ. App. not necessary to the valid exercise of the 1896) 35 S. W. 333. former that a penalty should be imposed also, West Virginia. — Burdett v. Allen, 35 W. Va. and punishment inflicted to the full extent of 347, 13 S. E. 1012, 14 L. R. A. 337. the law. Grover v. Huekins, 26 Mich. 476. Canada. — Smith v. Riordan, 5 U. C. Q. B. Deprivation of right to jury trial. — An 0. S. 647. ordinance providing that if the owner of im- 13. Illinois. — Willis i\ Legris, 45 111. 289; pounded animals fail to reclaim them within Poppen v. Holmes, 44 111. 360, 92 Am. Dee. a certain time, " and pay all costs of im- 186. pounding, and the damages which the stock Kentucky. — Armstrong v. Brown, 20 Ky. may have done, the damages to be assessed L. Rep. 1766, 50 S. W. 17; Varden v. Mount, by three disinterested men, citizens of said 78 Ky. 86, 39 Am. Rep. 208. town," they should be sold to satisfy such North Carolina. — Shaw v. Kennedy, 4 N. C. costs and damages, is unconstitutional and 591. void, because depriving the owner of a trial Ohio. — Rosebaugh v. Saffin, 10 Ohio 31. l>y jury. Bullock v. Geomble, 45 111. 218. Wisconsin. — Wilcox v. Hemming, 58 Wis. 11. Varden v. Mount, 78 Ky. 86, 39 Am. 144, 15 N. W. 435, 46 Am. Rep. 625. Rep. 208 ; Johnson v. Daw, 53 Mo. App. 372 ; 14. Gilchrist v. Schmidling, 12 Kan. 263. Vol. II ANIMALS 439 its sale, as will afford him or others interested an opportunity to be heard, and to take such measures as may be advisable. 15 b. Concerning Dogs. Ordinances and by-laws which require the owners of dogs to restrain them, or which authorize them to be killed if found at large, are a valid exercise of the police power conferred upon municipal or other local authorities. 16 3. Stock Laws — a. In General. Generally, it may be said that statutes which authorize local courts or bodies to establish districts in which, in accordance with the wishes of a majority of the electors, stock may be restrained, or to direct what animals may be restrained or permitted to run at large within certain political subdivisions of the state, 17 or which provide for the submission to the people of a county, or subdivision thereof, of the question whether or not stock shall be per- mitted to run at large, 18 or for fencing districts from the rest of a county, and for a special tax within the district to defray the expense thereof, 19 are within the general scope of legislative authority. It has been held, however, that statutes designed to prohibit the running at large of domestic animals in a designated county, if the majority of the voters therein shall so decide, 20 or to prohibit the 15. Gilchrist v. Schmidling, 12 Kan. 263; Varden v. Mount, 78 K". 86, 39 Am. Rep. 208; Hellen v. Noe, 25 N. C. 493. Constructive notice to unknown owners by posting for five days, with another five days "before sale in which the owner may redeem, is reasonable. Armstrong v. Brown, 20 Ky. L. Rep. 1766, 50 S. W. 17. Three days' advertisement is reasonable (Hellen v. Noe, 25 N. C. 493), but advertise- ment for two days is unreasonable (Mineey v. Bradburn, 103 Tenn. 407, 56 S. W. 273). A sale on the day of its advertisement is not sufficient notice to the owner. Conier v. Whitney, 9 Phila. (Pa.) 184, 31 Leg. Int. (Pa.) 08. Burden of proving notice. — In an action against a city to recover the value of an ani- mal sold under an ordinance providing that stock found at large shall be impounded and sold after a prescribed notice, the burden is upon defendant to prove that the notice re- quired by the ordinance was given. Ft. Smith v. Dodson, 51 Ark. 447, 11 S. W. 687, 14 Am. St. Rep. 62, 4 L. R. A. 252. 16. Haller v. Sheridan, 27 Ind. 494; Com. v. Markham, 7 Bush (Ky.) 486; Com. v. Chase, 6 Cush. (Mass.) 248; Com. v. Dow, 10 Mete. (Mass.) 382. Validity of by-law. — A by-law imposing a penalty on any person permitting his dog to go at large, unless the dog should be licensed, and wear a collar having thereon the name of nis owner or keeper, and the word " licensed ; " and also a further penalty for permitting an unlicensed dog to wear a collar, is valid as to the first-mentioned penalty, though possibly the provision as to the second penalty is re- pugnant to a statutory provision requiring keepers or owners of dogs to provide them with suitably inscribed collars. Com. v. Dow, 10 Mete. (Mass.) 382. Applicable only to dogs owned in town. — A by-law respecting dogs going at large will be construed to apply only to dogs owned or kept in the town, although, in its terms, it applies to " any person permitting his dog to go at large within the town." Com. v. Dow, 10 Mete. (Mass.) 382. 17. Edmondson v. Ledbetter, 114 Ala. 477, 21 So. 989; McGraw v. Greene County, 89 Ala. 407, 8 So. 852; Keyes v. Snyder, 15 Kan. 143; Noffzigger v. McAllister, 12 Kan. 315; Ratcliffe v. Teters, 27 Ohio St. 66; Fox v. Fox, 24 Ohio St. 335. 18. Brlinger v. Boneau, 51 111. 94; Dalby v. Wolf, 14 Iowa 228 ; Smalley v. Rutherford County, 122 N. C. 607, 29 S. E. 904. An act which affects certain designated' counties, and which, although rejected by the electors of any county, may be adopted by one or more of the precincts therein as a law operative within its territorial limits, is within the scope of legislative action. Er- linger v. Boneau, 51 111. 94. Such statutes are not violative of the prin- ciple of local self-government, because the electors of subdivisions which have adopted the law may petition and vote for its exten- sion so as to include the county limits. Smal- ley v. Rutherford County, 122 N. C. 607, 29 S. E. 904. Embracing portions of other statutes. — A portion of an act regulating the running of animals at large which refers to, and adopts part of, an act concerning estrays with re- spect to notice and the reclamation of ani- mals, is a mere adoption of a mode effectuat- ing the purposes of the act, which need not be embraced in its title, and will not be deemed an amendment of the estray laws. Erlinger v. Boneau, 51 111. 94. 19. Spigener v. Rives, 104 Ala. 437, 16 So. 74. Inoperative unless fences erected in certain time. — Such an act will not be deemed objec- tionable, unreasonable, or contrary to public policy because further providing that the law, though adopted, shall not become operative unless the fence shall be erected within a, prescribed time. Puckett v. Young, 112 Ga. 578, 37 S. E. 880. 20. Lammert v. Lidwell, 62 Mo. 188, 21 Am. Rep. 411. Vol. II 440 ANIMALS running at large of animals in such counties of the state as may by majority vote agree to make the law applicable thereto, 21 are unconstitutional because a delega- tion of the law-making power. Likewise it has been held that an act denouncing as an offense the wilful permitting of stock to run at large in local-option terri- tory is invalid and inoperative as to counties which previously had adopted a stock law providing a civil remedy for its violation. 22 b. Adoption by Election — (r) Is Geseral. There is no power to unite sev- eral adjoining districts into one territory, provide for the construction of one boundary fence, and assess a uniform tax to meet the expense of the fence, unless that power is conferred by the legislature, 23 nor can a subdivision which has adopted the law be made a part of a larger subdivision of a county, for the pur- pose of an election. 84 An act which is intended to regulate the whole subject of restraining domestic animals in the state has the effect of repealing a law adopted by the people of a particular county and hence applicable thereto. 25 (iij Applicatios for. An application for an election, to determine whether or not stock shall be permitted to run at large in particular localities, should accu- rately designate the locality to be affected. 26 (in) Necessity of Submitting Precise Question. An election is a nullity if the order directing it submits a different question for determination than that presented by the petition j 27 but where it is competent to submit the question as to different kinds of animals in a divided form, the submission need not be joint, but may be for the restraint of one to the exclusion of the other. 28 (iv) The Election™ — (a) When Held. "Where the statute provides that the election may be held at any general election, 30 and thereafter a general law is passed repealing such act in respect to the manner of conducting elections, the vote must be in pursuance of the mode prescribed by the repealing act. 31 (b) Managers. A statutory provision that one of two managers appointed to hold an election shall be for the law, and the other against it, is directory, and not mandatory. 32 (c) What Constitutes Majority. A majority of the votes cast, and not a majority of the votes of those eligible to vote, will determine the adoption or rejection of the proposed law in any particular iocality of the state. 33 (v) Effect of Adoption. In some jurisdictions, if a county as a whole vote to adopt an act to prevent certain animals from running at large, the act will be 21. Weir r. Cram, 37 Iowa 649; Lammert certain tract of land," the uncertainty is v. Lidwell, 62 Mo. 188, 21 Am. Rep. 411. overcome where there are calls for other defi- If such an act is complete without an in- nite boundaries. Newsom v. Earnheart, 86 valid section making the operation of the law X. C. 391. depend upon a vote of the people of the dif- 27. MeElroy v. State, 39 Tex. Crim. 529, ferent counties, it is not amenable to this 47 S. W. 359, wherein the petition was to de- objection. Weir v. Cram, 37 Iowa 649. termine whether " hogs, sheep, and goats " 22. McElroy v. State, 39 Tex. Crim. 529, should be prohibited from running at large, 47 S. W. 359. and the order directing the election was to 23. Bradshaw f . Guilford County, 92 N. C. determine whether " hogs, sheep, or goats " 278, where commissioners so acted under a should be so prohibited. statute providing that, upon the application of 28. Cowl v. Ritchey, 23 Iowa 583. a specified proportion r ' the qualified voters 29. Expense of election — To whom charge- of any district or territory in certain coun- able. — Under the North Carolina code the ex- ties, it should be their duty to submit the pense of township or territorial adoption of question of stock law or no stock law, and to the stock law is not a county charge. Smal- build a, fence if the stock law was voted ley v. Rutherford County, 122 N. C. 607, 29 for. S. E. 904. 24. Gilley v. Haddox, (Tex. App. 1891) 30. Vogt v. Dunley, 97 111. 424. 15 S. W. 714. 31. Thus, where the form of the ballot is 25. Crumley v. Kansas City, etc., R. Co., prescribed, the election under the stock law 32 Mo. App. 505. must be had by the use of such ballots. 26. An application describing the bounda- Union County v. Ussery, 147 111. 204, 35 N. E. ries of the district in which the election was 618. to be held as "well defined" is too indefinite 32. Hawthorn v. State, 116 Ala. 487, 22 to admit of proof to locate the boundaries; So. 894. but, if the beginning is stated to be " at a 33. Holcomb v. Davis, 56 111. 413. Vol II ANIMALS 441 operative throughout the county ; M but if, by a majority of the votes, the county refuses to adopt the act, it will then become a law in such townships, precincts, or subdivisions of the county as may have voted for its adoption. 35 Although a county vote in favor of stock running at large, a municipality within the county, having authority imder its charter, may adopt an ordinance prohibiting the run- ning at large within its limits of certain specified animals. 86 (vi) Resubmission: Statutes of this character usually provide that there may be a resubmission of the question within prescribed periods, and provide for the effect of a previous adoption or rejection on the right to vote at a new election. 87 e. Adoption by Order— (i) In General. A statute authorizing the estab- lishment of a stock-law district, consisting of a part or parts of a county separated by natural boundaries, will not authorize the establishment of a district irregular in shape, without natural boundaries, and so formed as to include persons who favor the law and exclude those who oppose its operation. 88 (n) Petition.® The petition for an order directed to the board of county commissioners should conform substantially to the requirements of the statute, 40 34. Erlinger v. Boneau, 51 111. 94. 35. Bach v. Amnions, 106 111. 406 ; Erlinger v. Boneau, 51 111. 94. 36. Quiney v. O'Brien, 24 111. App. 591. 37. Bach v. Amnions, 106 111. 406; Jacobs V. Hayes, 65 111. 87. In Georgia, where the system requiring landowners to fence to exclude the stock of their neighbors is abrogated by vote, a further election to restore the preexisting statutes as to fences cannot be had. Newton v. Ferrill, 98 Ga. 216, 25 S. E. 422. In Illinois, two kinds of elections are pro- vided for — one by counties, and the other by certain subdivisions thereof. A county vote in favor of the law is binding on it and each integral part thereof for five years regardless of the vote of such parts, and the question cannot be reconsidered for five years. If the county rejects the law any township or pre- cinct may call an election for the purpose of again submitting the question, without regard to the vote of the town or precinct at the county election; and if the lawis again rejected the question may be again submitted to the voters of such town or precinct until the law is adopted, after which the question cannot be submitted for five years. After the adoption of township organization, the county as such may vote upon the question of adoption, al- though some of the towns therein have adopted it, and such towns, within five years from their prior vote, may again vote on the question. Bach v. Amnions, 106 111. 406. Under the Illinois stock law of 1874 an election might be had at every general elec- tion until the result should be against cattle running at large; but, after a vote requiring domestic animals to be kept up by their own- ers, no other vote upon that subject could be had until five years had expired. Vogt v. Dunley, 97 111. 424. A statute empowering county courts to re- submit the questions confers no authority to order a new election on a board of super- visors of a county which has adopted town- ship organizations. Jacobs v. Hayes, 65 111. 87. In Oklahoma, where a proposition to per- mit the free range of cattle has been defeated at an election held under the herd law of 1893, c. 2, art. 2, § 4, a second election is not a resubmission of the proposition within that section so that a majority of the votes will suffice to carry it. Washita County v. Haines, 4 Okla. 701, 46 Pac. 561. In Texas, under Rev. Stat, art 5001c, au- thorizing the extension of the stock law to territory wherein there are no freeholders, to a subdivision of a county which has adopted the law, and article 4997, providing that no new election shall be had in a subdivision of a county in which the stock law has been de- feated within twelve months from the time of such defeat, the fact that the territory to which it is proposed to extend the law constituted a part of a subdivision which had rejected the law within twelve months will not prevent such extension, and the annexa- tion of the territory to an adjoining sub- division which has adopted the law. Stokes v. Winfree, 23 Tex. Civ. App. 690, 57 S. W. 918. 38. Gore v. Doolittle, 77 Miss. 620, 27 So. 997, holding that, under the Mississippi stat- ute, a stock-law district which is less than a county should compose a compact body formed of complete sections, and embracing at least thirty-six square miles. 39. For form of petition to the probate court for the establishment of stock-law dis- trict see Edmondson v. Ledbetter, 114 Ala. 477, 21 So. 989. 40. A petition simply " praying for the night-herd law to be enforced in said town- ship " is insufficient. Noffzigger v. McAl- lister, 12 Kan. 315. Presumption as to signatures. — In the ab- sence of any showing to the contrary, it will be presumed that the names on the petition were in fact the names and the genuine sig- natures of legal voters. St. Louis, etc., P. Co. v. Mossman, 30 Kan. 336, 2 Pac. 146. Insufficient showing as to signers. — An af- fidavit stating that the " affiant . . . pre- sented the within petition to the legal voters of Mission township, Shawnee county, Kan- sas, and that each of those who signed the same are legal voters and electors," etc., is insufficient to show that the petitioners are Vol. II •±42 ANIMALS and such petition must be duly presented to the said board of county commissioners. 41 (in) Hearing. The hearing must be so conducted as to ascertain the sense or wishes of those entitled to be heard, and the propriety of granting the change prayed for. 42 (iv) The Order — (a) In General. If the proceedings are regular and accord with statutory requirements, it is the duty of the court or body by which the proceedings are entertained to make such an order as the facts warrant or to issue or refuse to issue a permit ; " but the court cannot act if, by failure to observe the terms of the statute, no jurisdiction is conferred upon it. 44 (b) By Whom Made. Where power to make an order or grant a permit is conferred on a board, the action of a majority will be sufficient. (c) Sufficiency. The order or permit must be authorized by the statute, and must be in the form prescribed or contemplated, or it will be a nullity ; ^ but mere irregularities of a ministerial nature will not affect the validity of a permit other- wise unobjectionable. 47 (v) Publication of Order. "Where the law becomes operative only after publication for the time prescribed by statute of the order made, the publication must be complete before the law will take effect. 48 The proof of publication must show that it was made in the mode and for the time prescribed ; 49 but if publication is complete, the order will not be invalidated, nor its operation post- poned, by delay in filing and recording such proof. 50 " qualified electors " of the township, by whom a, petition may be presented. Kungle v. Fasnaeht, 29 Kan. 559. 41. Noffzigger v. McAllister, 12 Kan. 315, also holding that a recital in the order that a petition was presented is not sufficient evi- dence of that fact. 42. In ascertaining the sense or wishes of the resident landowners and freeholders in the proposed district, the court may refuse to count or consider persons to whom, after the filing of the petition, small fractions of land were conveyed solely to enable them to join in the contest. McGraw v. Greene County, 89 Ala. 407, 8 So. 852. The petition is admissible, when shown to have been signed by those whose names it bears, to show that they favor the establish- ment of a stock-law district. Edmondson v. Ledbetter, 114 Ala. 477, 21 So. 989. 43. Stanfill v. Dallas County, 80 Ala. 287 ; Lauer v. Livings, 24 Kan. 273. 44. Noffzigger v. McAllister, 12 Kan. 315. 45. Tinkham v. Greer, 11 Kan. 299; Fox v. Fox, 24 Ohio St. 335. Permit to member of board. — A special permit may be granted by two township trus- tees, at a special meeting, although the per- son to whom the permit is directed is a mem- ber of the board. Fox v. Fox, 24 Ohio St. 335. 46. Under the Kansas statute, there is no authority to make an order prohibiting stock from running at large in a portion of a county, that is, in certain townships. Keyes v. Snyder, 15 Kan. 143. In Michigan, where the prohibition is not intended to reach all classes of animals, a special resolution, designating particularly and prohibiting the particular class or classes designed to be restrained, is necessary; but is not necessary where all classes alike are to Vol. II be restrained from running at large. Cook v. Bassett, 23 Mich. 113. In Ohio it is not necessary that the permit should particularly describe each animal li- censed to run at large, or state the number of such animals; but it will be enough if the class or classes of animals are described, and a statement made that they are owned by, or are under the charge of, the person to whom permission is granted. Eatcliff v. Teters, 27 Ohio St. 66. 47. Ratcliff v. Teters, 27 Ohio St. 66, where a permit was officially granted, but, by neg- lect of the township clerk, was not immedi- ately recorded. Gelation back of order. — A permit, based upon a preexisting order when issued, but signed at a subsequent time, will relate back to the time of the grant, and rights acquired under it will not be divested or affected by delay in recording its allowance. Eatcliff v. Teters, 27 Ohio St. 66. 48. Pond v. Treathart, 43 Kan. 41, 22 Pac. 1014; Eeed v. Sexton, 20 Kan. 195. When the order is published in a weekly newspaper it is not necessary that it should be inserted five times. Four insertions are all that are necessary. The law will go into operation on the beginning of the twenty- ninth day after the first publication. Eeed v. Sexton, 20 Kan. 195. 49. An affidavit, stating that the order had been published in a weekly newspaper for four weeks, giving the date of the first pub- lication, but failing to state when the other publications were made, or that there was a publication for four consecutive weeks, is in- sufficient. Pond v. Treathart, 43 Kan. 41, 22 Pac. 1014. 50. Hoover r. Mear, 16 Kan. 11. wherein the publication of the order for four successive weeks was not completed until after the time ANIMALS 443 (vi) Effect. A resolution that a designated township shall be exempted from the operation of the act in effect makes it unlawful to permit the animals designated to run at large in other townships of the county. 51 (vii) Heview. If no mode of review is provided by the statute authorizing the establishment of districts, certiorari is the proper remedy. 52 If there is no proof of the existence of an order which by implication is necessary, the reviewing court will determine the matter submitted by the general rules of law. 53 B. What Constitutes Running at Large — 1. In General. Going at large, when predicated of animals, has been held to mean the being without restraint or confinement. 54 2. Escaping from Owner. By the weight of authority, if the owner of animals exercise ordinary care and diligence in restraining them, but, without fault on his part, they escape, and he makes diligent search for them, they cannot be said to be running at large. 55 It is otherwise if animals are at large through the neg- ligence of the owner, or of his servants, or are permitted to go at large after knowledge of their escape. 56 The fact that an animal is at large is prima facie evidence that it is at large contrary to the terms of the statute. 57 3. On Highway. When upon a public highway an animal is not at large, unless, by some statute, the presence of an animal there constitutes a going at large J 58 in this case the animal may be taken up for that reason. 59 4. On Land of Owner or Another. An animal on the land of its owner, 60 or on the land of another, with 61 or without 62 the permission of the latter, is not at large unless the statute so provides. specified in it as the time it was to take effect, but no affidavit was made and recorded until a month thereafter, and it was held that the order went into effect upon the com- pletion of the publication, and was not in- validated by the fact that the publication was not and could not be completed prior to the time fixed by the commissioners as the time at which it was to take effect. 51. Cook v. Bassett, 23 Mich. 113. 52. Stanfill v. Dallas County, 80 Ala. 287. 53. Indianapolis, etc., R. Co., v. Caldwell, 9 Ind. 397. 54. Goener v. Woll. 26 Minn. 154, 2 N. W. 163. 55. Illinois. — Kinder v. Gillespie, 63 111. 88. Indiana. — McBride v. Hicklin, 124 Ind. 499, 24 N. E. 755 ; Stephenson v. Ferguson, 4 Ind. App. 230, 30 N. E. 714; Wolf v. Nicholson, 1 Ind. App. 222, 27 N. E. 505. Kansas. — Leavenworth, etc., R. Co. v. Forbes, 37 Kan. 445, 15 Pac. 595; Kansas Pac. R. Co. v. Wiggins, 24 Kan. 588. New York. — Tonawanda R. Co. v. Munger, 5 Den. (N. Y.) 255, 49 Am. Dec. 239. Ohio.— Rudi v. Lang, 12 Ohio Cir. Ct. 529, 1 Ohio Cir. Dec. 482; Holtzkemper v. Lang- loth, 8 Ohio Cir. Ct. 520. Pennsylvania. — Com. v. Fourteen Hogs, 10 Serg. & R. (Pa.) 393. Vermont. — Adams v. Nichols, 1 Aik. (Vt.) 316. Wisconsin. — Montgomery v. Breed, 34 Wis. 649. Contra, Darling v. Boston, etc., R. Co., 121 Mass. 118; Paris v. Hale, (Tex. Civ. App. 1896) 35 S. W. 333. The degree of care required is not such as will amount to an obligation to restrain the animal at all events, nor greater care than is usually taken by careful and prudent per- sons under like circumstances. Selleck v. Selleck, 19 Conn. 501. 56. Selleck v. Selleck, 19 Conn. 501; Schlat- ter v. Waehter, 78 111. App. 67; Conway v. Jordan, 110 Iowa 462, 81 N. W. 703; Adams v. Nichols, 1 Aik. (Vt.) 316. Animals trespassing on the premises of another, and not under the immediate con- trol of their owner, are " running at large," within Okla. Stat. (1893), c. 2, art. 2. Gil- bert v. Stephens, 6 Okla. 673, 55 Pac. 1070. 57. Holtzkemper v. Langloth, 8 Ohio Cir. Ct. 520. 58. McManaway v. Crispen, 22 Ind. App. 368, 53 N. E. 840; Beeson v. Tice, 17 Ind. App. 78, 45 N. E. 612, 46 N. E. 154; Kana- kanui v. Manini, 8 Hawaii 710. 59. A turnpike is a public highway within Mass. Rev. Stat. c. 19, § 22, authorizing the taking up and impounding of cattle going at large in the public highways. Pickard v. Howe, 12 Mete. (Mass.) 198; Gilmore v. Holt, 4 Pick. (Mass.) 258. 60. McAneanv v. Je . ett, 10 Allen (Mass.) 151 ; Shepherd v. Hees, 12 Johns. (N. Y.) 433. An animal pasturing on a highway, which, to the center, is the property of its owner, is not at large. Parker v. Jones, 1 Allen (Mass.) 270. 61. Missouri Pae. R. Co. v. Shumaker, 46 Kan. 769, 27 Pac. 126; Martin v. Reed, 10 Pa. Co. Ct. 614. Permission. — A bull which has broken into the pasture of an adjoining owner, who per- mits its owner to allow it to remain there over night, is running at large in the night- time within Nebr. Comp. Stats, c. 2, art. 3, § 14. Duggan v. Hansen, 43 Nebr. 277, 61 N. W. 622. 62. Gooding v. Atchison, etc., R. Co., 32 Kan. 150, 4 Pac. 136; Atchison, etc., R. Co. v. Riggs, 31 Kan. 622, 3 Pac. 305. Vol. II 444 ANIMALS 5. Suffering Animal to Go at Large. Suffering or permitting an animal to go at large implies knowledge, consent, or willingness on the part of the owner, 63 or such negligent conduct as is equivalent thereto ; M but does not comprehend a case where, through some untoward circumstance, the owner is unable to watch and care for it in a particular instance. 65 6. Without a Keeper. Animals are not at large without a keeper or person in charge, if they are under the control of a person having the right of control, 66 or possessing the means by which a person of' ordinary intelligence and judgment could control the actions of the animals. 67 The animals must, however, be effi- ciently controlled. 68 C. Enforcement of Regulations against Running at Large— l. By Action — a. In General. Under some statutes and ordinances penalties for allow- ing animals to run at large, 69 or for keeping unlicensed dogs, 70 are recoverable in a civil action and not by a criminal prosecution. b. Persons Liable. When several male animals, owned by different persons, escape together, the owner of each is liable to a penalty for the escape of his own, and the payment by one of his penalty is no discharge of the liability of the others. 71 e. Who May Sue. Uncter a statute designed to preserve the breeds of animals, A horse which goes upon adjoining inclosed land, and thence, through a gap in the fence, to the land of another, is not running at large within Ohio Rev. Stat. § 4202. Rutter v. Henry, 46 Ohio St. 272, 20 N. E. 334. Trespassing animals, which have not come from a public place, are not running at large " in any public street, . . . place, or highway." Bates v. Nelson, 49 Mich. 459, 13 N. W. 817. 63. Selleek v. Selleck, 19 Conn. 501; Ohio etc., R. Co. v. Jones, 63 111. 472 ; Case v. Hall, 21 111. 632; Com. v. Fourteen Hogs, 10 Serg. & R. (Pa.) 393; Adams v. Nichols, 1 Aik. (Vt.) 316. Grazing on public street. — A mere inci- dental act of grazing, as if an animal were to snatch a mouthful of grass when being led, is not grazing on a public street within a statutory inhibition thereof. But while there must be something substantial, it is not necessary that there should be a design or in- tention. Petersburg v. Whitnack, 48 111. App. 663. 64. Collinsville v. Scanland, 58 111. 221; Leavenworth, etc., R. Co. v. Forbes, 37 Kan. 445, 15 Pac. 595. See also Sloan v. Hubbard, 34 Ohio St. 583, wherein it was held that ani- mals are at large, with or without the con- sent or default of the owner, when they are going at large without the permission of the local authorities, which, under the statute, may be given by them under certain circum- stances. A horse which is turned loose near the con- fines of a city and strays therein is " per- mitted " to run at large. Moore v. Crenshaw, 1 Tex. App. Civ. Cas. § 264. 65. Collinsville v. Scanland, 58 111. 221, where the owner, being called to the bedside of a, dying brother, failed to prevent from straying animals which he had watched and cared for daily. 66. Beeson v. Tice, 17 Ind. App. 78, 45 N. E. 612, 46 N. E. 154; Bertwhistle v. Good- rich, 53 Mich. 457, 19 N. W. 143; Ibbottson v. Henry, 8 Ont. 625. Vol. II A frightened horse which escapes from its owner is not running at large. Presnall v. Raley, (Tex. Civ. App. 1894) 27 S. W. 200. Colt running with dam. — A colt three months old, running along directly in front and by the side of its dam, while the latter is being driven to a wagon through the streets, is not " running at large." Elliott v. Kit- chens, 111 Ala. 546, 20 So. 366, 56 Am. St. Rep. 69, 33 L. R. A. 364. Cattle, attended by a herder who acci- dentally falls asleep, are not running at large when they casually eat grass along the road- side. Thompson v. Corpstein, 52 Cal. 653. A person who finds cattle at large, and drives them along the highway until he finds a field-driver, is not a keeper, within the meaning of Mass. Rev. Stat. c. 19, § 22. Bruce v. White, 4 Gray (Mass.) 345. 67. Jennings v. Wayne, 63 Me. 468, wherein it was held that having charge of an animal does not necessarily imply physical power of control, but includes the human voice, ges- tures, and similar methods of guiding ani- mals, regard being had to their nature, age, and dispositions. 68. Bruce v. White, 4 Gray (Mass.) 345, where cattle, intrusted by their owner to a servant, to be driven to pasture, with other cattle, left the drove a mile before reaching the pasture, and turned into a different road, also leading to the pasture, over which they had sometimes been driven, and there re- mained feeding, and the servant returned in less than an hour to the place where he lost them. A dog, following a person on a public street at such a distance that he cannot be con- trolled, is " going at large." Com. v. Dow, 10 Mete. (Mass.) 382. 69. Willis v. Legris, 45 111. 289 ; Cotton v. Maurer, 5 Thomps."& C. (N. Y.) 575. 70. Ives v. Jefferson County, 18 Wis. 166; Carter v. Dow, 16 Wis. 298. 71. Town v. Lamphire, 37 Vt. 52. ANIMALS 445 the keeper of a herd or flock, though not the owner of them all, may sue the owner of a male animal which, while running at large, has become mingled with such herd or flock.' 2 d. Defenses. In an action to recover a penalty for allowing animals to run at large, the defense must show that there was some positive wrongful act of the prosecutor himself, 73 or an act which could not be prevented by the utmost care and diligence of the owner or keeper. 74 e. Evidence. In an action to recover the penalty under a statute providing for the restraint of rams, evidence respecting the fence through which the ram escaped, or respecting that between the land where the ram was pastured and the land to which he escaped, is not admissible. 75 2. By Castration. There are certain statutes intended to enable owners to pro- tect their blooded stock from contact with males which may adulterate the strain. Under these statutes it is lawful for one who finds a male animal running at large to castrate the animal in a careful way, doing no more harm than is necessary, such person having previously given notice to the owner. 78 3. By Criminal Prosecution — a. For Driving out of Lawful District to Impound. Under a statute making it an offense to drive cattle out of a district where they may lawfully run at large into a district where they may not, for the purpose of there impounding them, it is essential that the animals must have been running at large in a district where it is lawful for them so to do ; they must be driven or carried into another district where it is not lawful for them so to do ; and the person who so drives or carries such animals must do so knowingly and wilfully, with the intention that such animals shall be impounded. Unless all these elements concur the statutory offense is not committed. 77 b. For Keeping Unlicensed Dog — • (i) Persons Liable. The keeper, 78 and not the owner, 79 is liable to the penalty for keeping an unlicensed and unregistered dog. (n) What Constitutes Keeping. If the owner of a dog takes it to a town other than that in which it is registered and licensed, and keeps it there for four months, although the owner goes there with the intention of remaining tempo- rarily, the dog is " kept " in the town to which it is so taken within the meaning of a statute requiring the owner to transfer the license to the city or town to which the keeping of the dog is transferred. 80 (in) Jurisdiction. The penalties in relation to dogs, imposed by the by-laws of a town, may be recovered by complaint before the police court of that town. 81 (rv) The Complaint.® A complaint for keeping or owning an unlicensed dog 72. Hall v. Adams, 1 Aik. (Vt.) 166, 2 78. Jones v. Com., 15 Gray (Mass.) 193. Aik. (Vt.) 130. 79. Com. v. Canada, 107 Mass. 405. 73. Town v. Lamphire, 37 Vt. 52, holding One who purchases an unlicensed dog after that the owner or keeper of a ram is bound the thirtieth day of April in any year is to restrain him, at all events, during the sea- not subject to a penalty, under Mass. Gen. son prescribed, and that he cannot rely for a Stat. c. 88, §§ 52, 55, 56, for the omission to defense upon the promise of an adjoining cause him to be registered, numbered, de- owner to keep up a legal fence. scribed, and licensed, until the thirtieth day 74. Cotton v. Maurer, 1 Thomps. & C. of April of the next year. Com. v. Brimble- (N. Y.) 481; Town v. Lamphire, 36 Vt. 101; com, 4 Allen (Mass.) 584. Hall v. Adams, 1 Aik. (Vt.) 166, 2 Aik. (Vt.) 80. Com. v. Palmer, 134 Mass. 537. 130. 81. Com. v. Dow, 10 Mete. (Mass.) 382. 75. Town v. Lamphire, 37 Vt. 52. Prior to the taking effect of the Massa- 76. Owens v. Hannibal, etc., ±i. Co., 58 Mo. chusetts General Statutes, a magistrate had 386, Schwarz v. Hannibal, etc., E. Co., 58 Mo. no jurisdiction to try a defendant charged 207. with keeping an unregistered dog, in viola- 77. Ghent v. State, 96 Ala. 17, 11 So. 130, tion of Mass. Stat. (1859), e. 225, § 9, in holding that it is not a violation of the stat- the town in which the magistrate lived. Hush ute (Ala. Code, § 3868), to drive or carry an v. Sherman, 2 Atfen (Mass.) 596. animal, with the intention of impounding it, 82. For forms of complaints: For keep- from one place in a district in which it is ing unlicensed dog see Com. v. Palmer, 134 unlawful for it to run at large to another Mass. 537 ; Com. v. Thompson, 2 Allen (Mass.) place in the same district. 507; Com. v. Gorman, 16 Gray (Mass.) 601. Vol. II 446 ANIMALS may allege that the unlawful act extended over many successive days, and be sustained by proof applying to any part of the period ; M and an averment that defendant " did keep a certain dog, without said dog being then and there licensed according to law," is sufficient without alleging that the dog was not " registered numbered, and described," or that he was not licensed in any other town than that named in the complaint. 84 (v) Evidence. The fact that a man applied for a license to keep a dog is competent evidence that he was the owner or keeper of the dog, on the trial of a complaint against him for keeping a dog without a license. 85 e. For Permitting Animals on City Sidewalks. 86 Where a city ordinance for- bids animals being driven through its streets to go upon any sidewalk, or other- wise to occupy, obstruct, injure, or encumber such sidewalks so as to interfere with the use of the same by passengers, one who voluntarily drives animals through the streets must prevent them at all hazards from doing the acts forbidden ; and, if he fails to do so, he may be convicted of violating the ordinance. 87 4. By Impounding — a. The Right — ■ (i) In General. If the right to impound is purely statutory animals at large may not be legally taken up unless some law or ordinance in force confers that right. 88 But the right, when conferred, is unaffected by the fact that no place has been provided for their confinement, 89 or by the fact that the impounder may have a remedy against the owner. 90 (n) On Sunday. While it has been held that animals may be taken up and impounded on Sunday, 91 the contrary has also been held. 93 b. Who May Impound. "When the right to take up and impound animals at large is conferred only on particular officials, 93 or upon a class of persons as house- holders u or residents of the district in which the law exists, 95 the action of others in this respect is illegal. Authority conferred on a particular official cannot be delegated ; 96 but the mere fact that the taking up by an officer was, in its For allowing dog to go at large when unli- censed see Com. v. Dow, 10 Mete. (Mass.) 382. 83. Com. v. Canada, 107 Mass. 405. 84. Com. v. Thompson, 2 Allen (Mass.) 507. 85. Com. v. Gorman, 16 Gray (Mass.) 601. 86. For form of complaint for permitting swine to go at large upon the sidewalks of a city see Com. v. Curtis, 9 Allen (Mass.) 266. 87. Com. v. Curtis, 9 Allen (Mass.) 266. Evidence. — Where a complaint for such of- fense is sought to be supported by proof that defendant hired and paid some of the drivers who had the immediate charge of the cattle, and who permitted them to go upon the side- walks, defendant may, in reply, introduce evidence of a conversation between himself and the owner of some of the cattle, in which such owner requested him to employ and pay such drivers; but the way-bills of the cattle, on a railroad, are not admissible to show that defendant did not own them. Com. v. Leavitt, 12 Allen (Mass.) 179. 88. Kanakanui v. Manini. 8 Hawaii 710; Miles v. Chamberlain, 17 Wis. 446. Where an ordinance prohibiting animals from running at large within city limits was repealed by an amendatory ordinance prohib- iting them from running at large within such limits " as may from time to time be desig- nated," it was held that there was no au- thority to take up and sell a horse found run- ning at large after the amendatory ordinance took effect, and before there had been a desig- Vol. II nation of the limits to which it should apply. Lenz v. Sherrott, 26 Mich. 139. An impounding is not justified by an or- dinance merely subjecting the owner to a fine for permitting an animal to go at large. Oil v. Rowley, 69 111. 469. 89. Sloan v. Hubbard, 34 Ohio St. 583. 90. Conway v. Jordan, 110 Iowa 462, 81 N. W. 703. 91. Wild v. Skinner, 23 Pick. (Mass.) 251. 92. Frost v. Hull, 4 N. H. 153. 93. McManaway v. Crispen, 22 Ind. App. 368, 53 N. E. 840. An ordinance authorizing a street inspector to take up and impound animals, and to em- ploy necessary assistants, will not authorize any person to act except the inspector and his assistants, acting under his immediate di- rections, though the inspector had given pub- lic notice that any person who should drive animals to pound would be paid therefor. Jackson v. Morris, 1 Den. (N. Y.) 199. 94. Holcomb v. Davis, 56 111. 413; Er- linger v. Boneau, 51 111. 94. 95. Frazier v. Goar, 1 Ind. App. 38, 27 N. E. 442, wherein it is also held that an an- swer seeking to justify a taking up must show that defendant was a resident at the time of the taking. 96. McManaway v. Crispen, 22 Ind. App. 368, 53 N. E. 840, in which it is further held that, conceding the power of the officer to delegate his authority, he alone has the right to replevy animals, impounded by » person on whom he has attempted to confer author- ANIMALS U7 inception, through the agency of another, will not render the action of the officer illegal. 97 e. What Animals May Be Impounded — (i) In General. A statute requiring the restraint of specified animals will not justify the impounding of other animals of the same species running at large, if they are not within the terms or spirit of the statute, 98 and any animal, to be lawfully impounded, must be running at large at the time " and in a place 1 contemplated by the statute which prohibits such act. (n) Animals Exempt from Execution. The exemption of an animal from seizure or sale on execution will not exempt it from being taken up, impounded, and sold. 3 (in) Animals of Non-Residents. Statutes, ordinances, or by-laws, designed to restrain animals from running at large, or providing for taking them up or impounding them, are applicable to the animals of persons residing without the territory in which the law is in force, 3 notwithstanding a statute prohibiting the charging of fines and poundage in the case of stray animals belonging to non-residents. 4 d. Impounding for Different Causes. It has been held that animals may not be taken up and impounded at the same time under two different statutory pro- visions, 5 one intended for the benefit of the public and the person who has sus- tained damage, and the other for the benefit of the owner of the animal. 6 ity, which had escaped and returned to their owner. 97. O'Mally v. McGinn, 53 Wis. 353, 10 N. W. 515. In Friday v. Floyd, 63 111. 50, a constable, empowered to impound, met persons driving animals to the pound, and assisted them in so doing. The persons were acting under gen- eral instructions, at an agreed compensation, but not under any directions of the officer as to the particular animals in question. It was held that as the officer found the animals at large before they were impounded, his deten- tion of them was lawful. 98. Breeding animals. — Thus an act mak- ing it unlawful for the owners of animals of the " species bull " to allow such animals to run at large, will not extend to cows, heifers, or steers (Oil v. Rowley, 69 111. 469) ; and a statute designed to restrain stallions from running at large is inapplicable to young colts which are too young to be dangerous or troublesome (Aylesworth v. Chicago, etc., R. Co., 30 Iowa' 459). 99. Clark v. Lewis, 35 111. 417. An ordinance requiring animals to be re- strained " on and after " May 1, and making it the duty of an officer to impound them if found at large " after the above date," will not authorize him to impound on May 1. Frazier v. Draper, 51 Mo. App. 163. 1. Nafe 17. Leiter, 103 Ind. 138, 2 N. E. 317; Blanck v. Hirth, 56 Mich. 330, 23 N. W. 31. 2. Wilcox v. Hemming, 58 Wis. 144, 15 N. W. 435, 46 Am. Rep. 625. 3. Alabama. — Hawthorn v. State, 116 Ala. 487, 22 So. 894. Illinois.— Friday v. Floyd, 63 111. 50. Indiana. — Horney v. Sloan, 1 Ind. 266. Iowa. — Gosselink v. Campbell, 4 Iowa 296. Massachusetts. — Gilmore v. Holt, 4 Pick. (Mass.) 258. Missouri. — See Spitler v. Young, 63 Mo. 42. North Carolina. — State v. Tweedy, 115 N. C. 704, 20 S. E. 183; Rose t>. Hardie, 98 N. C. 44, 4 S. E. 41 ; Whitfield V. Longest, 28 N. C. 268. South Carolina. — Kennedy v. Sowden, 1 McMull. (S. C.) 323. Texas. — Moore v. Crenshaw, 1 Tex. App. Civ. Cas. § 264. But, in Plymouth v. Pettijohn, 15 N. C. 591, it was held that an ordinance requiring cattle to be penned up at night was not ap- plicable to non-residents whose cattle strayed within the limits of the corporation. In Ohio, by statute, the operation of town ordinances affecting animals was limited to animals owned by citizens of the town. See Dodge v. Gridley, 10 Ohio 173; Marietta v. Fearing, 4 Ohio 427. Where, by its charter, the ordinances of a municipality are not obligatory on non-resi- dent citizens of the state, unless such ordi- nances are intentionally violated, an ordi- nance will become operative against the ani- mals of any person who, with knowledge of the ordinance, has good reason to believe that his animals will stray into the city when turned loose on his premises, although it is not shown that he had the specific intent that they should so stray. Knoxville v. King, 7 Lea (Tenn.) 441. 4. Aydlett v. Elizabeth City, 121 N. C. 4, 27 S. E. 1002, holding, also, that such a prohibi- tion does not prevent a town from impound- ing stray cattle of non-residents, and selling them for the cost of feeding while they were impounded. 5. As for going at large in the highway without a keeper, and for doing damage on private lands. Phillips v. Bristol, 131 Mass. 426. 6. Varney v. Bowker, 63 Me. 154. Vol. II 448 ANIMALS e. Duties of Impounder — (i) In General. It is the duty of a person who takes up stock or cattle to drive them to pound in the most direct way, and to care for them while in his charge so that they shall not suffer or be unnecessarily distressed; 7 he should feed and water them as often as is required by the usage of the country and of good husbandry. 8 (n) Notice — (a) In General — (1) Necessity and Effect of. If the taker-up fail to give notice of the impounding, he loses his right to retain the animal, or to receive his fees or the expenses of the impounding ; 9 but the right to notice may be waived by the act or conduct of the party entitled thereto. 10 The effect of a notice, stating that animals were impounded for going at large, is to place on the owner the burden of disproving that fact. 11 (2) Sufficiency of. 12 When the statute requires, the notice must name the owner, or state that he is unknown, 13 and the cause for which the animal was impounded ; u but in stating the time of the impounding the hour of the day need not be specified. 15 The notice must be given, within the prescribed time, 16 to the person entitled thereto," and it may be signed by another at the impounder's request. 18 A defective notice is not cured by the fact that a correct notice was unnecessarily given to the pound-keeper. 19 7. A field-driver does not necessarily act unlawfully by taking an animal upon the owner's premises before taking it to the pound (Parker v. Jones, 1 Allen (Mass.) 270) ; and the fact that the pound to which an animal was taken was some four or five miles from the residence of the impounder, or that the road by which he took the horse was a few rods longer than another road which he might have taken, does not of itself show want of care (Goodsell v. Dunning, 34 Conn. 251). See also Dean v. Lindsey, 16 Gray (Mass.) 264, wherein defendant, before driving ani- mals to the pound, took them to his own yard and went a third of a mile to find the owner, to whom he said : " I have taken two of your oxen and put them in my yard, and, if you don't come after them, I shall drive them to the pound," and defendant was held not liable for a conversion. 8. Where, in warm weather, a field-driver took up milch cows, drove them to a pound, and there restrained them from seven o'clock in the morning until five o'clock in the af- ternoon, without food or water, it was held that he was a trespasser ab initio. Adams v. Adams, 13 Pick. (Mass.) 384. 9. Spruanee v. Truax, 9 Houst. (Del.) 129, 31 Atl. 589 ; Wyman v. Turner, 14 Ind. App. 118, 42 N. E. 652; Shy v. Richards, 79 Mo. App. 661. " Forthwith," in Ohio Rev. Stat. § 4207, re- specting notice, means " forthwith give no- tice," although the punctuation might con- vey a different idea. Albright v. Payne, 43 Ohio St. 8, 1 N. E. 16. 10. As the commencement of an action be- fore the expiration of the time within which the notice may be given (Field v. Jacobs, 12 Mete. (Mass.) 118; Wild v. Skinner, 23 Pick. (Mass.) 251) ; but actual knowledge of the impounding (Coffin v. Field, 7 Cush. (Mass.) 355 ) , or an appearance and demand of the return of the animals (Wyman v. Turner, 14 Ind. App. 118, 42 N. E. 652), will not waive the required notice. Vol. II 11. Pickard v. Howe, 12 Mete. (Mass.) 198. 12. For forms of field-driver's notice of the impounding of cows see Field v. Jacobs, 12 Mete. (Mass.) 118; horses, Cleverly v. Towle, 3 Allen (Mass.) 39; oxen, Pickard v. Howe, 12 Mete. (Mass.) 198. 13. Forsyth v. Walsh, 4 Ind. App. 182, 30 N. E. 720. 14. Phillips v. Bristol, 131 Mass. 426; Sanderson v. Lawrence, 2 Gray (Mass.) 178. Sufficient notice. — A written notice, posted up and published, that the animals in ques- tion were " going at large, and without a keeper," sets forth a sufficient cause of im- pounding under Mass. Rev. Stat. c. 113, § 9 (Cleverly v. Towle, 3 Allen (Mass.) 39), and notice, before the cattle are impounded, of that fact and the cause of their being taken, and, after the impounding, of the place where they are impounded, is a legal notice (Gil- more v. Holt, 4 Pick. (Mass.) 258). 15. Pickard v. Howe, 12 Mete. (Mass.) 198. 16. Kila v. Kahuhu, 8 Hawaii 212, hold- ing that a delay of three days would not sat- isfy a statutory requirement that notice should be given " as soon as possible." But see Sweeney v. Sweet, 14 R. I. 195, wherein the pound-keeper neglected to give the statu- tory notice, but did give verbal notice of the impounding immediately after it had taken place, and it was held that the owner could not recover for an illegal detention. 17. Wyman v. Turner, 14 Ind. App. 118, 42 N. E. 652, wherein notice was given to the son of the owner. Proof that notice was left with one of owner's family, at his dwelling-house, is suf- ficient to authorize a jury to find that it was left at his place of abode. Pickard v. Howe, 12 Mete. (Mass.) 198. 18. Pickard v. Howe, 12 Mete. (Mass.) 198. 19. Sanderson v. Lawrence, 2 Gray (Mass.) 178. ANIMALS 449 (b) To Pound -Keeper. "Where the statute requires that the impounder of animals shall leave with the pound-keeper a certificate or memorandum, describing the animal and containing a statement of the sum demanded for dam- ages or forfeitures, and the unpaid charges for impounding, a certificate which fails to comply with all the requirements of the statute is insufficient ; M but a field-driver, impounding cattle at large, is not required to make or leave a memo- randum stating the cause of impounding and the damage demanded, when such notice is requisite only where the cattle are impounded damage feasant. 21 (in) Appraisal of Animals. An application for a warrant of appraisement of cattle need not be in writing where the statute does not so require ; and where, on appraisal of impounded animals for the benefit of the impounder, the appraisers are required to take and subscribe an oath, a substantial compliance with the form of the oath prescribed by statute will be sufficient. 22 f. Sale of Impounded Animals — (i) In General. To constitute a legal sale of an impounded animal, and to divest the owner of his title, the requirements of the law must be rigidly observed. 23 Animals which are the property of different owners cannot be offered for sale together. 24 (n) Notice — (a) Necessity of. If a notice of sale is required by law, the omission to give it will invalidate the sale, and a purchaser thereat will acquire no title as against the owner. 26 (b) Sufficiency of. The notice should be given at the time, 26 and for the 20. Palmer v. Spaulding, 17 Me. 239. Duty to make certificate. — Where a field- driver impounds beasts for being at large in the highway, it is his duty to leave with the pound-keeper a memorandum or certificate of the cause of impounding, and of his fees and expenses. Such certificate is an official act, which is prima facie evidence in his fa- vor of the facts stated in it. Bruce v. Hol- den, 21 Pick. (Mass.) 187. Statement of demand. — A statement that " the owner or owners are requested to pay the forfeiture and costs," is not a compliance with a statute requiring the notice to state the sum demanded " for damages or forfeit- ure, and the unpaid charges," etc. Palmer v. Spaulding, 17 Me. 239. But unless so required, the amount " le- gally and justly demandable" need not be expressed in dollars and cents. Palmer v. Spaulding, 17 Me. 239. Description of animal. — The fact that the owner of the impounded beasts saw them placed in the pound will not excuse the omis- sion to describe the beasts in the certificate. Palmer v. Spaulding, 17 Me. 239. Excessive claim — Unauthorized taking up. — A field-driver's certificate is defective for claiming a forfeiture to which there is no right, or if it show that the animal was taken up under circumstances which gave no right to impound. Varney v. Bowker, 63 Me. 154. 31. Piekard v. Howe, 12 Mete. (Mass.) 198; Wild v. Skinner, 23 Pick. (Mass.) 251. 22. Gilmore v. Holt, 4 Pick. (Mass.) 258, holding that an oath by appraisers to " faith- fully appraise the creatures named in the warrant, according to their best skill and judgment," was sufficient under a statute re- quiring them "to appraise so many of the creatures impounded as shall be sufficient to answer the demand and all charges." [29] 23. Bullock v. Geomble, 45 111. 218; Clark v. Lewis, 35 111. 417 ; Nafe v. Leiter, 103 Ind. 138, 2 N. E. 317; Strauser v. Rosier, 58 Pa. St. 496; McLain v. Warren, 14 Pa. Co. Ct. 397, 3 Pa. Dist. 585, 24 Fittsb. Leg. Jur. (Pa.) 303; Altland v. Swine, 13 Pa. Co. Ct. 383; Com. v. A Hog, 4 Pa. Co. Ct. 76. It is incumbent upon a party, claiming title to an animal under » poundmaster's sale, to show that the animal was liable to be im- pounded, and that the proceedings are au- thorized by law, in order to divest the own- er's title. Johnston v. Kirchoff, 31 Minn. 451, 18 N. W. 315. A sale of an animal unlawfully in custody, such sale being made by a constable at the request of a pound-keeper, will constitute the constable a trespasser. Collins v. Fox, 48 Conn. 490. 24. Clark v. Lewis, 35 111. 417. 25. Where an unauthorized sale is made by town officers the town is not liable to a purchaser, even though it received the pur- chase money, for he is charged with notice of all defects of title and such gross irregulari- ties as amount to a lack of authority to sell. Aydlett v. Elizabeth City, 121 N. C. 4, 27 S. E. 1002. Collateral attack. — The judgment of a jus- tice cannot be collaterally attacked, though the order of sale has been made without the required notice to the owners of the animals, and though the justice, in violation of stat- ute, acted as counsel for the defendants. McKeen v. Converse, 68 N. H. 173, 39 Atl. 435. 26. But a delay of five days, in order to discover the owner of the animals, is not so un- reasonable as to invalidate a sale under an advertisement which an ordinance requires to be made immediately. Mincey v. Bradburn, 103 Tenn. 407, 56 S. W. 273. Vol. II 450 ANIMALS length of time prescribed. 27 If the time fixed by law to intervene between such notice and sale has not elapsed the sale is invalid. 28 If the notice fails to men- tion the place of sale, as the statute requires, the sale is illegal. 29 (m) Presumption of Regularity. The authority of an officer to make a sale will not be presumed, 30 nor will it be presumed that, in making the sale, the officer complied with the legal requirements. 31 g. Remedies for Unlawful Impounding — (i) In General. To test the legal- ity of an impounding the owner of the animals may bring replevin for them, and is sometimes especially authorized by statute to do so. 32 Sometimes the statute makes a demand or tender necessary before bringing suit. 83 The statutory right to bring replevin does not exclude all other remedies. Trespass will lie, and the right to bring trespass is not waived or lost by paying the fees of a field- driver and pound-keeper, or by statements made by plaintiff after the commence- ment of the action. 84 (u) Persons Liable. Replevin cannot be maintained against the impounder where the pound-keeper alone is guilty of wrongdoing ; * nor can an action be maintained by the owner against a field-driver on the ground that the latter's pro- ceedings were void because of his failure to tender the surplus of the appraised value of animals, such tender having been prevented by the owner's act. 36 (in) Pleading — -(a) Avowry. If defendant seeks to justify on the ground that he acted in an official capacity he must aver that fact ; " and an allegation that the animal impounded was unlawfully running at large, with no further state- 27. When time begins to run. — Under a. statute requiring a notice to be posted for three days, and the sale of the animal to be in ten days after the notice has been given, giving forty-eight hours' notice of the time and place and cause of sale, it was held that the " ten days " did not begin to run until the "three days" have fully expired; and that the time and place of sale could not be fixed, and notice thereof given, until the ten days have expired. Rounds v. Stetson, 45 Me. 596. So, too, under an ordinance authoriz- ing the sale of animals which have been im- pounded for eight days, such sale to take place on six days' notice, the notice cannot be given until the expiration of the eight days, and fourteen days must elapse from the time of impounding to the time of sale (Barrett v. Rowe, 78 Mich. 648, 44 1ST. W. 335 ) ; and an ordinance permitting the owner to redeem within five days, and authorizing a sale on three days' notice, contemplates that the notice shall commence to run after the expiration of the five days (White v. Haworth, 21 Mo. App. 439 ) . Notice posted June 25th for a sale on July 25th is not a notice of " not less than thirty nor more than sixty days " ( Cameron v. Adams, 1 Mich. N. P. 188), nor is a sale on the twenty-eighth day of a month, maMe un- der a notice given on the twenty-second day of the month, a sale after notice for six suc- cessive days (Montgomery t'. Adams, 51 Ala. 449). 28. Clark v. Lewis, 35 111. 417; Smith v. Gates, 21 Pick. (Mass.) 35. 29. Sutton v. Beach, 2 Vt. 42. 30. Clark v. Lewis, 35 111. 417. Written authority is not necessary to au- thorize an officer to sell. Dalby v. Wolf, 14 Iowa 228. 31. Ft. Smith v. Dodson, 51 Ark. 447, 11 Vol. II S. W. 687, 14 Am. St. Rep. 62, 4 L. R. A. 252. 32. Marx v. Labadie, 51 Mich. 605, 17 N. W. 76; Coffin v. Field, 7 Cush. (Mass.) 355. Commencement of action. — If a writ is filled up within twenty-four hours after cat- tle are impounded, with the intent of plain- tiff, at all events, to have it served, whether defendant shall give him notice of the im- pounding within twenty-four hours or not, the action is commenced when the writ is filled up, although it is not served, nor given to an officer for service, and no replevin bond is executed, until after the expiration of twenty-four hours from the time of the im- pounding. Field v. Jacobs, 12 Mete. (Mass.) 118. 33. Holcomb v. Davis, 56 111. 413. No demand is necessary before bringing re- plevin against the purchaser of an animal at an unauthorized sale, as the possession of de- fendant in such case is wrongful. Clark v. Lewis, 35 111. 417. 34. Coffin v. Field, 7 Cush. (Mass.) 355, where plaintiff stated that he would require defendants to prove that the place where they took the beasts was a public highway. 35. As where the pound-keeper removes the animal from the pound without the field- driver's knowledge or consent (Byron v. Crip- pen, 4 Gray (Mass.) 312), or unlawfully de- tains an animal after a tender of the pound- age fees (Hall v. Hall, 24 Conn. 358), or where a field-driver who lawfully impounds sheep fails either to restore the sheep, or sell them according to law, through the default of the pound-keeper or other person, or from the insufficiency of the pound, the animals being lawfully in the pound-keeper's custody (Coffin r. Vincent, 12 Cush. (Mass.) 98). 36. Gilmore v. Holt, 4 Pick. (Mass.) 258. 37. Case v. Hall, 21 111. 632. ANIMALS 451 ment of the facts, is not a sufficient averment that it was running at large in vio- lation of a statute ; 38 nor is an allegation that it was running at large contra for- mam statuti sufficient as an averment that it was suffered to run at large. 39 (b) Plea. A plea to an avowry, by which plaintiff seeks to charge defendant for the failure to provide impounded animals with food and water, should show the necessity of such provision by appropriate averment ; and, where such a plea charges a failure to place the animals where they could be so relieved, the plea is insufficient if it fails to show that there was some other place than that selected in which the animals might have been more conveniently restrained. 40 (iv) Evidence. In an action against an impounder plaintiff cannot show that the animals were not suitably provided for in the pound, or were there ill-treated ; 41 but, where he claims that the animal was not placed in a lawful pound, he may show by parol evidence that there was a pound in fact, and what steps were taken toward its establishment. 42 It is incumbent on defendant to show the sufficiency of the notice of impounding, 43 and he may prove the contents of the posted notice, the original of which was lost, by parol evidence ; u he may also show the giving of other notice than that required by law. 45 On the issue as to the right of defendant to take the animals in question, or, where he seeks to otherwise justify, he may show his appointment as an officer, or such other facts relied on in exoneration ; 46 but the evidence relied on in justification must be sufficient to support the contention. 47 (v) Measure of Damage. "Where plaintiff's animals are entirely lost by reason of defendant's wrongful act the measure of damage is their value. 48 XV. SLAUGHTERING ANIMALS. A. Unmarked Cattle. 49 Under the Texas statute prohibiting the slaughter of unmarked or unbranded cattle for market, or purchasing and killing any animal without a written transfer from the vendor, a defendant is guilty who kills for market and afterward purchases, without a written transfer or bill of sale, from a stranger claiming to be the owner, the unmarked and unbranded animals so killed by defendant. 50 B. Without Reporting- Animals Slaughtered. By statute in Texas any butcher who fails to report the animals he slaughters is subject to a fine. This statute defines a substantive offense not limited by, or dependent on, any other enactment, and it is a general law throughout the state. 51 It is not com- 38. Rutter v. Henry, 46 Ohio St. 272, 20 shown to be otherwise. Gilmore v. Holt, 4 N. E. 334. Pick. (Mass.) 258. 39. Adams v. Nichols, 1 Aik. (Vt.) 316, 47. Sufficiency of evidence of selection of wherein it was queried whether the avowant animal for forfeiture. — Evidence that de- must prove the averment, or whether the ani- fendants secretly removed the animal in ques- mals being at large would be prima fade tion several miles off; that they afterward sufficient to throw the onus upon plaintiff of brought it back in the night, kept it pri- proving facts to exempt such animals from vately, and afterward killed it, and that be- the liability to be impounded. fore this they had kept the animal privately 40. Adams v. Adams, 13 Pick. (Mass.) confined in a barn, in a cellar, and in the of- 384. fice of one of defendants, does not show a se- 41. Pickard v. Howe, 12 Mete. (Mass.) lection of the animal, or an intent to select 198. - it, from others, as the subject of forfeiture 42. Albright v. Payne, 43 Ohio St. 8, 1 under a statute permitting such » selection. N. E. 16. Watson v. Watson, 14 Conn. 188. 43. Coffin v. Vincent, 12 Cush. (Mass.) 98. 48. Frazier v. Draper, 51 Mo. App. 163. 44. Coffin v. Vincent, 12 Cush. (Mass.) 98. 49. Branding hides after skinning see 45. Pickard v. Howe, 12 Mete. (Mass.) supra, IV, E. 198. 50. Hunt v. State, 33 Tex. Crim. 93, 25 46. A defendant claiming to have been S. W. 127. chosen as field-driver at an annual town- 51. Dreyer v. State, 10 Tex. App. 97. meeting need not produce a record of the Exemption of certain counties. — The fact town vote prescribing the time and manner of that a law of this character exempts certain giving notice of town-meetings, but the noti- counties from its operation does not make it fication will be presumed to be legal, unless a " local law," making it necessary to sub- Vol. II 452 ANIMALS plied with by making a report ostensibly for one term, but not sworn to or filed until a subsequent term. 52 An indictment charging substantially a failure to return lists of cattle slaughtered as required by law negatives such a compliance as would exonerate defendant ; ra but charging defendant with failing to make report " of all animals purchased and slaughtered by him " does not charge an offense under a statute requiring a report of all animals slaughtered, whether purchased or raised by the butcher. 54 The indictment should further allege that animals have been slaughtered by defendant, and that defendant was a butcher and so required to make a report. 55 XVI. POUNDS AND POUND-KEEPERS. A. Pounds — 1. Definition. A pound has been defined to be a place where animals which may be impounded are confined, kept, and fed. 56 2. Establishment by Legislative and Municipal Authority. The legislature may pass statutes relative to the impounding of cattle or other animals, or may dele- gate to municipal or like authorities the right to make such enactments, and to provide pounds and keepers therefor ; and ordinances or by-laws passed within such authority are valid. 57 3. Liability of Local Authorities — a. For Failure to Provide Pound. In some jurisdictions the failure of a town to provide a sufficient pound will subject it to a penalty yearly until it complies with the duty imposed upon it in this respect. 58 mit the act for the approval of the freehold- ers of any section. Lastro v. State, 3 Tex. App. 363. Repeal of statutes. — The Texas act of March 4, 1863, relating to failure to return lists of the marks and brands of all cattle slaughtered, was not repealed by the act of Nov. 13, 1866, upon the same subject. Gill v. State, 30 Tex. 514. But this latter act was repealed by the acts of May 22, 1871, and March 23, 1874. Monroe v. State, 3 Tex. App. 341. 52. Bruns v. State, 33 Tex. Crim. 415, 26 S. W. 722. 53. Schutze v. State, 30 Tex. 508. 54. Kinney v. State, 21 Tex. App. 348, 17 S. W. 423. 55. Braun v. State, 40 Tex. Crim. 236, 49 S. W. 620. 56. Harriman v. Fifield, 36 Vt. 341. A shed used with the pound building, and as an entrance thereto, is a part of the pound, Wilcox v. Hemming, 58 Wis. 144, 15 N. W. 435, 46 Am. Rep. 625. Place in common use. — Though no pound has been formally established, animals may be confined in a place used as a town pound, where no other place has been furnished and used for pound purposes, and although its es- tablishment has never been voted for. An- thony v. Anthony, 6 Allen (Mass.) 408. A pound located by the county authorities will continue to be the proper place to im- pound stock until the pound is changed. Colp v. Halstead, 63 111. App. 116. The new pound contemplated by Conn. Gen. Stats, tit. 16, c. 10, § 2, authorizing the establishment of new pounds by selectmen, means a pound established in some part of the town where there was none before, and for which no pound-keeper was appointed at the last annual meeting. Bosworth v. Trow- bridge, 45 Conn. 161. Vol. II Private pound. — At common law the dis- trainer might put the distress into a, com- mon pound, but he was not obliged to do so. He might put it into a private pound, into his own close, or other inclosure where he pleased, which for this purpose was a pound (Collins v. Larkin, 1 R. I. 219) ; and, in Mas- sachusetts, an inhabitant of a town, taking up cattle found going at large within the town contrary to a vote of the inhabitants, may impound them in his private close (Gil- more v. Holt, 4 Pick. (Mass.) 258). 57. Alabama. — Dillard v. Webb, 55 Ala. 468. Connecticut. — Whitlock v. West, 26 Conn. 406. Kentucky. — Armstrong v. Brown, 20 Ky. L. Rep. 1766, 50 S. W. 17. Michigan. — Grover v. Huckins, 26 Mich. 476. Missouri. — Spitler v. Young, 63 Mo. 42. North Carolina. — Whitfield v. Longest, 28 N. C. 268; Hellen v. Noe, 25 N. C. 493. South Carolina. — Crosby v. Warren, 1 Rich, (S. C.) 385. Purchase or hire of existing inclosure. — Town or municipal authorities, vested with power to establish, erect, and maintain pounds, may purchase or hire suitable in- closures already erected. Whitlock v. West, 26 Conn. 406. The Connecticut statutes which provide for the establishment and maintenance of pounds, the confinement of animals therein, their dis- position, and prescribes the remedies of the owners of animals unlawfully impounded, ap- ply to the impounding of animals pursuant to by-laws passed by town authorities, as well as to impounding under the authority of the general statutes. Whitlock v. West, 26 Conn. 406. 58. Pike v. Madbury, 12 N. H. 262, hold- ing that a statutory requirement, that an ac- ANIMALS 453 b. For Negligent Construction or Maintenance of Pound. For the negligent construction of a pound by its agents, or for their negligence in any purely ministerial duty under a pound ordinance, a municipality is liable to the same extent as a private person. There is no liability, however, for injuries to an animal, caused by its wild and vicious effort to escape from a pound sufficient to restrain any ordinary animal of its kind. 69 A complaint in an action against a municipality, for injury to an animal because of the negligent construction and maintenance of a pound, must allege facts sufficient to show a cause of action, 60 and must be supported by competent evidence. 61 In such an action an instruc- tion that a pound ordinance is penal in its nature is a slight and harmless inaccuracy. 62 e. For Conversion of Impounded Animals. A municipality is not liable, as for the conversion of an impounded animal, in the absence of evidence of wrong- ful conduct on the part of its agents. 63 B. Pound-Keepers — 1. Appointment and Nature of Office. A pound- keeper is a public officer, whose appointment is not warranted in the absence of legislative authority therefor. 64 The appointment, where authority to make it is conferred, must be in the mode prescribed ; 65 but unless so required, it is unnec- essary to require him to take or subscribe an oath. 66 tion upon a penal statute must be brought within one year from the time the right of action accrued, was applicable to an action against a, town, under a statute imposing penalties for the failure to provide a suffi- cient pound, for each year it should neglect its duty in this respect, so that no more than one penalty could be recovered in any one suit. It was also held in this case that the declaration should specify the precise year for which the penalty was claimed. 59. Greencastle v. Martin, 74 Ind. 449, 39 Am. Rep. 93. 60. Sufficiency of complaint. — A complaint alleging that the fence of a pound, con- structed and maintained by a city, was not high enough, that an animal impounded therein by the city was improperly tied, and that, in consequence thereof, and without plaintiff's fault, the animal sustained injuries, states a good cause of action. Greencastle v. Martin, 74 Ind. 449, 39 Am. Rep. 93. 61. Sufficiency of fence. — When a pound fence is proved to be sufficient by competent and credible witnesses, and no testimony to the contrary is introduced, ths sufficiency of the fence is established, and the mere fact that an animal confined in the pound kills itself by rushing against such fence, or by kicking against it, or by trying to leap over it, has no tendency to prove its insufficiency. Greencastle v. Martin, 74 Ind. 449, 39 Am. Rep. 93. Improper confinement. — A complaint charg- ing negligence in building a pound fence too low; in tying the animal with a rope too long; in failing to post a notice of impound- ing; and in failing to offer the animal for sale at a proper time, is not sustained in the absence of evidence that the fence was too low, that the animal was improperly tied, or that the failure to post notices or to sell produced or tended to produce the injury complained of. Greencastle v. Martin, 74 Ind. 449, 39 Am. Rep. 93. 62. Greencastle v. Martin, 74 Ind. 449, 39 Am. Rep. 93. 63. Failure of proof. — A charge of conver- sion by the city is not sustained so as to justify a finding against the city, where there is no evidence of a wrongful appropriation, or of an intent to make an appropriation, of an animal impounded by a city marshal un- der an ordinance. Greencastle v. Martin, 74 Ind. 449, 39 Am. Rep. 93. 64. A municipal corporation has no power to appoint such offitjr unless the authority for that purpose is expressly given by its charter. White v. Tallman, 26 N. J. L. 67. 65. Delegation of power to appoint. — A charter provision that a board of commis- sioners shall " appoint suitable persons to take charge of and keep up said pounds " re- quires the action of the board of commission- ers. The power to appoint cannot be dele- gated to one of their number. Dillard v. Webb, 55 Ala. 468. Keeper of new pound. — Under a statute providing that, when selectmen establish a new pound, they shall appoint a pound-keeper for it, to hold office until a regular appoint- ment is made, it was held, in a case where a pound had been rendered unfit for use, and another was made about fifty rods distant, that the latter was not a. new pound, and that the keeper of the abandoned pound be- came the keeper of the substituted pound un- der his previous appointment, and, further- more, that it was immaterial that the old pound had been repaired and was in a con- dition to be used. Bosworth v. Trowbridge, 45 Conn. 161. 66. A poundmaster, appointed " from time to time," does not hold an " office or place of trust " within the meaning of a city charter requiring " every person chosen or appointed to any office or place of trust " to " take and subscribe an oath." Wilcox v. Hemming, 58 Wis. 144, 145, 15 N. W. 435, 46 Am. Rep. 625. Vol. II 454 ANIMALS 2. Duties — a. In General. It is the duty of a pound-keeper to comply with all the requirements imposed by law ; otherwise he is a trespasser, and as such has no right to the possession of animals, or to fees or expenses for caring for them, 67 and his duties are the same whether the taking and impounding were lawful or not. 68 b. To Place and Keep Animal in Established Pound. Unless the law otherwise provides, a pound-keeper has no authority to remove from the pound animals deliv- ered to him, or to confine them elsewhere than in the legally constituted pound. If he is derelict in either of these respects the animals are not regarded as under legal restraint. 69 A pound-keeper may remove an animal from the pound, however, where the removal is necessary to preserve it from injury. 70 e. To Care for Animals in Pound. At common law animals within the pound were required to be supplied with food by their owner ; 71 but where the statute imposes this requirement on a pound-keeper, it charges him with a duty the neglect of which will subject him to liability. 72 In the absence of any provision of law or express contract, a pound-keeper has no remedy against the impounder for the expense of keeping and feeding animals placed in his charge. 78 3. Bight to Fees and Charges — a. In General. For the fees and charges to which the pound-keeper is entitled by law, he has a lien on the impounded ani- mal, 74 which he may detain until his demand is satisfied, 75 and where the fees of the impounder, 76 or the damages assessed, 77 are a charge against the animal, he may retain the latter until such charges and damages are paid. b. Waiver of Right. This right of lien may be lost by the failure of the pound-keeper to properly perform the duties imposed upon him. 78 67. Marshall v. Yoos, 20 111. App. 608; Bills v. Kinson, 21 N. H. 448. In Minnesota, Gen. Stat. (1878), c. 10, § 87, respecting the duties and fees of poundmas- ters, is applicable to the case of animals im- pounded under township regulations, in pur- suance of section 16 of the same chapter, and is not inconsistent with other provisions re- specting estrays, or respecting the impound- ing of animals found doing damage. John- ston v. Kirchoff, 31 Minn. 451, 18 N". W. 315. Duty to give notice. — Hurd's Stat. Ind. (1898), p. 801, requiring persons taking up estrays to notify the town clerk, has no ap- plication to poundmasters impounding cattle as provided on page 147 and page 1507, ar- ticle 4, section 3. Schlachter v. Wachter, 78 111. App. 67. 68. Mattison v. Turner, 70 Vt. 113, 39 Atl. 635. See Clark v. Lewis, 35 111. 417, hold- ing that if an animal delivered to a pound- keeper was illegally taken up, the latter be- comes a trespasser by detaining it. 69. Collins v. Fox, 48 Conn. 490; Collins V. Larkin, 1 E. I. 219. Where a keeper removes an impounded ani- mal from the lawful pound and puts it in a, private inclosure, the animal can be no longer held under the impounding. Collins v. Fox, 48 Conn. 490. Removal to feed and water. — If a pound- keeper drive from the pound to his barn or pasture creatures which have been legally impounded, for the purpose of more con- veniently furnishing them with food and drink, he thereby loses his legal control over them. Bills v. Kinson, 21 N. H. 448. .70. Collins v. Fox, 48 Conn. 490. Vol. II 71. Hiker v. Hooper, 35 Vt. 457, 82 Am. Dec. 646. In England, by statute, a person impound- ing an animal, or causing it to be impounded, and not the pound-keeper, is required to fur- nish it with sufficient food and water. Dar- gan v. Davies, 2 Q. B. D. 118. 72. Riker v. Hooper, 35 Vt. 457, 82 Am. Dec. 646. 73. If animals are impounded without au- thority of law, so that the impounder com- mitted a trespass in taking them, it will not enable the pound-keeper, in an action upon book account, to recover of the impounder the expense of keeping and feeding them. Williams v. Willard, 23 Vt. 369. 74. The lien is limited to the fees specified by law (Martin v. Foltz, 54 Nebr. 162, 74 N. W. 418), and, where the fees are required to be fixed by county commissioners, the poundmaster is entitled to such fees only as the commissioners provide for by order (Colp v. Halstead, 63 111. App. 116). 75. Schlachter v. Wachter, 78 111. App. 67 ; Folger v. Hinckley, 5 Cush. (Mass.) 263; Mellen v. Moody, 23 Vt. 674. See also Har- riman v. Fifield, 36 Vt. 341, where the prop- erty was confined in a private close, as au- thorized by statute. 76. Folger v. Hinckley, 5 Cush. (Mass.) 263. 77. Mellen v. Moody, 23 Vt. 674. 78. If a pound-keeper has not followed the statute in the acts required of him up to and including the sale, the owner of the legally impounded animal, illegally sold, can recover its full value of the pound-keeper, without allowance of pound fees and expenses. Kila v. Kahuhu, 8 Hawaii 212. ANIMALS 455 e. Action to Enforce. In some cases the pound-keeper is required to sue for the penalty, and the expense of keeping the animal. 79 4. Liability for Acts of Impounder. A pound-keeper is not liable for the -wrongful act of the person taking and impounding an animal. 80 C. Rescue and Pound-Breach — 1. Definitions — a. Rescue. Kescue, by the common law and within statutes declaratory thereof, consists of the taking away and setting at liberty of cattle or other animals from the actual possession of one who has taken them up or distrained them, and who is driving or convey- ing them to a pound. 81 The rescue will be deemed a violent taking, though there was no positive violence, nor use of menacing or threatening words. 83 To con- stitute a rescue under a statute, the animal must be of the kind which the possessor was entitled to retain possession of under the statute. 83 b. Pound-Breach. Pound-breach is the act or offense of breaking a pound, and conveying away or setting at large cattle or other animals therein confined. 84 2. Persons Liable. Any person who directly or indirectly liberates, or who aids and assists in liberating, animals from their lawful custodian is liable to the party sustaining damage. 85 3. Civil Action — a. In General. At common law, for the taking back by force of animals distrained, the distrainer had a remedy in damages, either by a writ of rescous, in case they were going to the pound, or by writ de parco fracto, 79. Biker v. Hooper, 35 Vt. 457, 82 Am. Dec. 646. 80. Mattison v. Turner, 70 Vt. 113, 39 Atl. 635; Badkin v. Powell, Cowp. 476. A statute providing that a pound-keeper may require security of the impounder under certain circumstances will not import that the keeper shall be liable for the wrongful act of the impounder in taking the property. Mattison v. Turner, 70 Vt. 113, 39 Atl. 635. 81. Vinton v. Vinton, 17 Mass. 342 ; Ham- lin v. Mack, 33 Mich. 103 ; Collins v. Larkin, 1 E. I. 219. It is immaterial that the cattle taken were never out of the view of the field-driver, and that they Were finally yielded to him and im- pounded. Vinton v. Vinton, 17 Mass. 342. 83. Hamlin v. Mack, 33 Mich. 103. 83. Berry v. Ripley, 1 Mass. 167. " Stock " in the Iowa statute, making it an ■offense to release distrained stock, includes swine. State v. Clark, 65 Iowa 336, 21 N. W. «66. Neat cattle. — The penalties of Mass. Stat. (1788), c. 65, § 6, for pound-breach or other- wise delivering creatures from a pound, are T>y Mass. Stat. (1799), e. 61, extended to neat cattle. Com. v. Beale, 5 Pick. (Mass.) 514. 84. Com. v. Beale, 5 Pick. (Mass.) 514; 3 Bl. Comm. 12, 146. See also State v. Young, 18 N. H. 543, 545 iquoting Gilbert Law Dis- tresses, 75], to the effect that, " By the com- mon law, if a man break the pound or the lock of it, or part of it, he greatly offendeth against the peace and doth a trespass to the king, and to the lord of the fee," etc., "in breach of the peace, and to the party and de- lay of justice; and therefore hue and cry is to be levied against him as against those who T)reak the peace. And the party who dis- trained may take the goods again, whereso- ever he shall find them, and impound them -again." The driving or conveying away or setting at large is an essential part of the offense of pound-breaeh. The mere breaking of a pound in which nothing is impounded is not a pri- vate injury, entitling any one to an action, and no difference exists in the definition of the civil injury and in that of the public of- fense. State v. Young, 18 N. H. 543 ; 2 Chitty Crim. L. 205. Pound-breach not an opposition of marshal in execution of duty. — Breaking a pound and liberating a cow confined therein is not op- posing and interrupting a city marshal in the execution of an ordinance requiring him to take up and impound cattle. Borne v. Om- burg, 22 Ga. 67. 85. Pierce v. Josselyn, 17 Pick. (Mass.) 415, wherein, after a cow legally impounded had been rescued, the owner met the persons by whom she had been released and, with full knowledge of the facts, aided them in driving her to his house, and it was held that he was liable. But where impounded animals, let out by persons unknown, without complicity on the part of the owner, returned to the owner's inclosure, and the pound-keeper notified him of the fact, but did not demand them or go for them, but brought replevin, it was held that the owner was not liable until a de- mand and a refusal by him to give up the cattle, or to allow the keeper to take them from his inclosure. Bosworth v. Trowbridge, 45 Conn. 161. Evidence — Declarations of agents. — To prove that one aided in a rescue it is not necessary to show that he was personally at the pound, or that he broke down the in- closure and drove the cattle away, but it is enough if he indirectly participated; hence the declaration of his agents while pursuing a common plan, and, in furtherance of it, after the animals had been distrained and im- pounded, are his declarations, and are evi- dence against him. Hanbest v. Heerman, 2 Walk. (Pa.) 471. Vol. II 456 ANIMALS— ANIMUS or pound-breach, in case they were actually impounded. 86 The remedy under the statutes, unless specially prescribed, seems to be trespass, or some kindred form of action. 87 If the pound is broken the pound-keeper cannot bring an action, but it must be brought by the person who distrained the animals there impounded. 88 b. Declaration. In a penal statutory action for a rescue, an allegation that the wrongful act was contrary to a statute is equivalent to charging that it was committed contrary to the form of the statute. 89 e. Defenses. At common law, if a distress was unlawfully made, the animals might be taken back by their owner, even on the way to the pound ; M and the illegality of the distress might be shown by the owner in an action against him for rescuing them after they were distrained and before they were impounded ; 9L but once the distress was within the pound inclosure, if the owner took the cattle by force, he became liable to an action for pound-breach, and could not justify by any illegality in the original taking, however wrongful it might have been, for the reason that the distress was in the custody of the law, as distinguished from the custody of a party, and no one could be justified in taking it from the custody of the law. 92 In Massachusetts the common-law rule has been changed by statute so as to preclude the rescuer from showing in either case that the original taking was such as to render the impounding illegal. 93 4. Criminal Prosecution m — a. In General. Pound-breach is an offense at common law, 95 and also has been made so by statute. 96 To authorize the inflic- tion of punishment for the offense of rescue or pound-breaking, the liability of the accused must be clearly made out. 97 b. Defenses. Upon trial of an indictment for pound-breach the illegality of the distress cannot be shown in defense. 98 ANIMO. With the intention or design. 1 ANIMUS. Intention ; disposition ; will. 2 86. Collins c. Larkin, 1 R. I. 219; 3 Bl. Comm. 146; Coke Litt. 476. 87. The lawful custodian of impounded animals may maintain trespass against a per- son who unlawfully takes them from his pos- session. Sheridan v. Spare, 2 Kulp (Pa.) 271, 12 Luz. Leg. Reg. (Pa.) 43. Treble damages. — In a proceeding to re- cover treble damages for a rescue, the addi- tional costs and expenses caused by the res- cue constitute a part of the damages which mav be trebled. Hanbest v. Heerman, 2 Walk. (Pa.) 471. 88. Aston, J., in Badkin v. Powell, Cowp. 470. 89. Cleaves v. Jordan, 35 Me. 429. Pleading and proof. — In an action to re- cover a penalty for the rescue of animals, an allegation in the writ that they were found in the highway is a material averment, which must be proved as laid. Cleaves v. Jordan, 34 Me. 9, wherein proof that the animals were found on a townway was held insufficient. 90. Collins v. Larkin, 1 R. I. 219. 91. 3 Bl. Comm. 12. 92. Collins i: Larkin, 1 R. I. 219; 3 Bl. Comm. 12. 93. Field v. Coleman, 5 Cush. (Mass.) 267, an action on the ease for rescuing sheep distrained for going at large, and not under the care of a keeper, on the common and undi- vided lands of the island of Nantucket, wherein it was held to be no defense that the place where the sheep were taken and the place where they were rescued were unin- Vol. II closed lands, held in severalty; that, between the taking and the rescue, the sheep were, continuously on said lands; and that de- fendants were the proprietors of such lands,, and the owners of the sheep rescued. 94. For form of an indictment for pound- breach see State v. Young, 18 N. H. 543. 95. Pound-breach is among the offenses cognizable in the sheriff's court, as being com- mon grievances, in direct contempt of the au- thority of the law by which pounds are pro- vided for the legal detainment of distresses,, etc. 3 Hawkins P. C. 144. 96. A prosecution under 111. Rev. Stat. e. 54, § 21, for rescuing cattle after they had been impounded, is a criminal prosecution — that is, a misdemeanor. Anderson v. People,. 28 111. App. 317. 97. Where the prosecutor drove hogs into an inclosure while defendant was in pursuit of them and in his view, and after a message to him not to imprison them, as she was try- ing to catch them, it was held that defendant was not guilty, within a statute denouncing' the offense, of the offense of releasing im- pounded stock. State v. Hunter, 118 N. C. 1196, 24 S. E. 708. 98. Com. !'. Beale, 5 Pick. (Mass.) 514. 1. Burrill L. Diet. Used in various combinations in this sense- in place of Animus, q. v. 2. Burrill L. Diet. Animus adimendi. — The intention of adeem- ing. Adams Gloss. Animus cancellandi. — The intention of can- ANIMUS— ANNUA PENSIONS 457 ANIMUS HOMINIS EST ANIMA SCRIPTI. A maxim meaning " The intent of a man is the soul of his writing." 3 ANN. In Scotch law, one-half a year's stipend over and above what is owing for the incumbency, due to a minister's relict, child, or nearest of kin, after his decease. 4 ANNALES or ANNI ET TEMPORA. Titles formerly given to the Tear Books. 5 ANNEXATION. The union of one thing to another. 6 (Annexation : Of Account Sued on to Pleading, see Accounts and Accounting. Of Affidavit to Chattel Mortgage, see Chattel Mortgages. Of Appraisement to Execution, see Executions. Of Certificate — Of Acknowledgment to Written Instrument, see Acknowledgments ; Of Officer to Deposition, see Depositions. Of Collector's Warrant to Tax-Book, see Taxation. Of Deposition to Commission or Interroga- tories, see Depositions. Of Exhibits — To Deposition, see Depositions ; To Plead- ing, see Pleading. Of Fixtures to Realty, see Fixtures. Of Process to Plead- ing, see Process. Of Territory, see Counties; Municipal Corporations; Schools and School Districts ; Towns.) ANNEXED. Fastened to ; connected with. 7 ANNIENTED. Abrogated ; frustrated ; brought to nothing. 8 ANNI ET TEMPORA. See Annales. ANNIHILATED. Extinguished. 9 ANNO DOMINI. See A. D. ANNOUNCE. To give public notice of ; to proclaim ; to declare ; to publish ; to pronounce ; to declare by judicial sentence. 10 ANNOYANCE. Any hurt done to a place, public or private, by placing any- thing thereon that may breed infection, or by encroachment, or such like means. 11 ANNUAL. Yearly ; every twelve months. 13 / ANNUALLY. Year by year ; 1S every year. 14 ANNUA PENSIONE. An ancient writ to provide the king's chaplain with a pension if he had no preferment. 15 celing. Burrill L. Diet, [citing Perrott v. 4. Jacob L. Diet. Perrott, 14 East 423, 439]. 5. Burrill L. Diet, {.citing 9 Lond. Leg. Animus capiendi. — The intention of tak- Obs. 323]. ing. Bouvier L. Diet. 6. Bouvier L. Diet. Animus dedicandi. — The intention of dedi- 7. Merritt v. Judd, 14 Cal. 59, 64. eating. Adams Gloss. 8. Wharton L. Lex. Animus delinquendi. — The intention of 9. Robinson v. Lane, 19 Ga. 337, 397. abandoning. Adams Gloss. 10. Walker v. Heller, 56 Ind. 298, 300 [cit- Animus donandi. — The intention of giving. ing Worcester Diet.]. Burrill L. Diet. 11. Wharton L. Lex. Animus f urandi. — The intention of steal- Distinguished from " nuisance." — In Tod- ing. Bouvier L. Diet. Heatly v. Benham, 40 Ch. D. 80, 84, Keke- Animus lucrandi. — The intention of gain- wich, J., said : " I think it would be against ing. Burrill L. Diet. the sound canons of construction to give the Animus manendi. — The intention oi : re- same meaning to the two words standing side maining. Berry v. Wilcox, 44 Nebr. 82, 84, by side, and I rather follow the suggestion 62 N. W. 249, 48 Am. St. Rep. 706. that annoyance is a popular word for nui- Animus recipiendi. — The intention of re- sance, ' nuisance ' being the legal technical eeiving. Burrill L. Diet. word, while annoyance means something Animus restituendi. — The intention of re- which, though frequently called a nuisance, storing. Bouvier L. Diet. is not a nuisance legally and technically, and Animus revertendi. — The intention of re- therefore is popularly, but not technically, a, turning. Adams Gloss. nuisance." Animus revocandi. — The intention of re- 12. State v. McCullough, 3 Nev. 202, voking. Burrill L. Diet. 224. Animus testandi. — The intention of mak- 13. Juker v. Com., 20 Pa. St. 484, 494. ing a will. Burrill L. Diet. 14. Sparhawk v. Wills, 6 Gray (Mass.) 3. Morgan Leg. Max. 163, 164; Union Iron Co. v. Pierce, 4 Biss. Applied in Olmsted v. Olmsted, 38 Conn. (U. S.) 327, 24 Fed. Cas. No. 14,367. 309, 334. 15. Wharton L. Lex. Vol. II ANNUITIES By Archibald C. Boyd I. DEFINITION, 459 II. CREATION AND NATURE, 459 A. In General, 459 B. Assignability, 460 0. Estate Created, 460 III. REQUISITES AND VALIDITY, 460 A. Conditions against Public Policy, 460 B. Consideration, 460 C. Enrolment, 461 D. Infancy of One Grantor, 461 E. Instrument under Seal, 461 F. Usury, 461 IV. DURATION AND TERMINATION, 461 A. In General, 461 B. Annuity Created without Words of Limitation, 462 C. Forfeiture, 463 D. Merger, 463 V. PAYMENT, 463 A. Commencement, 463 B. Computation of Value, 464 C. Interest on Arrears, 464 D. Persons and Property Chargeable, 465 1. In General, 465 2. Charge upon Land, 466 E. Setting aside Sum for Payment, 467 VI. APPORTIONMENT, 468 A. Pule at Common Law, 468 B. . Exceptions to Pule, 468 C. Statutory Modification of Pule, 469 VII. RIGHTS, REMEDIES, AND LIABILITIES OF ANNUITANTS, 469 A. Right to Have Administration, 469 B. Creation of Charge upon Fund, 469 C. Remedies, 469 1. At Law, 469 2. In Equity, 469 3. Limitation of Action, 470 4. Parties, 470 5. Pleadings, 470 6. Decree, 471 D. Liability of Annuity for Debts of Annuitant, 471 CROSS-REFERENCES As to Annuities Created by Will, and Abatement and Payment Thereof, see Wills. Charges upon Property Devised, see Wills. Duties and Liabilities of: Executors, see Executors and Administratobs. Of Trustees, see Trusts. Ground Rents, see Ground Rents. Taxation of Annuity, see Taxation. Vol. II 458 ANNUITIES 459 I. DEFINITION. An annuity, in its strict sense, is a yearly payment of a certain sum of money, granted to another in fee, or for life, or for years, 1 and chargeable only on the person of the grantor. 2 A. In General. II. Creation and nature. An annuity may be created by deed 3 or by will. 4 1. Alabama. — Turrentine v. Perkins, 46 Ala. 631. Connecticut. — Bartlett v. Slater, 53 Conn. 102, 22 Atl. 678, 55 Am. Ren. 73. New Jersey. — Welsh v. Brown, 43 N. J. L. 37. New York. — Kearney v. Cruikshank, 117 N. Y. 95, 22 N. E. 580 ; Wagstaff v. Lowerre, 23 Barb. (N. Y.) 209; Booth v. Ammerman, 4 Bradl Surr. (N. Y.) 129; Matter of Williams, 12 N. Y. Leg. Obs. 179. Pennsylvania. — Horton v. Cook, 10 Watts (Pa.) 124, 36 Am. Dec. 151; Eyre v. Golding, 5 Binn. (Pa.) 472. Rhode Island. — Pearson v. Chaee, 10 R. I. 455. Tennessee. — Morgan v. Pope, 7 Coldw. (Tenn.) 541. England. — Bacon Abr. tit. Annuity; Coke Litt. 1446 ; Rollo Abr. 226. See 2 Cent. Dig. tit. " Annuities," § 1. An annuity is a bequest of certain specified sums periodically. Apple's Estate, 66 Cal. 432, 6 Pac. 7; Cal. Civ. Code, § 1357, siibd. 3. Distinguished from income of fund. — There is a distinction between the income of a fund and an annuity. The former embraces only the net profits, after deducting all necessary expenses. The latter is a fixed amount di- rected to be paid absolutely, without contin- ■ gency. Whitson v. Whitsbn, 53 N. Y. 479 ; Stubbs v. Stubbs, 4 Bedf. Surr. (N. Y.) 170; Ex p. McComb, 4 Bradf. Surr. (N. Y.) 151; Booth v. Ammerman, 4 Bradf. Surr. (N. Y. ) 129; Pearson v. Chace, 10 R. I. 455. Compare Ritter's Estate, 148 Pa. St. 577, 24 Atl. 120; Elickwir's Estate, 136 Pa. St. 374, 20 Atl. 518, wherein it was held that in legal aspect there is no substantial difference between the gift of an annuity for life and of the interest or income of a fund for life. Distinguished from rent-charge. — An an- nuity is different from a rent-charge in that a rent-charge is a burden imposed upon and is- suing out of lands, whereas an annuity is chargeable only upon the person of the grantor. De Haven v. Sherman, 131 111. 115, 22 N. E. 711, 6 L. R. A. 745; Wagstaff v. Lowerre, 23 Barb. (N. Y.) 209; Horton v. Cook, 10 Watts (Pa.) 124, 36 Am. Dec. 151. But a bequest in the following words : " I give and bequeath to my daughter, Anne Maria Duncan, the sum of sixty dollars, cur- rent money, as an annuity, to be paid to her out of the profits of my real estate above mentioned, annually," is an annuity, and not a rent-charge. Robinson v. Townshend, 3 Gill. & J. (Md.) 413. 2. Alabama. — Turrentine v. Perkins, 46 Ala. 631. Connecticut. — Bartlett v. Slater, 53 Conn. 102, 22 Atl. 678, 55 Am. Rep. 73. Maryland. — Owings' Case, 1 Bland (Md. ) 290. New York. — Wagstaff v. Lowerre, 23 Barb. (N. Y.) 209. Pennsylvania. — Mosser v. Lesher, 154 Pa. St. 84, 22 Atl. 1085; Rudolph's Appeal, 10 Pa. St. 34; Horton v. Cook, 10 Watts (Pa.) 124, 36 Am. Dec. 151. England. — Coke Litt. 1446 ; Viner Abr. tit. Annuity. 3. As to necessity of instrument under seal see infra, III, E. 4. See, generally, Wills. Illustrations. — A. bequest of the interest of a certain sum, not setting apart any fund for its payment, is a gift of an annuity equal to the interest of such sum. Brimblecom v. Haven, 12 Cush. (Mass.) 511; Swett v. Bos- ton, 18 Pick. (Mass.) 123. A provision in a will for the payment of " five hundred dollars per year for ten years " to B, in equal quar- terly instalments, is an annuity contingent on B's life, and not a legacy of five thousand dol- lars, payable in instalments. Bates v. Barry, 125 Mass. 83, 28 Am. Rep. 207. A gift of the sum of one hundred and seventy dollars, to be allowed and paid to a son until he shall arrive at the age of twenty-one years, is an annuity, and not a gross sum to be paid in distributive portions. Berry v. Headington, 3 J. J. Marsh. (Ky.) 315 ; A bequest of " an annuity or yearly sum of three hundred dollars to be paid yearly and every year, for fifteen years from and after my decease," is an annuity for years. Stephens v. Milnor, 24 N. J. Eq. 358. The devise of a yearly sum, to be paid by a trustee to whom lands are devised upon uses and out of the net rents that may accrue from the lands in his possession, and which sum is contingent upon the exi£^ncies of the trust, is in the nature of an annuity. De Haven v. Sherman, 131 111. 115, 22 N. E. 711, 6 L. R. A. 745. But a be- quest of " the sum of five hundred dollars, payable in sums of one hundred dollars yearly," is not an annuity. Stephens v. Mil- nor, 24 N. J. Eq. 358. Covenant for support or annuity. — Where one conveyed land in consideration of a cove- nant that the grantee should pay him two hundred dollars in each and every year during his natural life, the covenant is for an an- nuity, and not merely a covenant for support. Gallaher v. Herbert, 117 111. 160, 7 N. E. 511. Income or annuity. — Where a testatrix di- rects her trustees, who are also her executors, Vol. II 460 ANNUITIES B. Assignability. A person entitled to an annuity may, it has been held, assign the same. 3 C. Estate Created. A perpetual annuity granted to a person and his heirs, though descendible to the heirs, is personal, and not real, estate. 6 III. REQUISITES AND VALIDITY. 7 A. Conditions against Public Policy. A condition against public policy, imposed on an annuity by the donor or grantor thereof, is not binding on the annuitant. 8 B. Consideration. The grant of an annuity, to be valid, must be supported by a sufficient consideration. 9 to set apart and hold from her personal es- tate a sum of money sufficient to yield an an- nual income of two hundred and fifty dollars, and to pay said income over to a sister, and provides that on the decease of such sister the principal sum and all accumulations thereon shall go to, and form part of, the residuary estate (Matter of Von Keller, 28 Misc. (N. Y.) 600, 59 N. Y. Suppl. 1079); and where A devised to his wife the dividends and income of certain shares of bank-stock during her natural life or so long as she re- mained his widow, in lieu of dower, the re- versionary right being in the three daughters, who were also made his residuary legatees and devisees, the gift was one of income, and not an annuity (Pearson v. Chace, 10 R. I. 455). A gift of the interest of two thousand five hundred dollars, " to be paid annually," does not create an annuity, but merely requires payment of the income of a specific amount. Welsh v. Brown, 43 N. J. L. 37. Legacy or annuity. — An annuity springing alone from a will, and given by it, is a legacy. Heatherington v. Lewenberg, 61 Miss. 372. 5. Frazier v. Barnum, 19 N. J. Eq. 316, 97 Am. Dec. 666; Erwin v. Erwin, 115 N. C. 366, 20 S. E. 520; Key v. Craig, 21 Tex. 491 ; Hunt- Foulston v. Furber, 3 Ch. D. 285. See also Matter of Tilford, 5 Dem. Surr. (N. Y.) 524, wherein it was held that an annuity, or a pro- vision in the nature of an annuity, for the payment of which resort may be had to the income of a fund, but which is not directed to be discharged from such income exclusively, is an alienable interest. To the same effect see Hunter v. Hunter, 17 Barb. (N. Y.) 25. See 2 Cent. Dig. tit. " Annuities," § 2. 6. Eadburn v. Jervis, 3 Beav. 450, 43 Eng. Ch. 450 ; Aubin v. Daly, 4 B. & Aid. 59, 6 E. C. L. 389. See also Taylor v. Martindale, 12 Sim. 158, 35 Eng. Ch. 134, wherein it appeared that a testator gave his real and personal es- tate to his wife, subject to an annuity to A forever. It was held that on A's death, intes- tate, the annuity passed his personal repre- sentative, and not to his heir. 7. Sufficiency of promise. — A testator dur- ing his life received a letter from his niece, who was his companion and nurse, in which, after alluding to "the subject of my salary," she pro- posed that he should give her for her services during his life a certain sum " a year during my life " from a future date named, the same " to be paid to me in instalments as I may de- sire by your faithful attorney." He assented to this proposition, and she rendered the serv- Vol. II ices as stipulated during the rest of his life. It was held that there was a valid promise on his part to pay an annuity to her for life, en- forceable against his executors. Cox v. Max- well, 151 Mass. 336, 24 N. E. 50. 8. Parsons v. Winslow, 6 Mass. 169, 4 Am. Dec. 107 ; Nicholl v. Jones, 36 L. J. Ch. 554. See, generally, Contracts. Conditions in restraint of marriage. — A de- vise to the testator's wife of an annuity " dur- ing her widowhood and life " ceases upon her second marriage, by the testator's intention; but such intention, being against the policy of the law as in restraint of marriage, cannot take effect, and the wife is entitled to the annuity during her life, notwithstanding her second marriage. Parsons v. Winslow, 6 Mass. 169, 4 Am. Dec. 107; Hoopes v. Dundas, 10 Pa. St. 75; Stroud v. Bailey, 3 Grant (Pa.) 310; Mcllvaine v. Gethen, 3 Whart. (Pa.) 575. Contra, Mahar v. O'Hara, 9 111. 424; 1 Story Eq. Jur. § 285, note 4 ; Scott v. Tyler, 2 Bro. Ch. 431 ; Lloyd v. Lloyd, 10 Eng. L. & Eq. 139. See also Cornell v. Lovett, 35 Pa. St. 100. Limitation over upon indefinite failure of issue. — A limitation over of an annuity upoD an indefinite failure of issue is void as de- pending upon too remote a contingency. Seale v. Seale, Prec. Ch. 421; Bodens v. Watson, Ambl. 398; Robinson v. Fitzherbert, 2 Bro. Ch. 127. But if the failure of issue is confined to the death of the annuitant the limitation over is good as being in the nature of an exec- utory devise. Bradhurst v. Bradhurst, 1 Paige (N. Y. ) 331; Sheppard v. Lessingham, Ambl. 122. 9. Kearney t'. Kearney, 17 N. J. Eq. 59; Stiles r. Atty.-Gen., 2 Atk. 152; Keenan v, Handley, 2 De G. J. & S. 283, 67 Eng. Ch. 283 ; Ex p. Draycott, 2 Glyn & J. 283; Howell v. Price, 1 Jur. N. S. 494; Annandale v. Harris, 2 P. Wms. 432; Beaumont v. Reeve, 8 Q. B. 483, 55 E. C. L. 483 ; Kelfe v. Ambrosse, 7 T. R. 551. See, generally, Contracts. Illustrations. — Money lent and paid at dif- ferent times' for the education and advance- ment of defendant is a good consideration for the grant of an annuity. Kelfe v. Ambrosse, 7 T. R. 551. A covenant by a husband to se- cure to his wife an annuity during her life, in case she should survive him, is a sufficient consideration for the grant of an annuity from her father. Ex p. Draycott, 2 Glyn & J. 283. Giving up a pecuniary advantage at the time an annuity is granted amounts to a valuable consideration. Stiles v. Atty.-Gen., 2 Atk. 152. In a deed executed, upon a separation between ANNUITIES 461 C. Enrolment. The enrolment of a memorial in annuity transactions is not necessary at common law, and is only rendered requisite by statutory provisions. 10 D. Infancy of One Grantor. The several covenant of one grantor of an annuity is not avoided by the infancy of another who grants in the same deed. 11 E. Instrument under Seal. A contract for a life annuity, not issuing out of or charged upon land, but by which the grantor, in consideration of a sum certain, agrees to pay the annuitant specified sums annually, during life, is a mere chose in action for the payment of money which need not be made in the form of a deed, or be under seal. 1 * F. Usury. If a bargain is really for an annuity there is no usury, though the terms may be exorbitant ; 13 but if it is only a cover for the advancement of money by way of loan it will not exempt the lender from the penalty of the statute relating to usury. 14 IV. DURATION AND TERMINATION. A. In General. An annuity may be perpetual, or for life, or for a period of years, or subject to such specific limitations as to its duration as the grantor or donor may impose. 15 husband and wife, by them and the trustees of their marriage settlement, the wife charged her separate property comprised ia the settle- ment with the payment of an annuity to the husband, and the husband released his marital rights in respect to all future property ac- quired by the wife. It was held that the re- lease by the husband was a good consideration for the grant of the annuity by the wife. Logan v. Birkett, 1 Myl. & K. 220, 7 Eng. Ch. 220. An annuity for which there is no con- sideration save natural love and affection, and which the testator was under no legal obliga- tion to pay, creates no charge upon his estate. Kearney v. Kearney, 17 N. J. Eq. 59. An an- nuity granted to another in consideration that the public good is advanced by the encourage- ment of learning, and in consideration of the love the grantor bore the annuitant, is not a legal consideration, nor docs it amount to a. valuable one in the eyes of the law. Stiles v. Atty.-Gen., 2 Atk. 152. Past seduction and cohabitation are not a good consideration to support an annuity. Beaumont v. Reeve, 8 Q. B. 483, 55 E. C. L. 483 ; Binnington v. Wal- lis, 4 B. & Aid. 650, 6 E. C. L. 639. But a con- tract to> grant an annuity in consideration of the discontinuance of cohabitation and of the release of an alleged promise of marriage is enforceable in equity. Keenan v. Handley, 2 De G. J. & S. 283, 67 Eng. Ch. 283. See also Howell v. Price, 1 Jur. N. S. 494. So equity will enforce the performance of a contract by which a man who had seduced a woman bound himself to grant her an annuity for the sup- port of herself and the child begotten of the seduction. Annandale v. Harris, 2 P. Wms. 432; Jennings v. Brown, 9 M. & W. 496. See also Gibson v. Dickie, 3 M. & S. 463. Bequest of unused portion of annuity. — An agreement to pay an annuity for the use of real estate during the life of the owner is a sufficient consideration for a contract to be- queath the unused portion of the annuity. Garard v. Yeager, 154 Ind. 253, 56 N. E. 237. Forbearance to sue grantor. — A promise to pay an annuity, in consideration of forbear- ance to sue the executors of the grantor thereof, binds the promisor if the grantor was personally bound for the payment. Horton v. Cook, 10 Watts (Pa.) 124, 36 Am. Dec. 151. 10. Emmons v. Crooks, 1 Grant Ch. (U. C.) 159. 11. Haw v. Ogle, 4 Taunt. -10; Gillow v. Lillie, 1 Bing. N. Cas. 695, 27 E. C. L. 823. See, generally, Infants. Purchase by lunatic. — A lunatic purchased of an insurance society, and paid for, two an- nuities for his life, the society at the time having no knowledge of his lunacy, and the purchase being a transaction in good faith on the part of the society, and in the usual course of its business. It was held that the purchase- money could not be recovered from the society by the personal representatives of the deceased lunatic. Molton v. Camroux, 4 Exeh. 17. 12. Cahill v. Maryland L. Ins. Co., 90 Md. 333, 45 Atl. 180, 47 L. R. A. 614, holding, further, that a charter authorizing an insur- ance company to " grant, purchase, or dispose of annuities " does not limit the company to the grant of annuities by deed or contract un- der seal. But see Berry v. Doremus, 30 N. J. L. 399, wherein it was said arguendo that an annuity is an incorporeal hereditament, cre- ated by grant, which necessarily implies an instrument under seal. Compare In re Locke, 2 D. & R. 603, wherein it was held that an in- strument reciting that it had been agreed to sell an annuity, secured upon property in pos- session of the grantor, but containing no words of present grant, cannot be sued upon in a court of law even though it should be enrolled. To the same effect see Nield v. Smith, 14 Ves. Jr. 491. 13. Turrentine v. Perkins, 46 Ala. 631; Lloyd v. Scott, 4 Pet. (U. S.) 205, 7 L. ed. 833 ; Low v. Barchard, 8 Ves. Jr. 133 ; Marsh v. Martindale, 3 B. & P. 154; Chesterfield v. Janssen, 1 Atk. 339. See, generally, Usury. 14. Lloyd v. Scott, 4 Pet. (U. S.) 205, 7 L. ed. 833 ; Marsh v. Martindale, 3 B. & P. 154 ; Symonds v. Cockerill, Noy 151; Richards V. Brown, Cowp. 770. 15. Anderson u. Hammond, 2 Lea (Tenn.) 281, 31 Am. Rep. 612; Morgan v. Pope, 7 Coldw. (Tenn.) 541; Blewitt v. Roberts, 1 Vol. II 462 ANNUITIES B. Annuity Created without Words of Limitation. As a general rule the gift or grant of an annuity to a person, without words of limitation, is a gift or grant of the annuity during the life of such person. 16 It has also been held that the gift of an annuity to one person for life, with remainder to another person, only imports that such other person is to take for life. 17 Cr. & Ph. 274, 18 Eng. Ch. 274. See also supra, I. See 2 Cent. Dig. tit. " Annuities," § 7. Attainment of majority.— A devise reading "I wish my aunt, Mien M. Emlen, to take charge of my children, and to receive annually from my estate for her services five hundred dollars," ceases when the youngest child at- tains his majority. Hewson's Appeal, 102 Pa. St. 55. So, under a will by which the testa- tor left her child to the charge of B, direct- ing an annual payment to be made to B for her services, the annuity will cease upon the child's becoming of age. Cox's Estate, 15 Phila. (Pa.) 537, 39 Leg. Int. (Pa.) 129, 12 Wkly. Notes Cas. (Pa.) 160. A testatrix devised lands to trustees to pay an annuity to her son and to next apply the rents to the maintenance, education, and bring- ing up of the son's three children during his life. The sole survivor of the three children attained twenty-one in the lifetime of the son. It was held that the interest of such surviving child in the surplus rents and profits did not cease on his attaining twenty-one, but that he continued entitled to them during the life of his father. Badham r. Mee, 1 R. 4 M. 631, 5 Eng. Ch. 631. See also Wilkins v. Jodrell, 13 Ch. D. 564. Testator gave an annuity, payable half- yearly, to his son for his maintenance and education until he attained twenty-one, and another annuity, payable in like manner, to his daughter, who was an adult, during the son's minority. It was held that, as the son was entitled to a proportional part oi his an- nuity from the last half-yearly day of pay- ment up to his attaining twenty-one, the daughter was entitled to a like proportional part of her annuity. Weigall v. Brome, 6 Sim. 99, 9 Eng. Ch. 99. " During their natural lives," when used to indicate the duration of an annuity, means so long as either of the persons named shall live. Indiana. — Castor v. Jones, 86 Ind. 289. Maine. — Merrill v. Biekford, 65 Me. 118. Massachusetts. — -Hayden v. Snell, 9 Gray (Mass.) 365, 69 Am. Dec. 294. Ohio. — Douglas v. Parsons, 22 Ohio St. 526. England. — Bryan v. Twigg, L. R. 3 Eq. 433. So a bequest of an annuity to a mother and her children, for their joint maintenance, is a bequest of an annuity to the mother and her children as joint tenants for the life of the longest liver of them. Wilson v. Maddison, 2 Y. & C. Ch. 372. And under a will devising to " Samuel Eales, and Charlotte, his wife, an annuity of two hundred pounds a year each, for their lives and the life of the survivor," each of the legatees is entitled to an annuity of two hundred pounds during their joint lives, and the life of the survivor of them. Vol. II Eales v. Cardigan, 9 Sim. 384, 16 Eng. Ch. 384. And where a testatrix gave an annuity to her sister and her sister's husband for their joint lives, and after their decease to her nephew, the husband, having survived the wife, is entitled to such annuity. Townley v. Bolton, 1 Myl. & K. 148, 7 Eng. Ch. 148. See also Brittain v. Fleming, 2 Myl. & K. 147, 7 Eng. Ch. 147. Perpetual annuity. — An annuity to a man and his heirs constitutes a perpetual annuity. Smith v. Pybus, 9 Ves. Jr. 566 ; Mansergh v. Campbell, 3 De G. & J. 232, 60 Eng. Ch. 232; Hedges v. Harpur, 3 De G. & J. 129, 60 Eng. Ch. 129; Yates v. Maddan, 16 Sim. 613, 39 Eng. Ch. 613. And if an annuity is given to a man and his heirs in perpetuity he has an ab- solute interest therein, and the only way of satisfying it is by setting aside such a sum as will forever answer it. Huston v. Read, 32 N. J. Eq. 591; Bradhurst v. Bradhurst, 1 Paige (N. Y.) 331; Smith v. Pybus, 9 Ves. Jr. 566. Until death of testator's widow. — A testa- tor bequeathed to his son an annuity from the period of his majority to the death or second marriage of the testator's widow. The son attained twenty-one and died before the widow. It was held that the legal personal representative of the son was entitled to the annuity until the death or second marriage of the widow. In re Ord, 12 Ch. D. 22. While holding office of trustee. — A gift of an annuity to a trustee, so long as he should continue to execute the office of trustee, de- termines on the cesser of active trusts by the payment of the whole of the trust property to a person entitled, without a devolution of the office of trustee on any ether person. Hull v. Christian, L. R. 17 Eq. 546. 16. Weston v. Weston, 125 Mass. 268; Bates v. Barry, 125 Mass. 83, 28 Am. Rep. 207 ; An- derson v. Hammond, 2 Lea (Tenn.) 281, 31 Am. Rep. 612; Blight v. Hartnoll, 19 Ch. D. 294; In re Morgan, [1893] 3 Ch. 222; Yates v. Maddan, 3 Macn. & G. 532 ; Lett v. Randall, 2 De G. F. & J. 388, 63 Eng. Ch. 388; Kerr v. Middlesex Hospital, 2 De G. M. & G. 576, 51 Eng. Ch. 576; Nichols v. Hawkes, 10 Hare 342, 44 Eng. Ch. 331 ; Blewitt v. Roberts, 1 Cr. & Ph. 274, 18 Eng. Ch. 274; Re Grove's Trusts, 1 Giff. 74; Savery v. Dyer, Ambl. 139, Dick. 162. But see In re Morgan, [1893] 3 Ch. 222, wherein it was held that where a testator indi- cates the existence of an annuity, without limit after the death of the person named, and therefore implies that it is to exist beyond the life of the annuitant, the annuity is presumed to be a perpetual annuity. To the same effect see Stokes v. Heron, 12 CI. & F. ±61. 17. Blight v. Hartnoll, 19 Ch. D. 294, wherein it appeared that a testatrix be- queathed an annuity, payable out of the rents of certain hereditaments, to her sister Christi- ANNUITIES 463 C. Forfeiture. An annuity created on condition that it should cease on the annuitant's doing certain specified acts is, of course, forfeited by the doing of such acts. 18 D. Merger. Where a person who has an annuity charged upon land inherits such land as the heir at law of the grantor of the annuity, such annuity becomes merged by the descent thus cast upon him. 19 V. PAYMENT. 20 A. Commencement. "Where an annuity is given by will, and there is no direction therein as to the time when it shall commence, it commences at the testator's death ; but the first payment is not due until the expiration of the first specified period, computed from such death. 21 ana for life, with remainder for life to certain other persona, and on their deaths directed her executors to pay the annuity out of the said rents to the surviving children of Sarah Ann Boate. It was held that the children of Sarah Ann Boate took the annuity for their lives only; Blewitt v. Roberts, 1 Cr. & Ph. 274, 18 Eng. Ch. 274; Lett v. Randall, 3 Smale & G. 83. 18. Dormer v. Knight, 1 Taunt. 417, wherein a deed granting an annuity provided that it should cease if the annuitant should associate, continue to keep company with, or cohabit, or criminally correspond with a certain person. It was held that all intercourse whatever, though the most innocent, was within the terms of thg deed. As to forfeiture for violation of condition against public policy see supra, III, A. Performance of condition. — A testator gave to his nephew an annuity of one thousand dollars during life, with a provision that it should be paid to him in person only, on hi8 personal application, and that if he should not so apply in five years then such yearly sums uncalled for should fall into the residu- ary estate. The annuitant died just as he was starting on a voyage to claim his annuity, within the five years. It was held that the annuity was vested, and that the condition was a condition subsequent, made impossible by the act of God, and that the sums accrued should be awarded to the annuitant's adminis- trator. Hutehins' Estate, 9 Phila. (Pa.) 300, 29 Leg. Int. (Pa.) 141. Vesting annuity in other person. — An an- nuity grante to a feme sole until she should do any act whereby the same or any part thereof should be vested or become liable to be vested in any other person is not forfeited by the mar.riage of the annuitant. Bonfield v. Hassall, 32 Beav. 217. 19. Jenkins v. Van Schaak, 3 Paige (N. Y.) 242. See also McLarin v. Knox, 6 Rich. (S. C.) 23, wherein it appeared that the owner of property, held subject to an annuity to his sister for life, devised and bequeathed his whole estate to such sister for life, and appointed her executrix., She qualified as such, and took possession of and enjoyed the estate. It was held that the annuity merged in the devised and bequeathed estate. See 2 Cent. Dig. tit. " Annuities," § 8. Acceptance of bond. — In Thornton v. Spots- wood, 1 Wash. (Va.) 142, it appeared that A. Spotswood settled an annuity on his wife, charged on land, with power of distress, and devised his lands to his son John, in tail, who gave his mother a bond and bills of ex- change for what was then due on her annuity, and died indebted to her for part of the an- nuity subsequently due. The bills and bond were assigned and judgments recovered thereon against John's executor, and the executions were returned nulla bona. A bill was filed against the issue in tail to recover the amount of the bills of exchange and the residue of the annuity. It was held that the annuity was extinguished in equity by the bond and bills, and that plaintiff could not recover. Annuitant as one heir. — ■ Land charged with the payment of an annuity having descended to the heirs at law, of whom the annuitant was one, is not thereby wholly discharged from the payment of the annuity, but only pro tanto which the annuitant took as heir at law. Addams v. Heffernan, 9 Watts (Pa.) 529. Marriage of annuitant to grantor.— A man by deed covenanted to pay a woman an an- nuity for her life, payable half-yearly, for her separate use and free from anticipation. The covenantor afterward married the annui- tant and died, leaving her surviving. It was held that the annuity was not extinguished, but was only suspended, by the marriage, and that the widow was entitled to recover arrears accruing subsequent to the death of her hus- band. Fitzgerald v. Fitzgerald, L. R. 2 P. C. 83. 20. Increase of amount. — Where trustees were authorized to increase an annuity if the cestui que trust " should marry and have a family," and the cestui que trust married and became a housekeeper, but had no iss. e of the marriage, it was held that to authorize such increase of annuity it was necessary that the cestui que trust should have issue of the mar- riage. Spencer v. Spencer, 11 Paige (N. Y. ) 159. 21. Connecticut. — Bartlett v. Slater, 53 Conn. 102, 22 Atl. 678, 55 Am. Rep. 73. Maryland. — Owings' Case, 1 Bland (Md.) 296. New Jersey. — Welsh v. Brown, 43 N. J. L. 37. New York. — Kearney v. Cruickshank, 117 N. Y. 95, 22 N. E. 580 ; Cooke v. Meeker, 36 N. Y. 15; Bradner v. Faulkner, 12 N. Y. 472; Vol. II 464 ANNUITIES B. Computation of Value. In determining the present value of an annuity the computation should be varied according to the vigor or frailty of the consti- tution and health of the annuitant. 22 C. Interest on Arrears. As a general rule interest will not be allowed on the arrears of an annuity. 23 The question is one that rests in the discretion of Craig r. Craig, 3 Barb. Ch. (N. Y.) 76; Carr v. Bennett, 3 Dem. Surr. (N. Y.) 433; Kerri- gan v. Kerrigan, 2 Redf. Sv.rr. (N. Y.) 517; Griswold v. Griswold, 4 Bradf. Surr. (N. Y.) 216; Booth !'. Ammerman, 4 Bradf. Surr. (N. Y.) 129; Lawrence v. Embree, 3 Bradf. Surr. (N. Y.) 364; Matter of Lynch, 52 How. Pr. (N. Y.) 367; Matter of Fish, 19 Abb. Pr. (N. Y.) 209. Pennsylvania. — Fliekwir's Estate, 136 Pa. St. 374, 20 Atl. 518; Eyre v. Golding, 5 Binn. (Pa.) 472. South Carolina. — Hall v. Hall, 2 McCord Eq. (S. C.) 269. Tennessee. — Morgan v. Pope, 7 Coldw. (Term.) 541. England. — Trimmer v. Danby, 23 L. J. Ch. 979; Carter v. Taggart, 16 Sim. 447, 39 Eng. Ch. 447 ; Stamper v. Pickering, 9 Sim. 176, 16 Eng. Ch. 176 ; Houghton v. Franklin, 1 Sim. & St. 390, 1 Eng. Ch. 390; Fearns r. Young, 9 Ves. Jr. 549; Gibson v. Bott, 7 Ves. Jr. 89; Hawley v. Cutts, 1 Freem. Ch. 23; Irvin v. Ironmonger, 2 Puss. & M. 531, 11 Eng. Ch. 531. See 2 Cent. Dig. tit. " Annuities," § 9. See also Crew v. Pratt, 119 Cal. 131, 51 Pac. 44, wherein it was held that where a trust created under a will has but seven years to run, and the will provides that the benefici- aries should receive annuities from the trus- tees for seven years, and there appears no ex- press intention to fix upon another time for the commencement of the annuities, they com- mence at the decease of the testator; and a clause in the will providing for payment of annuities as soon as the trustees should have sufficient funds available for that purpose is to be considered as relating only to the time of payment, and not to the date when the an- nuities begin to run. Annuity charged on land. — Where an an- nuity is charged on real estate the rule is that it does not commence until the devisee of such estate is entitled to the possession thereof. Hayes v. Whitall, 13 N. J. Eq. 241; Ager v. Poole, 1 Dyer 3716; Turner v. Probyn, 1 Anstr. 66. Direction as to first payment. — In Irvin v. Ironmonger, 2 Russ. & M. 531, 11 Eng. Ch. 531, the testator gave an annuity for life and directed that the first year's annuity should be paid within one month from his death. It was held that, though the first year's payment was to be made at the appointed time, the pay- ment of the second year did not become due until the end of that year. 22. Alexander v. Bradley, 3 Bush (Ky.) 667. See also Rowley v. London, etc., R. Co., L. R. 8 Exch. 221, wherein it was held that an instruction authorizing the jury to find the term for which an annuity was to be purchased solely by reference to the average duration of life, without taking into account the state of Vol. II health of the particular annuitant, was errone- ous. Compare Ripley v. Severance, 6 Pick. (Mass.) 474, 17 Am. Dec. 397. See, generally, Damages ; Evidence. See 2 Cent. Dig. tit. " Annuities," § 12. In Maryland the method of ascertaining the present value of an annuity for life is to apply, by analogy, the chancery rule for fixing the allowance to a woman in lieu of dower in lands sold under a decree. Peyton v. Ayres, 2 Md. Ch. 64. In New York the "American Experience Table of Mortality" should be used. Atty.- Gen. v. North America L. Ins. Co., 82 N. Y. 172 [distinguishing People v. Security L. Ins., etc., Co., 78 N Y. 114, 34 Am. Rep. 522]. " Northampton Mortality Tables." — In computing the present value of an annuity the " Northampton Mortality Tables " may be used, in the absence of any statute or rule of court. Schmieding v. Doellner, 13 Mo. App. 228; Peterson v. Oleson, 47 Wis. 122. Com- pare Berrinkott v. Traphagen, 39 Wis. 219. Annuity in lieu of dower. — Where it is agreed that a yearly sum shall be allowed a widow, instead of having dower assigned to her according to law, the interest of one third of the value of the premises at the time of alienation is the proper measure of the annu- ity; subject, however, to a. reasonable deduc- tion as a compensation to the tenant, on ac- count of necessary repairs and the risk of loss by fire, where a house and building constitute the principal part of the property. Hale v. James, 6 Johns. Ch. (N. Y.) 258, 10 Am. Dec. 328. Arrears of annuity. — An administrator charged with the payment of annuities neg- lected to make payment. Action was brought against him and a fund raised by the sale of land, but the fund was insufficient to pay the arrears in full. It was held that a distribu- tion founded on a computation of the cash value of the annuities was erroneous ; that the distribution should be on arrears due at the time of such sale of the land. Bell's Estate, 1 Woodw. (Pa.) 336. Perpetual annuity. — Where an annuitant, entitled to a perpetual annuity, adequately se- cured, is willing to receive a present payment of cash in lieu of his annuity, the amount of such cash payment ought to be such a sum as will in future produce the annuity. Hicks v. Ross, [1891] 3 Ch. 499. 23. Alabama. — Beavers V. Smith, 11 Ala. 20. New York. — Isenhart v. Brown, 2 Edw. (N. Y.) 341. Tennessee. — Laura Jane v. Hagen, 10 Humphr. (Tenn.) 332. Virginia. — Adams v. Adams, 10 Leigh (Va.) 552. England. — Anderson v. Dwyer, 1 Sch. & Lef. 301; Tew c. Winterton, 3 Bro. Ch. 489; Bignal ANNUITIES 465 the court, however,! and is dependent on the circumstances of the particular case. 24 D. Persons and Property Chargeable— 1. In General. The very nature of an annuity suggests that, when those charged with the payment of it have in their hands a fund producing income sufficient to pay it, the payment should he made from the income, and not from the principal. 25 But if an annuity is charged on a particular fund both the principal and interest of the fund are appli- cable to its payment. 36 And it has been held that, where the dividends of a sum v. Vrereton, Dick. 278; Bedford v. Coke, Dick. 178; Anonymous, 2 Ves. 661; Stapleton r. Conway, 1 Ves. 427 ; Mansfield v. Ogle, 4 De G. & J. 38, 61 Eng. Ch. 38; Matter of Powell, 10 Hare 134, 44 Eng. Ch. 130; Jenkins v. Eriant, 16 Sim. 272, 39 Eng. Ch. 271 ; Booth v. Leyeester, 1 Keen 247, 15 Eng. Ch. 247, 3 Myl. & C. 460, 14 Eng. Ch. 459; Martyn v. Blake, 3 Drury & Warr. 125 ; Blogg v. Johnson, L. R. 2 Ch. 225; Booth v. Coulton, 2 Gift 5 . 514; Robinson v. dimming, 2 Atk. 409. Canada. — Crone v. Crone, 27 Grant Ch. (U. C.) 425; Goldsmith v. Goldsmith, 17 Grant Ch. (U. C.) 213; Snarr v. Badenach, 10 Ont. 131. See 2 Cent. Dig. tit. " Annuities," § 18. Thus interest will not be allowed on the ar- rears of an annuity which was to be paid in agricultural products in a particular place, the value of which was to be ascertained by testimony, and in the absence of any proof of a demand at the place where it was to be paid, or of an agreement to dispense with such de- mand, and to convert the same into money. Philips v. Williams, 5 Gratt. (Va.) 259. Mutual misapprehension. — Interest is not demandable as of course where an annuity is not paid as it accrues by reason of a, mutual misapprehension, or the laches of the creditor. Hoffman's Estate,- 3 Pa. Dist. 663. 24. Alabama. — Beavers v. Smith, 11 Ala. 20. Delaware. — Beeson v. Elliott, 1 Del. Ch. 368. New York. — Cooke v. Meeker, 36 N. Y. 15 ; Isenhart v. Brown, 2 Edw. (N. Y.) 341. Pennsylvania. — Brotzman's Estate, 133 Pa. St. 478, 19 Atl. 564; Addams v. Heffernan, 9 Watts (Pa.) 529; Hilyard's Estate, 5 Watts & S. (Pa.) 30; Stewart v. Martin, 2 Watts (Pa.) 200; Eyre v. Golding, 5 Binn. (Pa.) 472; Colwell's Estate, 4 Pa. Co. Ct. 381. South Carolina. — Stephenson v. Axson, 1 Bailey Eq. (S. C.) 274; Irby v. MeCrae, 4 Desauss. (S. C.) 422. Tennessee. — Laura Jane v. Hagen, 10 Humphr. (Tenn.) 332. England. — Newman v. Auling, 3 Atk. 579 ; Draper's Co. v. Davis, 2 Atk. 211; Crosse v. Bedingfield, 12 Sim. 35, 35 Eng. Ch. 35 ; Hyde v. Price, 8 Sim. 578, 8 Eng. Ch. 578 ; Morris v. Dillingham, 2 Ves. 170 ; Litton v. Litton, 1 P. Wins. 541. Annuity in lieu of dower. — ■ Interest may be recovered upon arrears of an annuity given in lieu of dower. Houston v. Jamison, 4 Harr. (Del.) 330; Elliott v. Beeson, 1 Harr. (Del.) 106; Beeson v. Elliott, 1 Del. Ch. 368; Cooke v. Meeker, 36 N. Y. 15; Townsend's Appeal, [30] 106 Pa. St. 268, 51 Am. Rep. 523; Irby v. Me- Crae, 4 Desauss. ( S. C. ) 422. 25. Hammond v. Hammond, 169 Mass. 82, 47 N. E. 535; Cummings v. Cummings, 146 Mass. 501, 16 N. E. 401; Richardson v. Hall, 124 Mass. 228; Treadwell v. Cordis, 5 Gray (Mass.) 341; Mcllvaine v. Gethen, 3 Whart. (Pa.) 575. See also Veazie v. Forsaith, 76 Me. 172, wherein it appeared that a trust deed provided that the trustees, were to keep the, principal safely invested, according to their best judgment, " and from the income thereof to pay me the sum of five thousand dollars each year." It was held that the annuity was to be derived from the income alone. See 2 Cent. Dig. tit. " Annuities," § Iff. A direction in a will to pay an annuity out of the rents and profits of lands charges only the rents and profits and not the corpus of the estate, unless a contrary intenti n appears, and can only be enforced against the trustee, personally, so far as he has received such rents and profits. De Haven f>. Sherman, 131 111. 115, 22 N. E. 711, 6 L. R. A. 745; Irwin v. Wollpert, 128 111. 527, 21 V. E. 501; Delaney v. Van Aulen, 84 N. Y. 16 [reversing 21 Hun (N. Y.) 274]; Sell's Estate, 4 Wkly. Notes Cas. (Pa.) 14; Forbes v. Richardson, 11 Hare 354, 45 Eng. Ch. 350 ; Baker v. Baker, 6 H. L. Cas. 616. Forfeiture of lease. — A testator bequeathed an annuity, to be paid " out of the rents ac- cruing under and from " a lease of land to the Wilkes-Barre Coal & Iron Company " so long as the said lease runs." After the testator's death, and on the application of the residuary legatees, the lease was forfeited for non-pay- ment of rent and a new lease was executed to nejv grantees. It was held that the bequest was not extinguished by the forfeiture of the lease, but was charged upon and continued payable out of the rents or profits of the prop- erty then under lease, when such were received sufficient to pay it. Danforth's Appeal, 121 Pa. St. 359, 15 Atl. 635; Shupp v. Gaylord, 103 Pa. St. 319. Produce of fund. — A married woman enti- tled to receive annually, for her sole and sepa- rate use, the interest of a, trust fund, the corpus of which is secured to her children, may look to the actual produce of the fund for her annuity. Robert v. Tift, 60 Ga. 566. 26. Michigan. — Langrick v. Gospel, 48 Mich. 185, 12 N. W. 38. New York. — ■ Delaney v. Van Aulen, 21 Hun (N. Y.) 274; Gott v. Cook, 7 Paige (N. Y.) 521; Matter of Tilford, 5 Dem. Surr. (N. Y.) 524. Pennsylvania. — Earp's Will, 1 Pars. Eq. Cas. (Pa.) 453. Vol. II 466 ANNUITIES set apart for the payment of an annuity prove insufficient for such purpose, the court may make an order for the sale, from time to time, of so much of the corpus as will, together with the dividends, be necessary for raising the amount of the annuity.* 7 It has also been held that, where an annuity is by will expressly charged on the corpus of an estate, subsequent words tending to show that the testator contemplated that it should abate in the event of the income of the prop- erty being insufficient do not deprive the annuitant 'of the right to have the corpus applied toward making good any deficiency of income to meet the annuity. 28 2. Charge upon Land. Where land is devised upon condition that the devisee shall pay a certain annuity the annuity becomes a charge upon the land devised, Virginia. — Trent v. Trent, 1 Gilmer (Va.) 174, 9 Am. Dec. 594. England. — Stamper v. Pickering, 9 Sim. 176, 16 Eng. Ch. 176. See also In re Tucker, [1893] 2 Ch. 322, wherein it was held that where an annuity charged upon the corpus of land is in arrear the court has power to order the arrears to be raised by a sale or mortgage of the estate, though the making of such an order is a mat- ter not of course, but of discretion. And see Davis' Appeal, 83 Pa. St. 348, wherein it was held that where a testator charged certain an- nuities upon his estate and, by the terms of his will, blended the realty and personalty to- gether, it is to be concluded that it was his in- tention, upon a deficiency of the personal es- tate, to charge the real estate with the an- nuities. Annuity in lieu of dower. — An annuity, provided under an antenuptial contract, to be received by a wife after the husband's death " as dower from the estate " of such husband, is chargeable upon the whole estate, both real and personal, and not exclusively upon the portion inherited by heirs other than the wife. Christy v. Marmon, 163 111. 225, 45 N. E. 150. Penal sum of bond. — Where an annuity bond is in the penal sum of one thousand dol- lars, conditioned to pay one hundred dollars yearly during the obligee's life, the payment for ten years is no bar to the obligee's further claim during his life. Blaekmer v. Blackmer, 5 Vt. 355. So, a contract binding the makers " to pay to Isabella Cams three hundred dol- lars, so as to secure to her sixteen dollars and sixty-six cents and two thirds of a cent an- nually during life," being an annuity payable to her by one of said makers, with a provision that in case of any default in payment of the annuity the whole sum of three hundred dol- lars shall be paid, is in the nature of a penal bond, and no more can be recovered upon it than the amount due on the annuity. Cairnes v. Knight, 17 Ohio St. 68. Preference of creditors. — A conveyed prop- erty in consideration of a sum of money and of an annuity for her life from the death of the grantee, if she survived him. In the deed the grantee covenanted that the estate should pay to the grantor, if she survived him, the an- nuity. It was held that this did not create a charge upon the property conveyed so as to entitle the grantor to subject the same to the payment of the annuity, after the death of the Vol. II grantee, in preference to other creditors of the grantee. McCandlish v. Keen, 13 Gratt. (Va.) 615. 27. Hodge v. Lewin, 1 Beav. 431, 17 Eng. Ch. 431; Swallow v. Swallow, 1 Beav. 432, note a, 17 Eng. Ch. 432, note a; May v. Ben- nett, 1 Russ. 370, 46 Eng. Ch. 370; Anderson v. Dougall, 15 Grant Ch. (U. C.) 405. See also Boomhower v. Babbitt, 67 Vt. 327, 31 Atl. 838, wherein it appeared that a testator bequeathed to his daughter an annuity of three hundred and sixty dollars, and, that the payment of the annuity might be " effectually secured," di- rected the investment of a sum which, at the legal rate of interest, would produce the amount of the annuity, and provided that this income should be used in the payment of the annuity. It was held that she was entitled to a yearly sum of three hundred and sixty dollars, to be made good out of the general estate upon a failure of this fund. And see Davies v. Wattier, 1 Sim. & St. 463, 1 Eng. Ch. 463, wherein it appeared that a testator having directed an annuity to be made out of his personal estate, a sum of five-per-cent stock was, by order of the court, set apart to answer the annuity. This fund having become insufficient for the purpose the deficiency was directed to be supplied out of another fund to which other persons interested in the residue had been declared to be entitled. In California, if the fund or property out of which an annuity is payable fails, resort may be had to the general assets, as in case of a general legacy. Cal. Civ. Code, § 1357, subd. 3. 28. Pearson v. Helliwell, L. E. 18 Eq. 411. See also Pierrepont v. Edwards, 25 N. Y. 128, wherein it was held that where a testator be- queaths a life annuity in such a manner as to show a separate and independent intention that the money should be paid to the annui- tant at all events, that intention will not be permitted to be overruled merely by a direc- tion in the will that the money is to be raised in a particular way, or out of a particular fund. Compare Delaney v. Van Aulen, 84 N. Y. 16. Effect of deed or mortgage. — An annuity having been charged by will on several parcels of real estate, devised to one person, the right of the annuitant to enforce the charge against •any or all of the property devised can be waived only by agreement on the part of the annuitant, and is in no manner affected by deeds or mortgages to which the annuitant was not a party. Perkins v. Emory, 55 Md. 27. ANNUITIES 467 and if the devisee accepts it he takes it subject to such charge. 29 It has also been held that the acceptance of such a devise creates a personal liability on the devi- see upon which an action may be maintained at law, without any express promise. 30 E. Setting aside Sum for Payment. It has been held that where an annuity is payable out of the residuary estate of a testator the court has jurisdic- tion to set apart a sum sufficient to answer the annuity. 81 29. Alabama. — Taylor v. Forsey, 56 Ala. 426. Illinois. — Mahar v. O'Hara, 9 111. 424. Indiana. — Nash v. Taylor, 83 Ind. 347. Maine. — Merritt v. Bucknam, 78 Me. 504, 7 Atl. 383; Merrill v. Bickford, 65 Me. 118. Maryland. — Owings' Case, 1 Bland (Md.) 290. Pennsylvania. — Phillips' Appeal, (Pa. 1887) •7 Atl. 918. See also Philips v. Williams, 5 Gratt. (Va.) 259, wherein it was held that where land on which an annuity is a charge is sold during the pendency of a suit in equity to enforce the same the court may, without noticing the pendente lite purchaser, order the land sold to satisfy the arrears of the annuity. See, generally, Wills. Lien to secure payment. — A agreed to pur- chase an estate from B, and, upon the estate being conveyed, to grant a life annuity to B, to be secured by bond. It was held that B had no lien on the estate for the payment of the annuity, but was entitled — the purchaser being dead and there having been no conveyance — to have the annuity secured by a valid bond before he could be called upon to convey the estate. Dixon v. Gayfere, 1 De G. & J. 655, 58 Eng. Ch. 655. Under a marriage settlement the woman was to have an annuity after her husband's death, he covenanting that it " is hereby made and constitutes a lien and charge upon all the property and estate, real and per- sonal, of every name and nature, kind and de- scription, which I may own, and to which I may be entitled at the time of my death." Af- ter his death the estate was insufficient to dis- charge his debts. It was held that as against his creditors there was no lien, the description not designating with sufficient certainty the property to be charged. Mundy v. Munson, 40 Hun (N. Y., 304. 30. Felch v. Taylor, 13 Pick. (Mass.) 133, wherein it appeared that the obligor, in a bond to a husband conditioned to pay an annuity to the husband and wife during their lives and the life of the survivor, devised land upon condition that the devisee should pay what- ever became due from year to year to the an- nuitants. It was held that the devisee, by ac- cepting the devise, became personally liable for the annuity, and that the wife, who had sur- vived the husband and had elected to look to the devisee instead of the general assets of the estate, might maintain assumpsit for the an- nuity against the devisee; Gridley v. Gridley, 24 N. Y. 100; Van Orden v. Van Orden, 10 Johns. (N. Y.) 30, 6 Am. Dec. 314; Mohler's Appeal, 8 Pa. St. 26. See also Mansell's Es- tate, 1 Pars. Eq. Cas. (Pa.) 367, wherein it was held that, though a widow has a specific lien on land for the payment of her annuity, if he who takes the land subject to such lieu gives his bond and collateral mortgage for the same he makes it a personal debt, and the bond may be collected out of his personal es- tate. And see Anderson v. Hammond, 2 Lea (Tenn.) 281, 31 Am. Eep. 612, wherein it ap- peared that a testator, by his will, after mak- ing his wife residuary devisee and otherwise providing for her, added that it was his " will and desire " that she should pay his nephew, " for the purpose of educating him," a certain sum annually, commencing at a fixed day, un- til he came of age. It was held that the legacy was valid and a personal charge on the wife. Foreclosure sale of land charged with annu- ity. — Where land is devised subject to the payment of an annuity by the devisee, and the devisee mortgages the land, covenanting that it was free from encumbrances, excepting such condition set forth in the will, a pur- chaser on foreclosure is liable for such pro- portion of the annuity as accrues after he takes possession. Felch v. Taylor, 13 Pick. (Mass.) 133. 31. Harbin v. Masterman, [1896] 1 Ch. 351; Slanning v. Style, 3 P. Wms. 334. But see In re Parry, 42 Ch. D. 570, wherein it was held that where a testator bequeaths an an- nuity, and then gives the residue of his prop- erty, the annuitants are not entitled, as a matter of right, to have the estate converted, and a sum sufficient to answer the annuity in- vested in such securities as the court may ap- prove, but they are entitled to have the an- nuities sufficiently secured. Duty of executor to set apart sum. — Where testator gives an annuity, without stating from what source it is to be paid, and then divides the rest of his estate among several persons, it is the duty of the executors, before distributing the capital, either to appropriate a sufficient amount of the capital to purchase an annuity, or to reserve enough of it to yield an income amply sufficient to meet the annu- ity, leaving such portion of the capital to be the subject of another distribution when the annuity has ceased. Cummings v. Cummings, 146 Mass. 501, 16 N. E. 401; Treadwell v. Cordis, 5 Gray (Mass.) 341; Gott v. Cook, 7 Paige (N. Y.) 521; Matter of Tilford, 5 Dem. Surr. ( N. Y. ) 524. See also Healey v. Toppan, 45 N. H. 243, 86 Am. Dec. 159, wherein it was held that where a residuary bequest is made to one, " subject to " the payment of a certain annuity to another for life, it is equivalent to charging that annuity upon the property be- queathed for the life of the annuitant; and before the property is delivered to the legatee enough should be set aside and invested by the executor so that its income will be sufficient to pay the annuity, or the legatee should give the executor other sufficient security for the payment of the annuity. Sum required to produce annuity. — A sum Vol. II 468 ANNUITIES VI. APPORTIONMENT. A. Rule at Common Law. It was the uniform and unbending rule of the common law, recognized both by courts of law and equity, that annuities, whether created inter vivos or by will, were not apportionable in respect of time. 82 B. Exceptions to Rule. The rigor of the common-law rule has been to some extent ameliorated in modern times by the. recognition of certain well-defined exceptions, as in cases where an annuity is given in lien of dower, 33 or for the separate maintenance of married women, or for the support of children, 34 or where required to be set apart to raise an annuity is such a sum as, being invested at the legal rate of interest, will produce the amount of the an- nuity ( Perkins v. Emory, 55 Md. 27 ; Pater- son v. McMaster, 11 Grant Ch. (U. C.) 337. See also Buchanan v. Deshon, 1 Harr. & G. (Md.) 280), and should be sufficiently large to make allowance for the fluctuation in values (Mullen's Estate, 14 Wkly. Notes Cas. (Pa.) 144. See also Rhodes' Estate, 11 Phila. (Pa.) 133, 33 Leg. Int. (Pa.) 168). 32. The rule proceeds upon the interpreta- tion of the contract by which the grantor binds himself to pay a certain sum at fixed days during the life of the annuitant; and such day not having arrived when the latter dies, the former is discharged from his obligation. Connecticut. — Tracy v. Strong, 2 Conn. 659. Indiana. — Nading v. Elliott, 137 Ind. 261, 36 N. E. 695; Heizer v. Heizer, 71 Ind. 526, 36 Am. Rep. 202. Massachusetts. — Dexter v. Phillips, 121 Mass. 178, 23 Am. Rep. 261; Wiggin v. Swett, 6 Mete. (Mass.) 194, 39 Am. Dec. 716. Michigan. — Chase v. Darby, 110 Mich. 314, 68 N. W. 159, 64 Am. St. Rep. 347, holding that the rule obtained even where the annui- tant was in debt at the time of his death. New Jersey. — Matter of Lackawanna Iron, etc., Co., 37 N. J. Eq. 26; Manning v. Randolph, 4 N. J. L. 167. New York. — Kearney v. Cruikshank, 117 N. Y. 95, 22 N. E. 580; Irving v. Rankine, 13 Hun (N. Y.) 147 [affirmed in 79 N. Y. 636]; Clapp v. Astor, 2 Edw. (N. Y.) 379. Pennsylvania. — ■ Wilson's Appeal, 108 Pa. St. 344, 56 Am. Rep. 214 Blight v. Blight, 51 Pa. St. 420; McKeen's Appeal, 42 Pa. St. 479; Dubbs v. Watson, 2 Pa. Dist. 115; Earp's Will, 1 Pars. Eq. Cas. ( Pa. ) 453 ; Stewart v. Swaim, 13 Phila. (Pa.) 185, 36 Leg. Int. (Pa.) 302, 7 Wkly. Notes Cas. (Pa.) 407. South Carolina. — McLemore v. Blocker, Harp. Eq. (S. C.) 272. England. — Reg. v. Treasury Com'rs, 16 Q. B. 357, 71 E. C. L. 357; Franks v. Noble, 12 Ves. Jr. 484; Leathley v. French, 8 Ir. Ch. 401; Sherrard v. Sherrard, 3 Atk. 502; Reynish v. Martin, 3 Atk. 330; Pearly v. Smith, 3 Atk. 260; Hay v. Palmer, 2 P. Wms. 501 ; Howell v. Hanforth, 2 W. Bl. 1016; Ex p. Smyth, 1 Swanst. 337 note; Anderson v. Dwyer, 1 Sch. & Lef. 301. Canada. — Ausman v. Montgomery, 5 U. C. C. P. 364; Woodside v. Logan, 15 Grant Ch. (U. C.) 145. See 2 Cent. Dig. tit. "Annuities," § 13. But see Waring v. Purcell, 1 Hill Eq. ( S. C. ) Vol. II 193, wherein it was held that where a testa- tor bequeathed an annuity, to be paid on the first day of March in every year, and he died in September, the legatee, on the first day of March after the testator's death, should be paid a proportion of the annuity equal to the time which had run after such death. Death pending suit to enforce. — Where an annuitant, who had the right to foreclose a mortgage which secured the annuity, and to retain from the proceeds its present cash value, died pending suit to foreclose this right, his administrator is entitled only to the unpaid arrears of the annuity. Moore v. Dunn, 92 N. C. 63. 33. The reason for the exception as to an annuity in lieu of dower is that, as dower lasts during the life of the widow, what is given in its place should last the same length of time. Parker v. Seeley, 56 N. J. Eq. 110, 38 Atl. 280; Matter of Lackawanna Iron, etc., Co., 37 N. J. Eq. 26; Blight v Blight, 51 Pa. St. 420; Gheen v. Osborn, 17 Serg. & R. (Pa.) 171; Sweigert v. Prey, 8 Serg. & R. (Pa.) 299; Stew- art v. Swaim, 13 Phila. (Pa.) 185, 36 Leg. Int. (Pa.) 302, 7 Wkly. Notes Cas. (Pa.) 407; Smith v. Wistar, 5 Phila. (Pa.) 145, 20 Leg. Int. (Pa.) 68; Rhode Island Hospital Trust Co. v. Harris, 20 R. I. 160, 37 Atl. 701; In re Cushing, 58 Vt. 393, 5 Atl. 186. But see Tracy v. Strong, 2 Conn. 659, wherein it ap- peared that a sum of money was secured by bond to a widow in consideration of her relin- quishing her right of dower, which sum was payable on a certain day, yearly, during her life. It was held that this was an annuity not subject to apportionment. See 2 Cent. Dig. tit. " Annuities," § 14. 34. The reason for the exception as to in- fants and married women is based upon a sup- posed necessity growing out of their want of capacity to contract. Massachusetts. — Dexter v. Phillips, 121 Mass. 178, 23 Am. Rep. 261. Michigan.— Chase v. Darby, 110 Mich. 314, 68 N. W. 159, 64 Am. St. Rep. 347. New Jersey. — Matter of Lackawanna Iron, etc., Co., 37 N. J. Eq. 26. New York,. — Kearney v. Cruikshank, 117 N. Y. 95, 22 N. E. 580; Irving v. Rankine, 13 Hun (N. Y.) 147; Clapp v. Astor, 2 Edw. (N. Y.) 379. Pennsylvania. — Gheen v. Osborn, 17 Serg. & R. (Pa.; 171; Earp's Will, 1 Pars. Eq. Cas. (Pa.) 453; Stewart v. Swaim, 13 Phila. (Pa.) 185, 36 Leg. Int. (Pa. ) 302, 7 Wkly. Notes Cas. (Pa.) 407; Fisher v. Fisher, 5 Pa. L. J. 178. England. — Reg. v. Treasury Com'rs, 16 Q. B. ANNUITIES 469 it consists of interest, or of other suras accruing, and therefore payable, de die in diem. 36 C. Statutory Modification of Rule. In some jurisdictions annuities are made apportionable by statute. 36 VII. RIGHTS, REMEDIES, AND LIABILITIES OF ANNUITANTS. A. Right to Have Administration. It has been held that the legatee of an annuity charged upon the residue of testator's estate is entitled to have judg- ment for administration of the estate. 37 B. Creation of Charge upon Fund. upon the trust fund so as to impair it. 88 C. Remedies — 1. At Law. To enforce the payment of an annuity, a writ of annuity lay at common law. 39 This writ has long been out of use, however, and is superseded by an action of covenant or debt. 2. In Equity. An annuity given by a will is for many purposes treated as a legacy, and, so considered, its payment may be enforced in equity. 41 An annuitant cannot create a charge 357, 71 E. C. L. 357; Franks v. Noble, 12 Ves. Jr. 484; Leathley v. French, 8 Ir. Ch. 401; Reynish v. Martin, 3 Atk. 330 ; Hay v. Palmer, 2 P. Wms. 501; Howell v. Hanforth, 2 W. Bl. 1016 ; Ex p. Smyth, 1 Swanst. 337. 35. Stewart v. Swaim, 13 Phila. (Pa.) 185, 36 Leg. Int. (Pa.) 302, 7 Wkly. Notes Cas. (Pa.) 407. Interest on bonds. — The interest on mu- nicipal bonds and the bonds of private cor- porations is apportionable. Wilson's Appeal, 108 Pa. St. 344, 56 Am. Rep. 214 [overruling Earp's Will, 1 Pars. Eq. Cas. (Pa.) 453]. 36. Adams v. Adams, 139 Mass. 449, 1 N. E. 746 ; Weston v. Weston, 125 Mass. 268 ; Bates ». Barry, 125 Mass. 83, 28 Am. Rep. 207; Dex- ter v. Phillips, 121 Mass. 178, 23 Am. Rep. 261; Sargent v. Sargent, 103 Mass. 297, con- struing Mass. Pub. Stat. c. 136, § 25 ; Kearney v. Cruikshank, 117 N. Y. 95, 22 N. E. 580, re- ferring to N. Y. Laws (1875) c. 542; Matter of Young, 23 Misc. (N. Y.) 223, 50 N. Y. Suppl. 402 ; Carter v. Taggart, 16 Sim. 447, 39 Eng. Ch. 447 ; Trimmer v. Danby, 23 L. J. Ch. 979; Woodside v. Logan, 15 Grant Ch. (U. C.) 145. In England, 4 & 5 Wm. TV, c. 22, was the first statute making annuities apportionable in respect of time. In construing this stat- ute some of the courts held that the statute covered continuing annuities only, that is, an- nuities not terminating with the life of the first taker. Reg. v. Treasury Com'rs, 16 Q. B. 357, 71 E. C. L. 357; Lowndes v. Stamford, 18 Q. B. 425, 83 E. C. L. 425. This led to the en- actment of 34 & 35 Vict. c. 35, which made all annuities apportionable and declared that an- nuities should, " like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of them ac- cordingly." 37. Wollaston v. Wollaston, 7 Ch. D. 58. 38. Post v. Cavender, 12 Mo. App. 20, wherein it was held that a bill to charge a fund, the income of which was to be paid to certain beneficiaries during life, and, after their death without heirs, to vest in the heirs of the testator, which alleged that through plaintiffs' services, as attorneys, the estate was preserved from waste, that the annuity was insufficient to pay their fee, and that the an- nuitants consented to a payment thereof out of the principal of the fund, contained no equity. 39. Townshend v. Duncan, 2 Bland (Md.) 45; Owings' Case, 1 Bland (Md.) 290; 1 Tidd Pr. 3. See 2 Cent. Dig. tit. " Annuities," § 19. Remedy after death of grantor.— A writ of annuity being a remedy at law against the per- son of the grantor of the annuity, it follows that the devisee could not avail himself of it, as the devisor ceased to exist before the gift of the annuity took effect. Townshend v. Dun- can, 2 Bland (Md.) 45. 40. Horton v. Cook, 10 Watts (Pa.) 124, 36 Am. Dec. 151 ; Davis v. Speed, 5 Mod. 143. Exhausting security. — An annuitant whose claim is secured by bond and deed of trust can- not be compelled to enforce his lien before pro- ceeding against the general estate of his de- ceased obligor. Schmieding v. Doellner, 13 Mo. App. 228. And an annuitant may have several securities, some of which may be partial and others entire, and one or more of which may be resorted to to obtain satisfaction. Shepherd's Appeal, 2 Grant (Pa.) 402. Freehold interest. — At common law an ac- tion of debt will not lie for an annuity in fee, in tail, or for life while it continues a freehold interest. Webb v. Jiggs, 4 M. & S. 113; Kelly v. Clubbe, 6 Moore P. C. 336; Ran- dall v. Rigby, 4 M. & W. 130 ; Davis v. Speed, 5 Mod. 143. 41. Mahar v. O'Hara, 9 111. 424; Town- shend v. Duncan, 2 Bland (Md. ) 45. See also Degraw v. Clason, 11 Paige (N. Y.) 136, wherein it was held that an annuity for life, given directly to the legatee, and charged by the testator in his will upon his real and per- sonal estate, is not property held in trust for the legatee, but is an absolute legacy, the pay- ment of which, out of the estate upon which it is a charge, the legatee may enforce by a bill in equity. And see Brandon v. Brandon, 46 Miss. 222, wherein it appeared that real and personal property were conveyed to B, as trus- tee, on condition that B should pay to the Vol. II 470 ANNUITIES 3. Limitation of Action. It has been held that though the statute of limitations will not run as to a legacy, the rule is otherwise as to an annuity. 42 4. Parties. A bill to recover arrears of an annuity due an intestate should be filed by his personal representatives. It cannot be filed by the next of kin. 43 5. Pleadings. A bill to enforce an annuity need not allege the enrolment of a memorial, as required by statute. 44 grantor in the deed a certain sum annually. After payment by B for several years he ceased to pay, and became insolvent. No part of the subject of the conveyance but the land re- mained. It was held that a court of equity had jurisdiction of a bill by the grantor in such deed to obtain relief. See 2 Cent. Dig. tit. " Annuities," § 17. Foreclosure of mortgage. — A son gave a mortgage on land to secure performance of covenants by which he was bound to furnish to plaintiff, his mother, each year a certain quantity of grain, and every second year cer- tain other chattels. On the failure to per- form the covenants it was held that, as the condition of the mortgage was not the support and maintenance of plaintiff, but the payment of life annuities, in specific articles, the proper remedy was not the rescission of the contract, but a foreclosure of the mortgage and sale of the premises to make the amount of damages accrued for past breaches, together with the present value of the annuity which the mort- gagor's covenants bound him to pay plaintiff for the remainder of her life. Peterson v. Ole- son, 47 Wis. 122. Compare Bogie v. Bogie, 41 Wis. 209. Remedy against each of several persons bound. — Where two persons agree to pay an equal annuity to a third person, each securing the payment of his moiety by mortgage of realty, with a stipulation that, at the death of the annuitant and the payment of funeral ex- penses, any part of the annuity remaining should be equally divided between them, the annuitant is entitled to the annuity from each and to enforce the mortgage against either, and it is no defense that the annuitant has failed to make the other party pay, the right to the surplus, if any, only accruing after the death of the annuitant. Smith v. Smith, 15 Lea (Tenn.) 93. 42. Smallman v. Hamilton, 2 Atk. 71; Hunter v. Nockolds, 1 Macn. & G. 640. But see Snow v. Booth, 8 De G. M. & G. 69, 57 Eng. Ch. 69, wherein it appeared that a reversioner in fee expectant on the death of the survivor of two tenants for life granted an annuity for ninety-nine years, determinable with lives, and with a surety covenanted for payment of the annuity. He also demised the reversion for five hundred years, in trust, if the annuity should be in arrear, to sell the reversion and raise the arrears and future payments of the annuity. The grantor and surety became bank- rupts, and, when the annuity had been in ar- rear more than twenty years, the annuitant filed a bill to have the arrears raised. It was held that the statute of limitations did not ap- ply. To the same effect see Knight v. Bowyer, 2 De G. & J. 421, 59 Eng. Ch. 421 ; Cox v. Dol- man, 2 De G. M. & G. 592, 51 Eng. Ch. 592. Vol. II Presumption from lapse of time. — Lord Lucas gave Dorothy Potter an annuity for life. She died in 1718, and in 1740 a bill was brought by her representative for the arrears from 1708 to the death of Dorothy Potter. The court, from the length of time, presumed it to be paid. Smallman v. Hamilton, 2 Atk. 71. Compare Cornwall v. Hoyt, 7 Conn. 420. Recovery of consideration. — The statute of limitations is no bar to an action to recover the consideration paid for an annuity, notwith- standing more than the statutory period has elapsed since the date of the grant, where the grantor has within such period elected to avoid the annuity by reason of a defective memorial. Cowper v. Godmond, 3 M. & S. 219. See also Huggins v. Coates, 5 Q. B. 432, 48 E. C. L. 432. What statute applicable. — A bill seeking an account of an annuity created by deed charged on lands, and payable annually during the life of the annuitant, is not a bill on an open account within the three-years' statute of limitations. Taylor v. Forsey, 56 Ala. 426. 43. Clason v. Lawrence, 3 Edw. (N. Y.) 48. See 2 Cent. Dig. tit. " Annuities," § 17. Annuity in favor of husband and wife. — Where an annuity is created by deed, charged on land and secured by mortgage, in favor of a husband and wife during their joint lives, and to the survivor for life, and is made payable to the husband " for their mutual benefit," the husband does not take the entire interest dur- ing the joint lives of himself and wife, but he and his wife take by moieties, and she has such an interest as entitles her to maintain a bill in equity to foreclose the mortgage, and to re- deem from an older mortgage on the land. Sloan v. Frothingham, 72 Ala. 589. Foreclosure of subsequent mortgage. — An- nuitants prior to a mortgage need not be made parties to a suit by the mortgagee against the mortgagor for a sale, but the estate must be sold subject to the annuities. Delabere v. Nor- wood, 3 Swanst. 144. Revival on death of annuitant. — After a decree for the arrears of an annuity rendered in favor of a non-resident, upon a contract made in another state, if the annuitant die pending an appeal the suit may be revived by the personal representative of the annuitant, and such representative may be appointed by the county court of the county in which the decree was recovered. Smith v. Smith, 15 Lea (Tenn.) 93. 44. Emmons v. Crooks, 1 Grant Ch. (U. C.) 159, wherein it was held that the defendant, to entitle himself to take advantage of any de- fect in this respect, must set it up in his an- swer. Prayer for foreclosure and sale. — In a suit ANNUITIES— ANNULMENT 471 6. Decree. In a suit in equity for arrears. of an annuity the decree should not only be for the sums already due, but should reserve liberty to apply to the court, from time to time, to extend its decree so as to embrace sums afterward becoming payable. 45 D. Liability of Annuity for Debts of Annuitant. It has been held that an annuity may be reached by creditors, in equity, for the debts of the annuitant ; and the fact that it is for support does not render it exempt. 46 ANNUL. To make void ; to dissolve. 1 (Annul : Actions to, see Cancellation of Instruments.) ANNULMENT. The act of annulling ; the act of making void retrospectively as well as prospectively. 2 (Annulment: Of Insurance Policy, see Insurance. Of Judgment, see Equity ; Judgments. Of Marriage, see Marriage. Of Sale, see Executions ; Executors and Administrators ; Guardian and Ward ; by a grantor of land to enforce a lien thereon, reserved by the deed, tor maintenance and the payment of an annuity, a prayer for foreclos- ure and sale is appropriate. Bentley v. Gard- ner, 45 N. Y. App. Div. 216, 60 N. Y. Suppl. 1056. 45. Marshall v. Thompson, 2 Munf. (Va.) 412. See 2 Cent. Dig. tit. " Annuities,'' § 20. Sale of land charged with annuity. — A de- cree against purchasers of a tract of land, en- cumbered by a mortgage to secure the payment of an annuity, ought to provide that so much of their lands respectively be sold as will be sufficient to pay their proportions of the sum remaining due and unsatisfied, by a sale of so much of the tract as was retained by the vendor and liable to be sold, except so far as they shall pay their respective proportions of such debt and agree to hold their land subject to the future decree of the court for their pro- portions of any sums growing due to the plain- tiff thereafter. Mayo v. Tomkies, 6 Munf. (Va.) 520. Scire facias for subsequent instalments. — In Owings' Case, 1 Bland (Md.) 290, it was held that, according to the common law, if a party brought his writ of annuity and obtained judgment, that judgment stood as a security as well for the amount then due as for that which should thereafter become due; and the payment of future instalments might be en- forced by scire facias sued out within the year after every day of payment, though it might be many years after the judgment. But see Wood v. Wood, 3 Wend. (N. Y.) 454, wherein it was held that after judgment has been rendered in an action of debt on a bond to secure the pay- ment of an annuity, a scire facias is not neces- sary to warrant an execution for subsequent arrears. , 46. Gifford v. Rising, 51 Hun (N. Y.) 1, 3 N. Y. Suppl. 392; Bryan v. Knickerbacker, 1 Barb. Ch. (N. Y.) 409; Degraw v. Clason, 11 Paige (N. Y.) 136; British North America Bank v. Matthews, 8 Grant Ch. (U. C.) 486. See also Sillick v. Mason, 2 Barb. Ch. (NY.) 79 [affirming 4 Sandf. Ch. (N. Y.) 351], wherein it was held that where a person is en- titled under a will to an annuity for life out of the income of real and personal estate in the hands of trustees, his interest in such an- nuity, beyond what is necessary for the sup- port of himself and his family, may be reached by a creditor's bill and applied to the payment of his debts. To the same effect see Scott v. Nevins, 6 Diier (N. Y.) 672; Clute v. Bool, 8 Paige (N. Y. ) 83. But see Frazier v. Barnum, 19 N. J. Eq. 316, 97 Am. Dec. 666, wherein it was held that, under the New Jersey statute, where a fund held in trust for the payment of an annuity has proceeded from some person other than the annuitant himself, such annu- ity cannot be reached for the payment of the annuitant's debts. See 2 Cent. Dig. tit. " Annuities," § 16. Creditor's bill. — The interest of an annuity may be reached by a creditor's bill for the payment of his debts. Gifford v. Rising, 51 Hun (N. Y.) 1, 3 N. Y. Suppl. 392; Sillick v. Mason, 2 Barb. Ch. (N. Y.) 79; Bryan v. Knickerbacker, 1 Barb. Ch. (N. Y.) 409; De- graw v. Clason, 11 Paige (N. Y.) 136. . Equitable attachment is a proper remedy to reach an annuity for the debts of the an- nuitant. British North America Bank v. Mat- thews, 8 Grant Ch. (U. C.) 486. Debts of remainder-man. — Land was vested in a trustee by deed of marriage settlement, in trust to pay the wife an annuity out of the profits, and, subject to the annuity, in trust for a son of the grantor. During the life of the annuitant a creditor of the son recovered a judgment against him, and exhibited his bill in chancery to subject the son's equitable in- terest in the estate to the debt. It was held that as the annuitant was yet living, and was not compellable to take a gross sum in satis- faction of the annuity, and as the trustee was to hold it subject to and pay the annuity out of the profits', the court would not direct the sale of the debtor's entire equitable interest subject to the annuity, but would only direct the application of the surplus of profits as they accrued after paying the annuity. Coutts v. Walker, 2 Leigh (Va.) 268. 1. Wait v. Wait, 4 Barb. (N. Y.) 192, 208 [citing Webster Diet.]. Not a technical term. — "Annul is not a technical word. There is nothing which pre- vents the idea conveyed by it from being ex- pressed in equivalent words." Woodson v. Skinner, 22 Mo. 13, 24. 2. Century Diet. Vol. II 472 ANNULMENT— ANT Judicial Sales ; Taxation. Of Satisfaction — Of Judgment, see Judgments ; Of Mortgage, see Mortgages. Of Tax Assessment, see Municipal Corporations ; Taxation. Of Will, see Wills.) ANNULUS ET BACULUS. King and staff. Symbols used in ecclesiastical investitures. 3 ANNUS. A year. 4 ANNUUS REDITUS. An annuity. 5 A NON POSSE AD NON ESSE SEQUITUR ARGUMENTUM NECESSARIO NEGA- TIVE, LICET NON AFFIRMATIVE. A maxim meaning "From impossibility to non-existence, the influence follows necessarily in the negative, though not in the affirmative." 6 ANONYMOUS. Without names. A term applied to the reported cases in which the names of the parties are not given, or which are without the usual title. 7 It is often abbreviated " Anon.," 8 " An.," or " A." 9 ANOTHER. A different or separate person or thing. 10 (Another : Action, see Abatement and Revival ; Actions.) ANSEMENT. Likewise ; in like manner. 11 ANSWER. In law, a counter-statement of facts in a course of pleading ; a confutation of what the other party has alleged. 13 (Answer : Of Defendant — In Admiralty, see Admiralty ; In Equity, see Equity ; In Law, see Pleading. Of Garnishee, see Garnishment. Of Party on Examination before Trial, see Dis- covery. Of Witness, see Depositions; Trial. Operation and Effect of — As Answer, see Appearances ; As Evidence, see Equity ; As Waiver of Defects, see Equity ; Parties ; Pleading ; Process.) ANTE. Before. 13 ANTEDATE. To date a document before the day of its execution. 14 ANTEJURAMENTUM. An oath formerly taken before trial by both the accuser and accused. 15 ANTE MERIDIEM. See A. M. ANTENATI. Persons born before a particular period or event. 16 ANTENUPTIAL. Before marriage." (Antenuptial : Contracts, see Dower ; Husband and Wife ; Wills. Settlements, see Fraudulent Conveyances ; Husband and Wife.) ANTICHRESIS. See Mortgages ; Pledges. ANTICIPATION. The act of doing or taking a thing before the proper time. 18 (Anticipation : Of Intention, see Patents. Restraints on, of Income from Trust Fund, see Wills.) ANTIGRAPHY. A copy or counterpart of a deed. 19 ANTI-TRUST LAW. See Monopolies. ANY. The word " any " may have one of several meanings, according to the subject which it qualifies. 20 Thus, under some circumstances, it may mean " all ; " 21 3. 1 Bl. Comm. 378. Ante exhibitionem billae. — Before the ex- 4. Burrill L. Diet. hibition of the bill. Burrill L. Diet. Annus deliberandi. — A year of deliberat- Ante litem motam. — Before litigation com- ing. The year allowed by the Scotch law to menced. Wharton L. Lex. the heir to deliberate whether he will enter 14. Wharton L. Lex. and represent his ancestor. Bell Diet, [cited 15. Jacob L. Diet, in Burrill L. Diet.]. 16. Burrill L. Diet. 5. Burrill L. Diet. 17. Abbott L. Diet. 6. Adams Gloss. 18. Bouvier L. Diet. 7. Burrill L. Diet. 19. Wharton L. Lex. 8. As in Anon., 1 Atk. 88. 20. Stiles v. Board of Chosen Freeholders, 9. Wharton L. Lex. 50 N. J. L. 9, 11, 11 Atl. 143. 10. Moore v. Com., 92 Ky. 630, 633, 13 Ky. 21. Iowa.— State v. Haug, 95 Iowa 413, 64 L. Rep. 738, 18 S. W. 833; Greenwood v. Mc- N. W. 398, 29 L. R. A. 390; Dubuque County Gilvray, 120 Mass. 516, 521. v. Dubuque, etc., R. Co., 4 Greene (Iowa) 1,4. 11. Kelham Diet. Massachusetts. — Livermore v. Swasey, 7 12. Larrabee v. Larrabee, 33 Me. 100, 102 Mass. 213, 227. [citing Webster Diet.]. Nevada. — Virginia, etc., R. Co. v. Ormsby 13. Burrill L. Diet. County, 5 Nev. 341, 348. Vol. II ANY— APPARENT 473 and, under others", "each;" 23 "every;" 23 "some;" 24 or one or more out of several. 85 APART. Separate. 26 APARTMENT. One or more rooms in a house, occupied by one or more per- sons, distinct from other occupants of the same house. 27 APEX. In mining, the end or edge of a lode or vein nearest the surface of the earth. 28 APEX JURIS. An extreme point or subtlety of law. 29 APICES JURIS NON SUNT JURA. A maxim meaning " Mere niceties of law are not law." m APICES LITIGANDI. Subtleties of litigation. 31 A PIRATUS ET LATRONIBUS CAPTA DOMINIUM NON MUTANT. A maxim meaning " Things taken or captured by pirates and robbers do not change their ownership." ffi APOSTACY. The total renunciation of Christianity by embracing either a false religion or no religion at all. 33 APOSTATA CAPIENDO. A writ, addressed to the sheriff, commanding him to deliver a defendant into the possession of the abbot or prior, which was formerly issued against an apostate, or one who had violated the rules of his religious order. 84 APOSTLES. In admiralty practice, the papers forming the record upon an appeal transmitted from the inferior to the appellate court for the purpose of showing what proceedings were had below. 35 (See, generally, Admiralty.) APOTHECARY. One who prepares and sells drugs for medical purposes for a business. 36 (See, generally, Druggists.) APPARATUS. Implements ; 87 an equipment of things provided and adapted as a means to some end ; any complex instrument or appliance for a specific action or operation. 38 APPARENT. That which seems to exist or which is indicated by appearances ; manifest ; beyond doubt ; obvious. 39 New Jersey. — Montelair Tp. v. New York, etc., R. Co., 45 N. J. Bq. 436, 442, 18 Atl. 242. New York. — Heaton v. Wright, 10 How. Pr. (N. Y.) 79, 83. Pennsylvania. — Buckwalter v. Black Rook Bridge Co., 38 Pa. St. 281, 287. England. — Powell v. Howells, L. R. 3 Q. B. 654. 22. Galbraith v. Galbraith, 3 Serg. & R. (Pa.) 392, 393. 23. Davidson v. Dallas, 8 Cal. 227, 239; MeComas v. Amos, 29 Md. 132, 141 ; Tillou v. Britton, 9 N. J. L. 120, 128 ; Hanson v. Eich- staedt, 69 Wis. 538, 545, 35 N. W. 30. 24. West Chicago Park Com'rs v. McMul- len, 134 111. 170, 179, 25 N. E. 676, 10 L. R. A. 215 [citing Webster Diet.; Worcester Diet.] ; Witherhead v. Allen, 28 Barb. (N. Y.) 661, 666. Distinguished from " some." — " In syno- nyms it is distinguished from ' some.' Thus, it is said, ' " some " applies to one particular part in distinction from the rest ; " any," to every individual part without distinction. The former is altogether restrictive in its sense, the latter is altogether universal and indefinite.' " Stiles v. Board of Chosen Free- holders, 50 N. J. L. 9, 11, 11 Atl. 143 [citing Crabb Eng. Syn.]. See also Miller v. Mun- ' son, 34 Wis. 579, 17 Am. Rep. 461, wherein the word " any " was held not to be the equivalent of " some " in an affidavit for at- tachment. 25. New Haven Young Men's Institution v. New Haven, 60 Conn. 32, 39, 22 Atl. 447; State v. Antonio, 2 S. C. Const. Rep. 776, 783, S. C, 3 Wheel. Crim. (N. Y.) 508. 26. Belo v. Mayes, 79 Mo. 67, 69. 27. Burrill L. Diet. 28. Duggan v. Davey, 4 Dak. 110, 26 N. W. 887 ; Iron Silver Min. Co. v. Murphy, 2 Mc- Crary (U. S.) 121, 3 Fed. 368; Stevens v. Williams, 1 McCrary (U. S.) 480, 23 Fed. Cas. No. 13,413. 29. Burrill L. Diet. 30. Burrill L. Diet. Applied in Holmes v. Remsen, 20 Johns. (N. Y.) 229, 261, 11 Am. Dec. 269. 31. Burrill L. Diet. Used by Lord Mansfield in Morris v. Pugh, 3 Burr. 1241, 1243, in the expression: "It is unconscionable in a defendant to take ad- vantage of the apices litigandi to turn a plaintiff round, and make him pay costs where his demand is just." 32. Adams Gloss. 33. Burrill L. Diet. 34. Wharton L. Lex. 35. Abbott L. Diet. 36. Anderson v. Com., 9 Bush. (Ky.) 569, 571; Westmoreland v. Bragg, 2 Hill (S. C.) 414, 415. 37. Coolidge v. Choate, 11 Mete. (Mass.) 79, 83. 38. Board of Education v. Andrews, 51 Ohio St. 199, 203, 37 N. E. 260 [citing Cen- tury Diet.; Webster Diet.]. 39. Johnson v. State, 5 Tex. App. 423, 433. Vol. II APPEAL AND ERROR Edited by Walter Clark Associate Justice of Supreme Court of North Carolina * I. NATURE AND FORM OF REMEDY, 507 A. Right to Appellate Review, 507 B. Modes of Appellate Review, 507 1. In General, 507 2. Power of Legislature to Regulate, 507 C. Origin, Nature, and Scope of Remedies, 508 1. Writ of Error, 508 a. Definition, 508 b. Origin and Existence of the Writ, 508 (i) In General, 508 (n) As Affected by Legislative Enactments, 509 (a) Power to Abolish, 509 (b) Statutes Expressly Abolishing Writ, 509 (c) Statutes Providing Different Remedy, 509 (d) Statutes Changing Name of Remedy, 510 c. Nature of Writ, 510 (i) In General, 510 (n) A Writ of Right, 510 (in) The Commencement of a New Suit, 510 (a) General Rule, 510 (b) Consequences of Being a New Suit, 511 (1) In General, 511 (2) Application of Statutes of Limita- tion, 511 (3) Application of Statutes Requiring Secu- rity for Costs, 511 (4) Effect Upon Rights of Parties and Strangers, 511 d. Scope and Purpose of Writ, 511 (i) General Rule, 511 (n) Limited to Errors Appearing of Record, 512 (in) Limited to Errors of the Court, 512 e. C 'ourts to Which Writ Lies, 512 f . Proceedings in Which Writ Lies, 512 (i) General Rule, 512 (n) Suits in Equity, 513 (a) General Rule, 513 (b) Statutes Extending Use of Writ. 513 (in) Proceedings in Justice Courts, 513 (vf) Proceedings of Probate Courts, 514 (v) Special Statutory Proceedings, 514 (vi) Summary Proceedings Subsequently Assuming Com- mon-Law Form, 514 g. Judgments to Which Writ Will Lie, 515 2. Appeal, 515 * Author of Clark's Annotated Code of Civil Procedure of North Carolina, and of -'Clark's Overruled Cases," " Laws for Business Men," etc., and Editor of "Annotated Reprints" of the North Carolina Supreme Court Eeports. Vol. n 474 APPEAL AND ERROR 475 a. Definitions, 515 b. Origin and Existence of Remedy, 517 (i) In General, 517 (n) Power of Legislature Over Remedy, 517 c. Whether Remedy Is Exclusive, 517 d. Nature of Remedy, 518 (i) A Matter of Right, 518 (n) Not a New Suit, 518 e. Scope of Remedy, 518 , (i) Errors Reviewable, 518 (a) Errors of Law, 518 (b) Errors of Fact, 518 (o) Errors Appearing of Record, 519 (n) Relief Granted, 519 f . Proceedings in Which Appeals Lie, 519 (i) General Rule, 519 (n) Suits in Equity, 519 (in) Actions at Law, 520 (iv) Special Statutory Proceedings, 520 g. Law by Which Appeals Are Governed, 520 (i) General Rule, 520 (n) Statutes Giving, Taking Away, or Modifying Remedy, 520 (a) Taking Effect Before Judgment, 520 (b) Taking Effect After Judgment, 520 (c) Taking Effect After Appeal, 521 3. Special Statutory Remedies, 521 a. Bill of Exceptions, 521 (i) Statutory Authorization, 521 (n) Cases in Which Remedy Lies, 522 b. Motion in Error, 522 c. Reservation or Certification of Cases or Questions, 522 d. Writ of Review, 523 4. Writ of Mandamus, 523 D. Pendency of Another Proceeding, 523 1, In an Appellate Court, 523 a. General Rule, 523 b. Application of Rule, 523 (i) In General, 523 (n) Pending in Another Court, 523 2. Tra Court Below, 524 a. jB*S of Review, 524 b. ij^Z to Impeach Decree for Fraud, 524 c. Motion for New Trial, 524 E. Election of Remedies, 525 1. Necessity of 525 2. TFAatf Constitutes, 525 F. Successive Proceedings, 525 1. TF/^era _Fw*s£ Proceeding Has Been Determined, 525 a. General Rule, 525 b. TF^e?*e 7%ere JS^e Been New Proceedings, 526 c. Where Second Proceeding Is Prosecuted by Adverse Party, 526 d. Where Second Proceeding Is by Party Not Joining in First, 527 2. Where First Proceeding Has Been Dismissed, 527 Vol. II 476 APPEAL AND ERROR a. In General, 527 b. For Irregularity in Proceedings, 527 c. For Want of Prosecution, 528 3. Where First Proceeding Has Been Abandoned, 529 4. Where First Proceeding Is Ineffectual, 530 5. Where First Proceeding Is Not Proper Remedy, 530 6. Where First Proceeding Is Void Though Not Disntissed, 530 G. Cross -Appeals and Writs of Error, 530 H. Double Appeals, 531 I. Joinder of Proceedings, 531 1. To Review Separate Actions, 531 2. To Review Separate Judgments or Orders, 531 J. Splitting Appeals, 532 II, REQUISITES OF APPELLATE JURISDICTION, 533 A. Actual Controversy Must Exist, 533 1. General Rule Stated, 533 2. Abstract Questions, 533 3. Fictitious Proceedings, 533 4. When Decision of Question Has Been Rendered Ineffec- tive, 533 a. In General, 533 b. By Act of Appellant, 533 c. By Act of Appellee, 534 d. -By Act of Court A Quo, 534 e. By Act of Law, 535 f . By Lapse of Time, 535 5. When Interest of Litigants Ceases to Be Adverse, 535 6. Where Costs Only Are Involved, 535 B. Consent of Parties, 536 1. Cannot Confer Jurisdiction, 536 2. Cannot Abridge Jurisdiction, 537 C. Jurisdiction of Inferior Court, 537 D. Waiver of Objections, 538 III. Decisions reviewable, 538 A. Tribunals Subject to Review, 538 1. Judicial Nature of Decision, 538 2. Orders Made at Chambers, 540 3. Special Tribunals Constituted for Particular Purpose, 540 B. Dependent on Nature or Form of Proceeding, 540 1. In General, 540 2. Special Proceedings, 540 3. Proceedings, Both Civil and Criminal, 541 a. In General, 541 b. Qui Tarn or Penal Actions, 542 C. Dependent on Amount or Value in Controversy, 542 1. Nature of Limitation, 542 a. In General, 542 b. Restriction of Extent of Review, 543 c. Application to Courts of Law and Equity, 543 d. Application to All Parties Alike, 543 2. Character and Application of Pecuniary Restrictions, 543 a. In General, 543 b. Value as Measured in Money, 544 (i) In General, 544 (u) When Money Judgment Not Directly Sought, TM Vol. II APPEAL AND ERROR 477 c. Tort or Contract, 545 d. Construction of Contract, 545 e. Validity of Ordinance or Statute, 545 f . Enforcement of Lien, 545 g. Enforcement of Judgment, 545 (i) In General, 545 (n) Manner of Enforcing Judgment of Appellate Court, 546 h. Incidental Order, 546 i. Continuance or Dissolution of Marriage Relation, 546 j. Custody and Care of Children, 547 k. Probate Matters, 547 1. Dismissal of Suit, 547 m. Refusal to Quash Execution, 547 n. Actions Involving Right to Office, 547 o. Contempt Proceedings, 548 p. Franchise, 548 q. Fines and Penalties, 548 r. Forfeiture of Bail, 548 s. Forcible Entry and, Detainer, 549 t. Habeas Corpus, 549 ii. Injunction, 549 v. Mandamus and Prohibition, 550 w. Appointment of Receiver, 550 x. Taxes and Revenue, 550 y. Exceptions, 550 (i) in General, 550 (n) Subject Matter of Exception Must Be Directly in Issue, 551 (a) /«. General, 551 (b) Land or Freehold Involved, 552 (1) i?i General, 552 (2) Damages, 552 (3) 51? Subject Lands, 552 (a) iw General, 552 (b) Z*ews i General, 613 (ii) Contempt Proceedings, 614 E. Dependent on Rendition, Form, or Entry of Judgment or Order, 614 1. Necessity of Formal Judgment or Order, 614 Vol. II APPEAL AND ERROR 481 a. In General, 614 b. Based on Findings or Verdict, 616 c. Necessity of Signature, 617 d. Where Judgment Has Been Set Aside or Arrested, 617 2. Judgments by Confession, 617 3. Judgments by Default, 617 a. In General, 617 b. Damages Assessed Upon Default, 619 c. Decrees Pro Confesso, 619 d. Refusal to Enter Default or Decree Pro Confesso, 620 4. Judgments on Consent, 620 5. Judgments on Ex Parte Proceedings, 621 6. Judgments on Motion or Summary Proceedings, 621 7. Judgments on Proceedings at Chambers or in Vacation, 622 8. Judgments on Submission of Controversy or Agreed Case, 622 9. Judgments on Trial of Issues, 623 10. Order for Judgment, 624 11. Pro Forma Judgment, 624 12. The Entry of Judgment, 62fe IV. RIGHT OF REVIEW, 626 A.. Persons Entitled, 626 1. General Principles, 626 a. Appellant's Connection With Action Below, 626 (i) Must Have Been a Party or Privy, 626 (n) Statutes Extending Relief, 627 b. Appellant Must Have Interest in Suit, 628 (i) In General, 628 (n) Nature of Interest, 629 (a) In General, 629 (b) Decree For Costs, 629 (in) Defendant as to Whom Suit Has Been Dis- missed, 629 (iv) Nominal Parties, 630 (v) Party Whose Interest Has Determined, 630 (a) In General, 630 (b) Bankrupts, 630 (c) Fraudulent Grantor, 630 (d) Mortgagor Who Has Disposed of Equity of Redemption, 631 (e) Resignation or Removal From Office, 631 (f) Vendor Pendente Lite, 631 (vi) Unnecessary Party, 631 c. Appellant Must Be Prejudiced, 631 (i) In General, 631 (n) Decree Prejudicial in Part, 632 (in) Judgment %n Appellants Favor, 632 (iv) Necessary Parties Not Served With Process, 633 (v) Parties Aggrieved May Appeal, 633 d. Deprivation of Right, 634 (i) Absence from State, 634 (n) Contempt of Court, 634 (m) Denial of Interest, 634 (iv) Failure of Co -Party to Appeal, 634 2. Application to Particular Litigants, 635 a. Persons in Individual Capacity, 635 [31] Vol.11 482 APPEAL AND ERROR (i) Claimants of Property, 635 (n) Creditors of Defendant, 635 (in) Garnishees, 636 (iv) Interveners, 636 (v) Partners, 636 (vi) Private Corporations, 636 (vn) Purchasers at Judicial Sale, 637 (vni) Purchasers Pendente Lite, 637 (ix) Stock -Holders, 637 N (x) Sureties, 638 b. Persons in Representative Capacity, 638 (i) Assignees in Insolvency, 638 (n) Attorneys, 639 (in) Guardians and Next Friends, 639 (iv) Heirs, 639 (v) Personal Representatives, 640 (vi) Receivers, 641 (vn) Trustees of Property, 641 c. States, 642 d. United States, 643 B. TFowwe/' of Right, 643 1. Express Waiver, 643 a. Before Trial, 643 b. Subsequent to Trial, 643 2. Implied Waiver, 644 a. Acquiescence in Judgment or Order, 644 (i) iw General, 644 (n) Acceptance of Terms or Conditions, 645 (ni) Amendment of Pleadings, 645 (it) Answering Over, 646 (y) Proceeding With Trial, 646 (vi) Submission to New Trial, 647 \ b. Compliance With Judgments or Orders, 647 (i) Involuntary Payment or Performance of Judg- ment, 647 (n) Voluntary Payment or Performance of Judg- ment, 647 c. Consenting to Judgment or Order, 649 (i) Judgment, 649 (n) Orders, 650 d. Procuring Judgment or Order, 650 (i) In General, 650 (n) Judgments by Confession, 651 e. Receiving Benefits Under Judgment or Order, 651 (i) In General, 651 (n) Accepting Payment, 652 (a) Of Money Paid Voluntarily, 652 (b) Of Money Paid Into Court, 652 (c) Of Money Paid upon Execution, 652 (d) Rule Where Appeal Cannot Affect Appellants Right to Sum Collected, 653 (1) Appellant Entitled to Sum in Any Event, 653 (2) Appeal for Purpose of Modifying Judgment, 653 Vol. II APPEAL AND ERROR 483 (3) Receipt of Balance after Prior Liens Satisfied, 654 (4) When Judgment Settles Distinct Con- troversies, 654 (e) Rule Where Restitution Ls Made, 654 (f) What Constitutes Acceptance, 654 (1) By Attorney, 654 (2) By Co -Party, 655 (3) By Fiscal Officer, 655 (4) Proof of Acceptance, 655 (m) Accepting Sum Allotted Under Order of Distribu- tion, 655 (iv) Accepting Costs, 655 (y\ Accepting Privilege of Renewing Petition, 656 (vi) Selling Premises Under Foreclosure Decree, 656 f . Recognition of Validity of Judgment, 656 (i) In General, 656 (n) Formal Entry of Judgment or Order, 657 (in) Staying Execution, 657 g. Seeking Other Mode of Relief, 657 (i) Bringing Proceedings far Review, 657 (n) Enjoining Execution of Judgment, 658 (in) Moving for New Trial, 658 (iv) Prosecuting Another Action, 659 h. Where There Has Been a Compromise and Settlement, 659 i. Where Suit' Has Been Abandoned, 659 j. Where Suit Has Been Taken to Another Court for Review, 660 C. Waiver of Objections to Right of Review, 660 V. PRESENTATION AND RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW, 660 A. Necessity, 660 1. Statement of Rule, 660 2. Reasons for the Rule, 662 3. Extent of Rule, 662 a. Grounds of Defense or Opposition, 662 (i) In General, 662 (n) Constitutionality of Statutes. 664 (in) Contributory Negligence, 664 (iv) Discharge, Release, or Satisfaction of Debt, 665 (v) Invalidity of Instrument in Suit, 665 (a) Rule Stated, 665 (b) Rule Applied, 665 (vi) Laches, 666 (vn) Matters of Abatement, 666 (vm) Non-Compliance With Conditions Precedent, 667 (ix) Res Judicata, 668 (x) Statute of Limitations, 668 b. Questions Arising in Controversies Relating to Public Lands, 669 c. Questions as to Nature and Form of Relief, 669 d. Questions of Right to Interest, 670 e. Questions of Title or Ownership, 670 f. Rule as to Adherence to Theory Pursued Below, 670 (i) In General, 670 (n) As to the Law Which Governs, 671 Vol. II 484 APPEAL AND ERROR (in) As to the Nature and Form of Action, 671 (iv) As to the Pleadings Construed Below, 672 (a) In General, 672 (b) Without Regard to Their Nature and Form, 672 (c) With Regard to the Issues Presented, 672 (v) As to the Relief Ashed, 674 (vi) As to the Nature of Facts at Issue, 674 (vn) As to the Necessity of Particular Evidence, 675 (viii) As to Facts Admitted or Conceded, 675 (ix) As to the Burden of Proof , 675 (x) As to the Damages Recoverable, 675 (xi) Rule as to New Grounds for Sustaining a Judg- ment, 675 g. Questions Considered on Appeal From Intermediate Courts, 676 4. Limitations and Exceptions to Rule, 677 a. In General, 677 b. Questions of Public Policy, 677 B. Methods of Presentation and Reservation, 677 1. Objections, 677 a. Necessity in General, 677 (i) Statement of Rule, 677 / (ii) Exceptions to Rule, 678 b. Relating to Form of Action or Nature of Proceed- ings, 679 c. Relating to Jurisdiction, 680 (i) Of Subject -Matter, 680 (a) In General, 680 (b) As Dependent Upon Amount Involved, 681 (c) For Failure to State Jurisdictional Facts, 681 (d) Want of Jurisdiction Apparent of Record, 682 (ii) Of the Parties, 682 (m) That Equitable Action Should Have Been Brought, 683 (iv) That Remedy at Law Is Adequate, 683 (v) That Rearing Was by Wrong Division of Trial Court, 684 (vi) With Respect of Time of Hearing, 684 d. Relating to Parties, 684 (i) Capacity or Right to Sue, 684 (a) Statement of Rule, 684 (b) Applications of Rule, 685 (1) In General, 685 (2) Failure to Obtain Leave to Sue, 685 (3) Improper Party Plaintiff, 685 (4) Plaintiff' 'sWant of Interest in Contro- versy, 685 (5) Plaintiff Not Real Party m Interest, 686 (6) Plaintiff's Want of Representative Capacity, 686 (7) Plaintiff Suing in Double Capacity, 686 (8) Plaintiff Suing in Wrong Capacity, 686 (9) Incapacity of Foreign Executor to Sue, 686 Vol. II APPEAL AND ERROR 485 (10) Copartnership of Plaintiff and Defend- ant, 686 (c) Exception to Rule Where Want of Authority to Sue Appears of Record, 686 (n) Defect of Parties, 687 (a) In General, 687 (b) Want of Necessary Parties, 687 fin) Misjoinder, 688 (iv) Misnomer, 688 e. Relating to Process, 688 (i) Absence of Service, 688 (n) Defects in Process or Service, 688 f. Relating to Pleadings, 689 (i) Absence of Pleadings, 689 (n) Sufficiency and Form of Pleadings, 689 (a) In General, 689 (b) Failure to State a Cause of Action or a Defense, 691 g. Relating to Provisional Remedies, 692 n. Relating to References, 692 i. Relating to Evidence and Witnesses, 693 (i) In General, 693 (n) Admission of Evidence, 693 (in) Exclusion of Evidence, 697 (a) Necessity of Offer, 697 (b) Improperly Restricting Use of Evidence, 697 (iv) Manner and Order of Receiving Evidence, 697 (v) Competency of Witness, 698 (vi) Examination of Witness, 698 (vn) Weight and Sufficiency of Evidence, 698 (a) In General, 698 (b) Insufficiency as to Material Fact, 699 j. Relating to Giving or Refusing Instructions, 700 k. Relating to Submission or Refusal to Submit Issues to Jury, 701 1. Relating to Verdicts and Findings, 702 hi. Relating to Reports of Auditors, Masters, or Referees, 703 n. Relating to Judgments, 703 (i) In General, 703 (n) Error in Rendition of Personal Judgment, 704 (in) Failure to Formally Default Defendant Not Appear- ing, 705 (iv) Form of Judgment, 705 (v) Irregularities in Entry of Judgment, 706 (ti) Variance Between Pleadings and Judgment, 706 (vn) Variance Between Verdict and Judgment, 707 o. Relating to Motions for New Trial, 707 p. Relating to Proceedings to Vacate Judgment, 707 q. Relating to Amount of Recovery, 708 r. Relating to Executions, 709 s. Relating to Time of Hearing, 710 t. Relating to Revival of Action, 710 u. Changing or Adding Grounds of Objection, 710 v. Necessity of Ruling on Objections, 711 (i) In General, 711 (ii) Rulings on Demurrers, 712 Vol. II 486 APPEAL AND ERROR (in) Rulings on Evidence, 712 (iv) Rulings on Motions, 713 (v) Rulings Relating to Remarks of Counsel, 713 2. Exceptions, 714 a. Definition and Office, 714 b. Necessity in General, 714 c. Rulings Respecting Pleadings, 717 (i) Statement of General Rule, 717 (n) Extent and Limits qf Rule, 717 d. Rulings and Decisions Before Trial, 718 e. Matters Arising During Trial, 719 (i) In General, 719 (n) Chancery Rule, 720 (a) /n General, 720 (b) Issues Out of Chancery, 720 (m) Application of the Rule, 720 (a) In General, 720 (b) Competency of Witnesses, 721 (c) Rulings as to Evidence, 721 (1) In General, 721 (2) Admission and Exclusion, 722 (3) Depositions, 723 (4) Variance, 724 (d) Instructions, 724 (1) 7m, General, 724 (2) Requested Instructions, 725 (3) Instructions in Absence of Parties, 725 (4) Taking Case From Jury — Directing Verdict, 725 (5) Signing, Marking, and Filing, 726 (6) Exceptions to General Ride, 726 (e) Nonsuit — Dismissal, 727 (f) Verdict, 728 (g) Findings of Fact, 728 (h) Co7iclusions of Law, 730 (i) Excessive Award, 730 (j) Judgment, 731 f. Rulings or Decisions After Trial or Judgment, 732 (i) /tz. General, 732 (n) Applications for New Trial, 732 f. Provisional Remedies, 733 . Special Proceedings, 733 i. Trials or Proceedings Before Referees, Masters, or Like Officers, 733 (i) Rulings, 733 (n) Findings and Conclusions, 734 (in) Report or Decision, 735 (iv) Accountings, 736 (v) Exceptions to General Rule ,736 (vi) Judgment or Decision on Report, etc., 737 j. 7Y?«0 of Taking, 738 (i) Proceedings During Trial,738 (n) Refusal of New Trial, 739 k. TPizaw/', 739 3. Motions for New Trial, 740 4. Certification of Questions and Cases, 740 Vol. TT APPEAL AND ERROR 487 a. In Connecticut, 740 , b. In Illinois, 740 c. In Indiana, 741 d. In Iowa, 742 e. In Kansas, 743 f . In Louisiana, 743 g. In Maine, 744 K. /^ Massachusetts, 744 i. 7» Minnesota, 745 j. 7w Missouri, 745 k. _Z?i iV^w Hampshire, 746 1. 7?i iVW Jersey \ 746 in. Tw, iV Tor k, 747 (i) Certification From Appellate Division of Supreme Court to Court of Appeals, 747 (n) Certification of Exceptions Taken on Jury Trial to Appellate Division of Supreme Court, 747 n. In Ohio, 748 o. In Pennsylvania, 748 p. In Rhode Island, 749 q. In Texas, 750 r. In Wisconsin, 751 s. InWyoming, 751 t. In the Federal Courts, 751 (i) Statutory Enactments, 751 (n) Certifying Whole Case, 752 (m) Questions Which May Be Certified, 753 (a) Questions Arising During Trial, 753 (b) Questions of Law and Fact, 753 (c) Questions Relating to Matters of Discretion of Trial Court, 754 (1) Statement of Rule, 754 (2) Limitation of Rule, 754 (d) Only Questions Certified Considered, 754 (iv) Contents and Requisites of Certificate, 754 (a) Statement of Questions on Which Instruction Is Desired, 754 (b) Statement of Facts on Which Questions Arose, 755 (c) Statement That Instruction Is Desired, 755 (v) Necessity for Actual Division of Opinion, 755 (vi) Necessity for Final Judgment, 755 (vn) Jurisdictional Amount, 756 (viii) Composition of Court From Which Questions Are Certified, 756 VI. PARTIES, 756 A. In General, 756 B. Appellants or Plaintiffs i/n Error, 756 1. Proper Parties, 756 a. In General, 756 b. Nominal or Useless Parties, 757 2.- Separate Proceedings hy One or More Co -Parties, 758 a. In General, 758 b. Appeal or Writ Maintainable by Only a Part of Co -Parties, 758 Vol. II 488 APPEAL AND ERROR c. Joint Liability or Joint Lnterest, 759 (i) In General, 759 (n) Effect of Separate Appeal, 759 d. Judgment Against One or More Only, 759 e. On Refusal of Co -Parties to Join in or Prosecute, 739 f. Parties in a Representative or Official Capacity, 760 g. Several Liability or Separate Interests, 760 3. Summons and Severance or Some Equivalent Proceedings, 761 a. When Authorized or Required, 761 b. Proceedings to Obtain, 761 (i) Former Practice, 761 (n) Modem Practice, 762 c. Effect, 762 4. Joinder, 762 a. When Authorized or Required, 762 (i) In General, 762 (n) Parties Jointly Liable, or Having Joint Inter- ests, 763 (a) In General, 763 (b) Principal and Surety, 764 b. Proceedings by One in Name of All, 764 C. Appellees, Respondents, or Defendants in Error, 764 1. In General, 764 2. In Proceedings by Interveners, 768 3. In Separate Proceedings by One or More Co -Parties, 768 4. Where Judgment Is Favorable to One or More Co -Defend- ants, 768 D. Death of Party, 769 1. Before Appeal or Writ of Error, 769 a. Effect An General, 769 b. Of Sole Appellant or Plaintiff in Error, 769 c. Of One of Several Appellants or Plaintiffs in Error, 770 d. Of Appellee or Defendant in Error, 770 2. Pending Appeal or Writ of Error, 770 a. Effect %n General, 770 b. Of Sole Appellant or Plaintiff in Error, 771 e. Of One of Several Appellants or Plaintiffs im, Error, 771 d. Of Sole Appellee, Respondent, or Defendant in Error, 772 (i) In Actions Which Survive, 772 (n) In Actions Which Do Not Survive, 772 (a) Judgment for Plaintiff, 772 (b) Judgment for Defendant, 772 e. Of One of Several Appellees, Respondents, or Defendants in Error, 772 f . Substitution of Parties, 773 3. Contvnuance or Revival of Proceedings, 773 a. Necessity, 773 (i) Death Before Appeal or Writ of Error, 773 (n) Death Pending Appeal or Writ of Error, 774 b. Persons to Be Substituted., 774 (i) In General, 774 (u) Executors and Administrators, 775 (in) Heirs and Personal Representatives, 776 (rv) Heirs or Devisees, 776 (v) In Case of Death of Party m Representative Capac- ity, 776 Vol. n APPEAL AND EBB OB 489 c. Procedure for Bevival or Substitution, 777 (i) In General, 777 (n) Method of Suggesting Death, 778 (in) Proof of Death and Appointment of Bepresmta- tives, 778 (iv) Persons Bequired or Entitled to Bevive, 778 (v) In What Court Prosecuted, 778 d. Time for Bevival or Substitution, 779 (i) In General, 779 (a) Discretion of Court, 779 (b) laches, 779 (n) Limitations by Statute or Bules of Court, 779 (in) After Final Judgment in Appellate Court, 780 E. Intervention or Addition of New Parties, 780 F. Transfer or Devolution of Interest, 781 1. In General, 781 2. Bankruptcy, 781 3. Expiration of Corporate Charter, 781 4. Marriage, 781 5. Bemoval of Parties in Official or Bepresentatwe Capacity, 781 6. Substitution of Parties, 782 G. Designation and Description, 782 1. In General, 782 2. Disclosure of Name by Unknown Judgment Defendant, 783 3. Partners, 783 4. Parties in Bepresentative Capacity, 783 5. Clerical Errors, 784 H. Defects, Objections, and Amendments, 784 1. Deter mi/nation of Parties, 784 2. Misjoinder of Parties, 784 a. Appellants or Plaintiffs in Error, 784 b. Appellees or Defendants in Error, 784 3. Non-Joinder of Parties, 784 a. In General, 784 b. Defects of Parties Below, 784 c. Befusal of Co -Parties to Join, 785 d. Uninterested or Formal Parties, 785 4. Dismissal, 785 a. j?i General, 785 b. Cfofo/ as to Parties Not Joined or Improperly Joined, 786 5. Withdrawal, 786 a. ira General, 786 b. Unauthorized Appeals, 787 6. Amendments, 787 a. 7n General, 787 b. After Expiration of Time to Appeal, 788 c. Zoss o/" Interest in Subject -Matter, 788 d. Mode of Amendment, 788 7. TF"afe o/" Bond, 838 c. Naming Appellate Court, 838 d. Parties, 838 (i) Obligors, 838 (n) Obligees, 838 (hi) Sureties, 838 e. Recital of Judgment, 838 (i) i«/ General, 838 (n) Amount, 839 (hi) Z>«fe o/ 1 Judgment, 839 (iv) Parties, 839 f. Return -Time of Writ, 840 g. 7%fe . Meek, 20 Mo. 358; and see 2 Cent. Dig. tit. "Appeal and Error," § 52. Dismissal by agreement of the parties. — In Illinois it has been held that, if an appeal has been dismissed by agreement or for other reasons than the not perfecting the appeal in the proper form, the dismissal will be a bar to another appeal. Evans v. People, 27 111. App. 616. 41. See infra, I, F, 2, b-d. 42. Arkansas. — Turner v. Tapscott, 29 Ark. 318;' Yell v. Outlaw, 14 Ark. 413. California. — Karth v. Light, 15 Cal. 324. Colorado. — Hax v. Leis, 1 Colo. 187 ; West- ern Union Tel. Co. v. Graham, 1 Colo. 182. Florida. — Garrison v. Parsons, 41 Fla. 143, 25 So. 336; Glasser v. Hackett, 37 Fla. 358, 20 So. 532; Johnson v. Polk County, 24 Fla. 28, 3 So. 414; Harris v. Ferris, 18 Fla. 81. Indian Territory. — State Nat. Bank v. Cardwell, Indian Terr. 311, 37 S. W. 103. Kansas. — Weeks v. Medler, 20 Kan. 57. Louisiana. — Hall v. Beggs, 17 La. Ann. 238; Dugas v. Truxillo, 15 La. Ann. 116; Smith v. Vanhille, 11 La. 380. Missouri. — State v. Finn, 87 Mo. 310; State v. Silverstein, 77 Mo. App. 304. Nebraska. — Omaha L. & T. Co. v. Ayer, 38 Nebr. 891, 57 N. W. 567. New York.— Culliford v. Gadd, 135 N. Y. 632, 32 N. E. 136, 48 N. Y. St. 485. Oklahoma. — Richmond v. Frazier, 7 Okla. 172, 54 Pac. 441. Texas. — Mays v. Forbes, 9 Tex. 436. United States. — U. S. v. Gomez, 3 Wall. (U. S.) 752, 18 L. ed. 212; Castro v. U. S., 3 Wall. (U. S.) 46, 18 L. ed. 163; U. S. v. De Paeheco, 20 How. (U. S.) 261, 15 L. ed. 820; The Steamer Virginia v. West, 19 How. (U. S.) 182, 15 L. ed. 594'; U. S. v. Curry, 6 How. (U. S.) 106, 12 L. ed. 363; Yeaton v. Lenox, 8 Pet. (U. S.) 123, 8 L. ed. 889. 43. Hook v. Richeson, 106 111. 392; Stokes v. Shannon, 55 Miss. 583. An appeal taken before judgment entered is nugatory, and in no way affects an appeal taken after the judgment is entered. Matter of Rose, 80 Cal. 166, 22 Pac. 86; Planters Consol. Assoc, v. Mason, 24 La. Ann. 518 ; Spokane Falls v. Browne, 3 Wash. 84, 27 Pac. 1077. Vol. II 528 APPEAL AND ERROR irregularity ** or insufficiency in the steps taken to perfect the appeal or error pro- ceedings, 45 as well as to dismissals for want of authority in appellant to maintain the proceeding. 46 e. For Want of Prosecution. According to one view the dismissal of an appeal or writ of error for want of prosecution leaves the case in the court below in the same condition in which it was before the appeal was taken or the writ of error sued out, and does not bar the subsequent prosecution of another proceeding if begun in due time. 47 But, according to another line of cases, the dismissal of a writ of error or appeal which has been regularly taken operates as an affirmance of the judgment or order, and, unless the order of dismissal or some statutory pro- vision otherwise provides, is a bar to a subsequent proceeding in the same case, and upon the same judgment or order. 48 If, however, the first appeal has been 44. As a dismissal for want of bond or of a sufficient bond. Martinez v. Gallardo, 5 Cal. 155; Gensler v. Florida R. Co., 14 Fla. 41 ; Merrill v. Hunt, 52 Miss. 774. 45. Weeks v. Medler, 20 Kan. 57 (wherein a petition in error was dismissed on the ground that the record attached to it was illegal and insufficient) ; Cooper v. Pacific Mut. L. Ins. Co., 7 Nev. 116, 8 Am. Rep. 705 (wnerein it was held that where an appeal is dismissed, not for want of prosecution or upon the merits, but for some technical de- fect in the preparation of the appeal, and the order of dismissal expressly provides that it shall be without prejudice to another appeal, a second appeal is not barred) ; Good v. Daland, 119 N. Y. 153, 23 N. E. 474, 28 ' N. Y. St. 935 (wherein it was held that where an appeal from an interlocutory judg- ment was dismissed for want of a certificate, made necessary by statute, calling for the opinion of the court of appeals, a, second ap- peal, after obtaining the proper certificate, was not barred ) . 46. Fletcher's Succession, 13 La. Ann. 29; Meacham v. Pinson, 60 Miss. 217. 47. Arkansas. — Sanders v. Moore, 52 Ark. 376, 12 S. W. 783. Colorado. — Freas v. Engelbrecht, 3 Colo. 377. Florida. — Harris v. Ferris, 18 Fla. 81. Kentucky. — Helm v. Boone, 6 J. J. Marsh. (Ky.) 351, 22 Am. Dec. 75. Compare Harri- son v. State Bank, 3 J. J. Marsh. (Ky.) 375, wherein it was held that the dismissal of an appeal is a virtual affirmance of the judg- ment below, so as to render the obligors in the appeal bond liable. See also Bowling Green v. Elrod, 14 Bush (Ky.) 216, wherein it was held that, where an appeal may be granted, by the court rendering the judg- ment, during the term at which it is ren- dered, or by the clerk of the court of appeals at any time within two years from the time the right to appeal accrued, upon filing in the office of the clerk a copy of the judgment from which the appeal is taken, the dismissal of an appeal granted below does not bar the right to obtain an appeal from the clerk of the court of appeals. New York. — French v. Bow, 77 Hun (N. Y.) 380, 28 N. Y. Suppl. 849, 60 N. Y. St. 396; Kelsey v. Campbell, 38 Barb. (N. Y.) 238. But see Sperling v. Boll, 26 N. Y. App. Div. 64, 50 N. Y. Suppl. 209, for the practice in the appellate division. Vol. II Wisconsin. — Marshall v. Milwaukee, etc., R. Co., 20 Wis. 644. See 2 Cent. Dig. tit. "Appeal and Error," § 50. This rule has been applied to dismissals for failure to file the transcript of the record within the prescribed time (Williams v. La Fenotiere, 26 Fla. 333, 7 So. 869) ; for want of a transcript (Roberts v. Tucker, 1 Wash. Terr. 179), or for a failure to file brief ( Texas, etc., R. Co. v. Hare, 4 Tex. Civ. App. 18, 23 S. W. 42). 48. California. — Rowland v. Kreyenhagen, 24 Cal. 52; Osborn v. Hendrickson, 6 Cal. 175. Louisiana. — Dozer v. Sargent, 4 La. 41. New Jersey. — Welsh v. Brown, 42 N. J. L. 323. Ohio. — Railroad Co. v. Belt, 36 Ohio St. 93. Oklahoma. — Richmond v. Frazier, 7 Okla. 172, 54 Pae. 441. Virginia. — Sites v. Wieland, 5 Leigh (Va.) 80. West Virginia. — Casanova v. Kreusch, 21 W. Va. 720. In California, where, by statute, two ap- peals are allowed — one from the judgment and one from the order denying a new trial — the dismissal of an appeal from the judg- ment is not a bar to an appeal from an order afterward made refusing appellant's motion for a new trial. Fulton v. Hanna, 40 Cal. 278; Fulton v. Cox, 40 Cal. 101. In Louisiana, while the dismissal of an ap- peal will not, in all cases, be the final con- firmation of the judgment appealed from, as appellant may, under certain circumstances, be permitted to take another appeal (John- son v. Jennison, 18 La. Ann. 190), it has been held that the dismissal of an appeal to the supreme court, on legal grounds, renders the judgment appealed from, so far as respects that particular case, as final as though it were affirmed, and precludes a subsequent appeal therefrom to the court of appeals. State v. Judges Ct. of Appeals, 33 La. Ann. 151. In New Jersey, in Garr v. Paulmier, 21 N. J. L. 681, it was held that where a cause has been removed to the supreme court by a writ of error, and the writ has been dis- missed for want of prosecution, the plaintiff in error cannot afterward remove the cause to the court of errors and appeals by writ of error. Dismissal for failure to print record has APPEAL AND ERROR 529 dismissed without prejudice, its prosecution will not bar a second appeal. 49 In some jurisdictions there are express statutory enactments providing that a second appeal or writ of error shall not be allowed after a dismissal of the firstj 50 that the dismissal of the first proceeding shall operate as an affirmance of the judgment, 51 and that, on a failure to take a prescribed step in the appellate proceedings, the judgment shall be affirmed. 62 3. Where First Proceeding Has Been Abandoned. Au attempted appeal which is not perfected 5S may be abandoned, and, if the time for taking an appeal or suing out a writ of error has not expired, another appeal or writ of error may be prosecuted. 54 Thus it has been held in Texas that, where an appeal is taken in a been held to be a bar to a second writ on the same record, assigning the same error. Kail- road Co. v. Belt, 36 Ohio St. 93. Third appeal. — Even though a statute pro- vides that an appeal which has been dis- missed for a particular cause may be renewed at any time within five years from the date of the judgment, it has been held that, while the statute authorizes the renewal of an ap- peal once after such dismissal, it does not authorize a third appeal. Perry v. Horn, 21 W. Va. 732. 49. Anthony v. Grand, 99 Cal. 602, 34 Pac. 325, holding this to be the proper rule, even though an order was inadvertently made ab- solutely dismissing the first appeal. 50. Colorado. — See McMiehael v. Groves, 14 Colo. 540, 23 Pac. 1006, to the effect that, under a statute providing that " the dis- missal of an appeal may, by order of the court, be made without prejudice to another appeal or writ of error," unless the order of dismissal expressly reserves the right, the judgment stands affirmed,, and a further re- view, either by appeal or error, cannot be had. Louisiana.— See Llula's Succession, 42 La. Ann. 475, 7 So. 585 ; World's Industrial, etc., Exposition v. Crescent City K. Co., 39 La. Ann. 355, 1 So. 791, to the effect that, under a code of practice which provides that, after an appeal has been abandoned, it cannot be re- newed, the failure of a party who has taken an appeal to file the transcript in due time amounts to an abandonment, and the ap- peal cannot be renewed. Maryland. — See Meloy v. Squires, 42 Md. 378, to the effect that, where a statute au- thorizes the striking out of the entry of an appeal, if the appellant fails to file the record within a prescribed time, and provides that no appeal or writ of error shall thereafter be allowed, the dismissal of an appeal for fail- ure to file the record in due season will, of course, be a bar to a second appeal or writ of error. Mississippi. — See Smith v. Union Bank, 13 Sm. & M. (Miss.) 240, 241, to the effect that, under a statute which provides that " after the dismission of an appeal, writ of error, or supersedeas, in the supreme court, no appeal, writ of error, or supersedeas shall be al- lowed," it has been held that, after an appeal has been dismissed because of the negligence of the appellant in filing his record, he can- not afterward sue out a writ of error. And [34] this provision has been applied to a dismissal for defective record (Sherman v. Lovejoy, 30 Miss. 105), and to a dismissal for want of prosecution (Merrill v. Hunt, 52 Miss. 774). But it has been held that where the dismissal results, not from the fault of the party, but from some irregularity over which he had no control, such as the insufficiency of the ap- peal bond as prepared by the clerk, or by accident, or by death of the appellant, the statute does not apply, and the dismissal does not bar a writ of error. Bull v. Harrell, 7 How. (Miss.) 9. Virginia. — See Sites v. Wieland, 5 Leigh (Va.) 80, to the effect that, under a statute which provides that after a dismissal of an appeal, writ of error, or supersedeas in the court of appeals, no appeal, writ of error, or supersedeas shall be allowed, a second appeal is, of course, barred by the dismissal of the first. 51. Owsley v. Warfield, 7 Mont. 264, 265, 17 Pac. 74 (where the order dismissing the appeal was in absolute terms ) ; Fahey v. Belcher, (Ida. 1893) 32 Pac. 1135 (where the appeal was dismissed for failure to file the requisite papers) — both eases being decided under a statute providing that " the dis- missal of an appeal is in effect an affirmation of the judgment or order appealed from, un- less the dismissal is made without prejudice to another appeal." 52. Johns, v. Phoenix Nat. Bank, (Ariz. 1899) 56 Pac. 725. Thus, where the judg- ment below has been affirmed, pursuant to statute, for the failure to file the transcript of the record in due time, the judgment, can- not thereafter be reviewed upon a writ of error. Brummel v. Phillips, 79 Mo. App. 116, 2 Mo. App. Bep. 361 ; Schnaider's Brewing Co. v. Tewie, 41 Mo. App. 584. And where a judgment has been affirmed for want of prosecution of the appeal or writ of error, a second writ of error to bring up the same record cannot be obtained. Cowen v. Shepley, 9 Mo. App. 594. 53. In Oregon it has been held that, when a party perfects an appeal and then aban- dons it, his right of appeal is exhausted and cannot be exercised a second time. Schmeer v. Schmeer, 16 Oreg. 243, 17 Pac. 864. 54. Osborn v. Logus, 28 Oreg. 302, 37 Pac. 456, 38 Pac. 190, 42 Pac. 997; Van Auken v. Dammeier, 27 Oreg. 150, 40 Pac. 89; Holla- day v. Elliott, 7 Oreg. 483 ; and 2 Cent. Dig. tit. "Appeal and Error," § 51. Vol. II 530 APPEAL AND ERROR case in which both the remedy by appeal and by writ of error are available, but the appeal does not in any way obstruct the enforcement of the judgment, 55 and is not prosecuted, it does not have the effect of precluding appellant from subse- quently suing out a writ of error within the time limited by statute. 56 4. Where First Proceeding Is Ineffectual. It has been held that, where the first proceeding is ineffectual and does not bring up the full merits of the case for review, a second proceeding may be brought even before there has been a formal dismissal of the first. 57 5. Where First Proceeding Is Not Proper Remedy. A former proceeding in chancery to enjoin the collection of the judgment which has been dismissed for want of jurisdiction is not a bar to a writ of error, when that is the proper remedy in the action. 58 6. Where First Proceeding Is Void Though Not Dismissed. Where an appeal has been taken but not duly prosecuted, as where the record is not filed within the proper time, so that the appeal is of no avail, a second appeal, it seems, may be taken just as it could if the appellee had docketed the first and had it dismissed. 59 G. Cross-Appeals and Writs of Error. 60 "Where a system of appellate procedure has been adopted which contemplates both the remedies by appeal and by writ of error, but makes no provision for the assignment of cross- errors, one party may appeal and the other prosecute a writ of error from the same judgment, and on the same record. 61 The statutes relating to appeals, however, often provide for cross-appeals. Under the provisions of these stat- utes it has been held that a cross-appeal will not be allowed from a judg- ment which is wholly distinct from that upon which the appeal is based ; ffi or In Maryland it has been held that, where an appeal is prayed and allowed and then withdrawn, the party is not precluded, if nothing more is done, from afterward prose- cuting an appeal, provided he does so within the time allowed by law for appeals to be taken. Ward v. Hollins, 14 Md. 158. But where he withdraws or countermands his ap- peal, and then takes out execution bond on judgment, he cannot afterward appeal in the same case. Hay v. Jenkins, 28 Md. 564. This rule has been applied where the ap- peal has been abandoned by reason of its not being perfected in time (Cahill v. Cant- well, 31 Nebr. 158, 47 N. W. 849; Steele v. Haynes, 20 Nebr. 316, 30 N. W. 63 ; Poag v. Rowe, 16 Tex. 590), as by failing to file the record at the proper time (Smith v. Morrill, 11 Colo. App. 284, 52 Pac. 1110), or failing to give the undertaking required by statute (Kelsey v. Campbell, 38 Barb. (N. Y.) 238). 55. If the appeal suspends the right to en- force the judgment, it seems that a writ of error, returnable to » term subsequent to that to which the appeal was returnable, should not be allowed. See Thompson v. An- derson, 82 Tex. 237, 18 S. W. 153. 56. Thompson v. Anderson, 82 Tex. 237, 18 S. W. 153; Eppstein v. Holmes, 64 Tex. 560. Limits of the Texas rule. — It has been held that this privilege of abandoning am ap- peal and suing out a writ of error is sub- ject to the right of the appellee to have the judgment affirmed on certificate. Scottish Union, etc., Ins. Co. v. Clancy, 91 Tex. 467, 44 S. W. 482; Hall v. La Salle County, (Tex. Civ. App. 1898) 40 S. W. 863; Morris v. Mor- Vol. II gan, (Tex. Civ. App. 1898) 46 S. W. 667. An appeal duly perfected cannot be abandoned and a writ of error sued out after the lapse of time for filing the transcript, and thus pre- vent an affirmance on certificate. Blackman v. Harry, (Tex. Civ. App. 1898) 45 S. W. 610. 57. Quinebaug Bank v. Tarbox, 20 Conn. 510; Glasser b. Hackett, 37 Fla. 358, 20 So. 532, Mabry, C. J., dissenting, on the ground that the failure of the first writ of error to accomplish its purpose was attributable solely to the laches of plaintiff in error in failing to file his briefs within the time prescribed by the rules of court. 58. Breckinridge v. Coleman, 7 B. Mon. (Ky.) 331. 59. Evans v. State Nat. Bank, 134 U. S. 330, 10 S. Ct. 493, 33 L. ed. 917. In Arkansas, however, it has been held that a party who has taken an appeal, with supersedeas, and failed to prosecute it, must docket the appeal in the supreme court, and dismiss it, before he can take a second, ap- peal or writ of error (Kinner v. Dodds, 35 Ark. 29; Yell c. Outlaw, 14 Ark. 413); though it is not necessary that this should be done where the first proceeding does not operate as a supersedeas (Hanna v. Pitman, 25 Ark. 275, holding that, where an appeal has been prayed for and granted without the requisite affidavit having been filed or waived, a writ of error may be sued out to review the judgment appealed from). 60. See 2 Cent. Dig. tit. "Appeal and Error," §§ 48-58. 61. Harding v. Larkin, 41 111. 413. 62. Brown v. Vancleave, S6 Ky. 381, 9 Ky. L. Rep. 593, 6 S. W. 25. APPEAL AND ERROR 531 in behalf of one appellee against the appellant, and not against his co-appellee or co-appellees. 63 H. Double Appeals. A party will not be permitted to bring two appeals when he can obtain upon one all the relief to which he is entitled. 64 But, where two appeals have been made from the same order, they have sometimes been entertained and treated as one appeal. 65 1. Joinder of Proceedings — 1. To Review Separate Actions. Two separate and distinct causes, which have not been consolidated in the trial court, 66 cannot be brought up for appellate review by one appeal, 67 or by one writ of error. 68 2. To Review Separate Judgments or Orders. As a general rule, two separate judgments, decrees, or orders cannot be brought up for appellate review by one 63. Gaar v. Louisville Banking Co., 11 Bush (Ky.) 180, 21 Am. Rep. 209; Smith v. Northern Bank, 1 Mete. (Ky.) 575; Gilbert v. Moody, 18 Ky. L. Rep. 312, 36 S. W. 523 ; McKay v. Mayes, 17 Ky. L. Rep. 827, 32 S. W. 606 ; Overby v. Rogers, 12 Ky. L. Rep. 289; Worthington v. Covington Roller Skat- ing Rink Co., 10 Ky. L. Rep. 363; Miller v. Miller, 7 Ky. L. Rep. 359; Home Ins. Co. v: Gaddis, 3 Ky. L. Rep. 159. From a judgment in favor of one defend- ant, another defendant, against whom judg- ment was rendered,, is not entitled to a cross- appeal. Horter v. Herndon, 12 Tex. Civ. App. 637, 35 S. W. 80, decided under a rule of court providing for cross-appeals. But it is otherwise under the code system, under which judgment can be entered determining the rights of the parties on each side as be- tween themselves, as well as against the opposite party. Clark's Code Civ. Proc. N. C. (1900), §§ 424, 547. 64. Hopkins v. Hopkins, 39 Wis. 166; Young v. Groner, 22 Wis. 205; and 2 Cent. Dig. tit. "Appeal and Error," § 60. Extent and limits of rule. — Where the orphans' court by one decree disposes of sev- eral claims growing out of the settlement of a trustee's account, it is irregular to take more than one appeal, since only one appeal is allowed from the same decree. Robert's Appeal, 92 Pa. St. 407. An appeal from the or- der of a surrogate, and one from his decision refusing to set aside such order, as irregular, are inconsistent, and cannot be maintained at the same time. Skidmore v. Davies, 10 Paige (N. Y.) 316. The rule against double appeals does not apply, however, where, by statute, an appeal is allowed from a judg- ment and another appeal from the order denying a motion on a new trial. Hawkins V. Hubbard, 2 S. D. 631, 51 N. W. 774. [dis- tinguishing Hackett v. Gunderson, 1 S. D. 479, 47 N. W. 546]. Where, in a consolidated action, each de- fendant brings error, and a writ of error is also sued out by them jointly, the latter is superfluous, and may be dismissed without costs. New York Mut. L. Ins. Co. v. Hillmon, 145 TJ. S. 285, 12 S. Ct. 909, 36 L. ed. 706. 65. In re Davis, 11 Mont. 1, 27 Pac. 342. 66. Bramell v. Adams, 146 Mo. 70, 47 S. W. 931, to the effect that where cases were tried together, and the same evidence was received by consent in all, and a single decree entered, and the pleadings, taken together, made issues to which the decree was re- sponsive, the eases were treated, on appeal, as if an order of consolidation had been made. 67. Harris v. Harris, 2 R. I. 538; and 2 Cent. Dig. tit. "Appeal and Error," § 59. Extent of rule. — Separate petitions were filed by purchasers of separate tracts of land, against an administrator, for writs of assist- ance, and separate answers and replies filed. No order consolidating the causes was made, but the record recited that, by agreement, the evidence was heard at the same time in both matters, and that the findings of facts and conclusions of law should be embodied in one instrument, with the same effect as if found separately in each case. It was held that defendant could not incorporate both causes in one transcript and one appeal. Roach v. Baker, 145 Ind. 330, 43 N. E. 932, 44 N. E. 303. But it has been held that an appeal by an administrator from an order of the district court, on appeal from the pro- bate court, sustaining objections to his final report, and from a decree of distribution sub- sequently entered, is not objectionable on the ground that two separate actions are united in one appeal. In re Dewar, 10 Mont. 422, 25 Pac. 1025. Parties to separate suits cannot, by agree- ment for their trial together in the lower court, authorize their trial together in the appellate court. Mohr v. Cochran, (Tex. Civ. App. 1899), 49 S. W. 677. 68. Thus it has been held that, though sev- eral causes are between the same parties and a consolidated affidavit of defense is filed, a separate writ of error is necessary in each case. Hollohan v. M'Lean, 1 Wkly. Notes Cas. (Pa.) 262. But compare Powers v. Lil- lie, Kirby (Conn.) 160, wherein it was held that two judgments, rendered on suits of a like kind and depending on similar principles, may be joined in the same writ of error. In Brown v. Spofford, 95 U. S. 474, 24 L. ed. 508, the United States supreme court con- demned, as irregular, proceedings whereby defendant, in two separate suits, in the former of which judgment had been rendered before the latter had gone to trial, was permitted to file bills of exception purporting to be appli- cable to each ease, and, without consolidat- ing, remove them to the appellate court by one writ of error. Vol. II 532 APPEAL AND ERE OB writ of error or one appeal, 69 especially where the parties necessary and proper to a review of one of the judgments would not be proper parties to a review of the other. 70 But it has been held that, for the purpose of an appeal, an_ order con- firming a sale in a foreclosure suit and an order for a judgment for deficiency may be considered as one, though, in fact, entered separately. 71 J. Splitting Appeals. Since a party can, as a general rule, only appeal from final judgments and orders, 72 he cannot divide a case into parts and carry it up by fragments, 73 especially when the final judgment is allowed to stand affected by the appeal. 74 But, where two judgments in an action are distinct and several, there may be an appeal from one, and not the other. 75 69. Alabama. — De Sylva v. Henry, 4 Stew. & P. (Ala.) 409. Colorado. — Vance v. Maroney, 3 Colo. 293. Connecticut. — Richardson v. Richardson, 2 Root (Conn.) 159. Contra, Clark v. Warner, 6 Conn. 355 ; Seely v. Staples, 2 Root ( Conn.) 74. Pennsylvania. — Cauley v. Pittsburgh, etc., R. Co., 95 Pa. St. 398, 40 Am. Rep. 664. South Dakota. — Anderson v. Hultman, 12 S. D. 105, 80 1ST. W. 165. Texas. — Renn v. Samos, 42 Tex. 104 ; Moore v. Harris, 1 Tex. 36. Virginia. — Ayers v. Lewellin, 3 Leigh (Va.) 609. Wisconsin. — American Button-Hole, etc., Co. v. Gurnee, 38 Wis. 533; Noble v. Strachan, 32 Wis. 314. But see Geddes' Succession, 36 La. Ann. 963, wherein it was held that where three separate issues are made in the settlement of a succession, all tending to one conclusion, and are the subjects of separate judgments, they may all be brought up in a single ap- peal, and with one appeal bond. Also Terry v. Chandler, 23 Wis. 456, wherein the action, which was by creditors against stock-holders, to enforce their personal liability, was dis- continued, and each of defendants, who had filed separate answers by the same attorney — the issue presented in each being as to the amount due the corporation from the person answering — taxed in his own favor a full bill of costs, and it was held that only a single motion for retaxation was required, and a single appeal from an order denying the motion. Appeal should be dismissed for duplicity when taken from two judgments, or from two appealable orders, or from a judgment and an appealable order (Ballou v. Chicago, etc., R. Co., 53 Wis. 150, 10 N. W. 87) ; but in order that an appeal may be dismissed for duplicity it must embrace two distinct appealable adjudications (Ballou v. Chicago, etc., R. Co., 53 Wis. 150, 10 N. W. 87, wherein it was held that an appeal in form from a judgment and from an order made in the action before judgment is single and valid ) . 70. It has accordingly been held that the decree confirming sale of real estate for par- tition, and the subsequent decree of dismissal of the petition of one of the cotenants, a life- tenant, for payment to her of the value of her life-estate, cannot properly be taken up for review by a single appeal, each being a final Vol. II decree, and the necessary and proper parties to appeals therefrom being different. Kelly v. Deegan, 111 Ala. 152, 20 So. 378. 71. Cord v. Hirsch, 17 Wis. 403. So, in Texas, it has been held that, while a judgment allowing or disallowing a claim in a suit in which a receiver has been ap- pointed is appealable, an appeal may be taken, in one proceeding, from the general judgment and the special decrees rendered at the same term in favor of intervening cred- itors, by making all persons adversely in- terested parties to the appeal. Metropolitan Trust Co. v. Farmers', etc., Nat. Bank, 89 Tex. 329,* 34 S. W. 736. 72. See infra, III. 73. MeGehee v. Tucker, 122 N. C. 186, 29 S. E. 833; Davis v. Ely, 100 N. C. 283, 5 S. E. 239; Beaufort v. Satehwell, 88 N. C. 1; Hines v. Hines, 84 N. C. 122; and 2 Cent. Dig. tit. "Appeal and Error," § 60. 74. Thus, where there were two judgments — one for defendant, on an issue of law, raised by demurrer, that plaintiff recover in- terest; and the other, upon an issue of fact, which was for plaintiff, that he recover the principal on a bond — it was held that plain- tiff could not divide the case into two parts by appealing from the judgment on the de- murrer. Anderson r. Moberly, 46 Mo. 191. 75. Couder's Succession, 47 La. Ann. 810, 17 So. 317. Thus it has been held that where a, landlord obtained a judgment fixing a lien upon certain chattels, and an intervener ob- tained a judgment foreclosing a mortgage on the same chattels, the defendant may appeal from one judgment without appealing from the other. Constantine v. Fresche, 17 Tex. Civ. App. 444, 43 S. W. 1045. This rule will be applied even though there has been a consolidation of causes, if separate judgments are entered in each cause (Mills v. Paul, (Tex. Civ. App. 1895) 30 S. W. 242)'; or where two cases are heard together in the trial court, if the interests of the plain- tiffs in one of the suits do not conflict with the interests of the plaintiffs in the other (Hall v. Virginia Bank, 14 W. Va. 584). An order in a case directed a reference to the same referee who was acting on two other cases, and recited that, " on the coming in of the said referee's report, ^ the case shall then be heard in connection with one of the other cases affecting the same property." It was held that such order did not consolidate the two cases thus heard together, and that an appeal from the judgment in one of the APPEAL AND ERROR 533 II. REQUISITIES OF APPELLATE JURISDICTION. 76 A. Actual Controversy Must Exist — 1. General Rule Stated. It may be stated as a general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction. 77 2. Abstract Questions. Hence it is not within the province of appellate courts to decide abstract or hypothetical questions, disconnected from the grant- ing of actual relief, 78 or from the determination of which no practical result can follow. 79 3. Fictitious Proceedings. For the same reason an appellate court will not consider a fictitious case, submitted merely for the purpose of testing the right to do a particular thing. 80 4. When Decision of Question Has Been Rendered Ineffective — a. In General. So, if, pending an appeal, an event occurs which renders it impossible for the appellate court to grant any relief, the appeal will be dismissed. 81 b. By Act of Appellant. Such a condition may arise by the act of the appellant himself. 82 cases would not be dismissed for failure to appeal in the other. Lee v. Buck, 13 S. C. 178. 76. For dismissal of proceedings for want of jurisdiction see also infra, XIV. 77. Carter v. Graves, 12 N. C. 74; Pelham v. Rose, 9 Wall. (U. S.) 103, 19 L. ed. 602; and 2 Cent. Dig. tit. "Appeal and Error," § 63. But, under the Louisiana constitution, it is not necessary that there should be technical conte'statio litis in order to give the supreme court jurisdiction. Clark's Succession, 11 La. Ann. 124. 78. Murphy v. Boston, etc., E. Co., 110 Mass. 465; Capen v. Washington Ins. Co., 12 Cush. (Mass.) 517; Smith v. Cudworth, 24 Pick. (Mass.) 196; Matter of Woodworth, 64 Hun (N. Y.) 522, 19 N. Y. Suppl. 525, 46 N. Y. St. 432; Grow v. Garlock, 29 Hun (N. Y.) 598; and 2 Cent. Dig. tit. "Appeal and Error," § 64. 79. Indiana. — State v. Grant County, 153 Ind. 302, 54 N. E. 809. Louisiana. — State v. Otero, 52 La. Ann. 1, 26 So. 812. Massachusetts. — Murphy v. Boston, etc., R. Co., 110 Mass. 465. New Hampshire. — Hazen v. Concord It. Co., 63 N. H. 390. New York. — People v. Squire, 110 N. Y. 666, 18 N. E. 362. North Carolina. — Blake v. Askew, 76 N. C. 325. United States. — Pelham v. Rose, 9 Wall. (U. S.) 103, 19 L. ed. 602. That the questions involved are of great public importance does not seem to change the rule (Chicago, etc., R. Co. v. Dey, 76 Iowa 278, 41 N. W. 17; State v. Waggoner, 88 Tenn. 290, 12 S. W. 721); though the contrary has been held in New York in re- spect to questions arising under the election laws (Matter of Madden, 148 N. Y. 136, 42 N. E. 534; Matter of Cuddeback, 3 N. Y. App. Div. 103, 39 N. Y. Suppl. 388). 80. Lincoln v. Aldrich, 141 Mass. 342, 5 N. E. 517; Port Gibson Bank v. Dickson, 4 Sm. & M. (Miss.) 689; Blake v. Askew, 76 N. C. 325; Berks County v. Jones, 21 Pa. St. 413. See also Fletcher v. Peck, 6 Cranch (U. S.) 87, 3 L. ed. 162; and 2 Cent. Dig. tit. "Appeal and Error," § 66. Proof that the action is not feigned will be required when the court has reason to be- lieve that the case is a fictitious one. Peo- ple v. Leland, 40 111. 118; Spraggins v. Houghton, 3 111. 211; McConnell v. Shields, 2 111. 582. 81. Vance County v. Gill, 126 N. C. 86, 35 S. E. 228; Herring v. Pugh, 125 N. C. 437, 34 S. E. 538; Colvard v. Graham County, 95 N. C. 515 ; Duquesne v. Cole, 7 Fa. Super. Ct. 474; Jackson v. Daugherty, (Tex. Civ. App. 1894) 26 S. W. 1116; Watson v. Merkle, 21 Wash. 635, 59 Pac. 484; Mills v. Green, 159 U. S. 651, 16 S. Ct. 132, 40 L. ed. 293; Meyer v. Pritchard, 131 U. S. ceix, appendix, 23 L. ed. 961 — from which cases it appears that the occurrence of such event may be shown by extrinsie evidence when it does not appear in the record. See 2 Cent. Dig. tit. "Appeal and Error," § 68 et seq.; and infra, IV, A, 1. Thus, where the refusal of an injunction to restrain the making of a deed is sought to be reviewed on writ of error, the writ will not be dismissed on a suggestion of defend- ant's counsel, supported by affidavit that the deed has been executed and delivered since the writ of error was brought. Kirtland v. Macon, 62 Ga. 747. 82. Woodruff v. Austin, 16 Misc. (N. Y.) 543, 38 N. Y. Suppl. 787, 74 N. Y. St. 138, holding that if the appellant, by his own act, has deprived himself of any advantage to be gained by a reversal, his appeal will be dis- missed. This rule has been applied where, pending the appeal or after suing out of a writ of error, appellant obeyed commands of writ after having appealed from the order grant- ing it (State v. Napton, 10 Mont. 369, 25 Pac. 1045; People v. Board of Education, 57 Hun (N. Y.) 594, 11 N. Y. Suppl. 296, 33 N. Y. St. 30) ; where appellant, on appeal Vol. II 534 APPEAL AND ERROR e. By Act of Appellee. Such a condition may likewise arise by the act of the appellee, as where, pending the appeal, he does, or relinquishes the right to do, some act in respect to which the appeal was taken. 83 d. By Act of Court A Quo. This condition may arise from the act of the court a quo, as where, pending the appeal, some order or judgment issued in the case renders the determination of the questions presented by the appeal unnecessary. 84 from a judgment dismissing without preju- dice a foreclosure proceeding, commenced an- other suit (Hoskins i. MeGirl, 12 Mont. 246, 29 Pac. 1120) ; where non-resident defendant gave general notice of appearance in an ac- tion after appealing from the order denying his motion to set aside personal service of sum- mons on the ground that he was attending as a witness in the state (Woodruff v. Austin, 16 Misc. (N. Y.) 543, 38 N. Y. Suppl. 787, 74 N. Y. St. 138) ; where plaintiff in error in ejectment recognized defendant's title by tak- ing a conveyance from him of the premises in controversy (Panko v. Irwin, 14 Nebr. 419, 16 N. W. 436) ; where taxes, the collection of which was sought to be enjoined, were paid ( Wallace r. Indianapolis, 40 Ind. 287 ; Singer Mfg. Co. r. Wright, 141 U. S. 696, 12 S. Ct. 103, 35 L. ed. 906; Little v. Bowers, 134 U. S. 547, 10 S. Ct. 620, 33 L. ed. 1016; Tombov Gold-Mines Co. v. Brown, 74 Fed. 12, 36 U. S. App. 580, 20 C. C. A. 264) ; where the action was dismissed in the lower court (Burnett r. Fouchg, 79 Ga. 377, 4 S. E. 900; Russell D. Campbell, 112 N". C. 404, 17 S. E. 149; Pritchard v. Baxter, 108 N. C. 129, 12 S. E. 906). But see Beatty v. Coble, 142 Ind. 329, 41 Is . E. 590, wherein it was held that the fact that, pending an appeal from a judgment for defendant in an action to enjoin him from practising medicine in a specified territory under a covenant not to practise therein, ap- pellant moved to another city was no ground for dismissing the appeal where it appeared that the two cities were in neighboring coun- ties, and appellant retained his practice in the former city. 83. Wallingford v. Benson, 17 S. C. 591; Foote v. Smith, 8 Wyo. 510, 58 Pac. 898 ; and 2 Cent. Dig. tit. "Appeal and Error," § 70 et seq. This rule has been applied where, pending appeal, appellee discontinued or dismissed the suit below (Chicago, etc., R. Co. v. Dey, 76 Iowa 278, 41 N. W. 17 ; Spaulding v. Milwau- kee, etc., R. Co., 12 Wis. 607 ) ; where appel- lee discontinued the use of a name sought to be enjoined (Commercial Union Ins. Co. v. Smith, 61 Hun (N. Y.) 625, 16 N. Y. Suppl. 114, 40 N. Y. St. 758 [affirming 2 N. Y. Suppl. 296, 18 N. Y. St. 151] ) ; where an ex- ecutor (the appellee), was discharged by the court below upon his own petition, appellant having appealed from an order refusing to remove the executor (Hallowell's Appeal, 20 Pa. St. 215) ; where remittitur of record was entered of the amount claimed by appellant to be excessive (Wilson v. Russell, 40 Iowa 697 ) ; where restitution was made by appel- lee of the property in controversy (Russell v. Vol. II Campbell, 112 N. C. 404, 17 S. E. 149, and compare Morgan v. Griffin, 6 111. 565, wherein an appeal, taken on a trial of the right of property before the sheriff, was properly dis- missed on motion, founded on an uncontra- dicted affidavit of the sheriff that the prop- erty in question had been sold with the as- sent of the claimant, and that the proceeds thereof remained in the sheriff's hands sub- ject to the order of the claimant ) . After appeal from removal of tutrix, if the minor marries, thereby emancipating herself, the appeal, being thus without an object, will be dismissed. Matter of Wilds, 6 Rob. (La.) 31. 84. Lambert v. Snow, 9 Abb. Pr. (N. Y.) 91, 17 How. Pr. (N. Y.) 517; Paris Electric Light, etc., Co. v. Martin, (Tex. Civ. App. 1895) 31 S. W. 243; and see 2 Cent. Dig. tit. "Appeal and Error," § 71 et seq. This rule will be applied where, pending appeal, the lower court dismisses the action (Swan Tp. r. McCIannahan, 53 Ohio St. 403, 42 N. E. 34) ; makes final determination in favor of appellant who has appealed from a judgment on a rule (Palmer v. Day, 5 Rob. (La.) 182) ; quashes the assessment under which a sale is sought to be enjoined (Wash- ington Market Co. v. District of Columbia, 137 U. S. 62, 11 S. Ct. 4, 34 L. ed. 572) ; ren- ders final judgment for plaintiff, where de- fendant has appealed from an order not en- tered until after trial resulting in the final judgment (Brackett c Griswold, 46 Hun (N. Y.) 442) ; renders final judgment in an action where one party has appealed from an order granting or refusing an injunction af- fecting only proceedings prior to judgment (Prentice Brownstone Co. v. King, 39 Nebr. 816, 58 N. W. 277; Watertown v. Cowen, 4 Paige (N. Y.) 510, 27 Am. Dec. 80; Pritch- ard v. Baxter, 108 N. C. 129, 12 S. E. 906) ; supersedes an order appealed from by a judg- ment rendered on a subsequent trial of the action (Milbank v. Jones, 4 Misc. (N. Y.) 613, 24 N. Y. Suppl. 356, 53 N. Y. St. 523) ; vacates judgment appealed from (Duryea v. Fueehsel, 145 N. Y. 654, 40 N. E. 204). When, after a decree directing an execu- trix to sell lands, an order refusing to set aside the decree at the instance of a creditor is made, from which order an appeal is taken, and the court, on the day the order is made, revokes the letters of the executrix, appoints an administrator de bonis non, and directs him to sell the land, the order becomes inop- erative, and, as a reversal would be a purely nugatory act, the appeal will be dismissed. Gloucester City v. Greene, 45 N. J. Eq. 747, 18 Atl. 81. Where there are separate appeals from a APPEAL AND ERROR 535 e. By Aet of Law. This condition may also arise by act of law. 85 f. By Lapse of Time. Mere lapse of time may create this condition, 86 as where, pending an appeal from the order of court in a case involving the infringe- ment of a patent, the acts or tenure of a public or election officer, or other matter, the patent expires, 87 the official term comes to an end, 88 the election is held, 89 or an order of court is executed. 90 5. When Interest of Litigants Ceases to Be Adverse. Similarly, where a litigation has ceased to be between parties having adverse interests, the case falls within the rule. 91 6. Where Costs Only Are Involved. Where all substantial interest in the controversy has been parted with or extinguished, the court will not hear the appeal merely to determine the right to costs. 98 judgment, and from an order refusing to va- cate it, the judgment having been reversed the other appeal will be dismissed. Wiscon- sin River Lumber Co. v. Plumer, 49 Wis. 668, 6 N. W. 320. 85. Thus, in a case where a bill was filed to rescind a deed for a slave on an allegation of fraud, upon the emancipation of the slave by act of law the court declined to hear the cause, and ordered the bill to be dismissed without prejudice, and that each party should pay his own costs, as if the suit had abated. Kidd v. Morrison, 62 N. C. 31. 86. See 2 Cent. Dig. "tit. " Appeal and Er- ror," § 69. 87. Gamewell Fire-Alarm Tel. Co. v. Mu- nicipal Signal Co., 61 Fed. 208, 21 U. S. App. 1, 9 C. C. A. 450. 88. People v. Troy, 82 N. Y. 575 ; People v. Grace, 49 Hun (N. Y.) 607, 1 N. Y. Suppl. 661, 16 N. Y. St. 1011 ; Colvard v. Graham County, 95 N. C. 515; Cantwell v. Williams, 35 S. C. 602, 14 S. E. 549; Gordon v. State, 47 Tex. 208; McWhorter v. ttorthcutt, (Tex. 1900) 58 S. W. 720. 89. Matter of Manning, 139 N. Y. 446, 34 N". E. 931, 54 N. Y. St. 706 ; Matter of Schlue- ter, 47 N". Y. App. Div. 621, 62 N. Y. Suppl. 375; Mills v. Green, 159 U. S. 651, 12 S. Ct. 132, 40 L. ed. 293. 90. Cheong Ah Moy v. U. S., 113 TJ. S. 216, 5 S. Ct. 431, 28 L. ed. 983. Thus a writ of error, sued out to a judg- ment refusing to enjoin a sale, will be dis- missed when it appears that no supersedeas was obtained, and that the sale has conse- quently taken place. Thornton v. Manchester Invest. Co., 97 Ga. 342, 22 S. E. 987. 91. Gardner v. Goodyear Dental Vulcanite Co., 131 U. S. ciii, appendix, 21 L. ed. 141; East Tennessee, etc., R. Co. v. Southern Tel. Co., 125 U. S. 695, 8 S. Ct. 1391, 31 L. ed. 853 ; American Wood Paper Co. v. Heft, 8 Wall. (U. S.) 333, 19 L. ed. 378; Arnold v. Wolsey, 54 Fed. 268, 12 U. S. App. 157, 4 C. C. A. 319; and 2 Cent. Dig. tit. "Appeal and Error," § 67 et seq. But compare Gross v. Shaffer, 29 Kan. 442, holding that, where an ejectment suit is pend- ing in the supreme court, and plaintiff in error purchases the interest of defendant in error in the property in controversy, but does not agree to dismiss his petition in error or to pay any costs in the ease, these faots do not of themselves confer upon de- fendant the right to have the case dismissed from the supreme court. Attorney's speculation. — Where it appears, on defendant's appeal, that the nominal plaintiff did not authorize the suit, but that it was an attorney's speculation, the case will be dismissed. Gresham v. Chantry, 69 Iowa 728, 27 N. W. 752. Death of party. — An appeal will be dis- missed if it appears that the nominal plain- tiff or appellant was dead at the time of the institution of the suit. Kerr v. Hays, 9 La. Ann. 241. Upon the same principle, if it appears, from affidavits and other evidence filed in be- half of persons not parties to a suit, that an appeal is not conducted by parties having adverse interests, but for the purpose of ob- taining a decision to affect interests of per- sons not parties, the appeal will be dismissed. Chamberlain v. Cleveland, 1 Black (U. S.) 419, 17 L. ed. 93; Lord v. Veazie, 8 How. (U. S.) 251, 12 L. ed! 1067. Thus, in South Spring Hill Gold Min. Co. v. Amador Medean Gold Min. Co., 145 U. S. 300, 12 S. Ct. 921, 36 L. ed. 712, the supreme court refused to ad- judicate between two corporations which, after judgment below, had come under the control of the same persons, as the contro- versy then ceased to be a real one. 92. Eastburn v. Kirk, 2 Johns. Ch. (N. Y.) 317 ; Taylor v. Vann, 127 N. C. 243, 37 S. E. 263 ; Vance County v. Gill, 126 N. C. 86, 35 S. E. 228; Herring v. Pugh, 125 N. C. 437, 34 S. E. 538 ; Gray v. Atlantic, etc., R. Co., 77 N. C. 299; State v. Richmond, etc., R. Co., 74 N. C. 287; State v. Sloan, 69 N. C. 128; State v. Loomis, (Tex. Civ. App. 1895) 29 S. W. 415 ; Bolton v. San Antonio, 4 Tex. Civ. App. 174, 23 S. W. 279. Contra, Harrington v. Plainview, 27 Minn. 224, 6 N. W. 777; James v. Wilder, 25 Minn. 305. See 2 Cent. Dig. tit. "Appeal and Error," § 79. As to right of appeal from judgment for costs see infra, III, D, 3, e. Retention to award costs. — Where a trial court granted mandamus, with costs, and de- fendant, after a denial of his motion for a stay pending an appeal, complied with the writ and paid the costs, it was held error for the general term to dismiss the appeal on the ground that, as the writ had been complied with, there was no practical question, as the Vol. II 536 APPEAL AND ERROR B. Consent of Parties — 1. Cannot Confer Jurisdiction. No mere agreement of the parties, or waiver of objection, can confer jurisdiction upon an appellate court where it has none over the subject-matter of the suit, 93 where the amount in controversy is not sufficient to confer jurisdiction, 94 where there has been no final adjudication of the case in the court below, 95 where there has been no formal appeal from the judgment of the court below, 96 or where the time question of costs paid by defendant was to be determined, and the case should have been ex- amined on the merits. Martin v. W. J. John- ston Co., 128 N. Y. 605, 27 N. E. 1017, 38 N. Y. St. 885 [.reversing 59 Hun (N. Y.) 622, 12 N. Y. Suppl. 844, 36 N. Y. St. 531]. 93. Alabama.— Little v. Fitts, 33 Ala. 343 ; Johnston v. Fort, 30 Ala. 78. California. — Brooks v. Calderwood, 19 Cal. 124. Colorado. — Gordon v. Gray, 19 Colo. 167, 34 Pac. 840 ; Harvey v. Travelers Ins. Co., 18 Colo. 354, 32 Pae. 935; McClaskey v. Lake View Min., etc., Co., 18 Colo. 65, 31 Pac. 333; Crane v. Farmer, 14 Colo. 294, 23 Pac. 455. Connecticut. — Chipman v. Waterbury, 59 Conn. 496, 22 Atl. 289; Savage v. White, 2 Root (Conn.) 377. Florida. — Holbrook v. Allen, 4 Fla. 87. Georgia. — Bass v. Bass, 73 Ga. 134. Illinois. — Westcott v. Kinney, 120 111. 564, 12 N. E. 81 ; Peak v. People, 71 111. 278 ; John F. Alles Plumbing Co. v. Alles, 67 111. App. 252; Meinke ». Chicago, 9 111. App. 516. Indiana. — Shroyer v. Lawrence, 9 Ind. 322. Louisiana. — Johnston v. Cocke, 12 La. Ann. 859. Massachusetts. — Carroll v. Richardson, 9 Mass. 329. Minnesota. — Jones v. Minneapolis, 20 Minn. 491 ; Ames v. Boland, 1 Minn. 365. Nevada. — Lambert v. Moore, 1 Nev. 231. Keio Jersey. — Goldy v. Kircher, (N. J. 1892) 26 Atl. 578. New York. — People v. Clerk of Marine Ct., 3 Abb. Dee. (N. Y.) 491. North Carolina. — J. R. Cary Co. v. Alle- good, 121 N. C. 54, 28 S. E. 61; Belden v. Snead, 84 N. C. 243. Pennsylvania. — McKee v. Sanford, 25 Pa. St. 105. Wisconsin. — In re Minnesota, etc., R. Co., 103 Wis. 191, 78 N. W. 753; Vogel v. An- tigo, 81 Wis. 642, 51 N. W. 1008 ; Piano Mfg. Co. v. Rasey, 69 Wis. 246, 34 N. W. 85. United States. — Montgomery v. Anderson, 21 How. (U. S.) 386, 16 L. ed. 160 (wherein it was held that, where an appeal was taken from a, non-appealable order, the error was not cured by a stipulation of the parties of the existence of facts which would render the order appealable) ; Mills v. Brown, 16 Pet. (U. S.) 525, 10 L. ed. 1055; Doty v. Jewett, 19 Fed. 337. See 2 Cent. Dig. tit. "Appeal and Error," § 88 et seq. As to jurisdiction by consent, generally, see Courts. But the rule applies only to jurisdiction over the subject-matter, and does not pre- vent parties, when the court hasi jurisdiction of the subject-matter, from admitting by con- sent irregular proof of a fact showing that Vol. II the particular case is properly before it. Hills v. Miles, 13 Wis. 625. 94. Sons of America Bldg., etc., Assoc, v. Denver, 15 Colo. 592, 25 Pac. 1091; Crane v. Farmer, 14 Colo. 294, 23 Pac. 455; Ridge v. Crawfordsville, 4 Ind. App. 513, 31 N. E. 207 ; Dodd v. Cady, 1 Minn. 289 ; and 2 Cent. Dig. tit. "Appeal and Error," § 95. Thus the appellate court will not hear a ease brought up by consent on a pro forma verdict entered of record in favor of plaintiff for a sum large enough to give jurisdiction to the appellate court, upon a demurrer to evidence, where it is agreed that, if the de- cision is for plaintiff, the verdict shall be set aside and a writ of inquiry instituted to de- termine damages. State v. Ripple, 27 W. Va. 211. 95. Alabama. — Mabry v. Dickens, 31 Ala. 243; Benford v. Daniels, 20 Ala. 445; Merrill v. Jones, 8 Port. (Ala.) 554. Arkansas. — Knox v. Beirne, 4 Ark. 460. Georgia. — Zorn v. Lamar, 71 Ga. 80. Indiana. — Champ v. Kendrick, 130 Ind. 545, 30 N. E. 635; Shroyer v. Lawrence, 9 Ind. 322. Iowa. — Long v. Long, Morr. (Iowa) 381. Louisiana. — Bird v. Bird, 23 La. Ann. 262. Minnesota. — Rathbun v. Moody, 4 Minn. 364. Tennessee. — Gurley v. Newport News, etc., R. Co., 91 Tenn. 486, 19 S. W. 571. Texas.— Phillips v. Hill, 3 Tex. 397. Wisconsin. — Hyde v. German Nat. Bank, 96 Wis. 406, 71 N. W. 659. See 2 Cent. Dig. tit. "Appeal and Error," § 93. 96. California. — McAulifFe v. Coughlin, 105 Cal. 268, 38 Pac. 730. Iowa. — Doerr v. Southwestern Mut. L. Assoc, 92 Iowa 39, 60 N. W. 225. Kentucky. — Dean v. Dean, 6 Ky. L. Rep. 652. Louisiana. — Batchelor v. His Creditors, 20 La. Ann. 193. North Carolina. — Haslen v. Kean, 6 N. C. 382. South Dakota. — Chamberlain v. Hedger, 10 S. D. 290, 73 N. W. 75. United States. — Washington County v. Du- rant, 131 U. S. lxxx, appendix, 18 L. ed. 169. See 2 Cent. Dig. tit. "Appeal and Error," § 91. But see Holbrook v. Allen, 4 Fla. 87, wherein it was held that an appeal from a final judg- ment of the circuit court may be had and de- termined in the supreme court, though not brought up regularly according to prescribed forms, when such forms are dispensed with by agreement. Under a Tennessee statute [Acts (1809) c. 126, § 9] providing that, by consent of the parties, a case may be adjourned to the su- APPEAL AND ERROR 537 limited by law within which the appeal must be taken and perfected has expired. 97 2. Cannot Abridge Jurisdiction. Nor, on the other hand, can the consent or agreement of the parties oust a court of its appellate jurisdiction, 98 or limit the principle of decision by excluding certain legal considerations which may be pertinent to the issue. 99 C. Jurisdiction of Inferior Court. If an inferior court or tribunal has no jurisdiction of a cause, an appeal from its decision confers no jurisdiction upon the appellate court. 1 But it seems that the appellate court may in such cases preme court for decision, the supreme court cannot acquire jurisdiction of a ease by con- sent unless an agreed statement of facts is made by the parties, and incorporated in the record. Mayo v. Dickens, 6 Yerg. (Tenn.) 489. See also Anderson v. Cannon, Cooke (Tenn.) 27. 97. Biggins v. Haley, 28 La. Ann. 216; King v. Penn, 43 Ohio St. 57, 1 N. E. 84; Stark V. Jenkins, 1 Wash. Terr. 421. See Jacobs v. Morange, 1 Daly (N. Y.) . 523 (wherein it was held that although, where a court has not jurisdiction of the subject-mat- ter, the consent of parties will not confer it, a consent that an appeal may be brought after the time to appeal has elapsed is not open to that objection. Such a consent is not an attempt to confer a jurisdiction not vested in the court, but is a mere waiver of the right to insist that the time has passed for bring- ing the appeal) ; Morrison v. Craven, 120 N. C. 327, 26 S. E. 940; and 2 Cent. Dig. tit. "Appeal and Error," § 92. Premature appeal. — An appeal from the insolvency court, taken by consent of parties to the supreme court then sitting, confers no jurisdiction where the statute requires ap- peals from such court to be taken to the su- preme court next to be held in the county. Milliken v. Morey, 85 Me. 340, 27 Atl. 188; Eddy's Case, 6 Cush. (Mass.) 28. 98. Wasson v. Heffner, 13 Ohio St. 573. 99. Arapahoe County v. Mclntire, 23 Colo. 137, 46 Pac. 638; Watts v. Tittabawassee Boom Co., 47 Mich. 540, 11 N. W. 377. 1. Alabama. — State v. Crook, 123 Ala. 657, 27 So. 334. Iowa. — Hall v. McMahan, 4 Greene (Iowa) 376. Kentucky. — Bullitt v. Com., 14 Bush (Ky.) 74; Haney v. Sharp, 1 Dana (Ky.) 442; Beasley v. Sims, 4 Bibb (Ky.) 268. Massachusetts. — Osgood v. Thurston, 23 Pick. (Mass.) 110; Williams v. Blunt, 2 Mass. 207. Michigan. — Mulder v. Corlett, 54 Mich. 80, 19 N. W. 756. Missouri. — Abernathy v. Moore, 83 Mo. 65. Nebraska. — Stenberg v. State, 48 Nebr. 299, 67 N. W. 190. New York. — Harriott v. New Jersey R. Co., 8 Abb. Pr. (N. Y.) 284. (Texas. — Timmins v. Bonner, 58 Tex. 554; Moore v. Hillebrant, 14 Tex. 312, 65 Am. Dec. 118;, Hearn v. Cutberth, 10 Tex. 216; Att- ridge '«, Maxey, 15 Tex. Civ. App. 134, 39 S. W. 322. Wisconsin. — StringhanrnWinnebago County, 24 Wis. 594. United States. — Ryder v. Holt, 128 U. S. 525, 9 S. Ct. 145, 32 L. ed. 529. See 2 Cent. Dig. tit. "Appeal and Error," § 81. Appeals from justices' courts are within the rule. Dunnington v. Bailey, 27 Ark. 508; Gregory v. Williams, 24 Ark. 177; McKee v. Murphy, 1 Ark. 55; Thompson v. Colony, 6 Vt. 91; Blackwood v. Jones, 27 Wis. 498; Pelt v. Felt, 19 Wis. 193; and, generally, Justices op the Peace. Appeals from probate courts to county, district, superior, or other courts are within this rule. Olmstead's Appeal, 43 Conn. 110; Chadwick v. Chadwiek, 6 Mont. 566, 13 Pac. 385 ; Chaves v. Ferea, 3 N. M. 71, 2 Pac. 73 ; Re Parsons, 64 Vt. 193, 23 Atl. 519; Adams v. Adams, 21 Vt. 162; and 2 Cent. Dig. tit. "Appeal and Error," § 82. Cases within original jurisdiction of appel- late court. — It has been held in Texas that an appeal cannot be entertained although the court to which the appeal has been taken may have original jurisdiction of the matter presented (Timmins v. Bonner, 58 Tex. 554; Davis v. Stewart, 4 Tex. 223; Aulanier v. Governor, 1 Tex. 653) ; but in Illinois and Nebraska it has been held that, on appeal from the judgment of a court not having ju- risdiction to a court having original jurisdic- tion of the matter, if the parties voluntarily appear and consent to the trial, the judgment of the latter court will be binding (Randolph County v. Ralls, 18 111. 29; Allen v. Belcher, 8 111. 593; Pearson v. Kansas Mfg. Co., 14 Nebr. 211, 15 N. W. 346). See 2 Cent. Dig. tit. "Appeal and Error," § 83. Cause tried de novo on appeal. — Where the county court has failed to obtain juris- diction of a proceeding before it, the circuit court obtains none on appeal, even where the whole matter is tried de novo in the appel- late court. Royston's Appeal, 53 Wis. 612, 11 N. W. 36. Limits of rule. — An equity cause was tried in the circuit court and taken under advise- ment, decree to be entered in vacation. Be- fore the cause was determined, it was, by di- vision of the circuit, transferred to another judge., It was held that the court did not lose jurisdiction of the cause by the change in the presiding judge, and that the decree of the new judge, without notice to the parties, was at most erroneous, and not void, and the Vol. II 538 APPEAL AND ERROR entertain the appeal, for the purpose of dismissing the case, without any adjudi- cation upon the merits. 2 D. Waiver of Objections. The validity of an appeal is to be determined by the appellate tribunal ; 3 and, where a cause is submitted on the merits without objection, and a decree rendered, it is too late to question the court's jurisdiction after the case has been remitted to the lower court, 4 or on a motion for a rehearing. 5 III. DECISIONS REVIEWABLE. A. Tribunals Subject to Review — 1. Judicial Nature of Decision. An appeal will lie only where there has been a decision by a tribunal or officer vested with judicial authority, and acting in a judicial capacity when making the decision. 6 As to what is a judicial decision is a question depending too much supreme court had jurisdiction to try the cause de novo upon appeal from such decree. Hull v. Chicago, etc., R. Co., 65 Iowa 713, 22 N. W. 940. In Palys v. Jewett, 32 N. J. Eq. 302, a suit in equity, brought against a re- ceiver for damages caused by the negligence of the receiver's employees, was tried before the vice-chancellor, whose decision was ap- pealed from. The appellate court, expressing doubts as to whether the decision rendered in the court below was within the vice-chancel- lor's jurisdiction and susceptible of being re- viewed on the merits upon appeal, heard the appeal and rendered judgment. In Arkansas, it has been held that the su- preme court will review a charcery case brought into it by appeal, whether the court below had jurisdiction or not. Bailey v. Gib- son, 29 Ark. 472. 2. Hearn v. Cutberth, 10 Tex. 216 (holding that in such cases the appellate court may, without undertaking to adjudicate the mer- its, render the judgment which the court be- low ought to have rendered) ; Royston's Ap- peal, 53 Wis. 612, 11 N. W. 36. See also infra, XIV. 3. Lester v. Howard, 24 Md. 233; Hough v. Kelsey, 19 Md. 451 ; Thompson v. McKim, 6 Harr. & J. (Md.) 302; Matter of Colvin, 3 Md. Ch. 278; Chesapeake Bank v. McClel- lan, 1 Md. Ch. 328; Hillyer v. Schenck, 15 N. J. Eq. 398 ; and 2 Cent. Dig. tit. "Appeal and Error," § 98 et seq. The supreme court need not inquire, for the purpose of an appeal, when the circuit court first obtained jurisdiction of the suit. It is sufficient if that court had jurisdiction when the decree appealed from was rendered. Missouri Pac. R. Co. V. Ketchum, 101 U. S. 289, 25 L. ed. 032. 4. Glazier v. Carpenter, 16 Gray (Mass.) 385. 5. Dudley E. Jones Co. v. Munger Improved Cotton Mach. Mfg. Co., 50 Fed. 785, 2 U. S. App. 188, 1 C. C. A. 668. That an appeal from an order of the probate court was taken to the supreme court through the appellate court, instead of directly, as required by stat- ute, does not render the judgment of the su- preme court invalid, the parties having Sub- mitted to its jurisdiction without objection. Lynn v. Lynn, 160 111. 307, 43 N. E. 482. That an appeal was taken from the criminal court direct to the supreme court, instead of Vol. II through the superior court, as was proper, does not invalidate the judgment when no exception was taken. Rhyne v. Lipscombe, 122 N. C. 650, 29 S. E. 57. 6. Decisions not judicial. — Alabama. — Mc- Kimmey v. McKimmey, 52 Ala. 102; Cox v. Jones, 40 Ala. 297. Arkansas. — Ex p. Allen, 26 Ark. 9. Georgia. — Hillsman v. Harris, 84 Ga. 432, 11 S. E. 400; Bower v. Cook, 39 Ga. 27. Illinois.— Kingsbury v. Sperry, 119 111.279, 10 N. E. 8. Kansas. — State Auditor v. Atchison, etc., R. Co., 6 Kan. 500, 7 Am. Rep. 575. Kentucky. — Gorham v. Luckett, 6 B. Mon. (Ky.) 146; Taylor v. Com., 3 J. J. Marsh. (Ky.) 401. Massachusetts. — Weymouth, Petitioner, 2 Cush. (Mass.) 335. Michigan. — Buehoz v. Pray, 36 Mich. 429; Auditor-General v. Pullman Palace Car Co., 34 Mich. 59. Missouri. — St. Charles v. Stewart, 49 Mo. 132; Phelps County v. Bishop, 46 Mo. 68; Hall v. De Armond, 46 Mo. App. 596 ; Barnes v. Rees, 43 Mo. App. 295. New Jersey. — Layton v. State, 28 N. J. L. 575 ; Cooley v. Vansyckle, 14 N. J. Eq. 496. New York. — Matter of State Commission in Lunacy, 76 Hun (N. Y.) 74, 27 N. Y. Suppl. 856, 58 N. Y. St. 740. South Carolina. — Brown v. Pechman, 55 S. C. 555, 33 S. E. 732; Ex p. Gray, Rich. Eq. Cas. (S. C.) 475. Tennessee. — Matter of Knight, 3 Lea (Tenn.) 401; Ex p. Chadwell, 1 Tenn. Ch. 95, 3 Baxt. (Tenn.) 98. Vermont. — Downer V. Downer, 9 Vt. 231. West Virginia. — Summers County v. Mon- roe County, 43 W. Va. 207, 27 S. E. 307; Pittsburg, etc., R. Co. v. Board of Public Works, 28 W. Va. 264. United States.— Sanborn v. U. S., 27 Ct. CI. 485; Adams v. U. S., 26 Ct. CI. 290. See 2 Cent. Dig. tit. "Appeal and Error," § 100 et seq. ; and supra, I, C, 1, e. As to jurisdiction of courts, both original and appellate, see Courts; Justices of the Peace. Granting corporate charter. — The power conferred by the Georgia constitution upon the courts to grant charters to corporations is legislative and not judicial; and, conse- APPEAL AND ERROR 539 upon the circumstances of the particular case to admit of detailed discussion here. However, it may be stated as a general rule that, where any power is con- ferred upon a court, to be exercised by it as a court, in the manner and with the formalities of a court, and in its ordinary proceedings, the action of such court is to be deemed judicial irrespective of the original nature of the power, and the determination of the court thereon may be, therefore, appealable. 7 And the fact that the decision is not, strictly speaking, a judgment, or that the proceedings are not capable of being enrolled so as to constitute what is technically called a record, will not prevent it from being appealable. 8 quently, no writ of error lies from the su- preme court to review the action of the su- perior court in granting a charter. Augusta Gas-Light Co. v. West, 78 Ga. 318. Judge acting as arbitrator. — When a case is referred to a judge before whom it does not come in due course of law, no appeal lies from his decision. Banigan v. Nelms, 106 Ga. 441, 32 S. E. 337 ; Waters v. McNabb, 30 Ga. 672; Lansing's Appeal, 10 Wis. 120. Case tried before three attorneys. — A writ of error will not lie in a case tried before three attorneys at law, even though the par- ties reserved the right to except. Stanton v. Speer, 69 Ga. 771. Opinion of court. — A mere statement of opinion by a judge or court, on which no de- cision is based, is not appealable. Wallace v. Johnson, 88 Ga. 68, 13 S. E. 836; Allen v. Al- len, 2 Litt. (Ky.) 94; Cornell v. McCann, 48 Md. 592; Dyer v. Carr, 18 Mo. 246; Oliver v. Phelps, 20 N. J. L. 180. Curbstone opinion of judge. — A writ of er- ror does not lie to review the private, unof- ficial opinion of a judge of the superior court. Ashburn v. Dempsey, 15 Ga. 248. Taxation of costs. — The adjustment of costs by a clerk is a ministerial action, from which no appeal will lie. Abbott v. Mathews, 26 Mich. 176; Crocker v. Collins, 44 S. C. 500, 22 S. E. 719. The mere refusal of a judge or court to take any action is not ordinarily appealable, the remedy in such case being by mandamus. California. — Greehn v. Shumway, 73 Cal. 263, 14 Pac. 863. Kentucky. — Mclntire v. Gettings, 15 B. Mon. (Ky.) 172; Craddock v. Croghan, 2 Ky. Dec. 100. Minnesota. — Mayall v. Burke, 10 Minn. 285. Missouri. — Ladue v. Spalding, 17 Mo. 159; Astor v. Chambers, 1 Mo. 191. North Carolina. — Maxwell v. Caldwell, 72 N. C. 450. Pennsylvania. — Hudson's Appeal, 27 Pa. St. 46, 67 Am. Dec. 445; Evans v. Clover, 1 Grant (Pa.) 164. And see, generally, Mandamus. 7. Matter of Cooper, 22 N. Y. 67. Decisions deemed judicial. — Colorado. — Martin v. Simpkins, 20 Colo. 438, 38 Pac. 1092. Connecticut. — Beard's Appeal, 64 Conn. 526, 30 Atl. 775. Illinois. — Bowden v. Bowden, 75 111. 143. Kentucky. — Bate v. Speed, 10 Bush (Ky.) 644; Lowe v. Com., 3 Mete. (Ky.) 237; Gor- ham v. Luckett, 6 B. Mon. (Ky.) 146; Murray v. Oliver, 3 B. Mon. (Ky.) 1. Louisiana. — Levee Com'rs v. Marks, 16 La. Ann. 112. Maryland. — Hawkins v. Bowie, 9 Gill & J. (Md.) 428. Massachusetts. — Conant v. Kendall, 21 Pick. (Mass.) 36. Minnesota. — In re Penniman, 20 Minn. 245, 18 Am. Rep. 368. Missouri. — North Missouri R. Co. v. Lock- land, 25 Mo. 515. New York. — Matter of Cooper, 22 N. Y. 67 ; Matter of Graduates, 11 Abb. Pr. (N. Y.) 301. Oregon. — Douglas County Road Co. v. Doug- las County, 5 Oreg. 406. See 2 Cent. Dig. tit. "Appeal and Error," § 100 et seq. As to proceedings in which writ of error lies see supra, I, C, 1, f. As to proceedings in which appeal lies see supra, I, C, 2, f. Judgment rendered without authority. — Where the person trying a case is not vested with judicial authority, either de jure or de faeto, the judgment pronounced by him is a nullity, and, consequently, a writ of error will not lie to review the same. Hoagland v. Creed, 81 111. 506; Adams v. Wheeler, 1 D. Chipm. (Vt.) 417. But it has been held that an appeal will lie from such a judgment. Petty v. Durall, 4 Greene (Iowa) 120. See, generally, Judges. What is a case of controversy. — Wherever a claim or contention takes such form that the judicial power is capable of acting upon it, it becomes a case of controversy. Smith v. Adams, 130 U. S. 167, 9 S. Ct. 566, 32 L. ed. 895. Court for trial of contested election. — In Kansas, it is held that a court for the trial of contested elections is a judicial tribunal, from which an appeal will lie. Bland v. Jackson, 51 Kan. 496, 33 Pac. 295; Buckland v. Goit, 23 Kan. 327 ; Anthony v. Halderman, 7 Kan. 50; Steele v. Martin, 6 Kan. 430; State v. Sheldon, 2 Kan. 322. In Tennessee, the circuit court, when hear- ing and deciding a contest of the election of sheriff, exercises judicial authority, and does not sit merely as a special tribunal. Moore v. Sharp, 98 Tenn. 65, 38 S. W. 411. 8. Clason v. Shotwell, 12 Johns. (N. Y.) 31. As to what constitutes a judgment or de- cree see Judgments; Equity. Vol. n 540 APPEAL AND ERROR 2. Orders Made at Chambers. Where the statutes provide for appeals only in cases tried by a court, no appeal will lie from an order, judgment,' or decree made out of court by a judge or other judicial officer ; 9 and the fact that an order pur- ports to have been made by the court does not render it appealable when it was, in fact, the order of the individual judge, and not of the court. 10 But, of course, an appeal may, by statute, be authorized in such cases. 11 3. Special Tribunal Constituted for Particular Purpose. No appeal will lie from the decision of a special tribunal, constituted for a particular purpose, unless such appeal is expressly authorized by statute. 12 B. Dependent on Nature or Form of Proceeding- — 1. In General. As has been stated hitherto, the appellate jurisdiction can be exercised only by virtue of statutory authority. 13 Therefore, in determining whether an appeal will lie in a proceeding of a particular form or character, reference must always be had to the provisions governing such matters. An attempt to classify the actions and proceedings subject to review in the various jurisdictions would serve no useful purpose here. 14 2. Special Proceedings. It is a well-settled rule in most jurisdictions that where a tribunal exercises a special, limited jurisdiction, conferred by statute, and in which the procedure is not according to the course of the common law, no appeal lies from its action therein unless such appeal is expressly provided by statute. 15 But in some jurisdictions the courts have, without any special statutory 9. Iowa. — In re Curley, 34 Iowa 184. Kentucky — Gill's Petition, 92 Ky. 118, 13 Ky. L. Rep. 351, 17 S. W. 166; Weddington v. Sloan, 15 B. Mon. (Ky.) 147. Nevada. — Lyon County v. Esmeralda County, 18 Nev. 166, 1 Pac. 839. Ohio.— Sheldon v. McKnight, 34 Ohio St. 316. South Dakota. — Brown v. Edmonds, 5 S. D. 508, 59 N. W. 731 ; Holden v. Haserodt, 3 S. D. 4, 51 N. W. 340; Commercial Nat. Bank v. Smith, 1 S. D. 28, 44 N. W. 1024. And see, generally, Judges; and infra, III, E, 7. Minnesota — Court commissioners. — In Min- nesota, the powers with which court commis- sioners are invested are those of a judge at chambers, and consequently no appeal lies to the supreme court from an order of a com- missioner until it is passed upon by the dis- trict court. Pulver v. Grooves, 3 Minn. 359; Gere v. Weed, 3 Minn. 352. " Justice " used as equivalent of " court." — In the provisions of the New York code of civil procedure relative to appeals from judg- ments of the marine court of the city of New York the term " justice " refers to the jus- tices of the marine court, and is used as a correlative of, or of equivalent meaning with, the "marine court," or as synonymous with the term " the court below." Boomer v. Brown, 4 Daly (N. Y.) 229. 10. Broadwell v. Com., 98 Ky. 15, 17 Ky. L. Rep. 564, 32 S. W. 141 ; Black Hills Flume, etc., Co. v. Grand Island, etc., R. Co., 2 S. D. 546, 51 N. W. 342; Carper v. Fitzgerald, 121 TJ. S. 87, 7 S. Ct. 825, 30 L. ed. 882. 11. Shows v. Pendry, 93 Ala. 248, 9 So. 462; Ex p. Jackson, 45 Ark. 158; Findlay Rolling, etc., Mill Co. v. National Bank of Commerce, 57 Ohio St. 115, 48 N. E. 508. 12. Trinity College v. Hartford, 32 Conn. 452; Holtz v. Diehl, 26 Misc. (NY.) 224, 56 Vol. II N. Y. Suppl. 841 ; Carmand v. Wall, 1 Bailey (S. C.) 209; Wade v. Murry, 2 Sneed (Tenn.) 49; U. S. v. Ferreira, 13 How. (U. S.) 40, 14 L. ed. 42. See infra, III, B, 2. A board of county commissioners, in order- ing an election to determine the location of a county-seat, acts ministerially and not ju- dicially. Territory v. Neville, (Okla. 1900) 60 Pac. 790. 13. See supra, I. 14. See, generally, Courts ; and also see the specific cross-references at the head of this article. As to the proceedings in which an appeal will lie, irrespective of amount, see infra, III, C, 5. 15. Colorado. — Phillips v. Corbin, 25 Colo. 62, 49 Pac. 279. Illinois. — Moore v. Mayfield, 47 111. 167. Indiana. — French v. Lighty, 9 Ind. 475. Iowa. — Lampson v. Piatt, 1 Iowa 556. Kentucky. — Johnston v. Com., 1 Bibb (Ky.) 598. Maine. — Ex p. Pierce, 5 Me. 324. Maryland. — Gadd v. Anne Arundel County, 82 Md. 646, 33 Atl. 433; Jackson v. Bennett, 80 Md. 76, 30 Atl. 612. Massachusetts. — Young v. Blaisdell, 138 Mass. 344; Valentine v. Boston, 20 Pick. (Mass.) 201. Michigan. — In re Sanborn, 107 Mich. 189, 65 N. W. 209; Woolley v. Crane, 86 Mich. 360, 49 N. W. 43. Montana. — Deer Lodge County v. Kohrs, 2 Mont. 66. Missouri. — State v. Schofield, 41 Mo. 39. New York. — New York Cent. R. Co. v. Mar- vin, 11 N. Y. 276; Killoran v. Barton, 26 Hun (N. Y.) 648; Matter of Pioneer Paper Co., 36 How. Pr. (N. Y.) 110; Matter of Negus, 10 Wend. (N. Y.) 34. North Carolina. — Davidson v. Cowan, 12 N. C. 304. APPEAL AND ERROR 541 authority, allowed appeals in such cases. 16 Of course, the right to appeal in spe- cial proceedings may be, and generally is, given by statute or constitutional provision. 17 3. Proceedings, Whether Civil or Criminal 18 — a. In General. In regard to cer- tain classes of cases there has been some conflict of opinion as to whether they should be ranked as civil or criminal in nature. In such case questions relating to appeals depend upon the view obtaining in the particular jurisdiction as to the character of the proceeding. 19 If the action is regarded as criminal or quasi- Wo.— Moore v. Boyer, 42 Ohio St. 312; State V. Belmont County, 31 Ohio St. 451; Barger v. Cochran, 15 Ohio St. 460; Taylor v. Fitch, 12 Ohio St. 169. Pennsylvania. — Davenport v. Jones, 126 Pa. St. 271, 17 Atl. 611; Hall's Appeal, 56 Pa. St. 238; Kimber v. Schuylkill County, 20 Pa. St. 366. Rhode Island. — Coates v. Woodward, (R. I. 1901) 48 Atl. 932. South Carolina. — Carmand v. Wall, 1 Bailey (S. C.) 209. Texas. — Tadloek v. Texas Monumental Com- mittee, 21 Tex. 166 ; Baker v. Chisholm, 3 Tex. 157. Vermont. — Stiles v. Windsor, 45 Vt. 520. Wisconsin. — Prince v. McCarty, 61 Wis. 3, 20 N. W. 655; Eaton v. Williams, 51 Wis. 99, 7 N. W. 838. See 2 Cent. Dig. tit. " Appeal and Error," § 134 et seq. And see supra, I, C, 1, f, (v) ; I, C, 2, f, (IV) ; III, A, 3. As to the necessity of statute conferring right of appeal in general see supra, I. As to appeals in summary proceedings, gen- erally, see Summaey Pboceedings. As to appeals in particular proceedings see the cross-references given at the beginning of this article. Judgment made conclusive by statute.— Where a statute authorizing a special proceed- ing directs that the judgment shall be final and conclusive, this means that it shall not be subject to any review. Houghton's Appeal, 42 Cal. 35. 16. In Arkansas, it has been customary, where the statute providing for such proceed- ing contained no provisions about appeals, to grant appeals in special proceedings by virtue of the general statutes. Ex p. McCullough, 51 Ark. 159, 10 S. W. 259. In California, while the constitution does not give the supreme court appellate jurisdic- tion in special proceedings, yet that court has long been accustomed to entertain jurisdiction in such cases, and refuses to alter its practice, ' although apparently in doubt as to its le- gality. Lord v. Dunster, 79 Cal. 477, 21 Pac. 865. In Oregon it is held that Oreg. Const, art. 7, § 6, providing that " the supreme court shall have jurisdiction only to revise all final de- cisions of the circuit courts," gives that court jurisdiction to revise all final decisions of the circuit courts, even though the proceeding be special and no appeal is expressly provided for. North Pacific Presb. Board of Missions v. Ah Won, 18 Oreg; 339, 344, 22 Pac. 1105. But see In re Goldsmith, 12 Oreg. 414, 7 Pac. 97, 9 Pac. 565. 17. See the statutes and constitutional pro- visions, and the following cases: Alabama. — Thompson v. Holt, 52 Ala. 491. Arizona. — Bishop v. Perrin, (Ariz. 1892) 29 Pac. 648. California.— Covarrubias v. Santa Barbara County, 52 Cal. 622; Brewster v. Hartley, 37 Cal. 15, 99 Am. Dec. 23/. Georgia. — Parker v. Beeman, 28 Ga. 475. Idaho. — Miller v. Smith, (Ida. 1900) 61 Pac. 824. Iowa. — Lawrence v. Thomas, 84 Iowa 362, 51 N. W. 11. Maryland. — Paul v. Locust Point Co., 70 Md. 288, 17 Atl. 77 ; White v. Malcolm, 15 Md. 529. New York. — Ithaca Agricultural Works v. Eggle'ston, 107 N. Y. 272, 14 N. E. 312; Rens- selaer, etc., R. Co. v. Davis, 43 N. Y. 137 ; Peo- ple v. Boardman, 4 Keves (N. Y.) 59; Burk v. Ayers, 19 Hun (N. Y.) 17; In re Poole, 5 N. Y. Civ. Proc. 279. South Carolina.— Johnstone v. Manigault, 13 S. C. 403. As to when statutes authorizing appeals in special proceedings apply see infra, III, D, 3, z. 18. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 148 et seq. 19. Bastardy. — Under some statutes bas- tardy cases are regarded as civil proceedings. Rawlings v. People, 102 111. 475. But in Maine it has been held that the statutes providing for a review of civil actions did not apply to prosecutions under the statute for the main- tenance of bastard children. Ex p. Gowen, 4 Me. 58. See, generally, Bastards. Contempt of court. — Where a contempt consists in the refusal of the party to do some- thing he is ordered to do, for the benefit or advantage of the adverse party, the proceeding is civil. State v. Schneider, 47 Mo. App. 669 ; State v. Horner, 16 Mo. App. 191; Hagerman v. Tong Lee, 12 Nev. 331 ; Phillips v. Welch, 11 Nev. 187; State v. Giles, 10 Wis. 101. But if the contempt consists in doing a forbidden act injurious to another, the proceeding is crim- inal. Phillips v. Welch, 11 Nev. 187. See, generally, Contempt. Habeas corpus. — In Louisiana, an appeal will lie from a judgment in habeas corpus pro- ceedings where the writ issued in a matter growing out of a civil action (Ex p. Lafonta, 2 Rob. ( La. ) 495 ) ; but not where the writ is- sued in a matter growing out of the adminis- tration of the criminal law ( State v. Judge, 15 La. 192 ) . See, generally, Habeas Cobpus. Vol. II 542 APPEAL AND ERROR criminal, it will, of course, be governed by the statutes providing for review of criminal proceedings. 20 b. Qui Tam of Penal Actions. As a general rule, actions to recover penalties are held to be civil proceedings, and are governed by the statutes relating to appeals in other civil actions. 21 C. Dependent on Amount or Value in Controversy — 1. Nature of limi- tation — a. In General. Where appellate jurisdiction is conferred upon a court without restriction as to the amount or value involved in the controversy, the maxim de minimis non curat lex has no application, and judgments may be reviewed without regard to the amount in controversy. 22 But where, by positive statutory or constitutional provision, the right to remove a cause for review, or the jurisdiction of the court to review, depends upon the amount of the judg- ment or the amount or value of the property involved in the controversy, the right cannot be extended or the jurisdiction exercised in any case which does not come within such provision. 23 These provisions are made not only to restrict the right to review generally, but also to define the limit of appellate jurisdiction of particular courts as between them and other appellate courts. 24 Sometimes, how- Louisiana — Proceeding against debtor for fraud. — An action against an insolvent debtor for fraud under the Louisiana act of March 28, 1840, sections 10 and 11, is a civil suit. Mar- tin v. Chrystal, 4 La. Ann. 344 ; State v. Judge, 15 La. 531. Prosecutions under municipal ordinances for offenses not punishable at common law or by general statute are usually regarded as civil proceedings. Durango v. Reinsberg, 16 Colo. 327, 26 Pac. 820 ; Greeley v. Hamman, 12 Colo. 94, 20 Pae. 1; Knowles v. Wayne City, 31 111. App. 471. But where an ordinance pro- hibits that which is a crime or misdemeanor and punishable at ^ommon law or by statute, and prescribes a penalty for its violation by fine, with imprisonment on default of pay- ment, a prosecution thereunder is quasi-crim- inal. Platteville v. McKernan, 54 Wis. 487, 11 N. W. 798. See, gen rally, Municipal Cor- porations. 20. As to review of criminal proceedings see Criminal Law. Proceedings held to be criminal. — A prose- cution by complaint of a master against an ap- prentice for disobedience. Francis v. Lewis, 11 Conn. 200. Removal of officer for malfeas- ance, or misfeasance, or wilful neglect of duty. Com. v. Thompson, 13 B. Mon. (Ky.) 159. Scire facias upon a recognizance for the appearance of a person charged with crime. State v. Jackson, 33 Me. 259. Proceedings to strike attorney from the roll for alleged fraud. State v. Tunstall, 51 Tex. 81. 21. People v. Blue Mountain Joe, 129 111. 370, 21 N. E. 923; Partridge v. Snyder, 78 111. 519; State v. Mace, 5 Md. 337; State v. Hay- den, 32 Wis. 663; Jacob v. U. S., 1 Brock. (U. S.) 520, 13 Fed. Cas. No. 7,157. See, gen- erally, Penalties. 22. Gephart v. Strong, 20 Md. 522. 23. Arizona. — Canada del Oro Mines v. Collins, (Ariz. 1894) 36 Pac. 33. Arkansas. — Reynolds v. Sneed, 1 Ark. 99. California. — Henigan v. Ervin, 110 Gal. 37, 42 Pae. 457. Colorado. — McClaskey v. Lake View Min., etc., Co., 18 Colo. 65, 31 Pac 333. Vol. II Connecticut. — Denison v. Denison, 16 Conn. 34. Illinois. — Dougherty v. Hughes, 165 111. 384, 46 N. E. 229. Indiana. — Baker v. Groves, 126 Ind. 593, 26 N. E. 1076. Indian Territory. — Morrow v. Burney, (Indian Terr. 1899) 51 S. W. 1078. Iowa. — Schultz v. Holbrook, 86 Iowa 569, 53 N. W. 285. Kansas. — Obert v. Oberlin Loan, etc., Co., 54 Kan. 750, 39 Pac. 699. Kentucky. — Clark v. Collins, (Ky. 1901) 60 S. W. 369. Louisiana. — Fredericks v. Donaldson, 50 La. Ann. 471, 23 So. 446. Missouri. — -Kane v. Kane, 146 Mo. 605, 48 S. W. 446. New Yorfc.— Belfer v. Ludlow, 129 N. Y. 650, 29 N. E. 320, 41 N. Y. St. 649. Texas. — Meade v. Warring, 90 Tex. 121, 37 S. W. 598. Virginia. — Cheatham v. Aistrop, 97 Va. 457, 34 S. E. 57. Washington. — Moskeland v. Stephens, 18 Wash. 693, 50 Pae. 933. West Virginia. — Shahan v. Shahan, (W. Va. 1900) 37 S. E. 552. United States. — Texas, etc., R. Co. v. Saun- ders, 151 U. S. 105, 14 S. Ct. 257, 38 L. ed. 90. Canada. — Dominion Salvage, etc., Co. v. Brown, 20 Can. Supreme Ct. 203. See 2 Cent. Dig. tit. "Appeal and Error," § 172 et seq. As to the necessity of objection that juris-, dictional amount is not involved see infra, V, B, 1, c, (I), (B). 24. Florida. — Brillis v. Blumenthal, 13 Fla. 577; Anderson v. Brown, 6 Fla. 299. Illinois. — Illinois University v. Bruner, 168 111. 49, 48 N. E. 54; Jordan v. Moore, 128 111. 56, 21 N. E. 212. Indiana. — Baker v. Groves, 126 Ind. 593, 26 N. E. 1076; Galbreath v. Trunn, 83 Ind. 381; Jones v. Yetman, 6 Ind. 46. Kansas. — Conklin v. Hutchinson, (Kan. 1900) 62 Pac. 1012. APPEAL AND ERROR 543 ever, such provision is not for the purpose of shutting off all right to review, but relates to the particular remedy. 85 b. Restriction of Extent of Review. The restriction being jurisdictional, the court cannot pass upon any other questions presented after determining that the amount involved is not sufficient to permit a review. 26 e. Application to Courts of Law and Equity. A general provision of this character applies to courts of law and equity alike. 27 d. Application to All Parties Alike. Statutory restrictions upon the right to have a judgment reviewed apply alike to all parties, and, in the absence of an express exception, to the government as well as to individuals, 28 and to public officers as well as to private persons. 29 2. Character and Application of Pecuniary Restrictions — a. In General. The character of the limitation depends upon the particular provision in force. In some jurisdictions a provision restricting the right to appeal to cases in which the amount involved is of a certain sum is held to operate to prevent an appeal in cases not involving the recovery of a money judgment or a subject-mat- ter of pecuniary value. 30 Again, the statute sometimes expressly confines the right Kentucky. — Evans v. Sanders, 10 B. Mon. (Ky.) 291. Louisiana. — Newman v. Cuney, 30 La. Ann. 1201. See also Tippit v. Lippmins, 22 La. Ann. 465, holding that where the supreme court had jurisdiction of appeals from parish courts only in probate cases, and when the amount exceeded a fixed sum, it could not en- tertain an appeal from a judgment of the dis- trict court on appeal from the parish court, as such a course would be virtually to enter- tain an appeal from the judgment of the par- ish court. Missouri. — Forster Vinegar Co. v. Gugge- mos, 24 Mo. App. 444 ; Myers v. Myers, 22 Mo. App. 94. Texas. — McLane v. Evans, (Tex. 1900) 58 S. W. 723; Meade v. Warring, 90 Tex. 121, 37 S. W. 598. United States. — Shute v. Keyser, 149 TJ. S. 649, 13 S. Ct. 960, 37 L. ed. 884 (construing judiciary act of March 3, 1891, as not affect- ing jurisdiction of supreme court of United States over judgments and decrees of the su- preme courts of the territories when the mat- ter in dispute exceeds five thousand dollars) ; Washington, etc., R. Co. v. District of Colum- bia, 146 TJ. S. 227, 13 S. Ct. 64, 36 L. ed. 951; Ex p. Craft, 124 TJ. S. 370, 8 S. Ct. 509, 31 L. ed. 449 (under act March 3, 1885, as to appeals from decree of supreme court of Dis- trict of Columbia) ; TJ. S. v. Union Pae. R. Co., 105 U. S. 263, 26 L. ed. 1021 (under U. S. Rev. Stat. (1878), §§ 702, 1909, as to writs of error and appeals from final judgments and decrees of the supreme court of Wyoming) ; Baltimore, etc., R. Co. v. Grant, 98 U. S. 398, 25 L. ed. 231 (under act of Feb. 25, 1879, as to appeal from judgment or decree of supreme court District of Columbia ) . See 2 Cent. Dig. tit. "Appeal and Error," § 306 et seq. ; and infra, III, C, 4. Particular courts, see Courts. 25. Thus, in Bumbalek v. Peehl, 95 Wis. 127, 70 N. W. 71, it was held that the statute relating to appeals did not impose such re- strictions upon writs of error. See also Kim- ball v. Moody, 18 Me. 359; Murphy v. Byrd, Hempst. (U. S.) 211, 17 Fed. Cas. No. 9,947a. Conversely, it is held that, where appeals are allowed from the circuit court to the supreme court in all cases appealed from justices' courts where the amount involved is of a cer- tain sum, it does not matter that the case is taken from the justice's court to the circuit court by certiorari, as the thing which gives the supreme court jurisdiction is the amount in controversy. O'Leary v. Harris, 50 Miss. 13. 26. Rose's Succession, 48 La. Ann. 418, 19 So. 450 (holding that a decree appointing an administratrix and incidentally determining the validity of a marriage is not appealable upon the validity of the marriage, unless the value of the succession involved is of an amount necessary to confer appellate juris- diction) ; Police Jury v. Villaviabo, 12 La. Ann. 788; Walters v. Chichester, 84 Va. 723, 6 S. E. 1. 27. Dougherty v. Hughes, 165 111. 384, 46 N. E. 229 (holding that, if an appeal lies un- der such a statute, the amount is sufficient whether the suit is at law or at equity) ; An- drews v. Burdick, 62 Iowa 714, 16 N. W. 275 (holding that the code provision limiting ap- peals to cases where the amount was of a fixed sum applied to chancery cases as well as to those at law, and was not in conflict with the constitutional provision which pro- vided in general terms for the trial of chan- cery causes de novo by the supreme court ) . See also Cross v. Burke, 146 U. S. 82, 13 S. Ct. 22, 36 L. ed. 896. 28. U. S. v. Broadhead, 127 U. S. 212, 8 S. Ct. 1191, 32 L. ed. 147; U. S. v. Union Pac. R. Co., 105 U. S. 263, 26 L. ed. 1021. And, where the constitution fixes the minimum ju- risdictional amount, a statute which confers jurisdiction, without regard to amount, where the state is interested, is held to be unconsti- tutional. Mcintosh v. Braden, 80 Va. 217. 29. Benson v. Christian, 129 Ind. 535, 29 N. E. 26. 30. Hite v. Hinsel, 39 La. Ann. 113, 1 So. 415; State v. Knight, 1 Mart. N. S. (La.) 700; People v. Clayton, 4 Utah 449, 11 Pac. Vol. II 5U APPEAL AND ERROR to cases in which the judgment shall be of a prescribed amount ; and, under such a provision, it has been held that the right cannot be extended to cases not involv- ing a judgment for money. 31 • On the other hand, there are a number of decisions to the effect that, under a general provision restricting the right to appeal to cases which involve a certain amount or value, the right to appeal remains unaffected in cases which are not for the recovery of money or in which the value of the sub- ject-matter involved is not measured by money, and that such a general provision applies only to cases for the recovery of money, or where the subject-matter of the suit is of pecuniary value. 32 b. Value as Measured in Money — (i) In General. Where the right to bring proceedings for the review of a judgment is confined to cases for the recovery of money, or to cases involving a subject-matter of pecuniary value, the amount in controversy must be measured in money. 33 (n) When Money Judgjiext Not Directly Sought. When the object of the suit is not directly and expressly for the purpose of obtaining a money judgment the amount involved is determined by the value in money of the relief to the plaintiff or of the loss to the defendant should the relief be granted, or, vice versa, should the relief be denied. 34 If the amount thus estimated is in excess of 213; Simms v. Simms, 175 U. S. 162, 20 S. Ct. 58, 44 L. ed. 115; Perrine v. Slack, 164 U. S. 452, 17 S. Ct. 79, 41 L. ed. 510; Abadie v. TJ. S., 149 U. S. 261, 13 S. Ct. 836, 37 L. ed. 726; Smith v. Adams, 130 U. S. 167, 9 S. Ct. 566, 32 L. ed. 895; Youngstown First Nat. Bank v. Hughes, 106 U. S. 523, 1 S. Ct. 489, 27 L. ed. 268; Barry v. Mercein, 5 How. (U. S.) 103, 12 L. ed. 70. 31. Fischer i>. Hanna, 21 Colo. 9, 39 Pac. 420; Shackelford v. King, 6 Colo. 37. When the jurisdiction depends upon a judgment of a certain amount or in replevin upon the find- ing of the value of the property to a certain amount, the controverted allegations of value in the pleadings cannot confer jurisdiction where the judgment fails to find any value. Denver First Nat. Bank v. Follett, (Colo. 1900) 62 Pac. 361, upon the authority of Conly v. Boyvin, 25 Colo. 498, 55 Pac. 732. 32. California. — Conant v. Conant, 10 Cal. 249, 70 Am. Dec. 717, holding that the consti- tutional provision that the supreme court shall have appellate jurisdiction in all cases when the matter in dispute exceeds a fixed sum should be read to mean that the court has appellate jurisdiction in all eases, pro- vided that when the subject of the litigation is capable of pecuniary computation the mat- ter in dispute must exceed in value the amount prescribed. Illinois. — Richards v. People, 100 111. 423. Iowa. — Miles r, Tomlinson, 110 Iowa 322, 81 N. W. 587 ; Geyer v. Douglass, 85 Iowa 93, 52 N. W. 111. Kansas. — McPherson v. State, 56 Kan. 139, 42 Pac. 374 [distinguishing the jurisdiction of the supreme court under such a provision from that of the court of appeals, which was invested with final appellate jurisdiction in certain cases, as to which see Stevens v. Moore, 4 Kan. App. 757, 46 Pac. 1011]. West Virginia. — In this state it was held that the amount in controversy must appear to be sufficient in a case involving matters Vol. II simply pecuniary. Davis v. Webb, 46 W. Va. 6, 33 S. E. 97; Neal v. Van Winkle, 24 W. Va. 401. Wisconsin. — State v. McKone, 95 Wis. 216, 70 N. W. 164. See also infra, III, C, 5, a. 33. In the first class of cases, if, as meas- ured by a money standard, the subject-matter is not of the value prescribed for the amount in controversy, proceedings in review will not lie. In the second class of cases, if the sub- ject-matter in controversy has no pecuniary value, proceedings in review will lie; but, if it has a pecuniary value, then the right to bring proceedings in review must be deter- mined with reference to the value of the sub- ject-matter as measured in money. See the following eases: Colorado. — St. Joe, etc., Min. Co. i: Aspen First Nat. Bank, 24 Colo. 537, 52 Pac. 678. Louisiana. — Hite v. Hinsel, 39 La. Ann. 113, 1 So. 415; Lombard v. Belanger, 35 La. Ann. 311. Missouri. — -Kane v. Kane, 146 Mo. 605, 48 S. W. 446, holding that a suit for an account- ing is not eo nomine within the appellate ju- risdiction of the supreme court. Utah. — People v. Clayton, 4 Utah 449, 11 Pac. 213. United States. — Simms v. Simms, 175 U. S. 162, 20 S. Ct. 58, 44 L. ed. 115; Perrine v. Slack, 164 TJ. S. 452, 17 S. Ct. 79, 41 L. ed. 510; Ritchie v. Mauro, 2 Pet. (U. S.) 243, 7 L. ed. 411. 34. Gast Bank Note, etc., Co. v. Fennimore Assoc, 147 Mo. 557, 49 S. W. 511. See also Mutual Reserve Fund L. Assoc, v. Smith, 169 111. 264, 48 N. E. 208, 61 Am. St. Rep. 172; 7n re Moss Cigar Co., 50 La. Ann. 789, 23 So. 544; State v. Police Jury, 39 La. Ann. 759, 2 So. 305 ; TJ. S. v. Trans-Missouri Freight As- soc, 166 TJ. S. 290, 17 S. Ct. 540, 41 L. ed. 1007; Smith v. Adams, 130 TJ. S. 167, 9 S. Ct. 566, 32 L. ed. 895, a proceeding contesting the election for the selection of a county-seat, held not to be removable by appeal or error APPEAL AND ERROR 545 the lowest limit of appellate jurisdiction the court will take cognizance. 33 And, if the liability is held to exist and is thus measured in money, the manner of its discharge will not affect the character of the judgment, and, whether it confers the right to an execution or subjects property to be sold for its satisfaction, it is a money judgment within the terms of the statute. 36 e. Tort or Contract. When a recovery of money only is sought, no matter whether the action is in tort or in contract, the pecuniary restriction applies. 37 d. Construction of Contract. In an action involving a construction of a con- tract, the pecuniary limitation as to appellate jurisdiction applies, and if there is a bona fide contention for more than the amount limiting such jurisdiction an appeal will lie. 38 And where the right of recovery grows out of relations which bring the liability within the class of obligations known as quasi-contracts, created by law, as distinguished from those created by the parties themselves, the case is .subject to the pecuniary limitations of the statute upon the right of appeal. 39 e. Validity of Ordinance or Statute. The pecuniary limitation of appellate jurisdiction applies to cases involving the validity of ordinances and statutes ; and, if the amount involved is not sufficient to confer jurisdiction, appellate jurisdic- tion will not be assumed on the ground of the invalidity of such ordinance or statute, 40 where the ordinance is not unconstitutional in itself, 41 as where the ques- tion raised is upon the application of an ordinance. 43 f. Enforcement of Lien. Where a money judgment is sought, that controls the amount in controversy, notwithstanding a lien also may be involved or because impossible to determine the benefit the county may gain or the damage it may suffer from the result of the election con- tested. 35. See Handy v. New Orleans, 39 La. Ann. 107, 1 So. 593; Young v. Wilson, 34 La. Ann. 385; Gast Bank Note, etc., Co. v. Fennimore Assoc, 147 Mo. 557, 49 S. W. 511 ; Evens, etc., Fire Brick Co. v. St. Louis Smelting, etc., Co., 48 Mo. App. 634; Horner School v. Weseott, 124 N. C. 518, 32 S. E. 805; U. S. v. Trans- Missouri Freight Assoc, 166 U. S. 290, 17 S. Ct. 540, 41 L. ed. 1007 (which was a bill seeking a dissolution of an association of com- mon carriers for the regulation of rates, and it was held sufficient to confer jurisdiction upon the supreme court that it appeared that the rates exceeded one thousand dollars per day, and that the carriers claimed that the association was necessary to the prosperity, if not to the life, of each company) ; Harris v. Barber, 129 U. S. 366, 9 S. Ct. 314, 32 L. ed. ■697; Carter v. Cutting, 8 Cranch (U. S.) 251, 3 L. ed. 553. 36. Standley v. Hendrie, etc, Mfg. Co., 25 Colo. 376, 55 Pac 723 ; St. Joe, etc., Min. Co. v. Aspen First Nat. Bank, 24 Colo. 537, 52 Pac. 678. An order of the county court rejecting a claim against the county is a proceeding to establish a claim and is not in the nature of a mandamus to require a levy to pay it; and a judgment in the circuit court on appeal from such order for the claim against the county is a judgment for the recovery of money, and, if not of sufficient amount, the su- perior court has no jurisdiction to review it. Lincoln County Ct. v. Hansford, 6 Ky. L. Rep. 734. 37. Benson v. Christian, 129 Ind. 535, 29 N. E. 26. An action to recover for the con- version of stock is subject to the provision of [35] the statute limiting appeals to cases in which the amount of the judgment shall exceed a fixed sum. McClaskey v. Lake View Min., etc., Co., 18 Colo. 65, 31 Pac. 333. 38. Horner School v. Weseott, 124 N. C. 518, 32 S. E. 885. Validity of ordinance and contract there- under. — The court has jurisdiction to pass upon the validity of an ordinance and con- tract executed thereunder when the value of the contract exceeds the jurisdictional amount. Handy v. New Orleans, 39 La. Ann. 107, 1 So. 593; State v. Judge, 23 La. Ann. 761. 39. Actions for separate maintenance are of this character. Seelye v. Seelye, 143 111. 264, 32 N. E. 427 ; Umlauf v. Umlauf, 103 111. 651. 40. Broadwell v. Com., 98 Ky. 15, 17 Ky. L. Rep. 564, 32 S. W. 141. Handy v. New Or- leans, 39 La. Ann. 107, 1 So. 593 (where ju- risdiction was assumed because the value in- volved exceeded the jurisdictional amount) ; State v. Rebassa, 9 La. Ann. 305. 41. See infra, III, C, 5, b. In Broadwell v. Com., 98 Ky. 15, 17 Ky. L. Rep. 564, 32 S. W. 141, the court refused to consider even the constitutionality of the statute. 42. State v. Marshall, 47 La. Ann. 646, 17 So. 202; Second Municipality v. Corning, 4 La. Ann. 407. Repeal. — Where the only question is whether an ordinance, imposing a fine, levy- ing a tax, etc., of less than the jurisdictional amount, has been repealed by an act of legis- lature, the supreme court will not have ju- risdiction. Police Jury v. Villaviabo, 12 La. Ann. 788. A judgment annulling or confirming an or- dinance, where the amount involved is less than the jurisdictional amount, is not appeal- able. State v. Judge, 23 La. Ann. 761. Vol. II 546 APPEAL AND ERROR claimed, 43 and, though a lien is declared and adjudged to be superior to rights of particular parties, the liability imposed upon such interests is held to be measured in money, and the judgment is a money judgment under the statute relating to appeals. 44 On the other hand, where the right to appeal is restricted to cases in which the judgment is for the recovery of money or personal property, it is held that a suit for the enforcement of a lien, or purely in rem, and in which a per- sonal judgment is not sought or recovered, does not come within the statute, and is appealable without regard to the amount in controversy. 45 g. Enforcement of Judgment — (i) In General. An action to enforce a money judgment is an action for the recovery of money, subject to the pecuniary limitation of the statute relating to the appellate jurisdiction. 46 (n) Manner of Enforcing Judgment of Appellate Court. So the statutory pecuniary limitation upon the right to appeal is held to apply to the review of the action of the lower court upon a mandate of the appellate court after a cause is remanded. 47 h. Incidental Order. So, if an incidental order, though arising out of the original action, relates to a demand entirely distinct from it and under the juris- dictional amount, an appeal will not lie upon the basis of the principal action. 48 And, if the matter is raised and determined incidentally for the purpose of reaching a conclusion upon the principal matter involved, the jurisdiction of the appellate court must be determined by the value of the principal subject-matter. 4 * An order made after final judgment is held to be a separate and independent proceeding, and if it involves money only, of a less amount than that conferring appellate jurisdiction, an appeal will not lie. 50 i. Continuance or Dissolution of Marriage Relation. Where the jurisdiction is confined exclusively to cases in which the value of the matter in dispute is of a certain sum, a controversy as to the continuance or dissolution of the marriage relation cannot be reviewed, because the subject-matter is not one that can be reduced to a standard of money value. 51 Where, however, the restriction as to the amount in controversy excludes the appellate jurisdiction only as to cases 43. Poland v. Carrigan, 20 Cal. 174; Mor- 47. City Nat. Bank v. Hunter, 152 U. S. rison v. Goodwin, 28 W. Va. 328, wherein the 512, 14 S. Ct. 675, 38 L. ed. 534, holding that only controversy was whether judgments — an appeal to review the action of the lower each for less than the jurisdictional amount court in such case should be dismissed where — were liens upon certain land, and it was the interest awarded, and concerning which held that there was no jurisdiction. error is alleged, is less than the jurisdictional Where the validity of a lien is merely pre- amount. In Louisiana it was held that, requisite to the right to recover damages, as where the lower court on remand acted upon under a statute which gives the holder of a a question not covered by the decree of the su- lien on sawlogs a right of action for damages preme court, involving an amount below the for their destruction, an action for such dam- jurisdiction of the supreme court, a separate, ages is within the code provision restricting appeal could not be taken from such action, appeals in actions for the recovery of money Bey's Succession, 47 La. Ann. 219, 16 So. 825. or property to a fixed original amount or But, on the other hand, in Brown v. Pont- value of property, notwithstanding the plain- chartrain Land Co., 49 La. Ann. 1779, 23 So. tiff may pray the court to declare his lien 292, the appellate court was held to have ju- valid. Tom v. Sayward, 5 Wash. 383, 31 Pac. risdiction under the statutory provision that 976. See also Durand v. Simpson Logging a court rendering a judgment should be the Co., 21 Wash. 21, 56 Pac. 846; Chapin v. proper tribunal to decide as to the proper Kenoyer, 12 Wash. 536, 41 Pac. 916. method of enforcing its judgment. 44. Standley v. Hendrie, etc., Mfg. Co.. 25 48. State v. Judge, 4 Rob. (La.) 85. Colo. 376, 55 Pac. 723. See also infra, III, 49. Rose's Succession, 48 La. Ann. 418, 19 C, 2, y, (II), (B), (2), (b). So. 450. 45. Fehler v. Gosnell, 99 Ky. 380, 18 Ky. 50. Fairbanks v. Lampkin, 99 Cal. 429, 34 L. Rep. 238, 35 S. W. 1125; Bitzer v. O'Bryan, Pac. 101. 21 Ky. L. Rep. 1307, 54 S. W. 951; Allen v. The refusal to quash an execution on a Long, 19 Ky. L. Rep. 488, 41 S. W. 17. judgment for a fine is independent of, and col- 46. Louisville, etc., R. Co. v. Cambron, 13 lateral to, the judgment imposing the fine. Ky. L. Rep. 540. But see Fenton v. Morgan, State v. Blair, 29 W. Va. 474, 2 S. E. 333. 16 Wash. 30, 47 Pac. 214. See also infra, III, 51. Simms v. Simms, 175 U. S. 162, 20 C, 4, h, (xvn) . S. Ct. 58, 44 L. ed. 115. Vol. II APPEAL AND ERROR oil involving pecuniary value, a judgment or decree in a divorce proceeding is subject to review. 53 j. Custody and Care of Children. "Where appellate jurisdiction is confined exclusively to cases involving a certain amount in controversy, a decision as to the custody and care of children is not reviewable, because the matter in dispute is incapable of being reduced to a pecuniary standard of value. 53 k. Probate Matters. If the probate of a will has any legal operation and is not merely void, the controversy as to the validity of the probate is a matter in dis- pute equal to the value of the estate devised away from those seeking to revoke the probate. 54 1. Dismissal of Suit. It has been held that an appeal will lie from a judg- ment dismissing a complaint upon the ground that it failed to state a cause of action, without regard to the amount in controversy ; 55 but, where the amount of the judgment is made the pecuniary test of appellate jurisdiction, it is held that proceedings to review a judgment of nonsuit, 56 a judgment of dismissal, or that the plaintiff take nothing, 57 or a judgment sustaining a demurrer and dismissing the action, will not lie. 58 m. Refusal to Quash Execution. A judgment refusing to quash an execution is merely pecuniary, and the amount involved controls the right to bring error. 59 n. Actions Involving Right to Office. Under the construction that a statute limiting the right of review to cases involving a fixed sum intends that the restric- tion shall be confined to cases involving an amount of money or something having a money value, a judgment in an action involving the right to a public office is; reviewable without regard to the amount in controversy. 6 " But where the right to appeal is given only in cases in which the judgment shall amount to a prescribed sum, it is held that no appeal lies from a simple judgment of ouster, 61 and it is also held that an appeal from a judgment in quo warranto will not lie under a provision applying only to cases involving money, or some right the value of which can be computed in money. 62 On the other hand, the emoluments of the office are consid- ered sufficient as the value of that which is in controversy to bring such a contro- versy under the operation of the pecuniary limitations of the statute. If the emoluments are of a sufficient amount the appellate court will have jurisdiction 63 — 52. MePherson v. State, 56 Kan. 139, 42 60. MePherson v. State, 56 Kan. 139, 42 Pac. 374. Pae. 374. 53. Perrine v. Slack, 164 U. S. 452, 17 S. Ct. 61. Londoner v. People, 15 Colo. 246, 25 79, 41 L. ed. 510 (being as to the nnality of a Pac. 183, holding that an appeal will not lie judgment of the court of appeals of the Dis- in such a case where there is no judgment for trict of Columbia ) ; De Krafft v. Barney, 2 damages, the judgment of ouster not relat- Black (U. S.) 704, 17 L. ed. 350; Barry v. ing to a franchise. Mercein, 5 How. (U. S.) 103, 12 L. ed. 70. 62. People v. Clayton, 4 Utah 449. 11 Pae. 54. Carter v. Cutting, 8 Cranch. (TJ. S.) 213; State v. McKone, 95 Wis. 216, 70 N. W. 251, 3 L. ed. 553. 164, upon reasoning similar to that in Barry 55. Griffith v. Maxwell, 20 Wash. 403, 55 v. Mercein, 5 How. (U. S.) 103, 12 L. ed. 70, Pac. 571. in which last case the question was whether 56. Timerman v. South Denver Eeal Estate habeas corpus proceedings came within the Co., 20 Colo. 147, 36 Pac. 901. law authorizing appeals under such a statute, 57. Meyer v. Brophy, 15 Colo. 572, 25 Pac. and it was held that they did not, because the 1090; Morrow v. Burney, (Indian Terr. 1899) right in dispute could not be calculated in 51 S. W. 1078; Baldwin v. Farris, (Indian money. But the supreme court of the United Terr. 1899) 51 S. W. 1077; Shapleigh Hard- States does not apply this reasoning to pro- ware Co. v. Brittain, (Indian Terr. 1899) 48 ceedings for the trial of a right to office. See S. W. 1069. infra, note 63. 58. Sons of America Bldg., etc., Assoc, v. 63. Fish v. Collens, 21 La. Ann. 289; State Denver, 15 Colo. 592, 25 Pac. 1091. So, in v. Judge, 20 La. Ann. 574; Dryden tf.Swinburn, New York, an order sustaining a demurrer 15 W. Va. 234; U. S. v. Addison, 22 How. was held not to be appealable to the court of (U. S.) 174, 16 L. ed. 304 (though payable in appeals when the amount claimed was less instalments, such compensation being fixed by than that prescribed by the appellate juris- law) ; Columbian Ins. Co. v. Wheelright, 7 diction of that court. Burleigh v. Center, 74 Wheat. (U. S.) 534, 5 L. ed. 516. N. Y. 608. See mfra, III, C, 4, h, (i). Suspension. — State v. Judge, 22 La. Ann. 49. 59. State v. Blair, 29 W. Va. 474, 2 S. E. Prohibition to court martial.— An appeal 333. will lie to the supreme court of the United Vol. II 54S APPEAL AND ERROR otherwise not. 64 But a proceeding under the code to determine conflicting claims to an office, though the office is purely honorary, is held to embrace a money demand so as to sustain the jurisdictional test where the court may, in case of a decision adverse to the defendant, impose a fine, and such judgment is prayed. 65 o. Contempt Proceedings. Where the pecuniary limitation upon the appellate {'urisdiction applies to cases in which the demand shall exceed a fixed sum, it is idd that the right to appeal from a judgment in contempt proceedings imposing a fine for a larger amount cannot be based upon such provision. 66 p. Franchise. If the value of a franchise exceeds the judicial amount limit- ing appellate jurisdiction, it will confer jurisdiction of an appeal from a judg- ment awarding a peremptory mandamus to compel the granting of the privilege. 67 If the jurisdictional amount is not made a restriction in cases involving fran- chises, it is not sufficient that the franchise may be incidentally drawn in question. 68 q. Fines and Penalties. "Where appellate jurisdiction in penal actions is expressly confined to cases in which the judgment for a fine shall exceed a pre- scribed sum, this pecuniary limitation of course controls. 69 On the other hand, when the prosecution for the recovery of a fine or penalty is considered in the nature of a civil action, the general statutory pecuniary limitation relating to appeals applies. 70 r. Forfeiture of Bail. While an appeal will lie from a judgment of forfeiture on a bail bond in a criminal prosecution, the matter of forfeiture being attracted States to review a judgment of the supreme court of the District of Columbia dismissing a petition for writ of prohibition to a court martial convened to try a pay-inspector in the navy for an offense punishable by dismissal and deprivation of salary exceeding five thou- sand dollars during the residue of his term of office. Smith v. Whitney, 116 U. S. 167, 6 S. Ct. 570, 29 L. ed. 601. Corporate office. — In Louisiana, it was held that an appeal would lie, in a proceeding brought by directors of a bank to enforce their right to exercise the duties of their office, where damages in amount sufficient to give appellate jurisdiction were claimed. Prieur v. Commercial Bank, 7 La. 509. But there is no appellate jurisdiction in a case presenting a contest between parties for cer- tain functions to which no salary is attached ; and the amount of a fund of a corporation which the parties to the suit may manage or control is not the matter in dispute in such a case. Schwartz v. Firemen's Charitable Assoc, 41 La. Ann. 404, 6 So. 652. 64. People v. Willard, 110 N. Y. 662, 18 N. E. 353, 18 N. Y. St. 604, where the officer received no salary or perquisites. 65. People v. Perry, 79 Cal. 105, 21 Pac. 423. 66. Tyler v. Connolly, 65 Cal. 28, 2 Pac. 414 [overruling People v. O'Xeil, 47 Cal. 109], holding that in such a case there is na demand for any sum, and that the demand contem- plated by the constitutional provision above referred to is made to appear in the pleadings ; that, though a proceeding for contempt is a criminal case, the appellate jurisdiction of the supreme court in criminal cases is confined to such as are prosecuted by indictment or in- formation. 67. State v. Police Jury, 39 La. Ann. 759, 2 So. 305. But, conversely, it must appear, in a suit by a corporation having a grant and ex- Vol. II elusive privilege from a city, to enjoin inter- ference therewith, that damages to which com- plainant will be subjected will exceed the ju- risdictional limit. El Paso Water Co. r. El Paso, 152 U. S. 157, 14 S. Ct. 494, 38 L. ed. 396. 68. Clark v. Brown, 8 Gratt. (Va.) 549; Skipwith v. Young, 5 Munf. (Va.) 276. See infra, III, C, 2, y. A judgment of ouster, in an action for the usurpation of a public office, does not relate to a franchise. Londoner v. People, 15 Colo. 246, 25 Pac. 183. 69. Meader Furniture Co. v. Newport, 16 Ky. L. Pep. 829, 30 S. W. 207. See also Broad- well v. Com., 98 Ky. 15, 17 Ky. L. Rep. 564, 32 S. W. 141 ; Johnson v. State, 26 Tex. App. 395, 9 S. W. 611. 70. Quigley v. Aurora, 50 Ind. 28; Kansas City v. Zahner, 138 Mo. 453, 40 S. W. 103; Neal v. Com., 21 Gratt. (Va.) 511. But in Illinois quasi-criminal eases — such as actions for penalties and bastardy proceedings — are considered as exceptions to the cases coming within the statute limiting the right of ap- peal by the amount involved in the contro- versy, and are put upon the same footing as criminal cases, appeals and writs of error be- ing allowed without regard to the amount sought to be recovered or the judgment of the court below. Umlauf v. Umlauf, 103 111. 651. Character of action immaterial. — In Hunt- ley v. Davis, 1 Conn. 391, it was held that an appeal will lie in a qui tarn action where the damages laid exceed the jurisdictional limit; that it was unnecessary to decide whether the action was civil, criminal, or in the nature of both; that this consideration could make no difference as to the right o. appeal, and that the words of the statute were sufficiently com- prehensive to include every possible action that could be brought by the parties. APPEAL AND ERROR 549 to the criminal prosecution, 71 the intrinsic nature of such a bond is civil, 73 and it is held that, where cash bail is forfeited for a failure of defendant to appear at the proper time, and, upon certiorari, the cause is remanded and ordered to be heard on the merits, an appeal from this judgment is controlled by the statutory pecuniary limitation, because the case has assumed the character of a civil proceeding. 73 s. Forcible Entry and Detainer. Actions of forcible entry and detainer are ■within the pecuniary limitations regulating the right to appeal, 74 notwithstanding the particular statute relating to forcible entry and detainer provides for an appeal, but without expressly referring to such restriction. 75 t. Habeas Corpus. A proceeding in habeas corpus is a civil, and not a crim- inal, proceeding, 76 and a judgment therein is not reviewable where the statute imposing pecuniary restrictions upon the appellate jurisdiction is held to require that the subject-matter of the controversy be money or a right the value of which is estimated in money. 77 u. Injunction. The pecuniary limitation upon appellate jurisdiction is held to apply, in an injunction suit, to an order granting an injunction, 78 and such limita- tion is applicable in these proceedings where the matter involved is purely pecu- niary, so as to permit or prevent an appeal according as the amount involved is or is not sufficient under the particular provision. 79 So the principle is pertinent here that when the object of the suit is not to obtain a money judgment, but other relief, the amount involved is determined by the value in money of the relief to plaintiff or the loss to defendant should the relief be granted, or, vice versa, should the relief be denied. 80 But where the right to appeal is not restricted in any cases except those for the recovery of a debt, damages, or property, a decree granting an injunction is appealable. 81 71. Louisiana Soc, etc. v. Cage, 45 La. Ann. 1394, 14 So. 422. 72. Louisiana Soc, etc. v. Cage, 45 La. Ann. 1394, 14 So. 422 (referring to the absence of appellate jurisdiction of the supreme court in a suit on such a bond, the amount of which ia under the pecuniary limitation) ; State v. Hendricks, 40 La. Ann. 719, 722, 5 So. 24 (wherein, after laying down the proposition stated in the text, the court added : " In so saying, we do not lose sight of the fact that it has been treated as a criminal proceeding, in order to determine questions of jurisdiction in cases of appeals from judgments of forfeiture of bail bonds " ) . 73. State v. Fisher, 4 Wash. 382, 30 Pac. 502. 74. Crane v. Farmer, 14 Colo. 294, 23 Pac. 455 (appeal allowable only where the judg- ment amounts to the sum prescribed, etc.) ; Seator-o. Fay, 188 111. 507, 59 N. E. 235 (re- ferring to the final appellate jurisdiction of the court of appeals, from whose judgment appeal to supreme court was dismissed ) ; Stein v. Stely, (Tex. Civ. App. 1895) 32 S. W. 861 (under a provision that an appeal will not lie from a final judgment of the county court in such action unless such judgment allows more than one hundred dollars damages ) . 75. Crane v. Farmer, 14 Colo. 294, 23 Pac. 455. 76. Cross v. Burke, 146 U. i5. 82, 13 S. Ct. 22, 36 L. ed. 896. 77. Cross v. Burke, 146 U. S. 82, 13 S. Ct. 22, 36 L. ed. 896 ; Pratt v. Fitzhugh, 1 Black (U. S.) 271, 17 L. ed. 206 (involving liability to arrest on execution) ; Barry v. Mercein, 5 How. (U. S.) 103, 12 L. ed. 70 (contest as to custody of child) . See also Broadwell v. Com., 98 Ky. 15, 17 Ky. L. Pep. 564, 32 S. W. 141. 78. Bourne v. Beck, (Ky. 1900) 58 S. W. 690 (holding that an appeal will not lie from such an order unless the amount in contro- versy is sufficient to give jurisdiction) ; Ex p. Craft, 124 U. S. 370, 8 S. Ct. 509, 3 L. ed. 449. 79. Citizens Bank v. Webre, 44 La. Ann. 334, 10 So. 728; Harmony Club v. New Or- leans Gas Light Co., 42 La. Ann. 453, 7 So. 538 ; People v. Horton, 64 N. Y. 58 ; Cooke v. Piles, 2 Munf. (Va.) 151. 80. Joint Dist. No. 70, etc. v. School Dist. No. 11, 60 Kan. 295, 56 Pac. 479 (holding that, in an action to enjoin the transfer of ter- ritory and to attach it to a joint-school dis- trict, the amount in controversy is the amount arising from an authorized levy of taxes on the real estate for school purposes) ; Hull v. Johnson, (Kan. App. 1901) 63 Pac. 455; Cast Bank Note, etc., Co. v. Fennimore Assoc, 147 Mo. 557, 49 S. W. 511 ; Ex p. Craft, 124 IT. S. 370, 8 S. Ct. 509, 31 L. ed. 449; Washington Market Co. v. Hoffman, 101 U. S. 112, 25 L. ed. 782. 81. Richards v. People, 100 111. 423, decree enjoining obstruction of highway. But where the statute provides that no appeal will lie from a decree dissolving an injunction where the amount is less than a fixed sum, unless some matter not merely pecuniary is drawn in question, an appeal from such a decree will not lie where a pecuniary matter of less value than that fixed by the statute is involved. Shoemaker v. Bowman, 98 Va. 688, 37 S. E. 278. Vol. II 550 APPEAL AND ERROR v. Mandamus and Prohibition. Mandamus proceedings are held to come within the operation of the statutes imposing pecuniary limitations upon appellate jurisdiction, as where, to confer such jurisdiction, there must be a fixed amount involved or the subject-matter must be of that value as estimated in money ; m and prohibition is likewise brought within the operation of such statute. 83 But a judgment for mandamus is not a judgment for the recovery of money or personal property, and, under a statute imposing pecuniary limitations only, appellate juris- diction in mandamus does not depend upon the amount in controversy. 84 w. Appointment of Receiver. Even though an appeal will not lie directly from an order appointing a receiver, 85 an appeal from an order appointing a receiver and staying proceedings against an insolvent corporation is held to be appealable by a creditor whose claim is of sufficient amount, as such order affects the creditor's claim, and is not merely for the distribution of a fund or for the appointment of a receiver. 86 x. Taxes and Revenue. An action involving tax levies involves matter sus- ceptible of a money value. 87 Where the contest turns merely on the application of an ordinance imposing a tax, or upon individual liability to pay it, the right to appeal will depend upon the matter in controversy, 88 unless a constitutional ques- tion is involved, upon which the court alone may have jurisdiction. 89 If the appellate jurisdiction is extended to cases involving a tax, without regard to the amount in controversy, the matter involved must be a tax in the strict sense of a burden for public use, else the jurisdiction will depend upon pecuniary consider- ations, 90 and if such jurisdiction is so extended to cases for the enforcement of the revenue laws, the case must be strictly of such character. 91 y. Exceptions — (i) In General. Where the provision making the right to appeal depend upon the amount involved is subject to exceptions in particular cases or upon particular circumstances prescribed, the case must fall within the exception, or the right to review will be determined by the amount involved. 92 If 82. State v. Shakespeare, 41 La. Ann. 156, 60 So. 592 ; Police Jury v. Hubbs, 38 La. Ann. 149; U. S. v. Seymour, 153 U. S. 353, 14 S. Ct. 871, 38 L. ed. 742; Columbian Ins. Co. v. Wheelright, 7 Wheat. (U. S.) 534, 5 L. ed. 516. See also supra, III, C, 2, n. Appeal from judgment awarding costs. — But an appeal, by the relator in a mandamus proceeding, from that part only of the judg- ment in his favor which awards costs, on the ground that they are inadequate, is not per- missible, as the appeal involves nothing but costs, and no amount exclusive thereof. State v. Kellogg, 97 Wis. 532, 73 N. W. 22. See also infra, III, C, 4, h, (m). 83. State v. Knight, 1 Mart. N. S. (La.) 700; Smith v. Whitney, 116 U. S. 167, 6 S. Ct. 570, 29 L. ed. 601. But, under the general supervisory control of the supreme court of the state over inferior courts given by an arti- cle of the constitution, it was held that the supreme court had such supervisory control without regard to the amount in controversy. State v. Judge, 39 La. Ann. 994, 3 So. 91. 84. Stone v. Craft, 21 Ky. L. Rep. 1515, 55 S. W. 701. 85. See infra, III, D. 86. In re Moss Cigar Co., 50 La. Ann. 789, 23 So. 544. See infra, III, C, 4, h, (xvil). 87. Joint Dist. No. 70, etc. v. School Dist. No. 11, 9 Kan. App. 883, 57 Pac. 1060. 88. Pratt v. Holmes, 43 La. Ann. 1016, 10 So. 198 ; Police Jury v. Villaviabo, 12 La. Ann. 788; Albert v. Brewer, 9 La. Ann. 64; Neal v. Com., 21 Gratt. (Va.) 511; and see 2 Cent. Dig. tit. " Appeal and Error," § 175. Vol. II Whether or not an act imposing a tax has been repealed is not a question which will confer jurisdiction in an action for the collec- tion of the tax, but the amount in controversy is the test. Washington, etc., B. Co. v. Dis- trict of Columbia, 146 U. S. 227, 13 S. Ct. 64, 36 L. ed. 951. 89. Favrot v. Baton Bouge, 38 La. Ann. 230, to the effect that legality or constitutionality of the tax must be in contestation, or the juris- diction of the supreme court will depend upon the amount in controversy. Where the whole issue is as to the validity of the assessment, the amount in controversy must control the right to appeal. State v. Becorder of Mort- gages, 41 La. Ann. 533, 6 So. 819. 90. Sweeney v. Otis, 37 La. Ann. 520. 91. Mason v. Gamble, 21 How. (U. S.) 390, 16 L. ed. 81, holding that an act of congress, authorizing a writ of error at the instance of either party upon a final judgment in civil actions brought by the United States for the enforcement of the revenue laws, etc., without regard to the sum or value in controversy, did not embrace an action against the collector for the payment of dues paid under protest, but only such cases in which the United States are plaintiffs in the suit. 92. Finnup v. Garfield Tp., 7 Kan. App. 815, 53 Pac. 377; Heraughty v. Grant, 6 Kan. App. 923, 50 Pac. 506; Newell v. Daniels, 5 Kan. App. 505, 47 Pac. 565 ; Neal v. Com., 21 Gratt. (Va.) 511. Questions of law certified. — Thus, where the court may certify questions of law, if the amount in controversy is not sufficient to con- APPEAL AND ERROR 551 the amount involved in the controversy is less than that which gives the appellate court a general jurisdiction, and the jurisdiction therefore depends upon the pres- ence of a particular question — as the constitutionality of a statute or the juris- diction of the lower court — its review of the cause must be confined to these particular questions, and others cannot be considered or decided, 93 though where a case is properly before an appellate court on a principal demand, with an inci- dental demand attached to it by appellee, both of which demands were decided by the lower court, and are included in the same judgment and are incapable of separation, the court will consider the entire cause, though the incidental matter is of a value less than sufficient to confer jurisdiction by itself. 94 The exception of cases in which is drawn in question an authority exercised under the United States, in the act of congress restricting the right of appeal by the amount in controversy, refers to an authority exercised or claimed in favor of one of the parties to the cause, the validity of which is put in issue on the trial of the case. 95 And an action upon a bond given to supersede a judgment or decree of a United States court is not an action brought on account of the deprivation of any right, penalty, or immunity secured by the constitution of the United States, or of any right or privilege of a citizen of the United States, so as to confer appellate jurisdiction upon the supreme court of the United States without regard to the sum or value in dispute. 96 (n) SubjectMatter of Exception Must Be Directly in Issue — (a) In General. If in a controversy of a particular character appellate proceedings are permitted without restriction as to the amount involved, the case in hand must be of the character prescribed, or else the amount involved must be suffi- cient to confer appellate jurisdiction. The right or title is the subject-matter of the exception, and must be directly in issue. 97 fer appellate jurisdiction, the jurisdiction must rest upon the certificate, and if that is wanting, or is made in an improper case, the proceedings in review must be dismissed. Illinois.— Seator v. Fay, 188 111. 507, 59 N. E. 235 ; Illinois University v. Bruner, 168 111. 49, 48 N. E. 54; Fitzpatriek v. Chicago, etc., R. Co., 139 111. 248, 28 N. E. 837. Iowa. — Schultz v. Holbrook, 86 Iowa 569, 53 N. W. 285; Giger v. Chicago, etc., R. Co., 80 Iowa 492, 45 N. W. 906; Harrington v. Pierce, 38 Iowa 260. New York.— People v. Willard, 110 N. Y. «62, 18 N. E. 353, 18 N. Y. St. 604. Washington. — Moskeland v. Stephens, 18 Wash. 693, 50 Pac. 933. Wisconsin. — Blonde v. Menominee Bay Shore Lumber Co., 103 Wis. 284, 79 N.W. 226; Troy Carriage Co. v. Bonell, 102 Wis. 424, 78 N. W. 752. United States. — Williamsport Nat. Bank v. Knapp, 119 U. S. 357, 7 S. Ct. 274, 30 L. ed. 446; Weeth v. New England Mortg. Security Co., 106 U. S. 605, 1 S. Ct. 91, 27 L. ed. 99; Colorado Cent. R. Co. v. White, 101 U. S. 98, 25 L. ed. 860. 93. Favrot v. Baton Rouge, 38 La. Ann. 230; Hinds v. Sells, 63 Ohio St. 328, 58 N. E. 800 ; Mississippi Mills v. Cohn, 150 U. S. 202, 14 S. Ct. 75, 37 L. ed. 1052 ; Ambler v. Eppin- ger, 137 U. S. 480, 11 S. Ct. 173, 34 L. ed. 765. If the supreme court acquires jurisdiction on the ground that the validity of a statute is involved, it will assume jurisdiction of the en- tire cause notwithstanding, by reason of the amount involved, an inferior appellate court would have been the proper appellate tribunal in the absence of the question of the validity of the statute. Benson v. Christian, 129 Ind. 535, 29 N. E. 26. 94. De Lesdernier v. De Lesdernier, 45 La. Ann. 1364, 14 So. 191. Removal of fence pursuant to judgment of court. — Authority exercised by the United States in removing a fence, pursuant to a judg- ment of a court, is not within the meaning of such act. Cameron v. U. S.. 146 U. S. 533, 13 S. Ct. 184, 36 L. ed. 1077. 95. Title to territorial office. — Defendants, in an action in the nature of quo warranto, claiming to be territorial officers, and basing their title upon an election by the people of the territory under and by virtue of the terri- torial statute, exercise no authority under the United States, and the case does not come within the provisions of such act. People v. Clayton, 4 Utah 449, 11 Pac. 213. 96. Cogswell v. Fordyee, 128 U. S. 391, 9 S. Ct. 112, 32 L. ed. 484. 97. Colorado. — Spangler v. Green, 21 Colo. 505, 42 Pac. 674, 52 Am. St. Rep. 259. Connecticut. — Scovill v. Seeley, 14 Conn. 238. Illinois. — Richards v. People, 100 111. 423. Kentucky. — Turner v. Pash, (Ky. 1891) 17 S. W. 809. New York. — Wheeler v. Seofield, 67 N. Y. McMillen v. Cronin, 57 How. Pr. (N. Y.) 311; 53. Virginia. — Cash v. Humphreys, 98 Va. 477, 36 S. E. 517; Florance v. Morien, 98 Va. 26, 34 S. E. 890. Vol. II 552 APPEAL AND ERROR (b) Land or Freehold Lnvolved — (1) In General. Where the right to bring appellate proceedings is restricted by the amount in controversy except where the title to land or a freehold is involved, it is not every action which simply concerns real estate that will come within such exceptions. The title must be directly in issue. 98 (2) Damages. An action on the case for an injury to plaintiff's land does not involve a freehold or franchise, though these are incidentally drawn into ques- tion " — as in trespass quare clausum f regit — • but the jurisdiction will depend upon the amount of damages. 1 Where the recovery in an action for assault and battery is less than the amount justifying an appeal, the appeal will not he even though the action involves the right to use a private highway. 2 (3) To Subject Land — (a) In General. The fact that the land is sought to be subjected to the payment of a claim does not make the case one involving title to land. 8 Such an action involves a pecuniary demand under the statute restricting appellate jurisdiction. 4 So, in a suit to reach" the excess of a curtesy West Virginia. — Deaton v. Mitchell, 45 W. Va. 670, 31 S. E. 968; Fauleoner v. Stinson, 44 W. Va. 546, 29 S. E. 101; Greathouse v. Sapp, 26 W. Va. 87. United States. — Under an act exempting causes involving the validity of patents and copyrights from the rule restricting the right to appeal to the supreme court of the United States to matters exceeding a certain value, patents for land are not intended, but only patents for inventions and discoveries. Street v. Ferry, 119 U. S. 385, 7 S. Ct. 231, 30 L. ed. 439. 98. Colorado. — Halm's Peak, etc., Canal, etc., Min. Co. v. Lees, (Colo. 1900) 62 Pac. 841; Paddack v. Staley, 24 Colo. 188, 49 Pac. 281; Wyatt v. Larimer Irrigation, etc., Co., 18 Colo. 298, 33 Pac. 144, 36 Am. St. Pep. 280; Brandenburg v. Reithman, 7 Colo. 323, 3 Pac. 577. Illinois. — Carbine v. Fox, 98 111. 146 ; Rose v. Choteau, 11 111. 167. Indiana. — Duckworth v. Mosier, 4 Ind. App. 267, 30 N. E. 936. Kansas. — Newell v. Daniels, 5 Kan. App. 505, 47 Pac. 565. Kentucky. — Bourne v. Beck, (Ky. 1900) 58 S. W. 690; Ponder v. Lard, 102 Ky. 605, 19 Ky. L. Rep. 1649, 44 S. W. 138; French v. Sewell, 13 Ky. L. Rep. 902, 29 S. W. 976; Church v. Halley, 10 Ky. L. Rep. 447. Louisiana. — De Blois v. New Orleans, 45 La. Ann. 1308, 14 So. 190. Missouri. — Bradley v. Milwaukee Mechanics Ins. Co., 147 Mo. 634, 49 S. W. 867 (involving a defense, in an action on an insurance policy, that plaintiff was not the sole owner of the property at the time the policy was issued, the court saying that if the title to real estate remains after the judgment where it was when the suit was begun, the title to the real estate is not involved) ; Price v. 31ankenship, 144 Mo. 203. 45 S. W. 1123; State v. Court of Ap- peals, 67 Mo. 199; Skrainka ;;. Allen, 2 Mo. App. 387. New York. — La Rue v. Smith, 153 N. Y. 428, 47 N. E. 796; Hill v. Water, etc.. Com'rs, 150 N. Y. 547, 44 N. E. 1105; Miele v. Deper- ino, 135 N. Y. 618, 31 N. E. 1047, 47 N. Y. St. 837 ; Scully v. Sanders, 77 N. Y. 598 ; Nichols v. Voorhis, 74 N. Y. 28. Vol. n Ohio. — Bassett v. Bassett, 5 Cine. L. Bui. 440. West Virginia. — Robrecht v. Wharton, 29 W. Va. 746, 2 S. E. 793; Greathouse v. Sapp, 26 W. Va. 87 ; Childs v. Hurd, 25 W. Va. 530. United States. — Farmers' Bank v. Hooff, 7 Pet. (U. S.) 168, 8 L. ed. 646. Title in third person. — Where defendants denied plaintiff's claim of title, but, instead of setting up title in themselves, attempted to show title in third persons with whom they were not in privity, it was held that the title was not involved within the meaning of the statute. Trevett v. Barnes, 110 N. Y. 500, 18 N. E. 257, 18 N. Y. St. 533. Admission of title. — Where appellees prac- tically admit that the title to the soil and freehold are in appellant it cannot be said with any degree of propriety that the freehold is involved. Richards v. People, 100 111. 423. 99. Clark v. Brown, 8 Gratt. (Va.) 549; Skipwith v. Young, 5 Munf. (Va.) 276. 1. Scovill v. Seeley, 14 Conn. 238 (which involved the appealability of an order sustain- ing a demurrer to a declaration claiming dam- ages less than the jurisdictional amount, the court holding that in such a case it did not appear from the record that the title to land was either drawn in question or determined) ; Hutchinson v. Kellam, 3 Munf. (Va.) 202; Greathouse v. Sapp, 26 W. Va. 87. 2. McMillen v. Cronin, 57 How. Pr. (N. Y.) 53. But in Randall v. Crandall, 6 Hill (N. Y.) 342, upon the question of original jurisdic- tion it was held that in trespass quare clau- sum fregit the defense that the locus in quo was a public highway raised a question of title to land, and therefore could not be tried before a justice. 3. Johns v. Potter, 61 Iowa 393, 16 N. W. 283 ; Fauleoner v. Stinson, 44 W. Va. 546, 29 S. E. 1011. Execution. — And the fact that an execution is levied, or may be levied, on real estate does not of itself bring the title in issue so as to authorize an appeal on that ground. Gorman v. Glenn, (Ky. 1900) 58 S. W. 776. 4. A suit to subject land to the payment of a judgment involves a pecuniary demand, and not the title to land. Cash v. Humphreys, 98 Va. 477, 36 S. E. 517. A decree reciting that APPEAL AND ERROR 553 interest to satisfy a debt, if defendant is directed to pay certain instalments until the debt is satisfied, this is a personal judgment and does not involve the title to realty. 5 (b) Liens and Moktgages. An action to foreclose a mortgage concerns real estate, but the title thereto is not necessarily involved. 6 So a proceeding to enforce a lien does not involve the freehold within the meaning of the statute making an exception in favor of cases involving the freehold. The amount of the claim determines the appellate jurisdiction. 7 3. What Law Governs — a. United States Supreme Court. The appellate jurisdiction of the supreme court of the United States is regulated by, and depends entirely upon, acts of congress, and the mere adoption of a state statute as to the mode of procedure in a particular case will not govern the right of appeal in oppo- sition to the act of congress defining the appellate jurisdiction. 8 b. Provision Adopted After Final Judgment. The mere adoption of a new provision after final judgment in a cause will not change the remedies as to such judgment so as to confer appellate jurisdiction where none existed before. 9 e. Pending Causes. Generally, a provision imposing a pecuniary limitation upon appellate jurisdiction, without an express exception made to exempt par- ticular cases from its operation, applies to causes pending before the adoption of the provision, 10 upon the principle that the right is a mere privilege and not a vested right. 11 Even when judgment is rendered before the passage or taking effect of the act, the pecuniary provision applies if appellate proceedings have not land in the hands of a remainder-man is liable for taxes involves a pecuniary question and not a title to land. Florance v. Morien, 98 Va. 26, 34 S. E. 890. See also infra, III, C, 4, h, (XVII). 5. Turner v. Pash, (Ky. 1891) 17 S. W. 809. 6. Newell v. Daniels, 5 Kan. App. 505, 47 Pac. 565. 7. Colorado. — Cravens v. Lee, 24 Colo. 225, 49 Pac. 424; Scheeren v. Stramann, 24 Colo. Ill, 48 Pac. 966; Spangler v. Green, 21 Colo. 505, 42 Pac. 674, 52 Am. St. Rep. 259. Iowa. — Brown v. Smith, 76 Iowa 315, 41 N. W. 27; Colyar v. Pettit, 63 Iowa 97, 18 N. W. 694; Andrews v. Burdick, 62 Iowa 714, 16 N. W. 275. Kansas. — Park v. Busenbark, 59 Kan. 65, 51 Pac. 907. Kentucky.— Turner v. Pash, (Ky. 1891) 17 S. W. 809; Pittman v. Wakefield, 90 Ky. 171, 11 Ky. L. Rep. 972, 13 S. W. 525; Brannin v. Gleason, 14 Ky. L. Rep. 109 ; Quiggins v. Me- Carty, 4 Ky. L. Rep. 444; French v. French, 4 Ky. L. Rep. 234. New York. — A. Hall Terra Cotta Co. v. Doyle, 133 N. Y. 603, 30 N. E. 1010, 44 N. Y. St. 900; Norris v. Nesbit, 123 N. Y. 650, 25 N. E. 377, 33 N. Y. St. 603; Wheeler v. Sco- field, 67 N. Y. 311. Virginia. — Patteson v. McKinney, 88 Va. 748, 14 S. E. 379; Buckner v, Metz, 77 Va. 107; Fink v. Denny, 75 Va. 663; Umbarger v. Watts, 25 Gratt. (Va.) 167. West Virginia. — Deaton v. Mitchell, 45 W. Va. 670, 31 S. E. 968 ; Fauleoner v. Stin- son, 44 W. Va. 546, 29 S. E. 1011. A mere right to a remedy against land is not an interest in real estate. Andrews v. Burdick, 62 Iowa 714, 16 N. W. 275. Kentucky — Street-assessment lien. — An appeal lies from the judgment in an action to enforce a street-assessment lien, without re- gard to the amount in controversy, as the title to land is involved. Mackin v. Wilson, (Ky. 1898) 45 S. W. 663. 8. Baltimore, etc., R. Co. v. Sixth Presb. Church, 19 Wall. (U. S.) 62, 22 L. ed. 97. 9. Rogers v. Goldthwaite, McGloin (La.) 127. A right to appeal from a judgment which has passed through all the appellate courts that have jurisdiction to hear it can- not be conferred by legislature, and a statute giving a right of appeal in particular cases to the several appellate courts of the state, in- cluding an appeal to the court of appeals, though the amount in controversy may be less than the sum fixed for the appellate jurisdic- tion of that court in other cases, is held to ap- ply to such actions only in which the right of appeal had not been exhausted when the act was passed. Germania Sav. Bank v. Sus- pension Bridge, 159 N. Y. 362, 54 N. E. 33. 10. California. — Luther v. Ship Apollo, 1 Cal. 15. Kansas. — Skoin v. Limerick, 50 Kan. 465, 31 Pac. 1051; Puffer v. Kennedy, 49 Kan. 59, 30 Pac. 167. Kentucky. — Hill v. Booth, (Ky. 1900) 58 S. W. 993; Caldwell v. Hampton, 21 Ky. L. Rep. 262, 51 S. W. 174; Hale v. Grogan, 20 Ky. L. Rep. 1856, 50 S. W. 257. Virginia. — McGruder v. Lyons, 7 Gratt. (Va.) 233. United States. — Street v. Ferry, 119 U. S. 385, 7 S. Ct. 231, 30 L. ed. 439; Del Valle v. Harrison, 93 U. S. 233, 23 L. ed. 892 ; North- ern Pac. R. Co. v. Amato, 49 Fed. 881, 1 U. S. App. 113, 1 C. C. A. 468. 11. Hale v. Grogan, 20 Ky. L. Rep. 1856, 50 S. W. 257 ; Baltimore, etc., R. Co. v. Grant, 98 U. S. 398, 25 L. ed. 231. Vol. II 554 APPEAL AND ERROR already been instituted. 13 But such general provision is not applicable to cases in which appeals have been perfected or writs of error sued out before the adoption or taking effect of the act. 13 d. Construction of General and Speeial Laws. Statutes conferring jurisdic- tion generally are considered in connection with the provisions relating to the pecuniary restriction upon the jurisdiction of the particular appellate court, and not as conferring appellate jurisdiction without regard to such limitations ; u but 12. Skoin v. Limerick, 50 Kan. 465, 31 Pac. 1051 ; Puffer v. Kennedy, 49 Kan. 59, 30 Pac. 167; Hill v. Booth, (Ky. 1900) 58 S. W. 993; Kendall v. Spradling, 15 B. Mon. (Ky.) 33; Hale v. Grogan, 20 Ky. L. Rep. 1856, 50 S. W. 257. Under the Louisiana code of practice re- quiring the judge to sign all final judgments, a judgment is rendered when it is signed so as to become subject to appeal or error, and error will not lie to a circuit court judgment for less than five thousand dollars, announced before, but not signed until after, May 1, 1875, under the act of congress providing for a reexamination in the supreme court of the United States of final judgments of circuit courts rendered previous to May 1, 1875, when the matter in dispute exceeds the sum or value of two thousand dollars and of such as were rendered after that date where it ex- ceeds five thousand dollars. Del Valle v. Har- rison, 93 U. S. 233, 23 L. ed. 892. After appeal granted and abandoned. — An act which changes the minimum amount of » judgment from which an appeal may be prose- cuted applies to an appeal granted by the clerk after the act went into effect, though an appeal, which was afterward abandoned, was granted by the lower court before the act went into effect. Frost v. Rowan, 21 Ky. L. Rep. 1777, 56 S. W. 427. 13. Kansas. — Leavenworth Coal Co. v. Bar- ber, 47 Kan. 29, 27 Pac. 114 (holding that un- der such a statute, which went into effect from and after its publication, a writ of error should be dismissed in a controversy over a less sum than that prescribed where the peti- tion and praecipe, though filed on the day of publication, were not filed until a later hour); Hite r. Stimmell, 45 Kan. 469, 25 Pac. 852. Kentucky. — See Kendall v. Spradling, 15 B. Mon. (Ky.) 33. Louisiana. — Levy v. Collins, 32 La. Ann. 1003. Texas. — Meriweather v. Whitley, 38 Tex. 525, holding that the repeal of an act prohib- iting appeals from judgments under a certain amount will not aid the jurisdiction of the appellate court of an appeal already pend- ing. Virginia. — MeGruder v. Lyons, 7 Gratt. (Va.) 233, applying the statutory pecuniary limitation if the application for the appeal is not made before the code provision goes into affect. Wisconsin. — Kingsley v. Great Northern R. Co., 91 Wis. 380, 64 N. W. 1036. United States. — Keller v. Ashford, 133 U. S. 610, 10 S. Ct. 494, 33 L. ed. 667 (under an act of congress limiting the appellate juris- diction of the supreme court of the United States from the supreme court of the District Vol. II of Columbia in cases in which appeals or writs of error " shall hereafter be allowed," the court holding that the words referring to the time when the appeal or writ of error is allowed, instead of to the time when it is en- tertained by the supreme court, were intended to prevent the cutting off of appeals taken and allowed before the passage of the act, as had been held to be the effect of the language used in the previous act of 1879, as indicated in Baltimore, etc., R. Co. v. Grant, 98 U. S. 398, 25 L. ed. 231) ; Cook v. U. S., 2 Wall. (U. S.) 218, 17 L. ed. 755 (holding that after a writ of error to review a judgment in favor of the United States government has been taken, an act of congress authorizing the re- duction of such judgment to a sum below the amount necessary to be involved to give the supreme court jurisdiction does not affect such jurisdiction). Pending appeals transferred under new con- stitution. — Where a cause was pending on ap- peal under the constitution of 1864, and, by an act of the legislature, it was transferred to the supreme court created by the constitution of 1868, it was held that the appeal was sub- ject to the provisions of the latter constitu- tion relating to the amount in controversy necessary to give jurisdiction. Myers V-. Mit- chell, 20 La. Ann. 533. Repeal of appellate jurisdiction. — In Mc- Clain v. Williams, -10 S. D. 332, 73 N. W. 72, 43 L. R. A. 287, 289, it was held that where an act forbids an appeal in cases where the amount recovered is less than a fixed sum, and no reservation is made as to appeals pre- viously taken, the act applies to appeals pend- ing at the time of its approval. This seems to be on the ground that, if a law conferring jurisdiction is repealed without reservation, all pending causes fall with the law repealed. To the same effect see Baltimore, etc., R. Co. v. Grant, 98 U. S. 398, 25 L. ed. 231. 14. See Canada del Oro Mines v. Collins, (Ariz. 1894) 36 Pac. 33; Crane v. Farmer, 14 Colo. 294, 23 Pac. 455. See also Richmond v. Milwaukee, 21 How. (U. S.) 80, 16 L. ed. 60; Murphy v. Byrd, Hempst. (U. S.) 211, 17 Fed. Cas. No. 9,947a. Act conferring original jurisdiction. — Whit- sitt v. Union Depot, etc., R. Co., 103 U. S. 770, 26 L. ed. 337, holding that although the act of 1875 gave the circuit courts of the United States original cognizance of suits of «, civil nature arising under the constitution and laws of the United States when the value of the matter in dispute exceeds five hundred dollars, it did not change the jurisdiction of the supreme court of the United States for the review of judgments and decrees of such circuit courts. APPEAL AND ERROR 555 where the constitution confers the right of appeal to the court of last resort from all final judgments in designated courts, a statute which denies the right in cer- tain cases, according to the amount involved, is held to be void. 15 4. Showing and Determination of Amount or Value — a. In General. 16 Broadly, the amount involved in controversy is the highest sum, according to the statutory limitation, for which judgment can be rendered. 17 b. Necessity of Showing in General. Generally speaking, the value or amount in controversy must be made to appear affirmatively. If it cannot be ascertained the appeal will be dismissed, 18 and the burden is on appellant to establish the jurisdiction. 19 Mere uncertain inference or speculation is not sufficient. 30 On the •other hand, if the pecuniary limitation is merely an exception to the general 15. Payne v. Davis, 2 Mont. 381 ; Smith v. Wheeler, 4 Okla. 138, 44 Pac. 203 — holding that the legislature can regulate the manner, but cannot deny the right, of appeal. Contra. — Such a statute was held to be compatible with the constitution declaring that the supreme court, except in cases other- wise directed by the constitution, should have appellate jurisdiction only, which would be coextensive with the statute, under such re- strictions or regulations, not repugnant to the constitution, as might from time to time be prescribed by law. Anderson v. Brown, 6 Fla. 299 ; Otoway v. Devall, 6 Fla. 302. So in McClain v. Williams, 10 S. D. 332, 73 N. W. 72, 43 L. P. A. 287, 289, it was held that such a statute was not void, the constitution con- ferring upon the court of last resort " appel- late jurisdiction . . . under such regulations and limitations as may be prescribed by law." But, on a rehearing, it was held that under the article of the constitution which required that laws relative to courts should be of gen- eral and uniform operation in the state, the act was void, as it applied only to appeals in the circuit court, and that county courts had concurrent jurisdiction to the same extent in certain cases and were therefore courts of the same class or grade. Application to law and equity cases. — Such a statutory provision was held to apply to chancery as well as to law cases, and in this respect was not in conflict with the constitu- tion providing, in general terms, for the trial of chancery eases de novo by the supreme court. Andrews v. Burdick, 62 Iowa 714, 16 N. W. 275. 16. See 2 Cent. Dig. tit. "Appeal and Er- ror," §§ 233 et seq., 254 et seq. 17. Baber v. Pittsburg, etc., R. Co., 93 111. 342; Calder v. Police Jury, 44 La. Ann. 173, 10 So. 726; Forstall v. Larche, 39 La. Ann. 286, 1 So. 650 ; Holmes v. Oregon, etc., R. Co., 7 Sawy. (U. S.) 380, 9 Fed. 229; Aitken v. Doherty, 11 Manitoba 624. Effect of increased valuation in answer. — ■ Where plaintiff alleges that the personal property sued for is worth a specified sum, and claims a specified amount of damages for detention, defendant's allegation that the property is worth a larger sum will not en- able him to appeal from the judgment, since no judgment could be rendered for more than justified by plaintiff's pleading. One can take judgment for no more than he asks. Thurs- ton v. Lamb, 90 Iowa 363, 57 N. W. 875. 18. Kansas. — Packard v. Packard, 56 Kan. 132, 42 Pac. 335. Kentucky. — York v. Riggan, 10 Ky. L. Rep. 816. Louisiana. — Ducoing v. Billgery, 30 La. Ann. 250; Police Jury v. Fontaine, 11 Rob. (La.) 476; McRae v. Bushnell, 4 Mart. N. S. (La.) 483. Missouri.— State v. Gill, 107 Mo. 44, 17 S. W. 758. United States. — Parker v. Morrill, 106 U. S. 1, 1 S. Ct. 14, 27 L. ed. 72. See 2 Cent. Dig. tit. "Appeal and Error,'' § 255. The cause will not be remanded in order to establish the value of the property claimed in plaintiff's petition. Hunter v. Oelrich, Dall. (Tex.) 357. Finding of state court. — A writ of error to the supreme court of appeals of Virginia will be dismissed where it appears that that court refused to entertain an appeal in the case on the ground that the matters involved were purely pecuniary, and that the amount in controversy was less than sufficient to give it jurisdiction under the state constitution. Callan v. Bransford, 139 U. S. 197, 11 S. Ct. 519, 35 L. ed. 144. Showing interest sufficient to support ap- peal. State v. Miscar, 34 La. Ann. 834; Swan v. Bry, 21 La. Ann. 481. See also 2 Cent. Dig. tit. " Appeal and Error," § 259. Sufficiency of evidence. — Petition in error sufficiently showing amount (Kemper v. Lord, 6 Kan. App. 64, 49 Pac. 638. See also McLane v. Evans, (Tex. 1900) 58 S. W. 723; May v. Rice, 101 U. S. 231, 25 L. ed. 797) ; injunction bond (Anderson v. Smith, 28 La. Ann. 649) ; value stated in conveyance (Kahn v. Kern- good, 80 Va. 342 ; Edwards v. Edwards, 29 La. Ann. 597). Record showing, see infra, XIII. 19. Wilson v. Blair, 119 U. S. 387, 7 S. Ct. 230, 30 L. ed. 441. But an appeal will not be dismissed on the ground that certain claims were colusively assigned for the purpose of jurisdiction, unless such fact is made to ap- pear. Filler v. Tyler, 91 Va. 458, 22 S. E. 235. 20. Hicks v. Ferd Heim Brewing Co., 7 Kan. App. 812, 52 Pac. 916; Wade v. Loudon, 30 La. Ann. 660; Huntington v. Saunders, 163 U. S. 319, 16 S. Ct. 1120, 41 L. ed. 174; Cameron v. TJ. S., 146 U. S. 533, 13 S. Ct. 184, 36 L. ed. 1077. But see Watson v. Brown, 7 Ky. L. Rep. 215. Vol. II 556 APPEAL AND ERROR appellate jurisdiction of the court, then, to defeat the jurisdiction, it must appear that the case falls within the exception. 21 c. Determination from Pleadings — (i) In General. Ordinarily, the amount in controversy will be determined by the pleadings — the amount claimed on the one side and denied on the other. 23 This depends largely upon the statute, however. Sometimes the amount demanded by the party seeking a money judgment con- trols absolutely, in which case it must be ascertained by the conclusion or ad damnum of the declaration. 23 On the other hand, the amount demanded or the prayer of the pleading will not prevail over the facts pleaded. 24 (n) Reciprocal Right Shown by Pleadings. If it appears from the 21. Peterson First Nat. Bank v. Bourde- lais, 109 Iowa 497, 80 N. W. 553. 22. Connecticut. — Burke v. Grace, 53 Conn. 513, 4 Atl. 257, under a statutory provision limiting the right to an appeal " when the matter in demand," etc., holding that the amount is something to be seen on the face of the writ and is not to be determined in any other mode. Georgia. — Taylor v. Blasingame, 73 Ga. Ill, where the right to appeal is conferred upon either party in the event the principal claim or amount exceeds a fixed sum, and holding that, under such a provision, the ex- ercise of the right depends upon the pleadings and not upon reductions which may be made upon a final hearing upon the testimony of witnesses or findings of the jury. Illinois. — ■ Stanton v. Kinsey, 151 111. 301, 37 N. E. 871, under a statute relating to ap- peals from the court of appeals (a court of intermediate appellate jurisdiction) in ac- tions where there was no trial on an issue of fact. See also infra, III, C, 4, h, (n). Indiana. — Flora v. Russell, (Ind. App. 1892) 31 N. E. 936, as between the jurisdic- tion of the supreme court and the court of ap- peals, holding that on an appeal by plaintiff from an order sustaining a demurrer to two of his counts, where he sued in three counts for an amount in each within the jurisdiction of the supreme court, and a conditional ver- dict was rendered on the third count for a less amount, the supreme court had jurisdiction, because it could not be said that the plaintiff would not recover more than the amount of the verdict on the counts to which the de- murrer had been sustained. Iowa. — Ruiter v. Plate, 77 Iowa 17, 41 N. W. 474; Ellithorpe v. Rei'desil, 71 Iowa 315, 32 N. W. 238; Ormsby v. Nolan, 69 Iowa 130, 28 N. W. 569. Kentucky. — Huff v. Logan, (Ky. 1901) 60 S. W. 483 (holding that, where the original petition did not state a cause of action and the amended petition sought to recover less than the jurisdictional amount, the suffi- ciency of the amendment would not be con- sidered) ; Spiceland v. Shelton, 21 Ky. L. Rep. 863, 53 S. W. 274 (holding that, where the petition shows the principal of the debt to be less than the jurisdictional amount, an appeal will not lie though the judgment is for more than that amount and does not show that any part of it is interest) ; Schnabel v. Jacobs, 20 Ky. L. Rep. 1596, 49 S. W. 774. Vol. II Louisiana. — Taylor v. Almada, 50 La. Ann. 351, 23 So. 365. Missouri. — Kane v. Kane, 146 Mo. 605, 48 S. W. 446, holding that, where no amount is specified in the petition, a judgment for the defendant is not appealable. New York. — Zoeller v. Riley, 98 N. Y. 668, 7 N. Y. Civ. Proc. 303, 1 How. Pr. N. S. (N. Y.) 525, holding that, in an action not founded on contract, the amount demanded is the amount in controversy within the statutory provision. See also Van Gelder v. Van Gelder, 81 N. Y. 128; and infra, III, C, 4, h, (n). Vermont.— Fisk v. Wallace, 51 Vt. 418. Virginia. — Vaiden v. Bell, 3 Rand. (Va.) 448. United States. — • Washington, etc., R. Co. v. District, of Columbia, 146 U. S. 227, 13 S. Ct. 64, 36 L. ed. 951 (insufficient allegation of value) ; Olnev v. The Steamship Falcon, 17 How. (U. S.)"l9, 15 L. ed. 43 (holding that a claim of " $1800 and upward " is too indefi- nite) ; Agnew v. Dorman, Taney (U. S.) 386, 1 Fed. Cas. No. 100. Exemplary damages discretionary. — Where the complaint asks actual and exemplary damages, the amount in controversy is the ag- gregate, notwithstanding exemplary damages are not a matter of right, but discretionary with the court. Thompson v. Jackson, 93 Iowa 376, 61 N. W. 1004, 27 L. R. A. 92. Sufficiency of the pleadings will not be con- sidered. Williamson v. Brandenberg, 6 Ind. App. 95, 31 N. E. 369; Hayden v. Kallis, 6 Ky. L. Rep. 510. 23. Henigan v. Ervin, 110 Cat 37, 42 Pac. 457; Chamberlain r. Cochran, 8 Pick. (Mass.) 522; Klein v. Allenbach, 6 Nev. 159; Do- minion Salvage, etc., Co. v. Brown, 20 Can. Supreme Ct. 203. 24. Loekwood v. Knapp, 4 Conn. 257 (hold- ing that the demand for damages would not be sufficient to confer jurisdiction where it appeared that the amount actually due and in suit was less than sufficient for that purpose); Williamson v. Brandenberg, 133 Ind. 594, 32 N. E. 834; Central City v. Treat, 101 Iowa 109, 70 N. W. 110 ; Nash v. Beckman, 86 Iowa 249, 53 N. W. 228; Shacker v. Hartford F. Ins. Co., 93 U. S. 241, 23 L. ed. 862. But where plaintiff claims a certain amount, and lays the ad damnum at a less amount, it is held that on a general verdict against him the amount claimed is the sum laid in the ad dam- num. Scott v. Lunt, 6 Pet. (U. S.) 349, 8 L. ed. 423. APPEAL AND ERROR 557 pleadings that one of the parties to the suit has an appealable interest, entitling him to appeal to the supreme court, the same right will be recognized in favor of his opponent. 35 (in) Parties Bound by Showing. Where the plaintiff makes the requisite jurisdictional allegations as to the value of the property involved, he cannot, on appeal, deny the jurisdiction of the appellate court by snowing a less valuation in order to obtain a dismissal of the appeal. 26 d. Value of Property or Right. Upon the principle that, when the object of the suit is not to obtain a money judgment, but to obtain other relief, the amount involved must be determined by the value in money of the relief to plaintiff or of the loss to defendant, a pleading which does not allege such value is not suffi- cient to give the appellate court jurisdiction on an appeal from an adverse judg- ment, 27 though it is also held that such value may sufficiently appear from the evidence. 28 So, where the proceeding is such that the amount actually involved does not appear prior to the trial of the particular issues, the amount must be determined from the evidence. 29 e. Finding of Value. Under a statute giving the right to appeal from a final judgment only when the matter in demand exceeds a fixed amount, it is held that the right of appeal depends not upon any finding by the court as to the value of the matter in demand, but solely upon the statement of the amount as it appears in the complaint as returned to the court. 30 But in other cases it appears that the finding of such value by the verdict is effective to control the right to appeal. 31 25. Mutual Reserve Fund L. Assoc, v. Smith, 169 111. 264, 48 N. E. 208, 61 Am. St. Rep. 172; New Orleans, etc., R. Co. v. Barton, 43 La. Ann. 171, 9 So. 19; Penter v. Staight, 1 Wash. 365, 25 Fae. 469. See 2 Cent. Dig. tit. "Appeal and Error," § 260. 26. Brown v. Citizens' Bank, 7 Kan. App. 811, 52 Pac. 907 ; Boggs v. Hays, 44 La. Ann. 859, 11 So. 222. Effect of answer. — Defendant cannot in- crease value by. alleging a greater value than that laid in the complaint, because no greater judgment could be rendered than the value al- leged by plaintiff. Thurston v. Lamb, 90 Iowa 363, 57 N. W. 875. 27. Saux v. Patton, 34 La. Ann. 1155; Du- gan v. Police Jury, 26 La. Ann. 673; Gast Bank Note, etc., Co. v. Fennimore Assoc, 147 Mo. 557, 49 S. W. 511 ; El Paso Water Co. v. El Paso, 152 U. S. 157, 14 S. Ct. 494, 38 L. ed. 396. Salary fixed by law need not be alleged in suit involving right to office. Tish v. Col- lens, 21 La. Ann. 289. ' 28. People v. Horton, 64 N. Y. 58. Where evidence was offered in the court be- low, but rejected, to show that the value of the office in dispute was over three hundred dollars, the evidence should have been re- ceived, and the case is appealable. Lanier v. Gallatas, 13 La. Ann. 175. 29. Payne v. Chicago, etc., R. Co., 170 111. 607, 48 N. E. 1053, holding that the direction of the creditor to summon a person as garn- ishee in an attachment does not indicate or determine the amount or nature of the claim against the garnishee; that in such case the amount involved must be determined from the evidence — as where no issue is taken on the answer of the garnishee and the parties proceeded to a trial and examination of witnesses as to whether the garnishee is in- debted to the attachment debtor — and that if the evidence shows that if any judgment could have been rendered against the garn- ishee it must have been a judgment for less than the jurisdictional amount, an appeal will be dismissed as to such creditor. See also Gudgell v. Bath County Ct., 8 Ky. L. Rep. 677. On a mere conflict of evidence as to value the court will take jurisdiction. Reinerth v. Rhody, 52 La. Ann. 2029, 28 So. 277. 30. Burke v. Grace, 53 Conn. 513, 4 Atl. 257. 31. Clarkson v. Clarkson, 1 Duv. (Ky.) 268; Herrin v. Pugh, 9 Wash. 637, 38 Pac. 213 (holding that, under the provision that the appellate jurisdiction of the supreme court shall not extend to civil actions where the value of the property does not exceed a certain amount, the mere recital by a, claim- ant of attached property of its value in his affidavit does not, in the absence of a finding that its value exceeds that sum, give the court jurisdiction of an appeal by him) ; Brown v. Barry, 3 Dall. (U. S.) 365, 1 L. ed. 638 (hold- ing that where the suit is for " seven hundred and seventy pounds, sterling money of Great Britain," and the value of the money is not averred, the verdict of the jury, finding the value, fixes the same for the purpose of de- termining the jurisdiction). See also Stir- man v. Smith, 8 Ky. L. Rep. 781. By statute providing that the supreme court shall not review any judgment unless the damages awarded, or, in replevin, the value found, exceeds a certain sum, see Den- ver First Nat. Bank v. Follett, (Colo. 1900) 62 Pac. 361 ; Stevenson v. Clarke, 2 Colo. App. 108, 29 Pac. 1031. Release of value found. — In Bennett v. But- terworth, 8 How. (U. S.) 124, 12 L. ed. 1013, Vol. II 558 APPEAL AND ERROR f. Affidavit. It has been held that the affidavit filed for the writ in replevin may be looked to to ascertain the value of the property. 82 But, necessarily, it would seem, in cases in which the pleading or record must show the jurisdictional fact, the amount or value cannot be shown by affidavits in the appellate court. 8 * On the other hand, however, where the matter in dispute does not appear from the pleadings or evidence, the rule of practice prevails in some jurisdictions to permit proof of some kind, even by affidavit, either before or after appeal, to show the fact. 3 * g. Amount Actually in Controversy — ■ (i) In General. It is not always the sum demanded or claimed which controls, but that which is actually in con- troversy between the parties as the case stands in the appellate court, 35 to ascer- which was a, suit for the recovery of four slaves, whose value plaintiff alleged to be two thousand seven hundred dollars, the jury found a verdict for the plaintiff " for one thousand two hundred dollars, the value of the negro slaves in suit," and plaintiff there- upon released the judgment for one thousand two hundred dollars, the court adjudging that he recover of defendant the said slaves, and it was held that the case was within the ap- pellate jurisdiction of the supreme court. Judgment in attachment — Claim by third person. — In an action of assumpsit, com- menced by attachment originating in the county court, the sheriff levied upon certain property of defendant in the attachment, and another person interposed a claim of property therein. Upon the trial of this claim a ver- dict was rendered against the claimant and judgment entered thereon, from which the claimant appealed to the circuit court, where the judgment was affirmed. The claimant then sought to bring the cause by writ of er- ror to the supreme court. The judgment in 1 the attachment suit was nearly three hundred dollars, but the value of the property levied upon was not stated. It was held that in de- termining the amount in controversy refer- ence could be had to the judgment in the at- tachment suit. Brillis v. Blumenthal, 13 Fla. 577. Certificate of trial judge — Pennsylvania. — The supreme court has no jurisdiction of an appeal from a judgment on a ease stated in an action of ejectment where there is no cer- tificate by the trial judge that the value of the land is greater than fifteen hundred dol- lars, as required by the Pennsylvania act of May 5, 1899 [Pa. Pamphl. L. (1899), p. 249, § 4]. Such an appeal will be remitted to the superior court. Matthews v. Rising, 194 Pa. St. 217, 44 Atl. 1067. 32. Rohe v. Pease, 189 111. 207, 59 N. E. 520; Morris v. Preston, 93 111. 215. 33. McGuirk v. Burry, 93 111. 118; Ashley v. Millett, 8 Ky. L. Rep. 536. See also The Elizabeth, L. R. 3 A. & E. 33. Where value certified by trial judge. — Where there is nothing on the record to show whether the value of the property really in controversy is greater or less than one thou- sand dollars, evidence should be presented to the lower court so that a proper certificate may be made to determine the jurisdiction of Vol. II the appellate court. In re Missel witz, 177 Pa. St. 359, 35 Atl. 722. 34. Waters Pierce Oil Co. v. New Iberia, 47 La. Ann. 863, 17 So. 343; Gee v. Thomp- son, 39 La. Ann. 310, 1 So. 537; Testart v. Belot, 32 La. Ann. 603; Austin Real Estate, etc., Co. v. Bahn, 87 Tex. 582, 29 S. W. 646, 30 S. W. 430 (a suit in which it was unneces- sary to allege or prove value) ; U. S. v. Trans- Missouri Freight Assoc, 166 U. S. 290, 17 S. Ct. 540, 41 L. ed. 1007 ; U. S. v. The Brig Union, 4 Cranch (U. S.) 216, 2 L. ed. 600. See also McCoy v. McCoy, 33 W. Va. 60, 10 S. E. 19. See 2 Cent. Dig. tit. "Appeal and Error," § 257. Affidavit on notice. — See Course v. Stead, 4 Dall. (U. S.) 22, 1 L. ed. 724. Affidavit too late after dismissal of appeal. Richmond v. Milwaukee, 21 How. (U. S.) 391, 16 L. ed. 72. Affidavit in opposition to jurisdiction. — Where, on an appeal by the children and heirs at law of a deceased married woman from a decree ordering her real estate to be sold for the payment of debts alleged to have been due from her to appellee, the face of the record shows the value of the property sufficiently to give the supreme court jurisdiction, and appellee has refused to appear in the supreme court, it is too late, upon a motion to set aside the judgment, to present extrinsic evi- dence of the actual value of the property. Dodge v. Knowles, 114 U. S. 436, 5 S. Ct. 1108, 1197, 29 L. ed. 296. See also Red River Cattle Co. v. Needham, 137 U. S. 632, 11 S. Ct. 208, 34 L. ed. 799. Weight and sufficiency. — See Talkington v. Dumbleton, 123 U. S. 745, 8 S. Ct. 335, 31 L. ed. 313; Zeigler v. Hopkins, 117 U. S. 683, 6 S. Ct. 919, 29 L. ed. 1019; Gage v. Pum- pelly, 108 U. S. 164, 2 S. Ct. 390, 27 L. ed. 668. 35. Connecticut. — Steavens v. Bass, 1 Root (Conn.) 127. Indiana. — Dearborn County v. Kyle, 137 Ind. 421, 36 N. E. 1090. Iowa. — Central City v. Treat, 101 Iowa 109, 70 N. W. 110; Schultz v. Holbrook, 86 Iowa 569, 53 N. W. 285. Kansas. — Stinson v. Cook, 53 Kan. 179, 35 Pac. 1118. Kentucky. — Logan v. Davis, 5 Ky. L. Rep. 424. APPEAL AND ERROR 559 tain which the appellate court may look into the entire record. 86 Or, as other- wise stated, the amount is determined by the case as it stands in the appellate court rather than by the amount in controversy in the lower court. 37 This last statement, however, while consistent with the principle that the real amount in controversy will control, is not always broadly true, because sometimes it depends upon the conditions under which the review is sought. 38 The matter in contro- versy, however, must not only be of sufficient value, but the controversy in rela- tion to the matter of such value must be continued by the appellate proceedings. 3 * (n) Fictitious or Colorable Claim. If the claim is merely colorable and fictitious demands are inserted in order to give jurisdiction, and this latter fact is made to appear, it is held in some cases that the court will refuse to entertain jurisdiction, because jurisdiction can no more be conferred by improper devices than it can be taken away in such manner. 40 h. Particular Considerations in Determination of Amount or Value — (i) Distinction Between Appeal by Plaintiff and by Defendant. Ordi- narily the amount claimed by plaintiff determines the appellate jurisdiction where Louisiana. — Bush v. Berard, 39 La. Ann. 899, 2 So. 790, holding that, on appeal from an assessment of taxes, the amount in dispute is the difference between the taxes due or the assessment assailed and those which would be due under the reduction sought. Missouri. — May v. Jarvis-Conklin Mortg. Trust Co., 138 Mo. 47, 40 S. W. 122. New York.— A. Hall Terra Cotta Co. v. Doyle, 133 N. Y. 603, 30 N. E. 1010, 44 N. Y. St. 900. Virginia. — Atlantic, etc., R. Co. v. Reid, 87 Va. 119, 12 S. E. 222 (difference between an award of a second board of commissioners and that of a former board, to which latter the plaintiff in error made no objections, is the test of appellate jurisdiction) ; Campbell v. Smith, 32 Gratt. (Va.) 288. West Virginia. — McKinney v. Kirk, 9 W. Va. 26. Wisconsin. — Henk v. Baumann, 100 Wis. 28, 75 N. W. 313. United States. — New England Mortg. Se- curity Co. v. Gay, 145 U. S. 123, 12 S. Ct. 815, 36 L. ed. 646; East Tennessee, etc., R. Co. v. Southern Tel. Co., 112 U. S. 306, 5 S. Ct. 168, 28 L. ed. 746 (difference between assess- ment and value of entire property assessed is the matter in litigation in a dispute over the assessment of a jury of condemnation) . Canada. — Labelle v. Barbeau, 16 Can. Su- preme Ct. 390. See also infra, III, C, 4, h, (i), (n) ; and III, C, 4, h, (xiii). Value as per stipulation given in admiralty. — Starin v. The Schooner Jesse Williamson, 108 U. S. 305, 2 S. Ct. 669, 27 L. ed. 730. Particular error assigned. — But where the appeal is restricted by the amount involved it is held that the right is not limited by the amount affected by the error assigned, but by the amount involved in the action. Woolley v. Lyon, 115 111. 296, 6 N. E. 30. Construction of pleading. — In the consider- ation of jurisdictional allegations, the court will be guided by the real pecuniary interest affecting the parties as disclosed by the plead- ing taken as a whole, and not by strained al- legations of interests which could never be ju- dicially ascertained and determined. Schwartz v. Firemen's Charitable Assoc, 41 La. Ann. 404, 6 So. 652. 36. Illinois. — Lewis v. Shear, 93 111. 121. Indiana. — Keadle ». Siddens, 131 Ind. 597, 31 N. E. 362. Louisiana. — Wilkins v. Gantt, 32 La. Ann. 929. Missouri. — State v. Lewis, 96 Mo. 146, 8 S. W. 770 ; Kirchgraber v. Lloyd, 59 Mo. App. 59. New York. — Campbell v. Mandeville, 110 N. Y. 628, 17 N. E. 866, 16 N. Y. St. 830; Roosevelt v. Linkert, 67 N. Y. 44"7. Vermont. — Church v. Vanduzee, 4 Vt. 195. Virginia. — Batchelder v. Richardson, 75 Va. 835. Wisconsin. — Burkhardt v. Elgee, 93 Wis. 29, 66 N. W. 525, 1137. United States. — Gray v. Blanchard, 97 TJ. S. 564, 24 L. ed. 1108. 37. Davis v. Webb, 46 W. Va. 6, 33 S. E. 97; Gordon v. Ogden, 3 Pet. (TJ. S.) 33, 7 L. ed. 592; Decker v. Williams, 73 Fed. 308. 38. Thus, as construing the expression " value in controversy," " matter in contro- versy," or " matter in dispute," as in effect of the same significance, see Vance v. Cox, 2 Dana (Ky.) 152; Logan v. Davis, 6 Ky. L. Rep. 137; Harman v. Lynchburg, 33 Gratt. (Va.) 37. But see Dashiell v. Slingerland, 60 Cal. 653, wherein the plaintiff's demand is held to control and distinguish earlier cases, in which the " matter in dispute " was the controlling provision of the law in force. See infra, III, C, 4, h, (i), (ii). 39. Logan v. Davis, 6 Ky. L. Rep. 137; Hartsook v. Crawford, 85 Va. 413, 7 S. E. 538 ; Fuyallup Light, etc., Co. v. Stevenson, 21 Wash. 604, 59 Pac. 504; Davis v. Webb, 46 W. Va. 6, 33 S. E. 97. 40. Block v. Kearney, 43 La. Ann. 381, 8 So. 916; Cox v. Carr, 79 Va. 28. See also Sherwin v. Colburn, 25 Vt. 613. As where the course of plaintiff on the trial, the nature of the action, and the evidence all show that the plaintiff could not seriously believe the demand for damages would be sustained. Lea v. Orleans, 46 La. Ann. 1444, 16 So. 456. Or Vol. II 560 APPEAL AND ERROR defendant prevails in the court below ; 4t and so, if a plaintiff sues for an amount sufficient to confer appellate jurisdiction, this amount will control on appeal by him, notwithstanding he fails to recover the entire amount claimed, 42 unless plain- tiff, by his own course, limits his claim to the amount awarded. 43 On the other hand, in many cases it is considered that while the amount in controversy as to a plaintiff who recovers nothing is the demand, as the judgment is then against him to that extent, yet, if he recovers a part of his demand, then the judgment is against him for that part only which he has failed to recover, and this difference is the criterion of appellate jurisdiction. 44 But however this may be, when defendant appeals it is held that, at least in the absence of a set-off or counter- claim, 45 the judgment, or the amount by the payment of which he may discharge himself, and not the amount of the plaintiff's claim, determines the right of appel- as where it appears that there are included in the demand items which it is obvious should be rejected, and which, when rejected, leave the amount less than the jurisdictional amount. Schmidt v. Brown, 33 La. Ann. 416. See 2 Cent. Dig. tit. "Appeal and Error," § 207 et seq. 41. California. — Skillman v. Lachman, 23 Cal. 198, 83 Am. Dee. 96. Indiana. — Morton Gravel Road Co. v. Wy- song, 51 Ind. 4. Kentucky. — Vance v. Cox, 2 Dana (Ky.) 152. Missouri. — Kane v. Kane, 146 Mo. 605, 48 S. W. 446. Pennsylvania. — Stewart v. Keemle, 4 Serg. & R. (Pa.) 72. Virginia. — McCrowell v. Burson, 79 Va. 290. United States. — Cooke u.Woodrow, 5 Craneh (U. S.) 13, 3 L. ed. 22. 42. Arkansas. — Reynolds v. Smeed, 1 Ark. 199. California. — Dashiell v. Slingerland, 60 Cal. 653 ; Solomon v. Reese, 34 Cal. 28. Louisiana. — Notwithstanding a plea of res adjudicata is sustained, and a part of the plaintiff's demand is dismissed, leaving in con- troversy less than the jurisdictional amount pendente lite, the supreme court is not divested of jurisdiction. Mehl6 v. Bensel, 39 La. Ann. 680, 2 So. 201. Where defendant alleged in his answer that the land in dispute was of a value sufficient to confer appellate jurisdiction, and called upon his vendor in warranty for a judg- ment against him for that amount, and judg- ment was rendered in the action for the plain- tiff for the land and for the defendant against the warrantor for a sum less than that alleged in the answer to be the value of the land, it was held that the appellate court had jurisdic- tion of an appeal by the warrantor. Hunting- ton v. Bordeaux, 42 La. Ann. 346, 7 So. 553. Ohio. — Draper v. Clark, 59 Ohio St. 336, 52 N. E. 832. West Virginia. — Faulconer v. Stinson, 44 W. Va. 546, 29 S. E. 1011. Canada. — Petrie v. Machan, 28 Ont. 504. See 2 Cent. Dig. tit. "Appeal and Error," § 221. 43. Jewell v. Sullivan, 130 Ind. 574, 30 N. E. 789 (on appeal by plaintiff from a re- fusal of the trial court to enter judgment on a verdict in his favor for an amount less than the jurisdictional amount, though his original Vol. n claim was much larger ; and to the same point is Hepburn v. Lewis, 2 Call (Va.) 497); Weaver v. Cone, 189 Pa. St. 298, 42 Atl. 529 (failure to file exceptions to referee's report and appeal from judgment in favor of defend- ant on his exceptions to the report) ; Peters v. Carner, 183 Pa. St. 65, 38 Atl. 509 (appeal from a judgment for the defendant non ob- stante veredicto, assigning for error the re- fusal of the court to enter judgment on the verdict ) . 44. Kentucky. — Miller v. Yocum, 12 B. Mon. (Ky.) 421; Logan v. Davis, 6 Ky. L. Rep. 137. Missouri. — Holker v. Hennessey, 141 Mo. 527, 42 S. W. 1090, 64 Am. St. Rep. 524, 39 L. R. A. 165, as to amount in dispute. Ohio. — Draper v. Clark, 59 Ohio St. 336, 52 N. W. 832. Virginia. — Batchelder v. Richardson, 75 Va. 835. United States. — Came v. Russ, 152 U. S. 250, 14 S. Ct. 578, 38 L. ed. 428; Devere v. Steamship Haverton, 137 U. S. 145; 11 S. Ct. 35, 34 L. ed. 603 [distinguishing Irvine v. The Steamship Hesper, 122 U. S. 256, 7 S. Ct. 1177, 30 L. ed. 1175, in that there the district court awarded eight thousand dollars, while the cir- cuit court gave only four thousand two hun- dred dollars; but the case was one of salvage in which the value of the property was over one hundred thousand dollars, compensation being sought in such sum, proportioned to the value, as the court might deem meet and rea- sonable, and there was no finding of the dis- trict court which bound the supreme court, and, in case of a reversal, a much larger sum than the jurisdictional amount might have been awarded in addition to the sum which was awarded. Therefore, in that case, the difference between the judgment of the two courts in no respect represented the amount in dispute] ; Hilton v. Dickinson, 108 U. S. 165, 2 S. Ct. 424, 27 L. ed. 688 [distinguishing earlier cases and holding that there was no difference, in principle, between the position of a plaintiff and that of a defendant; that plaintiff does not, any more than defendant, take a case up to secure what he has already got, but to get more.] 45. Hedley v. Geissler, 189 111. 172, 59 N. E. 580; Hall v. Spurgeon. 23 Ind. 73; Dunning v. Lacey, 96 Ky. 611, 16 Ky. L. Rep. 721, 29 S. W. 435 ; Pierce v. Wade, 100 U. S. 444, 25 L. ed. 735. APPEAL AND ERROR 561 late jurisdiction. 46 In other jurisdictions the amount sought to be recovered by plaintiff in his pleading is the amount in controversy, 47 whether the appeal is by plaintiff or by defendant, this ruling, however, depending upon the particular lan- guage of the provision in this regard. 48 (n) On Appeals from Intermediate Courts. The amount in controversy in the court of last resort is the amount which was in controversy or dispute in the intermediate appellate court. 49 And while the judgment of the intermediate appellate court is sometimes the criterion, because the statute confines the appel- late jurisdiction of the court of last resort by the amount of the recovery in the former court, the jurisdiction of the court of last resort is often confined by the amount of such judgment because it is the only real matter in controversy. Thus, if the plaintiff is satisfied with the judgment in the court of first instance and the defendant appeals, that judgment is the only amount in controversy between the parties ; and it is held that plaintiff cannot afterward appeal from a judgment adverse to him, notwithstanding his original demand was of sufficient amount. 60 As to defendant the rule prevails that the judgment recovered by plaintiff, and not the amount claimed by him, controls, and the application of this rule is con- tinued upon the question of the finality of the judgment of the intermediate 46. Arkansas. — Reynolds v. Sneed, 1 Ark. 199. Illinois.— Hedley v. Geissler, 189 111. 172, 59 N. E. 580. Indiana. — Cincinnati, etc., It. Co. v. Mc- Dade, 111 Ind. 23, 12 N. E. 135. Kansas. — Richmond v. Brummie, 52 Kan. 247, 34 Pac. 783. Kentucky.— Hill v. Booth, (Ky. 1900) 58 S. W. 993. Missouri. — McGregor v. Pollard, 130 Mo. 332, 32 S. W. 640. But while the judgment recovered by the plaintiff may be of such an amount as to justify an appeal to the inter- mediate court of appeals, instead of to the supreme court, if that judgment is reversed at the instance of the defendant and the cause remanded, the amount in dispute immediately becomes as it originally was before any judg- ment was rendered; and, if such original amount is sufficient to permit an appeal to the supreme court, the plaintiff may appeal from a judgment entered for the defendant on the second trial. Hennessv v. Bavarian Brewing Co., 145 Mo. 104, 46 S. W. 966, u8 Am. St. Rep. 554, 41 L. R. A. 385. Ohio.— Draper v. Clark, 59 Ohio St. 336, 52 N. W. 832. Virginia. — Cash v. Humphreys, 98 Va. 477, 36 S. E. 517; Gage v. Crockett, 27 Gratt. (Va.) 735. West Virginia. — Eauleoner v. Stinson, 44 W. Va. 546, 29 S. E. 1011. United States. — Lamar v. Micou, 104 U. S. 465, 26 L. ed. 774; Walker v. U. S., 4 Wall. (U. S.) 163, 18 L. ed. 319. Canada. — Massey-Harris Co. V. McLaren, 11 Manitoba 370; Ontario, etc., R. Co. v. Marcheterre, 17 Can. Supreme Ct. 141. See 2 Cent. Dig. tit. " Appeal and Error," 47. California. — Dashiell v. Slineerland, 60 Cal. 653. Georgia.— Brown v. Robinson, 91 Ga. 275, 18 S. E. 156; Taylor v. Blasingame, 73 Ga. Ill, both of which cases were decided under a [36] code provision making the principal demand or damages claimed in the pleadings con- trol. Iowa. — Rand v. Binder, (Iowa 1898) 75 N. W. 505. Nevada. — Klein v. Allenbach, 6 Nev. 159, construing the constitutional provision con- ferring jurisdiction where the demand should exceed a fixed amount, and following Solomon v. Reese, 34 Cal. 28, in the construction of similar language. Texas. — Mobley v. Porter, ( Tex. Civ. App. 1899) 54 S. W. 655. Washington. — Bleecker v. Satsop R. Co., 3 Wash. 77, 27 Pac. 1073, under a provision making the original amount in demand the criterion. See also Penter v . Staight, 1 Wash. 365, 25 Pac. 469. Canada. — Citizens' Light, etc., Co. v. Parent, 27 Can. Supreme Ct. 316, under a pro- vision that " whenever the right to appeal is dependent upon the amount in dispute, such amount shall be understood to be that de- manded, and not that recovered, if they are different." 48. See supra, note 47. 49. Grounds v. Ralph, 1 Ariz. 227, 25 Pac. 648 ; Barney v. The Steamboat D. R. Martin, 91 U. S. 365, 23 L. ed. 439. 50. Illinois. — Martin v. Stubbings, 126 111. 387, 18 N. E. 657, 9 Am. St. Rep. 620. New York.— Sehenck v. Marx, 125 N. Y. 703, 26 N. E. 15, 34 N. Y. St. 607. Virginia. — Lewis v. Long, 3 Munf. (Va.) 136. United States. — Barney v. The Steamboat D. R. Martin, 91 U. S. 365, 23 L. ed. 439. Canada. — Cossette v. Dun, 18 Can. Supreme Ct. 222 (holding that where the judgment appealed from by the defendant is of a suffi- cient amount, and on the appeal it was reduced below that sum, the plaintiff might further appeal, because the value of the matter in con- troversy as to him was the judgment of the court of first instance) ; Monette v. Lefebvre, 16 Can. Supreme Ct. 387. voi. n 562 APPEAL AND ERROR appellate court. 51 These rules will be found to rest upon the reason that in the particular case the real amount in controversy is that which restricts the right to appeal therein, though a positive provision of statute will prevail in the construc- tion thereof. 32 So, on the other hand, where the action of the first appellate court has the effect of opening the original controversy, it is held that the judg- ment of the trial court will then no longer control. 53 51. Illinois. — Lake Erie, etc., R. Co. v. Faught, 129 111. 257, 21 N. E. 620. The same principle applies to an appeal by the com- plainant in an original bill from that part of the decree only which is against him on the cross-bill. Moore v. Williams, 132 111. 589, 24 N". E. 619, 22 Am. St. Rep. 563. Where the judgment of the trial court disposes of a sufficient amount, and this is affirmed in the intermediate court, the supreme court will have jurisdiction. Svanoe v. Jurgens, 144 111. 507, 33 N. E. 955. But where the intermediate appellate court affirms the judgment for a reduced amount, it is held that the amount of the original judgment is still the amount which limits the further right of appeal to the court of last resort, even where both ap- peals are by the defendant. Chicago, etc., R. Co. v. Davis, 159 111. 53, 42 N. E. 382, 50 Am. St. Rep. 143. Indiana. — Cincinnati, etc., R. Co. v. Mc- Dade, 111 Ind. 23, 12 N. E. 135; Louisville, etc., R. Co. v. Coyle, 85 Ind. 516. Mississippi. — Clark v. Gresham, 67 Miss. 203, 7 So. 223 ; Ward v. Scott, 57 Miss. 826. New York. — Butterfield v. Rudde, 58 N. Y. 489. Virginia. — Hay v. Pistor, 2 Leigh (Va.) 707. Contra, Citizens' Light, etc., Co. v. Parent, 27 Can. Supreme Ct. 316, under a statute re- quiring that the amount by which the right of appeal is to be determined shall be that de- manded and not that recovered, if such amounts are different. 52. Thus, in Illinois, under particular statutes prevailing, the amount depended upon the amount of the judgment of the intermedi- ate appellate court, even though that judgment was in affirmance of a judgment in favor of the defendant below, or it depended upon the amount as shown by the pleadings and the record. The distinction was between the terms of the statute as applicable to actions ecc con- tractu, in which the amount involved was made the test, and actions sounding in dam- ages, in which the judgment was made the test irrespective of the claim set up, where such damages were speculative and depended upon proof. For example: in an action to recover damages growing out of alleged negli- gence a judgment of the appellate court, af- firming a judgment of the trial court in favor of the defendant, is final. See Baber v. Pitts- burg, etc., R. Co., 93 111. 342, where such stat- utes were fully examined; and in connection therewith see also Fitzpatrick v. Chicago, etc., R. Co., 139 111. 248, 28 N. E. 837; Crittenden v. Crittenden, 138 111. 511, 28 N. E. 747 ; Brad- shaw v. Standard Oil Co., 114 111. 172, 28 N. E. 574; Brant v. Gallup, 111 111. 487, 53 Am. Rep. 638 ; Hankins v. Chicago, etc., R. Co., 100 111. 466; Balsley v. St. Louis, etc., R. Co., (111. 1886) N. E. 474. By a later statute an ap- Vol. II peal was provided to the supreme court from the intermediate appellate courts when the amount claimed in the pleadings exceeds a certain amount, in actions where there is no trial on an issue of fact in the lower court. Stanton v. Kinsey, 151 111. 301, 37 N. E. 871. Dismissal of appeal. — Where no appeal can be taken from a particular court affirming or reversing a judgment of an inferior court, it has been held that the court of last resort still has jurisdiction to review the action of the intermediate appellate court when the latter neither affirms nor reverses the judgment of the inferior court, but refuses to exercise its jurisdiction on the ground of the amount involved. Evans v. Sanders, 10 B. Mon. (Ky.) 291. On the other hand, it has been held that the re- fusal of a court to award certiorari to review a judgment of a justice is not reviewable by the court of appeals where the amount in- volved is not sufficient to give the latter court jurisdiction. Farnsworth v. Baltimore, etc., R. Co., 28 W. Va. 815. And it is no objection that appellant will be remediless unless the court of last resort assumes jurisdiction, be- cause the intermediate court, in proper cases, may be compelled by mandatory process to exercise its jurisdiction. Anderson v. Brown, 6 Fla. 299.. And the dismissal of an appeal by the intermediate court is Leld to dispose of the decree appealed from as effectually as an affirmance. Moore v. Williams, 132 111. 589, 24 N. E. 619, 22 Am. St. Rep. 563. So, in Texas, where an appeal is allowed from a judg- ment of an intermediate appellate court upon an appeal from a justice's court where the judgment in the trial de novo or the amount in controversy exceeds a fixed amount, an ap- peal will not lie from a judgment of such in- termediate appellate court dismissing an appeal from the justice's court unless the amount in controversy exceeds a prescribed sum. Allen v. Hall, (Tex. Civ. App. 1901) 60 S. W. 586; Gulf, etc., R. Co. v. Rowley, (Tex. Civ. App. 1893) 22 S. W. 182. Other cases have held to the contrary. Loper v. State, (Tex. Civ. App. 1891) 17 S. W. 1090; Will- iams v. Sims, (Tex. App. 1890) 16 S. W. 786, the latter relying upon Pevito v. Rodgers, 52 Tex. 581. This case, however, rather supports the first two cases above cited, holding that, where such an appeal was dismissed in the in- termediate appellate court, the legal effect of the dismissal was precisely the same against appellant in that case as if it had resulted from a trial de novo, because it fixed upon him an absolute liability for the amount of the judg- ment of the justice of the peace of more than sufficient amount. 53. Dismissal on appeal from justice. — Thus, where defendant appeals from a judg- ment of a justice, and, upon the trial in the APPEAL AND ERROR 563 (in) Interest and Costs — (a) Rule Against Increasing Amount in Con- troversy. The accumulation of interest after action brought will not confer appellate jurisdiction. 64 And, if plaintiff's claim or the amount involved in the suit is not sufficient to confer appellate jurisdiction at the time of the appeal, the appellate court can acquire no jurisdiction by subsequent enlargement of such claim or amount in controversy. 55 But where the matter in dispute has reference to the amount at the date of the judgment in the lower court, which includes interest on the verdict, such interest is properly considered in determining the appellate jurisdiction, as the amount of the whole judgment controls. 66 (b) Costs — (1) Subject to Pecuniary Limitation. If a judgment or order relating to the payment of costs may be reviewable, upon the theory that the costs constitute the amount in controversy, the matter will at least come within the pecuniary restrictions of the statute. 57 intermediate appellate court, the plaintiff is not confined to the recovery of the amount awarded by the justice, if his cause is dis- missed on such appeal an appeal by him will lie to the supreme court. Beach v. Livergood, 15 Ind. 496. See also Anderson v. Coble, 26 Ind. 329. Reversal of decree dismissing bill. — Where a decree dismissing a bill is reversed on ' de- fendant's appeal, and the cause is remanded with instruetio-.s to enter a decree for com- plainant for an amount within the jurisdic- tion of the supreme court, an appeal will lie to that court from the latter decree. Dough- erty v. Hughes, 165 111. 384, 46 N. E. 229. Cause remanded at defendant's instance. — So, where the plaintiff claims more than the jurisdictional amount and recovers less, and the judgment is reversed at his instance in the intermediate appellate court, and the cause is remanded for a new trial, as to the defendant the judgment in reversal involves the full amount of the plaintiff's claim. Draper v. Clark, 59 Ohio St. 336, 52 N. E. 832. 54. Reiser v. Cox, 116 111. 26, 4 N. E. 384; Dufresne v. GuSvremont, 26 Can. Supreme Ct. 216. But see, otherwise, Griffin v. Harriman, 74 Iowa 436, 38 N. W. 139 ; Penter v. Staight, 1 Wash. 365, 25 Pac. 469 — wherein the amount claimed had been demanded before suit, on account of which it was said the proper judgment would have been for the prin- cipal, with interest thereon to the date of the judgment; and therefore it was proper that the prayer of the complainant should be for more than the bare principal. See 2 Cent. Dig. tit. "Appeal and Error," § 276 et seq. 55. Arizona. — Johnson v. Tully, (Ariz. 1887) 12 Pac. 567. Connecticut. — Denison v. Denison, 16 Conn. 34. Indiana. — Cincinnati, etc., R. Co. v. Grames, 135 Ind. 44, 33 N". E. 896. Iowa. — Hays v. Chicago, etc., R. Co., 64 Iowa 593, 21 N. W. 98, holding that where, on appeal to the circuit court from a judgment of a justice of the peace, the case is triable on the petition in the justice's court, the inter- est on the judgment cannot be added so as to give the supreme court jurisdiction on appeal. Louisiana.— Rogers v. Goldthwaite, 32 La. Ann. 48. New York. — Van Gelder v. Van Gelder, 81 N. Y. 128; Josuez v. Conner, 75 N. Y. 156. Utah. — Openshaw v. Utah, etc., R. Co., 6 Utah 268, 21 Pac. 999, holding that, where a judgment whose principal sum would not au- thorize an appeal, says nothing of interest, the supreme court of the United States will have no jurisdiction on error to the supreme court of Utah, notwithstanding the statute in Utah allows interest on judgments. United States. — Western Union Tel. Co. v. Rogers, 93 U. S. 565, 23 L. ed. 977 ; Knapp v. Banks, 2 How. (U. S.) 73, 11 L. ed. 184. 56. Massachusetts Ben. Assoc, v. Miles, 137 U. S. 689, 11 S. Ct. 234, 34 L. ed. 834. So, where a judgment in the district court of a territory is affirmed by the supreme court of the territory, and at the date of the affirmance the interest, added to the original judgment, was sufficient to give the supreme court of the United States jurisdiction, the value of the matter in dispute was to be determined by the amount due at the time of the judgment of the supreme court of the territory. Benson Min., etc., Co. v. Alta Min., etc., Co., 145 U. S. 428, 12 S. Ct. 877, 36 L. ed. 762; Zeckendorf v. Johnson, 123 U. S. 617, 8 S. Ct. 261, 31 L. ed. 277. Unauthorized amendment of judgment. — Where a judgment was entered on a verdict, but was afterward amended, on defendant's ex parte motion, to include interest on the ver- dict, which interest was not claimed by the plaintiff, it was held that this would not make the matter in dispute exceed the jurisdictional amount so as to bring the case within the ju- risdiction of the supreme court. Northern Pac. R. Co. v. Booth, 152 U. S. 671, 14 S. Ct. 693, 38 L. ed. 591. 57. Perry v. Quackenbush, 105 Cal. 299, 38 Pac. 740 (holding that the jurisdiction de- pends upon the demand made by the plaintiff in the ad damnum clause of the complaint; and, where the amount of costs claimed is less than the jurisdictional amount, an order, made at the final judgment and striking out a cost- bill, is not appealable) ; Doyle v. Wilkinson, 120 111. 430, 11 N. E. 890 (holding that where, upon affirming a judgment by the court of ap- peals, the costs are taxed by the clerk, such costs constitute a simple money demand and the action of the court of appeals in overrul- ing a motion to retax will not be reviewed Vol. II 564 APPEAL AND ERROR (2) Costs Excluded as Incidental to Action — (a) In General. The matter in dispute relates entirely to the subject-matter of the action, and, as costs are merely incidental to the action, they carnot be added to the demand sued for in order to confer appellate jurisdiction; 68 and where the jurisdiction is made to depend upon the amount of the judgment recovered or the amount in controversy, exclusive of costs, costs cannot be included, and an appeal from a judgment for costs only will not lie. 59 But, where the amount involved in the trial court is sufficient to confer appellate jurisdiction, it will not be affected by the fact that the court orders part of the amount to be paid as costs ; m and, where costs are taxed as a part of the judgment and the statute extends the right to appeal to cases in which a particular amount is recovered, it is held that the costs constitute a part of the judgment in determining such jurisdictional amount. 61 (b) Damages. So the including of statutory damages in a judgment will not confer jurisdiction on appeal, as such damages are merely incidental to the matter in dispute ; 62 but where the statute provides specifically for the recovery of a particular item as a part of the damages sustained, such item is not costs, but is a part of the damages sustained, and as such is considered as a part of the amount in controversy. 63 where the amount of the costs is not sufficient to give the supreme court jurisdiction) ; Dougart's Succession, 42 La. Ann. 516, 7 So. 794. Costs taxed after decision of appellate court. — Where a judgment was affirmed with- out taxing costs and, after the mandate had been remitted, the costs, amounting to less than the jurisdictional amount of the appel- late court, were taxed in the lower court, it was held that a writ of error brought up only the proceedings subsequent to the mandate, and, the amount involved being insufficient, there was no jurisdiction. Sizer v. Many, 16 How. (U. S.) 98, 14 L. ed. 861. 58. Henigan ». Brvin, 110 Cal. 37, 42 Pac. 457 ; Votan v. Reese, 20 Cal. 89 ; Bradenberger v. Regler, 68 Iowa 300, 27 N. W. 247 ; Payne v. Davis. 2 Mont. 381. Attorney's fee. — An attorney's fee, claimed and allowed in an action, has been considered as costs incidental to the cause, and therefore is no part of the original amount in contro- versy. Durand v. Simpson Logging Co., 21 Wash. 21, 56 Pac. 846. But it is different where the attorney's fee is a distinct item of indebtedness under a contract. Mayer v. Stahr, 35 La. Ann. 57. See also infra, III, C, 4, h, (in), (B), (2), (b). Special order after final Judgment. — But, under the constitutional provision that the supreme court shall have appellate jurisdic- tion in all cases in equity except such as arise in justices' courts, and also in all eases at law in which the demand, exclusive of interest, or the value of the property in controversy, shall amount to three hundred dollars, it is held that the supreme court has jurisdiction of an appeal from a special order made after final judgment in favor of the plaintiff in a divorce suit requiring the defendant to pay counsel fees and costs to enable the plaintiff to con- test the defendant's motion for a new trial, al- though the amount involved in such appeal is less than three hundred dollars [overruling Langan v. Langan, 83 Cal. 618, 23 Pac. 1084, Vol. II as well as Fairbanks V. Lampkin, 99 Cal. 429, 34 Pac. 101, in so far as the last case holds to the contrary.] 59. Colorado. — Pitkin County v. Aspen Min., etc., Co., 1 Colo. App. 125, 27 Pac. 875. Indiana. — Jeffersonville, etc., R. Co. v. Har- rold, 3 Ind. App. 592, 30 N. E. 158. Kansas. — Missouri Pac. R. Co. v. Yawger, 52 Kan. 691, 35 Pac. 814, holding that an ap- peal will not lie from an order on a motion to retax costs, though the costs exceed the ju- risdictional amount. And where compensation, allowed is in the nature of costs, appellate ju- risdiction cannot be assumed for the purpose of reviewing an order allowing such compensa- tion. Greer v. Thompson, 5 Kan. App. 643, 47 Pac. 547. Kentucky. — Moore v. Boner, 7 Bush (Ky.) 26, holding, however, that when the title to land is put in issue, in which class of cases the code contains no exception to the right of either party to appeal, a judgment as to costs is appealable. Wisconsin. — State v. Kellogg, 97 Wis. 532, 73 N. W. 22. United States. — City Nat. Bank v. Hunter, 152 U. S. 512, 14 S. Ct. 675, 38 L. ed. 534. 60. Voigt v. Kersten, 164 111. 314. 45 N. E. 543. 61. Winn v. Sanborn, 10 S. D. 340. 73 N. W. 96. 62. Zabriskie v. Torrey, 20 Cal. 173; Kier- nan v. Germaine, 62 Miss. 75 (holding that the damages given by statute as an incident to a recovery in the circuit court against a defend- ant who appeals from the judgment of a jus- tice of the peace are to be excluded in de- termining the sufficiency of the amount in con- troversy with regard to the appellate jurisdic- tion of the supreme court) ; Melson v. Melson, 2 Munf. 'Va.) 542, upon the same point as the last ease. But see Woolley v. Lyon, 115 111. 296, 6 N. E. 30. 63. Tullerton r. Cedar Rapids, etc., R. Co., 101 Iowa 156, 70 N. W. 106; Clark v. Ford, 7 Kan. App. 332, 51 Pac. 938; Louisville, etc., R. APPEAL AND ERROR 565 (3) Interest Due on _ Amount Claimed. Where interest on a principal amount is a part of the claim or subject-matter involved in the controversy, such interest will be considered as determining appellate jurisdiction, 64 and interest •which is not given eo nomine — as upon a contract ascertaining the sum payable — but which is a part of the damages, is to be included in the amount in contro- versy in determining appellate jurisdiction. 65 But it is also held that, under pro- visions conferring appellate jurisdiction in cases in which the amount in contro- versy, exclusive of interest and costs, shall reach a fixed sum, interest accruing after the action is instituted, as well as that embraced in the amount sued on should be excluded. 66 (4) Proceeding Involving Formee Judgment. Costs which are to be excluded in estimating the amount or value in controversy, however, are the costs of the action in which the judgment appealed from is rendered. In a new and independent suit, in which the judgment, embracing costs, is involved as the matter in controversy, the whole judgment, including costs, will constitute the matter in dispute. 67 And where the statute authorizes the same ruling with Co. v. Sanders, 11 Ky. L. Rep. 53; Gulf, etc., R. Co. v. Werchan, 3 Tex. Civ. App. 478, 23 S. W. 30. e4. California. — Skillman v. Lachman, 23 Cal. 198, 83 Am. Dec. 96. Louisiana. — Bruno v. Oviatt, 48 La. Ann. 471, 10 So. 464. Before this, and holding otherwise, see Boagni v. Gordon, 34 La. Ann. 105'J. But it is the amount due and demanded which determines the right of appeal. Rogers v. Goldthwaite, 32 La. Ann. 48. A'ms York.— Mitchell v. Pike, 17 Hun (N. Y.) 142. Where plaintiff sued for injuries to per- sonal property, it was held that, on appeal by the defendant from a judgment awarding dam- ages with interest, the matter in controversy in the court of appeals is the amount of the judgment as rendered, including the interest, and if that, excluding costs, is not less than the jurisdictional amount, the court has ju- risdiction to review the judgment, though a different rule restricts the plaintiff, as upon an appeal by him the sum demanded in the com- ?laint becomes material. Graville v. New ork Cent., etc., R. Co., 104 N. Y. 674, 10 N. E. 539. Virginia. — Stratton v. Mutual Assur. Soc, 6 Rand. (Va.) 22. West Virginia. — Arnold v. Lewis County Ct., 38 W. Va. 142, 18 S. E. 476, involving the consideration of interest as a part of the amount in controversy to give the court of last resort jurisdiction to review the judgment of the circuit court in favor of the defendant, on the trial of the cause brought to that court by certiorari to a justice's court, in which judg- ment had been rendered for plaintiff for an amount of damages less than that sued for, with interest. United States. — Woodward v. Jewell, 140 V. S. 247, 11 S. Ct. 784, 35 L. ed. 478 (as to computation of interest where amount of claim was reduced by payments before suit to an amount below appellate jurisdiction, but exclusive of interest) ; The Steamer Rio Grande v. Otis, 19 Wall. (U. S.) 178, 22 L. ed. 60. When the pleading must be looked to. — Where a cause is dismissed in the district court and the decree is affirmed in the circuit court, the supreme court must look to the ap- pellant's claim in order to determine whether it exceeds the jurisdictional amount so as to give the supreme court jurisdiction, for no computation of interest up to the time of the judgment or decree will be made if the inter- est is not specially claimed. Udall v. The Steamship Ohio, 17 How. (U. S.) 17, 15 L. ed. 42. See also Hays v. Chicago, etc., R. Co., 64 Iowa 593, 21 N. W. 98. An erroneous ascertainment of interest in excess of one hundred dollars, when an adjudi- cation, and not a mere clerical error, is appeal- able to the court of last resort. Wick v. Daw- son, (W. Va. 1900) 37 S. E. 639. 65. Schultz v. Tessman, 92 Tex. 488, 49 S. W. 1031, which was a suit, for damages for the breach of a contract, in which the sum pay- able was not ascertained. 66. Wagner v. Kastner, 79 Ind. 162 ; Clark v. Collins, (Ky. 1901) 60 S. W. 369 [and, where the petition shows that the principal of the debt sued for is less than the jurisdictional amount, an appeal will not lie though the judgment is for more than the jurisdictional amount and does not show that any part of it is interest. Spiceland v. Shelton, 21 Ky. L. Rep. 863, 53 S. W. 274; but, under an earlier statute, see Orth v. Clutz, 18 B. Mon. (Ky. ) 223, holding that as, by the revised statute, before the code of practice, interest as well as costs had been expressly excluded from the computation of the jurisdictional amount, the exclusion by the code of practice of costs only from such computation raised a rational pre- sumption that interest was not intended to be excluded] ; State v. Recorder of Mortgages, 33 La. Ann. 14, under the constitutional provi- sion that the appellate jurisdiction of the su- preme court should extend to all cases when the matter should exceed a fixed sum exclusive of interest ; and distinguishing prior cases un- der an earlier constitutional provision ex- tending such jurisdiction to cases when the matter in dispute should exceed a certain sum, without mentioning interest. 67. Kansas. — McClelland V. Cragun, 54 Kan. 599, 38 Pac. 776. Vol. II 566 APPEAL AND ERROR respect to costs as it does with respect to the fine imposed, in a suit to subject premises to the payment of the fine and costs, both are taken as constituting the amount in controversy. 68 So, in a suit brought to vacate a judgment, as the judgment bears interest from its date, the amount in controversy is the judg- ment with such interest computed. 69 (iv) Aggregate of Claims, Interests, or Judgments — (a) In General. Several and separate interests of different appellees cannot be united so as to make up the jurisdictional amount where such parties could not have united their interests if a recovery had been had against them. 70 Neither co-defendants nor co-plaintiffs can unite their separate and distinct interests for the purpose of giving appellate jurisdiction. 71 (b) Consolidation. AVhere two suits, though by the same plaintiff, against Kentucky. — Nashville, etc., R. Co. v. Mat- tingly, 101 Ky. 219, 19 Ky. L. Rep. 373, 40 S. W. 173; Haycroft v. Walden, 14 Ky. L. Rep. S92 (motion to quash execution) ; Trib- ble v. Deatheridge, 10 Ky. L. Rep. 156 (appeal from judgment dismissing petition for an in- junction against execution on judgment). West Virginia. — Clevenger v. Dawson, 15 W. Va. 348. Wisconsin. — Mayo r. Hansen, 94 Wis. 610, 69 N. W. 344, 59 Am. St. Rep. 918, 36 L. R. A. 561. Canada. — Tureotte v. Dansereau, 26 Can. Supreme Ct. 578, holding that an opposition, filed under the provisions of articles 484 and 487 of the code of civil procedure of Lower Canada for the purpose of vacating a judg- ment entered by default, is a judicial proceed- ing within the meaning of section 29 of the supreme and exchequer courts act ; and, where the appeal depends upon the amount in con- troversy, there is an appeal to the supreme court of Canada if the amount of principal and interest due at the time of the filing of the opposition under the judgment sought to be annulled is of the sum or value of two thou- sand dollars. Contra. — See Oglesby v. Helm, 26 La. Ann. 61 ; Cooke v. Piles, 2 Munf. ( Va.) 151. 68. State v. McCulloeh, 77 Iowa 450, 42 N". W. 367. 69. Dryden v. Wyllis, 51 Iowa 534, 1 N. W. 703; Schwartz v. Schmidt, 37 La. Ann. 41; State v. Police Jury, 34 La. Ann. 95, juris- diction of a, proceeding for an order to com- pel a levy of a tax to pay a judgment which with interest added, exceeds the jurisdictional amount. 70. Payne v. Chicago, etc., R. Co., 170 III. 607, 48 N. E. 1053; Chamberlin v. Browning, 177 U. S. 605, 20 S. Ct. 820, 44 L. ed. 906. See also Louisiana Western R. Co. v. Hop- kins, 33 La. Ann. 806; Ready v. New Orleans, 27 La. Ann. 169. In Gibson v. Shufeldt, 122 TJ. S. 27, 7 S. Ct. 1066, 30 L. ed. 1083, 1085, Mr. Justice Gray lays down this general rule: " That the join- der in one suit of several plaintiffs or defend- ants, who might have sued or been sued in separate actions, does not enlarge the appel- late jurisdiction; that when property or money is claimed by several persons suing to- gether, the test is whether they claim it under one common right, the adverse party having Vol. II no interest in its apportionment or distribu- tion among them, or claim it under separate and distinct rights, each of which is contested by the adverse party; that when two persons are sued, or two parcels of property are sought to be recovered or charged, by one person in one suit, the test is whether the defendant's alleged liability to the plaintiff, or claim to the property, is joint or several; and that, so far as affected by any such joinder, the right of appeal is mutual, because the matter in dispute between the parties is that which is asserted on the one side and denied on the other." See also Handley v. Stutz, 137 U. S. 366, 11 S. Ct. 117, 34 L. ed. 706. Appeal by one partner. — In a suit against a partnership in which the members are jointly bound, for an amount within the ju- risdiction of the court of appeals, one of the defendants may alone appeal, though his part of the joint liability is not sufficient to give the court of appeals jurisdiction. Broussard v. Babin, McGloin (La.) 286. 71. Illinois. — Martin v. Stubbings, 126111. 387, 18 N. E. 657, 9 Am. St. Rep. 620. Kentucky. — Oswald v. Morris, 92 Ky. 48, 13 Ky. L. Rep. 355, 17 S. W. 167. Louisiana. — State v. Judges, (La. 1901) 29 So. 892; Landry v. Caffery Cent. Sugar Refinery, etc., Co., 104 La. 757, 29 So. 349. But compare Colt v. O'Callaghan, 2 La. Ann. 984. Pennsylvania. — Jennings' Estate, 195 Pa. St. 406, 45 Atl. 1055. Virginia. — White v. Valley Bldg., etc., Co., 96 Va. 270, 31 S. E. 20. West Virginia. — Fleshman v. Fleshman, 34 W. Va. 342, 12 S. E. 713. United States. — Chamberlin v. Browning, 177 U. S. 605, 20 S. Ct. 820,-44 L. ed. 906; Henderson r. Wadsworth, 115 U. S. 264. 6 S. Ct. 40, 29 L. ed. 377. Where plaintiffs, on behalf of themselves and all others who may join them, bring a suit to foreclose a railroad mortgage, given to secure bonds in excess of five thousand dollars, it was held that the suit does not involve more than that amount if the overdue bonds and coupons held by the plaintiffs are less and the other bondholders do not see fit to join in the suit. Bruce v. Manchester, etc., R. Co., 117 U. S. 514, 6 S. Ct. 849, 29 L. ed. 990. See 2 Cent. Dig. tit. "Appeal and Error," § 276 et seq. APPEAL AMD ERROR 567 different defendants, involve the same issues and are tried together, but are not in fact consolidated, separate judgments being rendered in each, they cannot be tried together upon the question of appellate jurisdiction. 72 And where separate suits involve separate and distinct demands, or subject-matters entirely discon- nected and independent, appellate jurisdiction cannot be aided by consolidation ; 7S but, on the other hand, it is held that where several suits by the same plaintiff .against the same defendant are essentially one, and are thus properly consolidated, the aggregate amount of the claim may be taken as sufficient to confer appellate jurisdiction. 74 (o) Distinct Judgments. Separate judgments cannot be added together in order to give jurisdiction ; though the legal questions involved may be identical, the judgments are entirely distinct. 75 But it is held that where one party has 72. Bradley v. Milwaukee Mechanics Ins. Co., 147 Mo. 634, 49 S. W. 867. But see Mar- shall v. Fall, 9 La. Ann. 92. Cross-causes of damage in admiralty. — Cross-causes of damage, each in the sum of one hundred pounds, were heard at the same time and upon the same evidence, and a de- cree was pronounced in the first cause, dis- missing it; by the decree in the second cause the defendant's ship was pronounced solely to blame. By agreement the amount of dam- age was referred to the assessors of the court and the owners of the ship pronounced to be solely to blame entered two appeals in the •court of admiralty, one against the decree in each cause, and it was held that the two suits ■could not be considered as one on appeal ; that if the damage decreed to be due in the cause in which the ship was pronounced to be to blame did not exceed fifty pounds, then, under the legislative act providing that no appeal shall be allowed unless the amount decreed or ordered to be due shall exceed that sum, the Appeal must be dismissed. The Elizabeth, L. R. 3 A. & E. 33. 73. Harrison v. Moss, 41 La. Ann. 239, 6 So. 528 (holding that where several creditors sequester and attach their debtor's property, and the amount in each case is less than that fixed for the jurisdiction of the appellate court, that court cannot acquire jurisdiction by reason of the consolidation of the causes for the convenience of the trial) ; Louisiana Western R. Co. v. Hopkins, 33 La. Ann. 806 (holding that the right to embrace several landholders in one expropriation suit does not make the judgment appealable according to the aggregate amount allowed all the defend- ants, but that each defendant represents a separate and distinct action) ; Lawson v. Bransford, 87 Va. 75, 12 S. E. 108 ; Garneau v. Fort .Blakely Mill Co., 20 Wash. 97, 54 Pae. 771 (holding that the consolidation of a num- ber of actions by different plaintiffs against the same defendant will not invest the ap- pellate court with jurisdiction where the amount involved in each case is less than that fixed for the jurisdiction of the appel- late court). See also Clay v. Blair, 4 Ky. L. Rep. 629. By consent. — Where the plaintiff's claim against each of several defendants was less "than the jurisdictional amount, but the cases were consolidated by consent, thus making the aggregate of the claims of sufficient juris- dictional amount, it was held that an appeal would lie. Ballio v. Prudhome, 8 Mart. N. S. (La.) 338. So, where, by agreement, several cases at law were consolidated with an equity cause, and, without objection, were tried to- gether as an equity cause, it was held that the amount involved in the consolidated cause would be sufficient to confer appellate juris- diction. Tuthill Spring Co. v. Smith, 90 Iowa 331, 57 N. W. 853. But where the jurisdic- tion of the appellate court is limited to two thousand dollars, such court has no jurisdic- tion of two consolidated causes, in one of which the amount demanded is four hundred dollars and in the other (in which the de- fendant in the former suit is plaintiff), the amount demanded is sixteen hundred dollars, as in no event could a judgment be rendered for an amount in excess of sixteen hundred dollars. Davis v. Bargas, 41 La. Ann. 313, 6 So. 469. On appeal. — After several appeal cases have been consolidated into one case for trial, with the consent of the parties and by order of the appellate court, it is too late for appellants to attack the jurisdiction as to one of the al- leged causes, on the ground that the amount involved therein is too small to bring it within the statute allowing appeal. Reynolds v. Nea-1, 91 Ga. 609, 18 S. E. 530. 74. Devries v. Johnston, 27 Gratt. (Va.) 805, involving the consolidation of three suits, by the same plaintiff against the same de- fendant, to enforce the payment, by attach- ment and sale of the same land, of three notes payable at different times. So where, by or- der of court, three rules, which had been taken by an executor upon an adjudication at a succession sale of three different prop- erties, to show cause why the adjudication should not be complied with, had been con- solidated and a. single judgment rendered, the aggregate amount in dispute, and not that in- volved in each rule, will determine the appel- late jurisdiction. Justus' Succession, 47 La. Ann. 302, 16 So. 841. 75. Colorado. — Spangler v. Green, 21 Colo. 505, 42 Pae. 674, 52 Am. St. Rep. 259. Illinois. — Aultman, etc., Co. v. Weir, 134 111. 137, 24 N. E. 771. Kentucky.— Fehler v. Gosnell, 99 Ky. 380, 18 Ky. L. Rep. 238, 35 S. W. 1125; Clarkson v. Clarkson, 1 Duv. (Ky.) 268. Vol. II 568 APPEAL AND ERROR two judgments, the aggregate amount of which exceeds the jurisdictional limit, the court will take jurisdiction as to such party. 76 (d) Several Claims by Same Parly. Action on several independent claims presented by the same party is not reviewable where such action does not involve the jurisdictional amount in connection with either claim. 77 So the combining of several claims in different counts has been held to be insufficient to confer jurisdiction where no one of such claims is by itself sufficient for the purpose, 78 and an appeal will not lie if the matter in dispute is below the jurisdictional amount, notwithstanding it forms a part of a series of claims which, in the aggregate, would exceed that sum. 79 But, on the other hand, if the subject-matter consists of two claims owned by the same person, and the judgment affects the whole of such subject-matter, the aggregate value is the amount in controversy, 80 and, if the object of the suit is to cancel tax inscriptions for a number of years, and plaintiff summarizes all of the assessments and asks the cancellation on grounds common to all, this is not a cumulation of separate and distinct demands. 81 (e) One Judgment Apportioned Against Several Defendants. On the other hand, it has been held that, where the verdict is for plaintiff for a gross sum sufficient to confer appellate jurisdiction upon the supreme court, an appeal by the several defendants will lie notwithstanding the amount so awarded is apportioned among them so that the liability of none would alone be sufficient to confer appellate jurisdiction. 82 Louisiana. — State ex rel. MacKenzie, 39 La. Ann. 508, 2 So. 68. United States. — Hunt v. Bender, 154 U. S. 556, 14 S. Ct. 1163, 18 L. ed. 915. Judgments in same action. — Where a cross- bill was filed in a foreclosure suit, and the court decreed the payment of the amount then due on the mortgage note as a condition to granting the relief sought, and at a subse- quent hearing decreed that seven hundred and eighty-five dollars be paid or the cross-bill would be dismissed, it was held that the amounts of the two decrees could not be added together to give the court jurisdiction on appeal. Akin v. Cassiday, 105 111. 22. 76. See infra, III, C, 4, h, (rv), (d). 77. Barlow v. Thrall, 11 Vt. 247, wherein the owner of two separate and independent claims presented them to commissioners of an insolvent estate, and it was held that such owner was not entitled to an appeal where the commissioners did not disallow twenty dollars on either one of the demands; that the sum disallowed on both demands could not be added together to make up that amount. 78. Denison v. Denison, 16 Conn. 34. Same cause in two counts. — Where the complaint states substantially the same cause of action in different paragraphs, the amount claimed is not the sum of the demands in the different paragraphs, but the actual amount sued for. Keadle v. Siddens, 131 Ind. 597, 31 N. E. 362; Riffe v. Wabash E. Co., 137 Mo. 186, 38 S. W. 921. 79. Mayor v. Maignan, 8 Mart. N. S. (La.) 122. 80. Filler v. Tyler, 91 Va. 458, 22 S. E. 235; Hawley v. V. S., 108 U. S. 543, 2 S. Ct. 846, 27 L. ed. 820 — holding that, where sev- eral judgment plaintiffs unite in an applica- tion for a mandamus to compel payment of judgments against a town on its bonds, the several judgments could not be added together Vol. n so as to make up the jurisdictional amount, but that the aggregate amount of two judg- ments in favor of one of plaintiffs would con- fer such jurisdiction as to that plaintiff. See also Tebbe v. Police Jury, 34 La. Ann. 137. Claims assigned pending suit. — Where the amount claimed in a bill was less than the jurisdictional amount, but in the progress c i the cause another creditor came in by peti tion, alleging his claim against the common debtor, and praying that it might be allowed and payment enforced against the same prop- erty pursued by plaintiff, who afterward took a bona fide assignment of the claim for value and without recourse, which, added to his own debt, made a sum exceeding that required for jurisdiction, it was held that the two debts together constituted the matter and the ag- gregate the amount in controversy, and that the fact that the assignment was made pend- ing the suit did not affect the question. Fink v. Denny, 75 Va. 663. But it was held other- wise where the assignment was not recognized by the master, nor by the court confirming the master's report. MeCarty v. Hamaker, 82' Va. 471, 5 S. E. 538. 81. Palmer v. Board of Assessors, 42 La, Ann. 1122, 8 So. 487. 82. Priest v. Deaver, 21 Mo. App. 209 [fol- lowed in Washington Sav. Bank v. Butchers', etc., Bank, 61 Mo. App. 448, which was a pro- ceeding in equity, brought, by creditors against defendants, to recover from the latter unpaid balances of stock subscriptions, the total claim of plaintiffs on which the action was- prosecuted amounting to more than sufficient to confer appellate jurisdiction, but the lia- bility of each of the defendants being less than such amount, and it was held that, on an ap- peal to the court of appeals by defendants, the aggregate amount of the recovery would control and the cause should be transferred to the supreme court]. APPEAL AND ERROR 509 (f) Claim or Denial of Right Under Single Title. Where several claim tinder the same title, the validity of which title is necessarily involved in the determination of the cause, the appellate court will have jurisdiction notwith- standing the individual claim of no one of plaintiffs exceeds the jurisdictional amount, if the whole amount involved is sufficient. 83 And if the appellee's right to sue and stand in judgment against appellants on a contract, by the terms of which contract more than the jurisdictional amount is involved, is denied by appellants, this constitutes the matter in dispute. 84 (g) One Judgment Sought by Several Plaintiffs. "Where several plaintiffs seek one judgment for the enforcement of their several demands, such demands being founded upon the same liability, the aggregate amount is held to furnish the criterion of appellate jurisdiction in their behalf, 83 and the defendant may appeal, notwithstanding the interest of each plaintiff in the judgment would not be of sufficient amount to confer jurisdiction. 86 And where the amount decreed against appellant consists of several sums in favor of various appellees, no one of which sums would come within the jurisdictional amount, but the aggregate of which amount is in excess of the jurisdictional limit, it is held that the defendant may appeal. 87 (h) Value of Property as Subject -Matter of Suit. "Where the proceeding is by or against several parties jointly, concerning a subject-matter of sufficient value to confer appellate jurisdiction, and in which separate and distinct 83. New Orleans Pac. R. Co. v. Parker, 143 U. S. 42, 12 S. Ct. 364, 36 L. ed. 66. One of several articles in insurance policy. — But where the property in suit is specifi- cally insured for less than the jurisdictional amount, and is of less value than such amount, the court will not have jurisdiction though the policy is a general one, embracing other objects aggregating in value more than the jurisdictional amount. Werlein v. Merchants' Mut. Ins. Co., 30 La. Ann. 1399. 84. Vinet v. Bres, 48 La. Ann. 1254, 20 So. 693. Where several plaintiffs, who are the own- ers of property fronting on a shell-road which has been constructed by one under a contract with a, municipal corporation, sue to annul the contract, and the defendant sets up a re- conventional demand against each of the plain- tiffs for the amount due him under the con- tract, the matter in dispute is the amount in- volved in the contract ; and, as the defendants could appeal if the judgment had been against them on the validity of the contract, the plain- tiffs can appeal from a judgment sustaining the reeonventional demand of the defendant who built the road under the contract. Ready v. New Orleans, 27 La. Ann. 169. 85. State v. Jumel, 34 La. Ann. 201, hold- ing that where several pensioners of the state seek in one action to enforce the payment of their pensions, the supreme court will have jurisdiction of an appeal by them if the ag- ' gregate amount of the pensions exceeds the amount fixed for such jurisdiction. 86. Armstrong v. Vieksburg, etc., R. Co., 46 La. Ann. 1448, 16 So. 468. In a proceed- ing for a peremptory mandamus to compel a tax-collector to collect a tax which had been levied for the joint benefit of the relators, the value of the matter in dispute is measured by the whole amount of the tax, and not by the separate amounts into which it is to be di- vided when collected. Davies v. Corbin, 112 U. S. 36, 5 S. Ct. 4, 28 L. ed. 627. Award to libellants in admiralty. — -Where salvors unite in a claim for a single salvage service rendered jointly by them, the owner of the property is entitled to an appeal where the sum decreed exceeds the jurisdictional amount, although the lower court apportioned the recovery among the salvors according to their respective merits. Sinclair v. Cooper, 103 U. S. 754, 26 L. ed. 322. And where a decree in admiralty awarded to libellant an amount in excess of that fixed for appellate jurisdiction, but apportioned it according to the interests of the owner of the vessel and of the trustee for the owners of the cargo, the amount in controversy is the entire sum awarded. Propeller Burlington v. Ford, 137 U. S. 386, 11 S. Ct. 138, 34 L. ed. 731 [distin- guishing Ex p. Baltimore, etc., R. Co., 106 U. S. 5, 1 S. Ct. 35, 27 L. ed. 78, hi that the owners of the vessel and the owners of the cargo were parties to the proceeding, and re- covered the amounts due them respectively]. 87. Rhodes v. Scholfield, 6 La. Ann. 251; Powers v. Yonkers, 114 N. Y. 145, 21 N. E. 132, 22 N. Y. St. 768; Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S. E. 596; Shields v. Thomas, 17 How. (U. S.) 3, 15 L. ed. 93. See also Staib's Estate, 188 Pa. St. 238, 41 Atl. 528, 43 Wkly. Notes Cas. (Pa.) 194; Handley v. Stutz, 137 U. S. 366, 10 S. Ct. 117, 34 L. ed. 706, this last case being an appeal by stock-holders from decree in suit by cred- itors to compel payment of unpaid subscrip- tions to capital stock. Severance. — Where, in a suit against a municipal corporation, plaintiffs whose indi- vidual claims did not exceed the jurisdictional amount united with other creditors whose claims exceeded the necessary sum, such plain- Vol. II 570 APPEAL AND ERROR claims are not set up, the value of such property will determine the appellate jurisdiction. 88 (i) Retention of Cause When One Interest Sufficient. In some cases it is held that where the claims of all the appellants, except that of one of them, are below the sum necessary to confer appellate jurisdiction, but the questions as to all are identical and their interests are inseparable, the appellate court will retain jurisdiction as to all. 89 (v) Set-Off and Counter-claim** — (a) Where Ad Damnum Controls. The cases are not in accord as to the effect of a counter-claim or set-off upon the amount in controversy. "Where the appellate jurisdiction depends strictly upon the amount demanded in the complaint, as shown by the ad damnum clause, it is held that such jurisdiction is determined in no way by the counter-claim set up by defendant. 91 tiffs would not be permitted to sever and thus deprive the city of the bsnefit of an appeal. Bowman v. New Orleans, 27 La. Ann. 501. 88. Lartigue v. White, 25 La. Ann. 291, 325; Friend v. Wise, 111 U. S. 797, 4 S. Ct. 695, 28 L. ed. 602, which last was ejectment against several defendants for the same par- cels of land, the complaint alleging the joint entry and ouster, and the answer not setting up separate claims to the distinct parcels, the judgment being for the recovery of pos- session against all the defendants jointly. See also U. S. v. Trans-Missouri Freight As- soc, 166 U. S. 290, 17 S. Ct. 540, 41 L. ed. 1007, which was a bill seeking the dissolu- tion of an association of common carriers or- ganized for the regulation of rates, and dis- tinguishing Gibson v. Shufeldt, 122 U. S. 27, 7 S. Ct. 1066, 30 L. ed. 1083. See supra, note 70. Creditors' suit. — In Louisiana, it is held that where several creditors of a common debtor join as plaintiffs in a suit to annul acts of the debtor in fraud of their rights, in confession of judgment, while such creditors cannot cumulate their claims for the purpose of conferring jurisdiction when none of the several claims comes within the jurisdictional amount, yet where the suit is not merely to avoid the transactions complained of in their effects upon the plaintiffs, but the prayer is to annul them outright and the judgments sought to be annulled amount to more than the ju- risdictional amount, the annulment sought is the annulment of such judgments in the case of each plaintiff, and the appellate jurisdic- tion will be maintained. Marx v. Meyer, 50 La. Ann. 1229, 23 So. 923. See also infra, III, C, 4, h, (xvn). 89. Craig v. Williams, 90 Va. 500, 18 S. E. 899, 44 Am. St. Rep. 934 ; Witz v. Osburn, 83 Va. 227, 2 S. E. 33. See also infra, III, C, 4, h, (xx). Appeal from decree on cross-bill. — Where complainant in the original bill appeals only from that part of the decree which found against him on an issue made by the cross- bill, and that part of the decree requires him to pay an amount under the jurisdictional limit, such amount only will control the ap- pellate jurisdiction. Moore v. Williams, 132 111. 589, 24 N". E. 619, 22 Am. St. Rep. 563. But see Telford v. Garrels, 132 111. 550, 24 Vol. II !N T . E. 573, as to an appeal by both parties, complainants in original and cross-bill, where, if jurisdiction can be sustained over an ap- peal from the decree on the cross-bill notwith- standing an amount is involved less than the jurisdictional amount, it must be upon the ground that the matter in "ooth suits is based upon the same contracts, and that the suits are so intimately connected that they cannot be separated. On general motion to dismiss appeal see The Steamer Rio Grande v. Otis, 19 Wall. (U. S.) 178, 22 L. ed. 60. 90. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 237. 91. Lord v. Goldberg, 81 Cal. 596, 22 Pac. 1126, 15 Am. St. Rep. 82. Plaintiff's appeal. — Where plaintiff's right to appeal depends upon the amount demanded, under the rule that such demand is the amount in controversy, even though plaintiff's judgment be for less, his right to appeal is not affected by the fact that the recovery is reduced by an offset or judgment rendered for defendant on the offset. Gillespie v. Benson, 18 Cal. 409. Defendant's appeal. — So, upon the prin- ciple that where plaintiff is appellant and the judgment is for the defendant the juris- diction of the appellate court is determined by the amount claimed by the complaint, but that if the appeal is by plaintiff from a judg- ment in his own favor, then the amount in dis- pute is the difference between the amount of the judgment and the sum claimed by the complaint, it was held that, if the appeal is taken by defendant from a judgment in his own favor where he has set up a counter- claim, the amount in dispute is the difference between the amount of the judgment and the sum claimed in the counter-claim, and if that judgment is for more than the jurisdictional amount less than he claims in his answer, the appellate court will have jurisdiction. Skill- man v. Lachman, 23 Cal. 198, 83 Am. Dee. 96. But inasmuch as it was afterward settled in this state that the ad damnum controlled plaintiff's right to appeal, even though he re- covered a judgment for less than that which he claimed, it would seem that the above rule, applied to a defendant, would no longer pre- vail. See infra, III, C, 4, h, (i). Judgment of justice — Amount on interme- APPEAL AND ERROB 571 (b) Claims Must Be Independently Sufficient. And so it is held that the respective claims of the parties must be of sufficient jurisdictional amount in order to give either party the right to a review, 92 or that such opposing claims cannot be added, as there must be a possibility of a judgment, in favor of the party com- plaining, for an amount sufficient to confer jurisdiction. 93 (c) Rule Permitting Consideration of Opposing Claims — (1) As Show- ing Real Amount in Controversy. On the other hand, opposing claims may be considered, but to what extent the cases are not in harmony. It would seem that the rule best supported is that, while plaintiff's demand cannot be added to defendant's demand, if such aggregate amount does not represent the actual amount in controversy, yet, if the difference between the recovery as had and that which the opposite party sought represents a loss to the latter of an amount equal to that fixed for the appellate jurisdiction, this, as to him, is the real amount in controversy, and confers Jurisdiction. 91 (2) Extent of Rule. This rule, however, generally has reference to the real controversy between the parties in respect of the amount. Thus, where the amount of the set-off or counter-claim is itself not sufficient, and that is the only diate appeal. — In an action for damages, laid at two hundred dollars, brought before a justice, the defendant pleaded an offset of one hundred and twenty-five dollars, and appealed from a judgment in favor of the plaintiff for twenty-five dollars. On the appeal the de- fendant recovered a judgment for eighty-six dollars, and it was held, on appeal by plain- tiff, that the amount in dispute was less than two hundred dollars. Simmons v. Brainard, 14 Cal. 278. 92. Crosby v. Crosby, 92 Tex. 441, 49 S. W. 359. So, in Louisiana, it is held that the ap- pealable character of the principal and recon- ventional demands must each be separately established, and both demands cannot be cu- mulated in order to bring the case within the appellate jurisdiction. Watkins Banking Co. v. Louisiana Lumber Co., 47 La. Ann. 581, 17 So. 143. But, on the other hand, it is held that where defendant denies liability on the entire demand of plaintiff, and pleads in re- convention an amount exceeding the acknowl- edged indebtedness, the test of the jurisdic- tion is the amount of the judgment which could be rendered in the case. State v. Judges, 48 La. Ann. 672, 19 So. 617. See also Allen v. Nettles, 39 La. Ann. 788, 2 So. 602. And where plaintiff's demand is less than the ju- risdictional amount, but the reeonventional demand is above that amount, it is held that the appeal will be noticed only so far as it affects the whole demand. Lamorere v. Avery, 32 La. Ann. 1008. 93. Fox v. Duncan, 60 Iowa 321, 14 N. W. 358, wherein the above general principle was recognized, but both the plaintiff's claim and the counter-claim were below the appellate jurisdiction, and the plaintiff had judgment for an amount which, added to the counter- claim, would not bring the whole amount within the appellate jurisdiction and the rul- ing was made on appeal by the plaintiff. This case was founded upon Madison v. Spits- nogle, 58 Iowa 369, 12 N. W. 317, wherein it was held that it must appear from the plead- ing that it was possible to have rendered judgment against one of the parties for an amount coming within that fixed for appel- late jurisdiction, though this ease, like that first cited, was one in which the ultimate loss to the party complaining was not of an amount equal to that fixed for appellate ju- risdiction by adding to the amount of the judgment against him the whole amount which he claimed against the successful party. Other cases in this state are of the same char- acter, where jurisdiction has been denied. See Schultz v. Holbrook, 86 Iowa 569, 53 N. W. 285; Buckland v. Shephard, 77 Iowa 329, 42 N. W. 311. 94. Illinois. — Smith v. Rountree, 185 111. 219, 56 N. E. 1130. Indiana. — Coles v. Peck, 96 Ind. 333, 49 Am. Rep. 161. Kentucky. — Walter A. Wood Mowing, etc., Mach. Co. v. Taylor, 20 Ky. L. Rep. 536, 46 S. W. 720. New York. — Charlton v. Scoville, 144 N. Y. 691, 39 N. E. 394. West Virginia. — Fau'leoner v. Stinson, 44 W. Va. 546, 29 S. E. 1011. United States. — Buckstaff v. Russell, 151 U. S. 626, 14 S. Ct. 448, 38 L. ed. 292. And on the disallowance of defendant's counter- claim plaintiff cannot, by remitting a part of the judgment, defeat defendant's right to a writ of error. Block v. Darling, 140 U. S. 234, 11 S. Ct. 832, 35 L. ed. 476. See also New Orleans, etc., R. Co. v. McNeely, 47 La. Ann. 1298, 17 So. 798. Election to reduce judgment by deducting claims. — Where, upon a libel to recover dam- ages against ship-owners, a decree passed against them for more than the jurisdictional amount, with leave to set off a. sum due them for freight, which set-off would reduce the amount decreed against them to less than the jurisdictional amount, and the party electing to make the set-off, saving his right to appeal, the reduced decree was held to be the final de- cree, from which no appeal would lie. Samp- son v. Welsh, 24 How. (U. S.) 207, 16 L. ed. 632. Vol. II 572 APPEAL AND ERROR amount in controversy, the defendant cannot appeal ; 95 but where the defendant, by counter-claim or set-otf, demands a sum sufficient to give the appellate court jurisdiction, and is defeated, as by a peremptory instruction or an improper dis- missal of his claim, an appeal will lie on the amount of his claim. 96 (d) Where No Affirmative Judgment Rendered on Counter-Claim. Where no affirmative judgment is rendered in favor of defendant upon a counter-claim, but the result of the suit is simply to defeat plaintiff's claim, his right to appeal depends upon the amount put in controversy by his complaint. 97 (b) Improper Counter- Claim or Set-Off. Where the answer does not prop- erly set up the counter-claim, 98 or where it clearly appears that a demurrer to the counter-claim was properly sustained, 99 or that the set-off was a mere specious pretense, 1 or is improperly filed in the particular action, the amount of such counter-claim will not be considered in determining appellate jurisdiction. 2 Where the evidence tends to show that the demand is not of sufficient amount to confer appellate jurisdiction, it may thus sufficiently appear that the real amount in con- troversy is less than that required to permit an appeal, notwithstanding the demand set up is for a greater sum, 3 though it is also held that the amount of a set-off is the proper test of appellate jurisdiction and that it makes no difference that the claim is found in the end not sustained by the evidence to the amount set up. 4 And the court will not necessarily acquire jurisdiction because what purports to be a counter-claim for a sufficient amount appears on the record, but it will examine the pleading and, if no facts are found which would enable defendant to give proof under the counter-claim or recover on it, the appeal will be disposed of as if no counter-claim had been filed. 5 (f) Where Counter-Claim Is Abandoned. Where a counter-claim or plea of reconvention is abandoned on the trial, it cannot be considered for the purpose of giving appellate jurisdiction. 6 (g) Where Amount of Judgment Recovered Controls. Where the right to review depends upon the amount of the judgment recovered, it has been held 95. Fordsville Banking Co. v. Gray, (Ky. 46 La. Ann. 1382, 16 So. 181. Contra, see 1901) 60 S. W. 372. Where defendant ad- Lake Shore, etc., R. Co. v. Van Auken, 1 Ind. mitted plaintiff's demand but set up a coun- App. 492, 27 N. E. 119. ter-claim, and judgment was rendered for 3. Berger v. Rife, 7 Kan. App. 639, 53 Pac. plaintiff for the balance, it was held that on 152; Heraughty v. Grant, 6 Ran. App. 923, plaintiff's appeal the only amount in contro- 50 Fac. 506 (upon the question of plaintiff's versy was the amount of the counter-claim. right to a review of a, judgment in favor of Pennie v. Continental L. Ins. Co., 67 N. Y. defendant for an amount claimed by the lat- 278. And, on defendant's appeal in such a ter, where, from the admissions of plaintiff, case, the amount of the judgment in favor of judgment could not have been rendered in the plaintiff is the test. Kendrick v. Spotts, his favor for a sum sufficient to confer appel- 90 Va. 148, 17 S. E. 853. late jurisdiction) ; Blake r. Krom, 128 N. Y. 96. 'Ward v. Ehorer, 21 Ky. L. Rep. 947, 53 64, 27 N. E. 977, 37 N. Y. St. 873; Bradstreet S. W. 649; Conrad v. De Montcourt, 138 Mo. Co. v. Higgins, 112 U. S. 227, 5 S. Ct. 117, 28 311, 39 S. W. 805; Faulconer v. Stinson, 44 L. ed. 715. W. Va. 546, 29 S. E. 1011 [distinguishing 4. Faulconer v. Stinson, 44 W. Va. 546, 29 between the disallowance of a set-off and the S. E. 1011. application of the amount claimed in the set- 5. Societa Italiana di Beneficenza v. Sulzer, off to reduce plaintiff's judgment]. 138 N. Y. 468, 34 N. E. 193, 52 N. Y. St. 904. 97. Pickett v. Hollingsworth, 6 Ind. App. 6. Schulz v. Tessman, 92 Tex. 488, 49 S. W. 436, 33 N. E. 911. 1031 (failure to support claim by evidence) ; 98. Kurtz v. Hoffman, 65 Iowa 260, 21 St. Clair v. Day, 89 N. Y. 357. Where a coun- N. W. 597, an answer which asked a judgment ter-elaim was stricken out before a justice of for costs only. the peace, an offer of evidence to support the 99. Chesapeake, etc., R. Co. v. Roe, 21 Ky. counter-claim, on the trial of an appeal from L. Rep. 1145, 54 S. W. 1. said court without an application to file new 1. Manchester Paper-Mills Co. v. Heth, (Va. pleadings, does not raise any question as to 1893) 18 S. E. 189. See also GagnS v. Bar- the ruling upon the striking out of the coun- row, 15 La. Ann. 135. ter-claim, and an appeal to the supreme court 2. Case Mfg. Co. v. Sweeny, 47 W. Va. 638," from a judgment excluding the evidence will 35 S. E. 853, involving a set-off of unliqui- be dismissed. Gabriel v. Seattle, etc., R. Co., dated damages. See also Koch v. Godchaux, 7 Wash. 515, 35 Pac. 410. Vol. II APPEAL AND ERROR 573 that such judgment will be conclusive upon the right notwithstanding it embraces the allowance of a counter-claim. 7 (h) Set -Off of Judgments. A denial of a motion by plaintiff to apply as a credit on his judgment another judgment, against him and in favor of defendant, is not reviewable when the amount of defendant's judgment is below the appel- late jurisdiction, as that judgment is the matter in dispute. 8 (vi) Continuing and Future Ri&hts or Liabilities — (a) In General. A continuing order, under which payments for more than the jurisdictional amount may be enforced, is within the jurisdiction of the appellate court. 9 (b) Value of Future Right or Liability Involved. But appellate jurisdiction may be sustained where the value of the right in controversy exceeds the jurisdic- tional amount, though such value is made up in part of the future exercise of the right, when the continuance of the right is fixed and the value thereof is certainly ascertainable, 10 and where plaintiff is entitled to a present judgment fixing his right to future amounts the latter are a part of the amount in controversy, upon the question of appellate jurisdiction. 11 (vn) Matter Must Be Directly Involved — (a) Li General. The subject-matter, the value of which is sought to be made the basis of the appellate 7. Roosevelt v. Linkert, 67 N. Y. 447 ; Troy Carriage Co. v. Bonell, 102 Wis. 424, 78 N. W. 752, in which last ease, however, defendant ad- mitted partial liability, which left a balance of an amount which, added to the judgment rendered in favor of defendant, would not make up the jurisdictional amount of the ap- pellate court. In State v. Lewis, 96 Mo. 146, 8 S. W. 770, defendant denied plaintiff's cause of action and set up a counter-claim; the •court found for plaintiff on his cause of action a sum less than that claimed, and for de- fendant on his counter-claim a sum' less than that claimed, and rendered a judg- ment in favor of plaintiff for the difference, from which judgment the defendant appealed. It was held that the rinding in defendant's favor on the counter-claim eliminated that dispute from the ease, as plaintiff did not appeal, and that the finding for plaintiff on his cause of action in an amount less than that sued for eliminated from the re- maining dispute the difference between the amount sued for and the amount found, as plaintiff had not appealed, and left in the case as the amount alone in dispute the amount found due to plaintiff. •8. Crandall v. Blen, 15 Cal. 406. 9. Langan v. Langan, 86 Cal. 132, 24 Pac. 852 ( which was an order for alimony, the court saying, however, that if the order had' heen so limited by its terms that it could not he enforced for so much as the jurisdictional amount, the case would have been different) ; Garrett v. Mosby, 10 Ky. L. Rep. 723 (hold- ing that a judgment in an action on a cove- nant for support during plaintiff's life, ad- judging that defendant pay a certain sum per year until plaintiff's death, is for an annuity, and that, where there is no doubt that the value of such annuity exceeds the jurisdic- tional amount, an appeal will lie. This was with reference to the jurisdiction of the su- perior court, but in Watson v. Brown, 7 Ky. L. Rep. 216, referring to the jurisdiction of the court of appeals, it was held that, where an annual rent during appellant's life was in- volved and the uncertainty of its value and duration rendered it impossible to determine the amount, an appeal would be entertained ) ; State v. Judge, 21 La. Ann. 65 (if the aggre- gate amount of instalments collectible under the judgment exceeds the jurisdictional amount ) . But an appeal from an order or judgment setting aside a fieri facias for ali- mony for one month, where the amount is be- low the jurisdiction of the court, cannot be en- tertained. Imhof v. Imhof, 45 La. Ann. 706, 13 So. 90. And an appeal will not lie, from an order on a rule to show cause why an execution should not issue for an instalment of a monthly allowance, where the amount for which the execution is ordered is less than the jurisdic- tional amount. Fletcher ». Henley, 13 La. Ann. 150. But when, at the time the claim for alimony had been disposed of, it amounted to a sum in excess of that required to eive the supreme court jurisdiction, an appeal from the judgment fixing the amount will not be dismissed. Carroll v. Carroll, 48 La. Ann. 835, 19 So. 872. 10. U. S. v. Trans-Missouri Freight Assoc, 166 U. S. 290, 17 S. Ct. 540, 41 L. ed. 1007; Harris v. Barber, 129 U. S. 366, 9 S. Ct. 314, 32 L. ed. 697. Compare Harmony Club v. New Orleans Gas-Light Co., 42 La. Ann. 453, 7 So. 538; Willis v. Eastern Trust, etc., Co., 167 U. S. 76, 17 S. Ct. 739, 42 L. ed. 83. In Miles v. Tomlinson, 110 Iowa 322, 81 N. W. 587, a proceeding against fence-view- ers, to test the validity of their action in or- dering plaintiff to build a fence, was held to be appealable because, in addition to other reas- ons, such action fixed not only plaintiff's original liability, but also his liability forthe future maintenance of the fence, which might ultimately involve in its results more than an amount necessary to give the right of appeal. 11. State v. Judges, 48 La. Ann. 672, 19 So. 617, wherein plaintiff prayed for the execution of a contract in its entirety, and asked for a judgment for future commissions, to be paid in instalments. See also infra, III, C, 4, h, (vil). Vol. II 574 APPEAL AND ERROR jurisdiction, must be directly and actually in issue, and remote consequences and mere incidental or collateral claims will not be considered. 12 "Where the suit is brought by an individual taxpayer to enjoin the issuance of bonds, the jurisdic- tional amount is not the amount of the whole issue sought to be enjoined, but the amount of the taxes which complainant will be compelled to pay." (b) Collateral Effect of Judgment. The jurisdictional amount must be determined by the amount in controversy in the particular proceeding, and not by the collateral effect of the decision upon claims by other parties, 14 or upon defendants in another proceeding by the same party. 15 (viii) Effect of Agreement or Stipulation. "Where the case is or is not one within the appellate jurisdiction by reason of the sufficiency or insufficiency of the actual amount or value involved, the parties cannot, by agreement or stipu- lation, defeat such jurisdiction in the one case or confer it in the other. 16 (rx) Suit For Less Than Amount Actually Claimed. It is do fraud on 12. Illinois. — Lamar Ins. Co. v. Gulick, 96 111, 619. But where A claimed an indebtedness against B in the sum of four hundred dollars, and B claimed that A owed him a much larger sum, and the matter was submitted to arbitration, which resulted in an award in favor of B for seven hundred and four dol- lars, it was held tnat, in a bill by A to set aside the award, more than one thousand dol- lars was involved, because the litigation in- volved not only the award, for if that should be sustained A would not only be deprived of his claim of four hundred dollars against B, but would have to pay, in addition thereto, seven hundred and four dollars. Moshier v. Shear, 100 111. 469. Louisiana. — Thompson v. Lemelle, 32 La. Ann. 932; State v. Knight, 1 Mart. ls T . S. (La.) 700. Washington. — Lotz v. Mason County, 6 Wash. 166, 32 Pac. 1049. Wisconsin. — Oakley v. Hibbard, 2 Pinn. (Wis.) 21, 52 Am. Dec. 139. United States. — Hollander v. Fechheimer, 162 U. S. 326, 16 S. Ct. 795, 40 L. ed. 985; Abadie v. U. S., 149 U. S. 261, 13 S. Ct. 836, 37 L. ed. 726 [following Cameron v. U. S., 146 U. S. 533, 13 S. Ct. 184, 36 L. ed. 1077], hold- ing that an appeal to the supreme court from a decree, under the act of Feb. 25, 1885 (23 U. S. Stat, at L. p. 321 ) , directing defendant to remove, within thirty days, a certain fence inclosing public lands, and, in default thereof, requiring the marshal to destroy the same, cannot be supported by showing that the fence is worth over five thousand dollars, as the fence is not the matter in dispute, nor does the decree deprive defendant thereof. Contingent loss or damage which may ac- crue to complainant cannot be considered on a bill to enjoin the levy of an execution. Ross v. Prentiss, 3 How. (U. S.) 771, 11 L. ed. 824. Contra, Ludeling v. Garrett, 50 La. Ann. 118, 23 So. 94. 13. Cblvin v. Jacksonville, 158 TJ. S. 456, 15 S. Ct. 866, 39 L. ed. 1053. 14. U. S. v. Wanamaker, 147 U. S. 149, 13 S. Ct. 279, 37 L. ed. 118, holding that, on a petition to the supreme court of the District of Columbia for a writ of mandamus to com- pel the postmaster-general to readjust a post- Vol. II master's salary, the jurisdictional amount must be determined by the amount in contro- versy in that particular proceeding. 15. Millaudon v. Judge, 6 Mart. N. S. (La.) 24; Hosack v. Crill, 197 Fa. St. 370, 47 Atl. 609 (holding that the amount actually in con- troversy controls, though the judgment may incidentally settle the right to future sums greatly in excess of such jurisdictional amount); Clay Center v. Farmers' L. & T. Co., 145 U. S. 224, 12 S. Ct. 817, 36 L. ed. 685; Rodier v. Lapierre, 21 Can. Supreme Ct. 69 (under statute, however, and holding that the particular case did not come within the stat- ute, and to the same point ee Dominion Salv- age, etc., Co. v. Brown, 20 Can. Supreme Ct. 203, which was a suit for a call of ten per cent, on shares of stock). But in Stuart v. Valley R. Co., 32 Gratt. (Va.) 146, it was held, under the constitutional and statutory provisions relating to the subject in that state at that time, that, in a suit for the recovery of first two quotas on a number of shares of stock, while the judgment against defendant was for less than the jurisdictional amount, the court of appeals had jurisdiction because the subject in controversy was the validity of the subscription for the whole number of shares of stock, which exceeded in value the jurisdictional amount. See also Peyehaud v. Weber, 25 La. Ann. 133. Anticipating future levies. — In an action involving taxes, one year's levy alone can be considered, and future levies cannot be antici- pated. Joint Dist. No. 70, etc. v. School Dist. No. 11, 9 Kan. App. 883, 51 Pac. 1060. 16. Connecticut. — Hurlbut v. Rogers, 2 Root (Conn.) 60. Indiana. — Hotchkiss v. Jones, 4 Ind. 260, holding that where, on error by defendant, he sets up that the judgment had been rendered, by agreement, for more than was due in order to give the supreme court jurisdiction, the judgment will be affirmed without investigat- ing the ground on which it was rendered. Kentucky. — Colling v. Knefler, 10 Ky. L. Rep. 39. Louisiana. — Connors v. Citizens' Mut. Ins. Co., 22 La. Ann. 330. United States. — Willis v. Eastern Trust, etc., Co., 167 U. S. 76, 17 S. Ct. 739, 42 L. ed. APPEAL AND ERROR 575 the jurisdiction of the appellate court that plaintiff sues for an amount of damages less than that which he demanded before suit, and which brings the amount under that permitting an appeal. 17 (x) Effect of Amendment Increasing Amount. The trial court may permit an amendment increasing^ plaintiff's demand, and the amended pleading will determine the amount in controversy; 18 but a case cannot be brought within the appellate jurisdiction by an amendment made solely to innate the demand. 19 And where the amount claimed in the petition in the court below is not sufficient to give appellate jurisdiction, no amendment of the petition after judgment can effect this result. 20 (xi) Reduction st Amendment or Remission. The value of property in dispute, or the amount in controversy, as claimed in the plaintiff's amended or supplemental pleading, is held to be the test of appellate jurisdiction, though the amount or value originally alleged was greater. 21 If, before judgment, the suc- cessful party remits a part of the amount in controversy, and this reduces it below the appealable amount, there will be no appellate jurisdiction. 22 But appel- 83; Webster v. Buffalo Ins. Co., 110 U. S. 386, 4 S. Ct. 79, 28 L. ed. 172. But such a stipu- lation may be regarded in a particular case, together with other facts which appear in the record, as sufficient proof of the amount in controversy to sustain the jurisdiction. U. S. v. Trans-Missouri Freight Assoc, 166 U. S. 290, 17 S. Ct. 540, 41 L. ed. 1007. See also Matthews v. Rising, 194 Pa. St. 217, 44 Atl. 1067. 17. Western Union Tel. Co. v. Durham, 17 Tex. Civ. App. 310, 42 S. W. 792. 18. Thompson v. Jackson, 93 Iowa 376, 61 N. W. 1004, 27 L. R. A. 92; Metcalfe v. The Steamship Alaska, 130 U. S. 201, 9 S. Ct. 461, 32 L. ed. 923; Washer v. Bullitt County, 110 U. S. 558, 4 S. Ct. 249, 28 L. ed. 249. See also Danielson v. Andrews, 1 Pick. (Mass.) 156. Contra — Rejected amendment. — On appeal by plaintiff the additional amount claimed in an amended petition, which was properly re- jected, cannot, for the purpose of giving ju- risdiction of the appeal, be added to that claimed in the original petition. Cully v. Louisville, etc., R. Co., 101 Ky. 319, 19 Ky. L. Rep. 490, 41 S. W. 21. 19. March v. McNeely, 36 La. Ann. 287. See also supra, III, C, 4, g, ( u ) . Amendment of ad damnum. — Where the amount alleged to be due in the body of the declaration is less than the jurisdictional amount, and the evidence is to the same effect, an amendment merely in the matter of the amount of damages claimed, so as to make it exceed the jurisdictional amount, will not con- fer jurisdiction. This was upon the principle that the amount in controversy is to be deter- mined by the actual matter in dispute. Lee v. Watson, 1 Wall. (U. S.) 337, 17 L. ed. 557. See also Hurlbut v. Rogers, 2 Root (Conn.) 60. SO. Trimble v. Missouri, etc., R. Co., (Kan. App. 1900 ) 61 Pac. 449. On appeal from inferior court to circuit court, an amendment filed in the latter will not prevail over the claim in the former where the evidence in the circuit court showed the real claim was for less amount than that set up in the amendment. McFadden v. Rhodes, 19 Ind. App. 487, 49 N. E. 836. 21. Sharp v. Nelson, 93 Iowa 466, 61 N. W. 946 (holding that an amendment, after ver- dict, by the successful party in an action, re- ducing the amount in controversy below one hundred dollars, in order to defeat the right of appeal, must be made before the adjourn- ment of the term of court at which the judg- ment is rendered) ; Giger v. Chicago, etc., R. Co., 80 Iowa 492, 45 N. W. 906; Martine v. Hopkins, 40 La. Ann. 322, 3 So. 734; Groebel v. Ristroph, 35 La. Ann. 490 ; Opelika v. Dan- iel, 109 U. S. 108, 3 S.' Ct. 70, 27 L. ed. 873. See 2 Cent. Dig. tit. "Appeal and Error," § 293 et seq. Amendment not limiting recovery will not affect jurisdiction shown by original pleading. Milward Co. v. Luigart, 19 Ky. L. Rep. 701, 41 S. W. 568. Real amount in controversy. — Although a complaint for the recovery of the value of certain stock killed by the cars of defendant may have been based upon a statute awarding double damages as a penalty, yet where, prior to trial, in view of the unconstitutionality of such provision, the plaintiff dismisses from his complaint the paragraphs relating to such penalty, and confines his recovery and prayer for relief to the actual value of the stock, thereby reducing the amount in controversy below the sum of two hundred dollars, no ap- peal will lie from a judgment rendered in the action. Huber v. Brown, 17 Wash. 4, 48 Pac. 412. Withdrawal of part of claim. — King v. Gal- vin, 62 N. Y. 238. See also Neal v. Van Winkle, 24 W. Va. 401. Dismissal of counts. — Cooper v. Wilson, 71 Iowa 204, 32 N. W. 261. 22. Nevada v. Klum, 76 Iowa 428, 41 N. W. 62; State v. Judge, 21 La. Ann. 728 (involving the entry of a remittitur before judgment [but in this state it is settled that a remitti- tur after the verdict of a jury has no more effect than a remittitur after judgment in a case not tried by jury. New Orleans, etc., R. Co. v. McNeely, 47 La. Ann. 1298, 17 So. 798] ) ; Texas, etc., R. Co. v. Horn, 151 U. S. 110, 14 S. Ct. 259, 38 L. ed. 91 (wherein, after verdict for an amount greater than that re- quired to give appellate jurisdiction, a remit- Vol. II 5i6 APPEAL AJTD EBP OP late jurisdiction cannot be defeated by a remission after judgment. 23 On the other hand, it is held that, where a suit was brought upon a special contract for a fixed sum upon which interest is legally due, plaintiff cannot remit the interest so as to deprive defendant of his right to appeal. 24 (xn) Reduction by Payment. After appellate jurisdiction has attached, a partial payment on a judgment cannot, it is held, have the effect of preventing a review. 25 But if, pending the action involved in the trial court, such payment is made or the matter in controversy is partially compromised and settled, the bal- ance left unsettled and unpaid will control the appellate jurisdiction. 26 (xm) Admission of Part of Plaintiff's Claim. Where defendant admits a part of plaintiff's claim, the balance remaining after deducting the amount admitted is the amount in controversy. 2 ' (xrv) Past of Claim Usurious. "Where the amount of the claim, except that part of it which the court decides to be usurious and therefore not recov- erable, is not disputed, the amount of the usury is, within the meaning of the appeal statute, the true amount involved on plaintiffs appeal. 28 (xv) Part of Claim Barred. "Where a part of the daim appears on the titur was entered so as to bring the judgment below such amount, but the judgment was for the whole amount, reciting, however, the re- mittitur and confining the execution to the balance, and it was held that the defendant could not appeal ) . See also Robinson v. Gar- ver, 8 Ky. L. Rep. 59. Release as fraud on jurisdiction. — But in Hansbrough v. Stinnett, 22 Gratt. (Va.) 593, it was held that a release by plaintiff in the circuit court of five dollars from a verdict of five hundred dollars was in fraud of the ju- risdiction of the court ot appeals. 23. State r. Lazarus, 34 La. Ann. 864, 1117 ; Finch r. Hartpence. 29 Xebr. 368, 45 X. W. 6S4 : New York El. R. Co. v. Xew York Fifth Kat. Bank, 118 U. S. 608, 7 S. Ct. 23, 30 L. ed. 259. To defeat appeal or to make recovery proper. — A distinction is drawn between a remittitur for the express purpose of depriving a party of his right to appeal, and one result- ing from the decision of the trial court that a verdict is excessive. Where, in the latter in- stance, a remittitur is entered in consequence of a motion for a new trial, an appeal will not lie. Wimbush v. Chinault, 58 Miss. 234. See also Edwards v. Howard, 20 Ky. L. Rep. 1667, 49 S. W. 964, and Washington" Mfg., etc., Co. v. Barnett, 19 Ky. L. Rep. 958; 42 S. W. 1120. 24. Howard v. Chamberlin, 64 Ga. 684, wherein the court said that, had the suit been for damages for a breach of the contract, the ease would have been different. 25. Harris r. Stubenrauch, 18 La. Ann. 724; Cook i\ U. S., 2 Wall. (U. S.) 218, 17 L. ed. 755. But if a judgment debtor himself pro- cures the partial satisfaction of a judgment by payment, leaving the amount unpaid less than that which is necessary to give appellate ju- risdiction, this will be fatal to defendant's right to have the judgment reviewed. Thorp v. Bonnifield, 177 U. S. 15, 20 S. Ct. 533, 44 L. ed. 652. 26. Hassett J". Germania Bldg. Assoc, 78 Iowa 386, 43 X. W. 275 : Chicago, etc.. R. Co. v. Miniek. (Kan. 1900) 62 Pac. 1007; Guidry V. Garland, 41 La. Ann. 756, 6 So. 563; Cox v. Vol. II Western Land, etc., Co., 123 U. S. 375, 8 S. Ct. 162, 31 L. ed. 178. 27. Ioica. — Marlow v. Harlow, 56 Iowa 299, 9 X. W. 229, where judgment was rendered for plaintiff for the amount tendered in court, leaving a balance in dispute below the appel- late jurisdiction. But where the tender is of a part of the principal, and the remainder of the principal, with interest, is sufficient to give appellate jurisdiction, such tender will not defeat appellate jurisdiction. Griffin p. Harriman, 74 Iowa 436, 38 N. W. 139. Kansas. — See Berger v. Rife, 7 Kan. App. 639, 53 Pac. 152. Louisiana. — State ;-. Judges, 48 La. Ann. 672, 19 So. 617, wherein it was said that the only judgment that could be entered in such a case is the judgment for the balance found to be due. New Tori-.— A. Hall Terra Cotta Co. r. Doyle, 133 X. Y. 603, 30 X. E. 1010, 44 X. Y. St. 900. Wisconsin. — Blonde r. Menominee Bav Shore Lumber Co., 103 Wis. 284, 79 N. W. 226; Troy Carriage Co. i. Bonell, 102 Wis. 424, 78 X. W. 752. United States. — Jenness v. Citizens' Nat. Bank, 110 TJ. S. 52, 3 S. Ct. 425, 28 L. ed. 67. See 2 Cent. Dig. tit. "Appeal and Error," § 236. Allegation of part payment and denial of balance. — But the mere admission that a certain part of the claim was once due, ac- companied by an allegation of the payment and denial that any more is due, dees not de- prive the appellate court of jurisdiction. Mil- ler v. Gidiere, 36 La. Ann. 201. Judgment for part confessed. — In Louis- iana, where defendant admitted a part of the claim sued on, it was held that although the balance of the claim was not appealable, yet defendant could appeal unless plaintiff, upon confession and deposit of the amount in court, takes a partial judgment for the amount con- fessed. Blaehe v. Aleix. 15 La. Ann. 50. 28. New England Mortg. Security Co. v. Gay, 145 U. S. 123, 12 S. Ct 815, 36 L. ed. 646. APPEAL AND ERROR 577 face of the pleading to be barred by the statute of limitations, and the balance of the claim is less than the amount limited for appellate jurisdiction, an appeal will not lie. 89 (xvi) Penalty of Bond. In an action on a bond the real amount involved is that due by the breach rather than that contained in the penalty of the bond. 80 fxvn) Value of Pmopebty on Right Involved — {a) Value of Property in General. Where the subject-matter of the controversy is land or other prpp- erty, the right to which is directly in issue, the value of such property is the mat- ter in controversy. 81 But, under the principle that the real amount in controversy controls, if the title to the property claimed or recovered is not in fact in issue, but only a part thereof, the value of that part will control. 82 And while the indi- vidual interest of an appellant, though below appellate jurisdiction, will not con- trol as against the actual value of the property involved in the action, 83 yet if the controversy which is continued in the appellate court does not still represent the value of the property, but only a part of the adjudication involving particular interests, the value of the latter will control. 84 (b) Particular Claim or Interest Only Involved. "Where the suit relates 29. Schultz v. Holbrook, 86 Iowa 569, 53 N. W. 285. But it is held differently, if the appeal is from an order dismissing an entire claim, where a part thereof is not barred, though such part is below the amount neces- sary to confer jurisdiction. Folts v. State, 118 N. Y. 406, 23 N. E. 567, 29 N. Y. St. 42. But see Dearborn County v. Kyle, 137 Ind. 421, 36 N. E. 1090, where if is held that if the statute of limitations is pleaded to, the whole of the amount claimed, and the reply seeks to avoid the statute as to a part only of such amount, the latter part is the amount in controversy on appeal from a judgment sustaining a, de- murrer to the reply. 30. Kentucky. — Lee v. Russell, (Ky. 1901) 60 S. W. 376. Missouri. — State v. St. Louis Ct. of Ap- peals, 87 Mo. 569. North Carolina. — But see, contra, Joyner v. Roberts, 112 N. C. Ill, 16 S. E. 917. Virginia. — Duffy v. Figgat, 80 Va. 664. Washington. — Leavitt v. Carr, 22 Wash. 361, 60 Pac. 1044. United States.— U. S. v. Hill, 123 U. S. 681, 8 S. Ct. 308, 31 L. ed. 275. Judgment for penalty dischargeable by pay- ment of less. — Where the judgment was the common-law judgment for the penalty of the bond, dischargeable by payment of a sum less than the appealable amount, the defendant might bring error or appeal. Cobb v. Com., 3 T. B. Mon. (Ky.) 391; Wilson v. Daniel, 3 Dall. (TJ. S.) 401, 1 L. ed. 655 [overruled, however, upon the general proposition that the amount claimed determines the amount in controversy. See Gordon v. Ogden, 3 Pet. (U. S.) 33, 7 L. ed. 592]. 31. Walker v. Barrow, 43 La. Ann. 863, 9 So. 479 (value of property in partition suit) ; McLeod v. Simonton, 39 La. Ann. 853, 2 So. 608; Jones v. Fritschle, 154 U. S. 590, 14 S. Ct. 1171, 21 L. ed. 552; Kenaday v. Edwards, 134 U. S. 117, 10 S. Ct. 523, 33 L. ed. 853 (on an appeal by the trustee and purchaser from a decree setting aside a trustee's sale, remov- ing the trustee and denying him commissions, [37] the value of the property determines the juris- diction of the supreme court; the right of the trustee to commissions does not consti- tute the whole matter in dispute) ; Richmond v. Milwaukee, 21 How. (U. S.) 80, 16 L. ed. 60; Carter v. Cutting, 8 Cranch (U. S.) 251, 3 L. ed. 553 (value of property involved as controlling an appeal on order dismissing a petition to revoke probate of a will) . See 2 Cent. Dig. tit. "Appeal and Error," § 210 et seq. Conveyance in separate parcels. — And, though appellant had conveyed land to vari- ous parties in separate parcels, in a suit against appellant and his vendees for recov- ery of the land the title to the whole tract is in issue, and the jurisdictional amount is de- termined by its value. Simon v. Richard, 42 La. Ann. 842, 8 So. 629. 32. Vicksburg, etc., R. Co. v. Smith, 135 U. S. 195, 10 S. Ct. 728, 34 L. ed. 95; Old Grant v. McKee, 1 Pet. (U. S.) 248, 7 L. ed. 131. In a partition suit the value of the undi- vided part in controversy, and not that of the whole of the land, determines the appellate jurisdiction. McCarthy v. Provost, 103 XJ. S. 673, 26 L. ed. 337. See also Hood v. Sang- ster, 16 Can. Supreme Ct. 723. . In a boundary action the real amount in dispute is the value of the land contested or included between the contested lines. Hite v. Hinsel, 39 La. Ann. 113, 1 So. 415. 33. Ross v. Enaut, 46 La. Ann. 1250, 15 So. 803 (involving title to land) ; Andrews v. Partee, (Miss. 1901) 29 So. 788. 34. Pittsburgh Locomotive, etc., Works v. National Bank, 154 U. S. 626, 14 S. Ct. 1180, 24 L. ed. 270, holding that where plaintiff was adjudged possession and ownership of property, subject to the payment of a money judgment in favor of defendant, and defend- ant acquiesced but plaintiff objected to the money judgment, the amount of this judg- ment determined his right to a writ of error. See also Green v. Pisk, 154 U. S. 668, 14 S. Ct. 1193, 26 L. ed. 486. Vol. II 578 APPEAL AND ERROR only to the enforcement of a particular demand, and not to the right or title to the property itself, the particular interest or demand affected by the judgment, and not the value of the property, controls, and this, notwithstanding the pro- ceeding involves the ultimate enforcement of the claim upon the property. 35 And when the suit is not to obtain a money judgment, but other relief — as that afforded by injunctive process — the amount involved must be determined by the value in money of the relief to plaintiff or of the loss to defendant, and not by the value of the property. 36 It may happen, however, that this particular interest is in fact the value 6f the property — as where the property of one person is seized for the debt of another — and in this event the value of the matter in controversy, as regards the right of the real owner to appeal, is the value of the property. 37 (c) Tax Suits. As a general rule the test of appellate jurisdiction in actions involving the validity of, or liability for the payment of, taxes is the amount of the taxes sought to be avoided, and not the value of the property upon which they are assessed. 38 35. Illinois. — Walker v. Malin, 94 111. 596. Iowa. — See Johns v. Pattee, 61 Iowa 393, 16 N. W. 280. Kentucky. — Moon v. Potter, 19 Ky. L. Rep. 897, 38 S. W. 864. Louisiana. — Munday v. Lyons, 35 La. Ann. 990. But see Guss v. Eouton, 33 La. Ann. 1046, wherein, in » suit to enjoin the seizure and sale of a homestead, the value of the lat- ter was held to be the matter in dispute, and such value being lower than the amount re- quired for appellate jurisdiction, the com- plainant was denied an appeal, without re- gard to the amount of the creditor's claim. Virginia. — Showalter v. Rupe, (Va. 1897) 27 S. E. 840, holding that the amount in- volved in an appeal from a decree subjecting land to the payment of a debt is the amount of the debt, and not the value of the land. But see Buckner v. Metz, 77 Va. 107, wherein the value of the land was held to control so as to defeat an appeal by a judgment cred- itor from a decree dismissing his bill to en- force the lien of his judgment, because the value of the land was not sufficient. Washington. — Doty v. Krutz, 13 Wash. 169, 43 Pac. 17, holding that amount of lien prevails in action for damages for removal out of state of property subject to the lien. United States. — Ross v. Prentiss, 3 How. (U. S.) 771, 11 L. ed. 824. See also supra, III, C, 2, y, (n), (b) ; and 2 Cent. Dig. tit. "Appeal and Error," § 212. Priority of claims. — Where the only error alleged consists in decreeing a lien prior to that of the complaining party, at most the only amount in controversy is the amount of the lien declared to be prior, and if that is not sufficient appellate jurisdiction cannot be maintained. Obert v. Oberlin Loan, etc., Banking Co., 54 Kan. 750, 39 Pac. 699. In a contest between parties for priority of execu- tion the value of the property is not the test if neither party claims any privilege thereon. State ex rel. MacKenzie, 39 La. Ann. 508, 2 So. 68. Though it is held otherwise if third persons, enjoining the seizure and sale of property, claim superior rights upon it, in which event the value of the property, and Vol. II not the amount of the judgment enjoined, controls. Meyer v. Logan, 33 La. Ann. 1055. And where the judgment in favor of appel- lant is of sufficient amount, and appellant is entitled to a superior lien on attached prop- erty, the appellate court will have jurisdic- tion to pass upon the right of appellant to have his judgment declared a superior lien, notwithstanding the claim of one of the ap- pellees who was given priority is less than the jurisdictional amount. Cabell v. Patter- son, 98 Ky. 520, 17 Ky. L. Rep. 836, 32 S. W. 746. See also Pitts v. Spotts, 86 Va. 71, 9 S. E. 501; McMurray v. Moran, 134 U. S. 150, 10 S. Ct. 427, 33 L. ed. 814. See also Adler v. Cannon, 42 La. Ann. 835, 8 So. 593. 36. Gast Bank Note, etc., Co. v. Fennimore Assoc, 147 Mo. 557, 49 S. W. 511. 37. Brown v. Vancleave, 9 Ky. L. Rep. 150 ; Rhodes v. Black, 34 La. Ann. 406; State v. Judge, 24 La. Ann. 424; Andrews v. Partee, (Miss. 1901) 29 So. 788. But compare Cash v. Humphreys, 98 Va. 477, 36 S. E. 517, which, though not upon the same point, seems virtually different in effect. A judgment creditor sought to subject land in the hands of a third person to the payment of his judg- ment, and it was held that the pecuniary de- mand asserted by such judgment creditor was the matter in controversy, and not " the title or boundary of land." And in Endom r. Ludeling, 34 La. Ann. 1024, on appeal by de- fendant, a third person, to enforce a mort- gage, the title of defendant not being denied and the only question being the liability of the property to be subjected, the value of the land was held not to control, and, the amount for which the mortgage was sought to be en- forced being insufficient, the supreme court refused to entertain jurisdiction. 38. Conklin v. Hutchinson, (Kan. 1900) 62 Pac. 1012; Hull v. Johnson, (Kan. App. 1901) 63 Pac. 455; De Blois v. New Orleans, 45 La. Ann. 1308, 14 So. 190 (in mandamus proceedings to compel the erasure of tax in- scriptions on the ground that they were im- properly assessed) ; Johnson v. Cavanac, 40 La. Ann. 773, 5 So. 61 ; Aymar v. Bourgeois, 36 La. Ann. 392 ( holding that, in a suit to en- APPEAL AND ERROR 5Y9 (d) Value of Fund. On the other hand, it is held that the amount involved in an appeal from an order affecting an entire fund — as upon an application for a distribution thereof, according to priorities — is determined by the amount of the fund. 39 But when the controversy relates entirely to the allowance or disallowance of a particular claim, the amount in controversy is not determined by the value of the whole fund or estate against which the claim is made. 40 Where the debt of one claiming under an assignment and the fund aris- ing from the property assigned each exceeds the jurisdictional amount, such party is entitled to appeal from an adverse decree in a suit by him against an attaching creditor to have the assignment declared valid, without regard to the amount of the claim of the attaching creditor. 41 And if the particular claim or join a tax sale, the validity of the taxes hav- ing been sustained by a prior judgment, the test of appellate jurisdiction was the amount of the tax, and not the value of the property seized) ; Florance v. Morien, 98 Va. 26, 34 S. E. 890. But see Stanley v. Hubbard, 27 W. Va. 740, holding that, in a controversy as to the right to sell property for taxes, there is no right of appeal by the owner where the property is worth less than the appealable amount, though the taxes exceed such amount. 39. MacVeagh v. Roysten, 172 111. 515, 50 N. E. 153 ; Longwith v. Riggs, 123 111. 258, 14 N. E. 840 ; Receivership Sheets Lumber Co., 104 La. 771, 29 So. 328; Hamilton v. His Creditors, 51 La. Ann. 1035, 25 So. 965; Fred- ericks v. Donaldson, 50 La. Ann. 471, 23 So. 446 ; Matter of Pelican Saw Mill, etc., Co., 50 La. Ann. 404, 23 So. 363. But an order ap- pointing a receiver and staying proceedings against an insolvent corporation is held not to come within such provision, as there is no fund available from the assets, which have not yet been disclosed by the record, and the creditors are not contending among them- selves over any fund; but the question of ju- risdiction is to be determined by the amount of the creditors' claim upon which the right of action is suspended. In re Moss Cigar Co., 50 La. Ann. 789, 23 So. 544. See 2 Cent. Dig. tit. "Appeal and Error," §§ 281-283. 40. Illinois. — Moore v. Sweeney, 128 111. 204, 21 N. E. 205. Kentucky. — Murrell v. Humphries, 17 Ky. L. Rep. 125, 30 S. W. 606; Anderson v. Sim- mons, 7 Ky. L. Rep. 438. Louisiana. — Mascari's Succession, ( La. 1901) 29 So. 718 (holding that where the amount remaining for distribution, after de- ducting claims due, by an estate is less than the lower limit of the appellate jurisdiction, no appeal will lie) ; Hamilton v. His Credit- ors, 51 La. Ann. 1035, 25 So. 965 [distinguish- ing In re Southern Liquor, etc., Co., 49 La. Ann. 1455, 22 So. 414, and Duran's Succes- sion, 34 La. Ann. 585, in that, in both of these cases, when the judgments homolo- gating the accounts became final there was but one opponent before the courts, and he claimed less than the appealable amount; whereas, in the instant case, when the judgment ordering the distribution was ren- dered, there were a number of contestants whose claims affected the entire fund of more than the jurisdictional amount.] But where, after a judgment homologating an account had become final, two parties claimed interest on their demands, and had a judg- ment on a rule to show cause why it should not be allowed under a proper inter- pretation of the first judgment, it was held that had the original judgment allowed inter- est the other parties could have appealed by reason of the fund to be distributed, and they had' the same right when the allowance was thus subsequently made. Factors, etc., Ina. Co. v. New Harbor Protection Co., 39 La. Ann. 583, 2 So. 407. So, where a creditor, claim- ing a vendor's lien upon goods which he and other creditors had attached, makes his claim in his own attachment suit, citing the other creditors as defendants, the amount of the proceeds of the particular property affected by the lien, without regard to the total amount subject to the attachments, will con- trol the jurisdiction. Adler v. Cannon, 42 La. Ann. 835, 8 So. 593. Pennsylvania. — Jennings' Estate, 195 Pa. St. 406, 45 Atl. 1055. Virginia. — See Crockett v. Woods, 97 Va. 391, 34 S. E. 96; Wilson v. Wilson, 93 Va. 546, 25 S. E. 596. West Virginia. — Where a reference wag had to ascertain to whom the funds in the suit belonged and the value of the interest of the parties therein, and the report of the com- missioner was confirmed without exception, which report showed that none of the peti- tioners for the appeal had any interest in the funds except certain ones mentioned, whose interest was to an extent very much less than the amount necessary to confer appellate ju- risdiction, it was held that the supreme court had no jurisdiction of the appeal. McCoy v. McCoy, 33 W. Va. 60, 10 S. E. 19. United States. — Chapman v. Handley, 151 U. S. 444, 14 S. Ct. 386, 38 L. ed. 227 ; Miller v. Clark, 138 U. S. 223, 11 S. Ct. 300, 34 L. ed. 966. But where the particular decree as to the item complained of as insufficient to con- fer jurisdiction contains a provision that an earlier decree in the cause shall stand rati- fied and confirmed, and the earlier decree is sufficient to support an appeal, an appeal from the later decree will not be dismissed. Richardson v. Green, 130 U. S. 104, 9 S. Ct. 443, 32 L. ed. 872. Canada. — See Lachance v. La Socigtfi de Prets, etc., 26 Can. Supreme Ct. 200. See also infra, III, C, 4, h, (xx). 41. Estes v. Gunter, 121 U. S. 183, 7 S. Ct. 854, 30 L. ed. 884. Vol. II 680 APPEAL AND ERROR interest is sufficient the jurisdiction cannot be questioned upon the ground that the estate, when distributed, will not yield a sufficient amount. 42 Where the entire fund claimed by both parties is awarded in shares to each, the value of the share of one of the parties who appeals will control the amount in controversy. 43 (e) Value of Possession. Where the right to the possession and not to the property itself is the matter in controversy, the value of the possession, and not the value of the property, will control as to the amount in controversy.* 4 (f) Replevin. Generally, it is held that, in the determination of the jurisdic- tional amount on appeal in actions of replevin, the value of the property, 45 or the value of the property and the damages for its wrongful detention, will control 46 rather than the particular interest of a party to the action. 47 But where the By assignee or trustee. — A trustee in an assignment or trust deed may, as representa- tive of the whole fund, appeal from a decree in favor of judgment creditors of the assignor or of one claiming under a distinct title, without regard to the amount of the individ- ual debts secured by the deed, or of the exe- cution creditors. Saunders v. Waggoner, 82 Va. 316; Freeman v. Dawson, 110 U. S. 264, 4 S. Ct. 94, 28 L. ed. 141. See also supra, III, C, 4, h, (iv). 42. Vincent v. Phillips, 47 La. Ann. 1216, 17 So. 786; Clark v. Bever, 139 U. S. 96, 11 S. Ct. 468, 35 L. ed. 88. But, on the other hand, where the amount in an administrator's hands had been ascertained, it was held that, in an action against the sureties of the ad- ministrator to recover the shares in the fund which had been apportioned, no appeal would lie in favor of a creditor whose share was be- low the jurisdictional amount, even though the original claim was larger. Hartsook v. Crawford, 85 Va. 413, 7 S. B. 538. Distribution pending appeal. — Where cred- itors have litigated in concurso the test of ap- pellate jurisdiction is the amount of the fund to be distributed at the time of the appeal, and the distribution of the fund pending a devolutive appeal will not justify a dismissal. Hamilton v. His Creditors, 51 La. Ann. 1035, 25 So. 965. Priority of claims. — Where the judgment of the trial court disposes of a sufficient amount — as where a claim is allowed against an estate — and the judgment is affirmed in the appellate court, the supreme court will have jurisdiction because the amount thus awarded will constitute the amount in con- troversy ; and it cannot be contended that the difference between what appellee will receive if his claim is not paid as one of the class to which it is assigned by the judgment, and what he will receive as his share if he is paid as of another class, should control, where there is nothing in the record from which this difference can be ascertained. Svanoe v. Jur- gens, 144 111. 507, 33 N. E. 955. 43. Keogh v. Orient F. Ins. Co., 154 U. S. 639, 14 S. Ct. 1181, 24 L. ed. 558; Labelle v. Barbeau, 16 Can. Supreme Ct. 390. 44. Flagg v. Walker, 109 111. 494; Nor- wood v. Wimby, 104 La. 645, 29 So. 311. In a petitory action, in which defendant claims possession under a contract with the plain- Vol. II tiff, the matter in dispute is the value of the right of occupation, and not that of the title. Harris v. Stockett, 35 La. Ann. 387; Harris v. Barber, 129 U. S. 366, 9 S. Ct. 314, 32 L. ed. 697. See 2 Cent. Dig. tit. "Appeal and Error," § 231. Surrender of possession. — In an action of unlawful detainer and for recovery of dam- ages, possession of the premises was surren- dered subsequent to the taking of the appeal, and it was held that the controversy existing in the appellate court only embraced the de- mand for damages, and that if that was not sufficient in amount the appellate court had no jurisdiction. Puyallup Light, etc., Co. v. Stevenson, 21 Wash. 604, 59 Pac. 504. 45. Denver First Nat. BanK v. Follett, (Colo. 1900) 62 Pac. 361; Eohe v. Pease, 189 111. 207, 59 N. E. 520; Mullins v. Bullock, 14 Ky. L. Rep. 40, 19 S. W. 8 ; Vaiden v. Bell, 3 Band. (Va.) 448. Distraint. — But in distraint for rent the amount for which the avowry is made, and not the value of the goods, determines the amount in controversy. Peyton ix Robertson, 9 Wheat. (U. S.) 527, 6 L. ed. 151. To the same effect see Biddle v. Paine, 74 Miss. 494, 21 So. 250. 46. Iowa. — Ruiter r. Plate, 77 Iowa 17, 41 N. W. 474. Plaintiff's interest and damages for wrongful detention may be added. Ormsby v. Nolan, 69 Iowa 130, 28 N. W. 569. Kentucky. — Where third persons replevy property taken by a constable under an execu- tion, and the petition avers that the property was worth a certain amount and asks judg- ment for the return thereof and for damages, a judgment for the return of the property and costs . authorizes an appeal, as the judgment is not one for costs only. Mullins v. Bullock, 14 Ky. L. Rep. 40, 19 S. W. 8. Vermont. — Fisk v. Wallace, 51 Vt. 418. Virginia. — Vaiden v. Bell, 3 Rand. (Va.) 448. Washington. — Freeburger v. Caldwell, 5 Wash. 769, 32 Pac. 732. West Virginia. — Davis v. Webb, 46 W. Va. 6, 33 S. E. 97. 47. Cummins v. Holmes, 107 111. 552; Eid- son v. Woolery, 10 Wash. 225, 38 Pac. 1025. Real amount in controversy. — On the other hand, where one of the parties in replevin APPEAL AND ERROR 581 ownership and right to possession are not denied, and the only issue is as to a particular interest or damages, the value of the property does not control. 48 (a) Fraudulent Conveyance. In a suit to set aside a fraudulent conveyance and to subject the property to the satisfaction of the complainant's debt, the debt is the amount involved rather than the value of the property, at least so far as the creditor is concerned, 49 and the same may be said in regard to the right of appeal on the part of the alleged fraudulent grantor. 50 But where the alleged fraudulent grantee appeals from an adverse judgment depriving him of property which he claims, the value of such property furnishes, as to him, the true test of the amount involved. 51 (h) Garnishment. In a garnishment proceeding the amount involved is the amount of the debt owing by the garnishee to the judgment debtor, or the value claims under an execution of less than the jurisdictional amount which was levied on the property in controversy, and demands the return of the property or a judgment for the amount of said execution, it is held that he is not entitled to an appeal from an adverse judgment, because in such a ease the amount of the execution, and not the value of the property, is the test. Davis v. Upright, 54 Iowa 752, 6 N. W. 266. So, where the appeal is from a part of the judgment — as where the judgment was in favor of plaintiff for a por- tion of the property and in favor of defendant for the return of the residue or its value — neither party can complain of the part of the judgment against him if the value of the in- terest is not sufficient. Pierce v. Wade, 100 U. S. 444, 25 L. ed. 735, holding that the prin- ciple, that where a case is taken up by a de- fendant the amount of the recovery against him controls, applies to a plaintiff in replevin when defendant obtains judgment for the re- turn of the property taken under the writ. See also Stinson v. Cook, 53 Kan. 179, 35 Pac. 1118; George v. Hunter, 5 Kan. App. 250, 47 Pac. 559. 48. Mohme v. Livingston, 54 Iowa 458, 6 N. W. 717; Frost v. Rowan, 21 Ky. L. Pep. 1777, 56 S. W. 427. 49. Kentucky. — Myall v. Jackson, 14 Ky. L. Rep. 48. Louisiana. — The distinction is between the revocatory action and one en declaration de simulation. The effect of the judgment in a revocatory action is to subject the property to the satisfaction of the creditor's claim, but be- yond this the title of the vendee is not affected and is not revested in the vendor. In such an action the amount of the debt, and not the value of the property, is the test. But where the contract is assailed as null and void and as a simulated sale, the value the property con- trols. See Moore v. Ringuet, 45 La. Ann. 1115, 13 So. 670 ; Boggs v. Hays, 44 La. Ann. 859 ; 11 So. 222; Flower v. Prejean, 42 La. Ann. 897, 8 So. 596. But it has also been held that when plaintiff's claim exceeds the jurisdic- tional amount, and the value of the property, the sale of which is sought to be annulled as fraudulent, is less than the amount, the cred- itor in the revocatory action cannot recover any amount larger than the value of the prop- erty, and therefore this is the only amount at issue, and by it the jurisdiction is to be de- termined. State v. Blaekman, 50 La. Ann. 126, 23 So. 205. Virginia. — Umbarger v. Watts, 25 Gratt. (Va.) 167. United States. — Chatfield v. Boyle, 105 U. S. 231, 26 L. ed. 944, as to the combining of several interests of complainant creditors on an appeal from a decree dismissing the bill. And so it is held that where judgment creditors, whose aggregate claims exceed the jurisdictional amount, but each several claim is less than that amount, successfully attack a judgment confessed by their insolvent debtor to a co-defendant, an appeal will not lie. Schweb v. Smith, 106 TJ. S. 188, 1 S. Ct. 221, 27 L. ed. 156. See also supra, III, C, 4, h, (iv) ; and infra, III, C, 4, h, (XX). Canada. — See Flatt v. Ferland, 21 Can. Supreme Ct. 32. See 2 Cent. Dig. tit. "Appeal and Error," § 213. Effect of cross-bill. — To a bill to set aside a deed as in fraud of creditors, filed by a creditor whose debt amounted to less than the sum fixed by statute for an appealable judg- ment, the defendant answered by cross-bill, alleging that the deed was executed in order to secure to him a debt in excess of such limit. It was held that complainant stood in the same relation, in regard to the appeal, as if the cross-bill had been an original bill to foreclose, or his own bill had been a bill to redeem ; and, where the decree below contained a provision for redemption by complainant, on payment of a sum exceeding the statutory limit beyond that claimed by him, his appeal should stand. Lobstein v. Lehn, 120 111. 549, 12 N. E. 68. Jurisdiction independent of amount in con- troversy. — Fentoh v. Morgan, 16 Wash. 30, 47 Pac. 214, holding that an action by a judg- ment creditor, to set aside a deed by the debtor as in fraud of the lattefs creditors, was not an action for the recovery of money but of an equitable nature, so that the jurisdiction on appeal did not depend upon the fact that the amount remaining unpaid on complainant's judgment was less than the minimum amount fixed for the jurisdiction of the appellate court in actions for the recovery of money. 50. Hawkins v. Gresham, 85 Va. 34, 6 S. E. 472. See also Parker v. Valentine, 27 W. Va. 677. 51. Kahn v. Kerngood, 80 Va. 342; Parker v. Valentine, 27 W. Va. 677. Vol. II 5S2 APPEAL A2sD ERROR of the property seized in the garnishee's hands. 52 But, where the garnishment proceeding is one in which a judgment in solido is sought against the debtor and the garnishee, the question of jurisdiction is held to depend upon the demand of the creditor. 53 (i) Amount Secured by Mortgage. In a suit involving a mortgage the sub- ject-matter involved in a judgment or decree affecting the security is the amount secured by the mortgage ; w but, where the controversy relates only to particular claims in the proceeds, the general rule already stated prevails. 55 (xvin) Validity of Judgment. In a controversy involving the validity of 52. Payne r. Chicago, etc., R. Co., 170 111. 607, 48 N". E. 1053, appeal by judgment cred- itor. Contra, Handlin v. Burnett, McGloin (La.) 244. But where property worth more than the jurisdictional amount is seized in the hands of the garnishee, whose claim is also for more than that amount, it is held that the appellate jurisdiction attaches without re- gard to the amount of the creditor's judgment. Bier v. Gautier, 35 La. Ann. 206, in which case, however, the matter in dispute was the existence and validity of the garnishee's pledge, and the judgment recognized the pledg- ee's right, but ordered the property turned over to the officer to be sold providing the bid was sufficient to cover the amount for which it had been pledged. 53. Leverich v. Dulin, 23 La. Ann. 505, on appeal by garnishee. Where the contest is be- tween the plaintiff and the garnishee, both claiming a right of priority and preference on the property seized, the dispute is limited to that property, and the jurisdiction of the ap- pellate court is tested by its value. Wood v. Roechi, 32 La. Ann. 1120, on appeal by the garnishee. 54. Citizens Bank v. Webre, 44 La. Ann. 334, 10 So. 72S: Bussiere v. Williams, 37 La. Ann. 387 (on a rule by a judgment creditor to obtain an erasure ot mortgages, the amount of the mortgage sought to be canceled, and not the amount of the judgment or the value of the property affected thereby, is held to be the test of appellate jurisdiction) ; Schmelz v. Eix, 95 Va ; 509, 28' S. E. 890 (on appeal from a decree enjoining sale under a trust deed se- curing notes of sufficient jurisdictional amount, but from which usurious discount has been de- ducted, which reduced the amount, holding that the whole amount secured is the amount of the controversy) ; Elliott v. Sackett, 108 U. S. 132, 2 S. Ct. 375. 27 L. ed. 678 (hold- ing that under a bill seeking to reform a deed by which complainant is made to assume pay- ment of a mortgage, the amount in contro- versy is the amount of the encumbrance and not of the deficiency which may remain after foreclosure ) . Taxes — Foreclosure of chattel mortgage. — In Texas, in cases of foreclosure of mort- gages and lien upon specific property, the amount in controversy is not that of the debt, but of the security given for its payment. Cotulla r. Goggan, 77 Tex. 32, 13 S. W. 742; Marshall v. Taylor, 7 Tex. 235 ; Cox r. Wright, (Tex. Civ. App. 1894) 27 S. W. 294. But in Lawson v. Lynch. 9 Tex. Civ. App. 582, 29 S. W. 1128, the court was of a different opin- ion, though recognizing that it was bound by vol. n the rule adopted by the supreme court of the state. It refused, however, to extend the principle to other cases than those to which the rule had already been applied, distinguish- ing the cases above cited and other cases in this state in that the liens therein were cre- ated by contract or the act of the parties upon specific chattels, and holding that in the in- stant ease the rule would not apply to the lien of a landlord which was given by law gen- erally on the crops of the tenant, and which was a charge upon no more of such specific property than was necessary to pay the debt, but that in such a case the amount claimed determined the jurisdiction. This ruling was followed in Bohannon p. Koensch, 13 Tex. Civ. App. 218, 35 S. W. 873. Property destroyed pending suit. — -Where, pending the trial of an action on a note se- cured by mortgage on personal property, the property is destroyed and the action on the note is prosecuted, the jurisdiction of the court of civil appeals is determined by the amount of the note. Tufts v. Hodges, 8 Tex. Civ. App. 240, 28 S. W. 110. 55. Sedgwick r. Johnson, 107 111. 385 (wherein sureties on a bond, who had paid money for their principal thereon, and had been sued and were threatened with other suits, brought a suit to foreclose an indemnity mortgage to which a prior mortgagee was made a party, and the court found the sums due on both mortgages, and ordered a sale, out of the proceeds of which the prior mortgagee was to be paid a certain amount and the com- plainants another certain amount, the latter representing the amount which had been paid by them, and the balance was to be paid into court to abide other orders in case of further payments by complainants. Ihe total amount involved was held to be the sum of the amounts thus ordered to be paid to the parties out of the proceeds, and, being less than the juris- dictional amount, no appeal would he) ; JIc- llurrav v. Moran, 134 U. S. 150, 10 S. Ct. 427, 33 L. ed. 814. Application of excess. — Where there is a small excess over the mortgage debt the court of appeals will not have jurisdiction of an appeal involving only the question whether or not there was error in awarding such sur- plus to a judgment creditor of the mortgagor instead of to the latter. Mauk v. Harper, 15 Ky. L. Rep. 490, 24 S. W. 241. Several secured by one mortgage. — Where a claim on a fund in the registry of the ad- miralty, of several creditors, secured in a body by one mortgage, exceeded the jurisdictional amount, it was held that an appeal would lie APPEAL AND ERROR 583 a judgment, the amount of the judgment determines the appellate jurisdiction, which depends upon pecuniary limitations. 56 (xix) Intervention and Claim of Third Person. Where an interven- ing creditor controverts plaintiff's judgment or attachment, it is held that plain- tiff's claim is the test of appellate jurisdiction. 57 But, in a contest between an attaching creditor and the claimant of the attached property or of the fund in court or in the hands of a garnishee, the value of the property or the amount of the fund fixes the appellate jurisdiction. 58 (xx) GROSS -Appeals. On appeal by a plaintiff, involving an amount sufficient to give jurisdiction, the court will have jurisdiction of an appeal by defendant from a part of the same judgment, against him and in favor of plaintiff, though for less than the jurisdictional amount, 59 and it has heen held also that the amount really in controversy between the parties, as the case stands in the appellate court, and which will be concluded by the judgment to be rendered by such court in dispos- ing of the appeals of both parties, furnishes the test of appellate jurisdiction. 60 by the mortgagees in a body, without regard to the amounts of their separate claims. Rodd V. Heartt, 17 Wall. (U. S.) 35,, 21 L. ed. 627, 56. Singer v. MoGuire, 40 La. Ann. 638, 4 So. 578. See supra, III, C, 2, g; III, 0, 2, y; III, C, 4, h, (xvn), (B). Interpreting former judgment. — Factors, etc., Ins. Co. v. New Harbor Protection Co., 39 La. Ann. 583, 2 So. 407. 57. White Castle Lumber, etc., Co. v. Hart, 48 La. Ann. 1034, 20 So. 201. Party impleaded by defendant. — If it should be conceded that the demand of a de- fendant against a person whom he has im- pleaded for his own convenience would give the appellate court jurisdiction to revise a judgment, on the trial between the original parties to a controversy, not exceeding the amount necessary to give the appellate court jurisdiction, such demand must be so related to the subject-matter in controversy between the original parties as to admit of its adjudi- cation in their suit, and must be such as, if admitted or proven, would entitle the party asserting it to a recovery against the party impleaded for a sum of money or property of sufficient amount to give appellate jurisdic- tion. Hudson v. Norwood, 13 Tex. Civ. App. 662, 35 S. W. 1075. 58. Martin v. Duncan, 156 111. 274, 41 N. E. 43; Riley v. Caltron, 10 Ky. L. Rep. 40; Grubbs v. Franks, 7 Ky. L. Rep. 438 (part of property upon which landlord claimed lien) ; Wickham v. Nalty, 42 La. Ann. 423, 7 So. 609 ; Flash v. Schwabacker, 32 La. Ann. 356. See 2 Cent. Dig. tit. "Appeal and Error," § 211. Where value must be found. — Where a plea of intervention was filed in replevin by a third person, and there was a general verdict for the plaintiff, it was held, under statute allowing appeals only where the judgment shall amount to a fixed sum, that no appeal would lie by the intervener even if the judg- ment be treated as a dismissal of the interven- tion. Meyer v. Brophy, 15 Colo! 572, 25 Pac. 1090. Plaintiff's demand controlling as to him. — Where plaintiff in an attachment had a judg- ment against the debtor sustaining plaintiff's demand, except as to interveners who were awarded a judgment against the plaintiff, the plaintiff's debt imparts to the suit its char- acter in relation to its appealability. New- man v. Baer, 50 La. Ann. 323, 23 So. 279; State v. Judges, 34 La. Ann. 1046. But see Kuh v. Garwin, 53 Mo. App. 64. Proceeds adjudged to claimant. — Where the judgment awards to a, claimant of attached property a certain part of the proceeds, it is held that this amount is the amount in con- troversy. Wolf v. Glenn, 8 Ky. L. Rep. 425. Funds garnished under separate judgments. — Where, in garnishment proceedings under two judgments aggregating more than the jurisdictional amount, the intervener's peti- tion is filed in one of the actions, claiming a sum which had been garnished equal to both judgments, and it is agreed that such petition may be made applicable to both judgments, it is held that the petition becomes a single pro- ceeding for the whole amount, and therefore the intervener is entitled to appeal. Edwards v. Cosgro, 71 Iowa 296, 32 N. W. 350. Judgment against intervener for property released to him. — But the amount of a judg- ment against an intervener, to whom property seized was released on forthcoming bond, fixes the jurisdictional amount on appeal. State v. Court of Appeals, 47 La. Ann. 740, 17 So. 290. Intervener seeking money judgment. — Fill- more v. Hintz, 90 Iowa 758, 57 N. W. 882, hold- ing that where an intervener set up a claim in an action on notes, and sought to Tiave a trust declared in the notes for the payment thereof, plaintiff's denial of the trust set up by the intervener is not a denial of the inter- vener's right to a sum which he alleged he had received on his claim, and the net amount claimed by the intervener will determine the appellate jurisdiction. 50. Brown v. Vancleave, 9 Ky. L. Rep. 150; Bradley v. Milwaukee Mechanics' Ins. Co., 147 Mo. 634, 49 S. W. 867 ; Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198; U. S. v. Mosby, 133 U. S. 273, 10 S. Ct. 327, 33 L. ed. 625; Walsh v. Mayer, 111 U. S. 31, 4 S. Ct. 260, 28 L. ed. 338. But see Cannon v. Edwards, 6 Ky. L. Rep. 734. 60. Douglas v. Kansas City, 147 Mo. 428, 48 S. W. 851. See also Brown v. Vancleave, 9 Ky. L. Rep. 150. Vol. II 584 APPEAL AND ERROR 5. Jurisdiction Irrespective of Amount — a. In General. Ordinarily, statutes making the right of appeal to depend upon theamount in controversy, except from their operation, either expressly or by implication, certain classes of cases in which appeals will lie without regard to the magnitude of the interests involved. 61 The provisions on this subject vary quite materially in the different jurisdictions, but as a rule they do not apply to cases not directly involving property rights or not susceptible of pecuniary estimation 62 — as, for instance, divorce suits, 68 mandamus, 64 certiorari, 65 and injunction proceedings. 66 Where general and unlimited appellate On cross-appeal as to items disallowed. — Where, under a statute, authorizing an appeal to the supreme court on behalf of the United States from all adverse judgments of the court of claims, the United States appeals, and the amount of the adverse judgment is more than thirteen thousand dollars, the claimant, who has also appealed, may show that certain items were improperly disallowed him, though they do not amount to the required sum. U. S. v. Mosby, 133 U.S. 273, 10 S. Ct. 327, 33 L. ed. 625. But in Virginia it was held that, under a creditor's bill, an appellee, one of the com- plainant creditors, cannot assign for error the action of the court in rejecting his claim as a charge upon the estate, when such claim is less than that required to give the appellate court jurisdiction, and » rule of court permitting an assignment of error by an appellee does not so extend the jurisdiction of the court, but is in- tended only for the benefit of appellees in cases which are appealable. Crockett v. Woods, 97 Va. 391, 34 S. E. 96; Wilson v. Wil- son, 93 Va. 546, 25 S. E. 596. 61. See the statutes and constitutional pro- visions. See also Courts. Cases involving revenue and tax laws are usually appealable without respect to the amount in dispute. See Taxation. Indiana — Replevin. — In Hall v. Durham, 113 Ind. 327, 15 N. E. 529, it was held that a statute prohibiting appeals where less than a certain amount was involved did not apply to an action of replevin, oecause in such action the controversy was not in regard to amounts or values, but related merely to the right of the parties to the possession of the goods, chattels, or articles of personal property at the time of the commencement of such action. Kentucky — Claim payable out of public treasury. — An appeal lies from an order re- fusing to allow the claim of an officer, payable out of the public treasury, without reference to the amount. Ex p. Jones, 13 Ky. L. Rep. 138. Massachusetts — Issue in law. — In Massa- chusetts, a party aggrieved by the judgment of the common pleas on any issue in law may appeal to the supreme court irrespective of the amount involved. Hovey v. Crane, 10 Pick. (Mass.) 440. Missouri — State officer a party. — Under Mo. Const., art. 6, § 12, an appeal lies to the supreme court irrespective of the amount, where a state officer is a party to the suit. State v. Henning, 110 Mo. 82, 19 S. W. 494; State v. Spencer, 91 Mo. 206, 3 S. W. 410; State v. Dillon, 90 Mo. 229, 2 S. W. 417 ; State v. Board of Health, 90 Mo. 169, 2 S. W. 291; State v. Horner, 10 Mo. App. 307. Vol. II Washington — Equitable proceedings. — In equitable proceedings an appeal lies irre- spective of the amount involved. Blake v. State Sav. Bank, 12 Wash. 619, 41 Pae. 909; Fox o. Nachtsheim, 3 Wash. 684, 29 Pac. 140. United States — Cases touching patent rights. — Under U. S. Rev. Stat. (1878), § 699, the federal supreme court has appellate juris- diction in any case touching patent rights without regard to the amount in controversy. St. Paul Plow Works v. Starling, 127 U. S. 376, 8 S. Ct. 1327, 32 L. ed. 251. See Patents. Writ of error distinguished from appeal. — In some jurisdictions it has been held that a statute limiting the light to appeal by fixing a, jurisdictional amount does not include writs of error. Bowers v. Green, 2 111. 42 ; Hemmen- way v. Hicks, 4 Pick. (Mass.) 497. 62. Contempt. — In contempt proceedings an appeal will lie in some jurisdictions irre- spective of the amount involved. Leopold v. People, 140 111. 552, 30 N. E. 348; Worland v. State, 82 Ind. 49. See Contempt. Judgment enforcing street assessment. — A judgment to enforce a street assessment is in rem, and therefore appealable without regard to the amount for which the lien is adjudged, ' under Ky. Stat., § 950. Fehler v. Gosnell, 99 Ky. 380, 18 Ky. L. Rep. 238, 35 S. W. 1125. Abatement of nuisance. — Where judgment was given for less than the jurisdictional amount, and there was a further judgment that a certain nuisance be abated, it was held that an appeal would lie to the supreme court, the judgment not being confined to the amount recovered. Vonderweit v. Centerville, 15 Ind. 447. Refusal to obey mandate. — An appeal from the refusal of a trial court to obey a mandate of the court of appeals will lie to the latter court, though the amount involved is less than would authorize an appeal to such court from a judgment or order of the trial court. Mc- Ilvoy v. Russell, 16 Ky. L. Rep. 737, 29 S. W. 630. 63. Conant v. Conant, 10 Cal. 249, 70 Am. Dec. 717; Bryant v. Austin, 36 La. Ann. 808. See, generally, Divorce. 64. Eden Dist. Tp. v. Templeton, 72 Iowa 687, 34 N. W. 472; Price v. Smith, 93 Va. 14, 24 S. E. 474. See, generally, Mandamus. 65. Heinlen v. Phillips/88 Cal. 557, 26 Pac. 366 [overruling Bienenfeld v. Fresno Milling Co., 82 Cal. 425, 22 Pac. 1113]; Hyslop v. Finch, 99 111. 171; Davis v. Davis, 40 W. Va. 464, 21 S. E. 906; Farnsworth v. Baltimore, etc., R. Co., 28 W. Va. 815. See, generally, Certiorari. 66. Chaleraft v. Louisville, etc., R. Co., 113 111. 86; Peck v. Herrington, 104 111. 88; Geyer APPEAL AND ERROR 585 jurisdiction is conferred on a court by constitutional provision, it may enter the appeals regardless of the amount in controversy, notwithstanding an act of the leg- islature to the contrary. 67 b. Cases Involving Constitutional Questions. Generally, where a case involves a constitutional question, an appeal will lie regardless of the amount in controversy. 68 But jurisdiction of an appeal will not be assumed because of an allegation that a constitutional question is involved. The court will examine and determine for itself whether such claim is well founded ; m and, in order for juris- diction to attach, it must affirmatively appear that a fairly debatable constitu- tional question ™ was necessarily involved, 71 and was decided adversely to appellant. 72 e. Cases Involving Validity of Statutes or Ordinances. Generally, a case involving the validity of a statute or municipal ordinance is appealable, irrespec- tive of the amount involved. 73 No appeal will lie on this ground, however, where the validity of the statute or ordinance is not the primary subject of the inquiry, but is collateral only to the main controversy ; 74 and the mere statement of coun- sel that a question as to the validity of a statute is involved will not authorize an appeal where it is evident from the record that no such questionis in issue. 75 d. Cases Involving Franchises. In many jurisdictions, if the case is one v. Douglass, 85 Iowa 93, 52 N. W. Ill; Fran- cisco v. Gauthier, 35 La. Ann. 393; Mc- Donough v. Le Roy, 1 Rob. (La.) 173. See, generally, Injunctions. 67. Graves v. Black, 1 Mo. 221; Blunt v. Sheppard, 1 Mo. 219. 68. For a full discussion of the question see Courts; Constitutional Law. 69. Erb v. Morasch, 60 Kan. 251, 56 Pac. 133. 70. Morris v. People, 23 Colo. 465, 48 Pac. 534, wherein it was held that the question must be fairly debatable. Question already settled. — Jurisdiction will not be taken of an appeal on the ground that it involves a constitutional question, where such question has already been definitely set- tled. Virden v. Allan, 107 111. 505; In re Boyle's Retail Liquor License, 190 Pa. St. 577, 42 Atl. 1025, 45 L. R. A. 399 ; Western Union Tel. Co. v. Goddin, 94 Va. 513, 27 S. E. 429. And see Western Union Tel. Co. v. Powell, 94 Va. 268, 26 S. E. 828. 71. Hurd v, Carlile, 18 Colo. 461, 33 Pac. 164. Other questions decisive of controversy. — An appeal does not lie on the ground that a constitutional question is involved, where the other questions determined are decisive of the controversy between the parties. Madden v. Day, 24 Colo. 418, 51 Pac. 165; Board of Health v. Pooley, 11 La. Ann. 743. The record must be looked to, and not the briefs, in determining whether a constitutional question is involved, so as to authorize an ap- peal. Kirkwood v. Johnson, 148 Mo. 632, 50 S, W. 433. Must be raised in lower court. — The record must show that the constitutional question was raised in the court below. State v. Tsni Ho, 37 La. Ann. 50 ; Baldwin v. Fries, 193 Mo. 286, 15 S. W. 760. As to raising constitu- tional questions for the first time on appeal see infra, V. 72. Hurd v. Carlile, 18 Colo. 461, 33 Pac. 164. 73. See Coubts. " Statute " includes " ordinance." — Utah Const., art. 8, § 9, providing that the decision of the district court in cases originally brought in a justice's court shall not be final " in cases involving the validity or constitu- tionality of a statute," applies in the case of city ordinances as well as of statutes. Eureka City v. Wilson, 15 Utah 53, 67, 48 Pae. 41, 150, 62 Am. St. Rep. 904. 74. Cairo v. Bross, 99 111. 521 ; North Man- chester v. Oustal, 132 Ind. 8, 31 N. E. 450; Griffee v. Summitville, 10 Ind. App. 332, 37 N. E. 1068; New Orleans v. Reems, 49 La. Ann. 792, 21 So. 599; Thibodaux v. Constan- ts, 48 La. Ann. 338, 19 So. 135; Parish v. Broussard, 42 La. Ann. 841, 8 So. 590; Balti- more, etc., R. Co. v. Hopkins, 130 U. S. 210, 9 S. Ct. 503, 32 L. ed. 908. Questions not affecting validity. — The ques- tions whether an action is properly brought under a statute, whether a recovery can be had under a statute, and whether there is any statute governing the action, are not ques- tions affecting the validity of a statute, within the constitutional restriction as to appeals. Doty v. Krutz, 13 Wash. 169, 43 Pac. 17. Question involving interpretation. — Where a question involves only the interpretation and not the constitutional validity of a stat- ute, an appeal does not lie as a matter of right. Standard Oil Co. v. Angevine, 60 Kan. 167, 55 Pac. 879; Mathews Lumber Co. v. Hardin, 87 Tex. 639, 30 S. W. 898. Invalidity assumed by trial court. — In Jacobs v. Puyallup, 10 Wash. 384, 38 Pac. 994, it was held that defendant was not entitled to an appeal on^ the ground that the decision in- volved the validity of a statute (the invalidity of which statute defendant set up as one of his defenses) where the court in its instructions assumed the invalidity of the statute, and charged that the jury must find for defendant unless they found certain facts entitling plain- tiff to recover, notwithstanding the said in- validity. 75. St. Louis Transfer Co. v. Canty, 103 111. 423. Vol. II 586 APPEAL AND ERROR involving a franchise, an appeal is allowed without regard to the amount in controversy. 76 e. Cases Involving Title to Land. In many jurisdictions, either by constitu- tional provision or statute, an appeal is allowed, irrespective of the amount in controversy, in actions involving the title to land. 77 D. Dependent on Nature and Scope of Decision — l. Final Decisions — a. In General. It is a well-settled principle of law that an appeal will not lie, in the absence of a statute permitting it, from an interlocutory order, judgment, or decree. There must be a final order, judgment, or decree rendered in the cause to permit a review. 78 Interlocutory orders are reviewable, in the absence of a 76. See Cotjbts. As to what is a franchise see Franchises. 77. Title directly in issue. — In the follow- ing cases it was held that title to land was so involved as to authorize an appeal without regard to the amount in controversy: Colorado. — Wyatt v. Larimer, etc., Irriga- tion Co., 18 Colo. 298, 33 Pac. 144, 36 Am. St. Rep. 280; Atkinson v. Tabor, 7 Colo. 195, 3 Pac. 64. Connecticut.— Dunton v. Mead, 6 Conn. 418. Illinois. — Sanford v. Kane, 127 111. 591, 20 N. E. 810; Farmers' Nat. Bank v. Sperling, 113 111. 273; Bozarth v. Landers, 113 111. 181. Iowa. — Jones v. Blumenstein, 77 Iowa 361, 42 N. W. 321; McBurney v. Graves, 66 Iowa 314, 23 N. W. 682. Kentucky. — Stillwell v. Duncan, 103 Ky. 59, 19 Ky. L. Rep. 1701, 44 S. W. 357, 39 L. R. A. 863 ; Hughes v. Swope, 88 Ky. 254, 8 Ky. L. Rep. 256, 1 S. W. 394; Smith v. Coch- ran, 7 Bush (Ky.) 147; Smith v. Moberly, 15 B. Mon. (Ky.) 70; Caskey v. Lewis, 15 B. Mon. (Ky.) 27; Byrd v. Rose, 19 Ky. L. Rep. 1898, 44 S. W. 958 ; Corbett v. Howell, 10 Ky. L. Rep. 793, 10 S. W. 653; Taylor v. Loller, 8 Ky. L. Rep. 773, 3 S. W. 165; Mockbee v. Fields, 8 Ky. L. Rep. 342, 1 S. W. 485; Thaeker v. Crawford, 5 Ky. L. Rep. 764; At- kinson v. Reiley, 5 Ky. L. Rep. 682; Smith v. Smith, 4 Ky. L. Rep. 893. Louisiana. — Ludeling v. Garrett, 50 La. Ann. 118, 23 So. 94. Maine. — Barker v. Whittemore, 22 Me. 556 ; Murray v. Ulmer, 5 Me. 126. Massachusetts. — Plympton v. Baker, 10 Pick. (Mass.) 473; Blood v. Kemp, 4 Pick. (Mass.) 169 ; Davis v. Mason, 4 Pick. (Mass.) 156. Missouri. — Baier v. Berberich, 77 Mo. 413. New York. — Getman c. Ingersoll, 117 N. Y. 75, 17 N. Y. Civ. Proe. 436, 22 N. E. 750, 26 N. Y. St. 660; Warren v. Wilder, 114 N. Y. 209, 21 N. E. 159, 23 N. Y. St. 108; Shaw v. MeCarty, 11 Daly (N. Y.) 150. Ohio. — Miller v. Cincinnati, 5 Ohio Cir. Ct. 583. Virginia. — Sellers v. Reed, 88 Va. 377, 13 S. E. 754; Barker v. Jenkins, 84 Va. 895, 6 S. E. 459; Pannill v. Coles, 81 Va. 380. West Virginia. — Lehman v. Hinton, 44 W. Va. 1, 29 S. E. 984; McClaugherty v. Mor- gan, 36 W. Va. 191, 14 S. E. 992; Buster v. Holland, 27 W. Va. 510; Gorman v. Steed, 1 W. Va. 1. United States. — Stinson v. Dousman, 20 How. (U. S.) 461, 15 L. ed. 966. Vol. II As to pleading title to land in an action commenced in » justice's court see Justices of the Peace. When title is not directly in issue, but is only incidentally or collaterally involved, this rule does not apply. See supra, III, C, 2, y, (H). The fact that the land has been sold after order of the court does not abridge the right to appeal. The controversy as to the right to the proceeds will be regarded as involving the title to land, and an appeal will lie regardless of amount. Clements v. Waters, 90 Ky. 96, 11 Ky. L. Rep. 880, 13 S. W. 431. Incidental controversies. — Where a case in- volves title to land, controversies incident to the main issue, though not of themselves re- lating to the title, must follow the appeal. Jones v. Blumenstein, 77 Iowa 361, 42 N. W. 321. Condemnation proceedings. — A proceeding to condemn lands for public uses involves ti- tle. Skinner v. Lake View Ave. Co., 57 111. 151; Morris v. Chicago, 11 111. 650; Matter of Essex Ave., 44 Mo. App. 288; St. Louis, etc., R. Co. v. Lewright, 44 Mo. App. 212. And see Eminent Domain. 78. Numerous authorities sustain the text, among which may be cited the following cases : Alabama. — Tatum v. Yahn, (Ala. 1900) 29 So. 201. Arizona. — Spicer v. Simms, (Ariz. 1899) 57 Pae. 610. Arkansas. — Palmer v. McChesney, 26 Ark. 452. California. — People v. Thurston, 5 Cal. 517. Colorado. — Daniels v. Miller, 8 Colo. 542, 9 Pac. 18. Connecticut. — Morse v. Rankin, 51 Conn. 326. Florida. — Tunno v. International R., etc., Co., 34 Fla. 300, 16 So. 180. Georgia. — Allen v. Savannah, 9 Ga. 286. Idaho. — Adams v. McPherson, 2 Ida. 855, 27 Pac. 577. Illinois. — Ex p. Thompson, 93 111. 89. Indiana. — Thomas v. Service, 90 Ind. 128. Kansas. — Atchison, etc., R. Co. v. Brown, 26 Kan. 443. Kentucky. — Howard v. Louisville, etc., R. Co., 17 Ky! L. Rep. 814, 32 S. W. 746. Louisiana. — Bailey v. Sims, 3 La. Ann. 217. Maine. — State v. Brown, 75 Me. 456. Maryland. — Cunningham v. Carroll County, (Md. 1901) 48 Atl. 1046. Massachusetts. — Comins v. Turner's Falls Co., 140 Mass. 146, 3 N. E. 304. APPEAL AND ERROR 587 permissive statute, only on appeal from the final judgment that is rendered in the cause. 79 b. Determination of Controversy. A judgment, order, or decree, to be appealable, must determine the controversy, or the rights of the parties, and leave nothing further to be done. 80 Accordingly, a judgment or order of court, though determining the law applicable to the issues of an action, yet leaving questions of fact unsettled, is not a final judgment. 81 It has been held, however, that when a Michigan. — Holbrook v. Cook, 5 Mich. 225. Mississippi. — Shotwell v. Taliaferro, 25 Miss. 105. Missouri. — Johnson i;. Board of Education, 65 Mo. 47. Montana. — Beattie v. Hoyt, 3 Mont. 140. Nebraska.— State v. Higby, (Nebr. 1900) 84 N. W. 261. New Jersey. — Cooper v. Vanderveer, 47 N. J. L. 178. New Mexico. — Lyndonville Nat. Bank v. Folsom, (N M. 1900) 62 Pac. 976. New York. — Feist v. Third Ave. R. Co., 13 Misc. (N. Y.) 240, 25 N. Y. Civ. Proc. 257, 34 N. Y. Suppl. 57, 68 N. Y. St. 13. North Carolina. — Hailey v. Gray, 93 N. C. 195. Ohio.— Evans v. lies, 7 Ohio St. 233. Pennsylvania. — Mackaness r. Long, 85 Pa. St. 158.' Tennessee. — Whitfield v. Greer, 3 Baxt. (Tenn.) 78. Texas. — Paris v. Mason, 37 Tex. 447. Utah. — North Point Consol. Irrigation Co. f. Utah, etc., Canal Co., 14 Utah 155, 46 Pac. 824. Vermont. — Nelson v. Brown, 59 Vt. 600, 10 Atl. 721. Virginia. — Tucker v. Sandridge, 82 Va. 532. Wisconsin. — Crocker v. State, 60 Wis. 553, 19 N. W. 435. United States. — Hayes v. Fischer, 102 U. S. 121, 26 L. ed. 95. See 2 Cent. Dig. tit. "Appeal and Error," § 329 et seq. 79. Arkansas. — Davie v. Davie, 52 Ark. 224, 12 S. W. 558, 20 Am. St. Rep. 170. California. — Baker v. Baker, 10 Cal. 527; De Barry v. Lambert, 10 Cal. 503. Minnesota. — Duluth Transfer E. Co. v. Du- luth Terminal R. Co., 81 Minn. 62, 83 N. W. 497. New York. — Gilmore v. Ham, 61 Hun (N. Y.) 1, 21 N. Y. Civ. Proc. 102, 15 N. Y. Suppl. 391, 39 N. Y. St. 664. North Carolina. — Bennett v. Shelton, 117 N. C. 103, 23 S. E. 95 ; Martin v. Flippin, 101 N. C. 452, 8 S. E. 345. Vermont. — Nelson v. Brown, 59 Vt. 600, 10 Atl. 721. Virginia. — Harper v. Vaughan, 87 Va. 426, 12 S. E. 785. Wisconsin. — Schattsehneider v. Johnson, 39 Wis. 387. 80. Numerous authorities sustain the text, among which may be cited the following cases : Alabama. — Randall v. Hardy, 107 Ala. 476, 19 So. 971; Hastie v. Aiken, 67 Ala. 313. Arkansas. — Davie v. Davie, 52 Ark. 224, 12 S. W. 558, 20 Am. St. Rep. 170; Johnson v. Clark, 4 Ark. 235. California. — Williams v. Conroy, 52 Cal. 414. Colorado. — Standley v. Hendrie, etc., Mfg. Co., 25 Colo. 376, 55 Pac. 723. Connecticut. — Guarantee Trust, etc., Co. v. Philadelphia, etc., R. Co., 69 Conn. 709, 38 Atl. 792, 38 L. R. A. 804. Florida. — Griffin v. Orman, 9 Fla. 22. Georgia. — Allen v. Savannah, 9 Ga. 286. Illinois. — McParland v. Larkin, (111. 1889) 21 N. E. 565. Iowa. — Thompson v. Pickel, 20 Iowa 490. Kentucky. — Graham v. Noland, 1 J. J. Marsh. (Ky.) 328. Maryland. — Waverly Mut., etc., Land, etc., Assoc, v. Buck, 64 Md. 338, 1 Atl. 561 ; Nally v. Long, 56 Md. 567. Massachusetts. — Riley v. Farnsworth, 116 Mass. 223; Goddard v. Perkins, 9 Gray (Mass.) 411. Michigan. — Hake v. Coach, 105 Mich. 425, 63 N. W. 306; Watson v. Watson, 47 Mich. 427, 11 N. W. 227. Minnesota. — McMahon v. Davidson, 12 Minn. 357. Missouri.— Deickhart v. Rutgers, 45 Mo. 132; Hill v. Young, 3 Mo. 337. New Hampshire. — Wentworth v. Treanor, 31 N. H. 528. New Jersey. — Newark Plank Road, etc., Co. v. Elmer, 9 N. J. Eq. 754. New York. — Dickenson v. Codwise, 11 Paige (N. Y.) 189; Mills v. Hoag, 7 Paige (N. Y.) 18, 31 Am. Dec. 271. North Carolina. — Hinton v. Virginia L. Ins. Co., 116 N. C. 22, 21 S. E. 201 ; Ex p. Spencer, 95 N. C. 271. Ohio.— Hobbs v. Beckwith, 6 Ohio St. 252 ; Phillips v. Mustard, 2 Ohio Dec. 455. South Carolina. — Lowndes v. Miller, 25 S. C. 119; Donaldson v. Farmers', etc., Bank, 4 S. C. 106. South Dakota. — Heegaard v. Dakota L. & T. Co., 3 S. D. 569, 54 N. W. 656. Tennessee. — Patton v. Irvin, 8 Baxt. (Tenn.) 453; Meadows v. State, 7 Coldw. (Tenn.) 416. Texas. — Raymond v. Conger, 51 Tex. 536. Vermont. — Hayes v. Stewart, 23 Vt. 622. , Virginia. — Miller v. Cook, 77 Va. 806 ; Rog- ers v. Strother, 27 Gratt. (Va.) 417. United States. — St. Clair County v. Lov- ingston, 18 Wall. (U. S.) 628, 21 L. ed. 813; Desvergers v. Parsons, 60 Fed. 143, 23 U. S. App. 239, 8 C. C. A. 526. See 2 Cent. Dig. tit. "Appeal and Error," § 494. 81. Potter v. Talkington, (Ida. 1897) 49 Pac. 14. Vol. II 588 APPEAL AND ERROR decree purports to be final, and execution is awarded upon it, it may be revised, although not in fact final. 82 It has also been held that the question whether a decree is final and appealable is not determined by the name which the court below gives it, but is to be decided by the appellate court on a consideration of ■ the essence of what is done by the decree. 83 e. Finality as to All Parties — (i) In General. An appeal or writ of error will not lie, as a rule, unless there has been a final disposition of the case as to all the parties. 84 But where a complaint is filed against several persons, but no sum- mons is issued, and one of such persons alone appears, a judgment for him is final and appealable. 85 A reservation in a decree of a right to ap- ply to the court for any order that may be necessary to the due execution of the decree does not destroy its appealability. Gaston v. Boyd, 52 Tex. 282; Winthrop Iron Co. v. Meeker, 109 U. S. 180, 3 S. Ct. Ill, 27 L. ed. 898; French v. Shoemaker, 12 Wall. (U. S.) 86, 20 L. ed. 270. See also Brown v. Vancleave, 86, Ky. 381, 9 Ky. L. Rep. 593, 6 S. W. 25, wherein it was held that a judgment is final which completely settles the rights of the parties, although there is an order retaining the cause on the docket for the purpose of executing the judgment, which is discharged by the pay- ment of the amount of the judgment into court. To the same effect see Arnold v. Sin- clair, 11 Mont. 556, 29 Pac. 340, 28 Am. St. Rep. 489. 82. Hollis v. Caughman, 22 Ala. 478. A decree that is partly final in that it set- tles the substantial merits of the ease, but is interlocutory in that it orders an account be- tween the parties, is appealable. Alabama.. — Adams v. Sayre, 76 Ala. 509. Illinois. — Allison v. Drake, 145 111. 500, 32 N. B. 537. Iowa. — McMurray v. Day, 70 Iowa 671, 28 N. W. 476. Minnesota. — Ayer v. Termatt, 8 Minn. 96. New York. — Johnson v. Everett, 9 Paige (N. Y.) 636. 83. Potter v. Beal, 50 Fed. 860, 5 U. S. App. 49, 2 C. C. A. 60. Bar to another suit. — To constitute a final judgment for purpose of appeal it is not es- sential that it should be a bar to another suit. Colorado Eastern R. Co. v. Union Pac. R. Co., 94 Fed. 312, 36 C. C. A. 263. 84. Numerous authorities sustain the text, among which may be cited the following cases : Alabama. — Alexander v. Bates, (Ala. 1900) 28 So. 415; Martin v. Kelly, 113 Ala. 577, 21 50. 337. Arkansas. — Bivins v. McElroy, 11 Ark. 23, 52 Am. Dec. 258. California. — Feris v. Baker, 127 Cal. 520, 59 Pac. 937. Connecticut. — Finch v. Ives, 24 Conn. 387. Georgia. — Fouche v. Harrison, 78 Ga. 359, 3 S. E. 330. Illinois. — Pain v. Kinney, 175 111. 264, 51 N. E. 621; Dreyer v. Goldy, 171 111. 434, 49 N. E. 560. Indiana. — Keller v. Jordan, 147 Ind. 113, 46 N. E. 343. Vol. II Iowa. — Baird v. Omaha, etc., R., etc., Co., Ill Iowa 627, 82 N. W. 1020. Kansas. — Blackwood v. Shaffer, 44 Kan. 273, 24 Pac. 423. Kentucky. — Kellar v. Tilly, 3 Dana (Ky.) 443; Gentry v. Walker, 14 Ky. L. Rep. 351, 20 S. W. 291. Louisiana. — Abrams v. Jay, 16 La. Ann. 373. Maryland. — L. A. Thompson Scenic R. Co. v. Norvell, (Md. 1899) 44 Atl. 1026. Massachusetts. — See Swett v. Sullivan, 7 Mass. 342. Michigan. — Teller v. Willis, 12 Mich. 384. Minnesota. — Billson v. Lardner, 67 Minn. 35, 69 N. W. 477. Missouri. — Sater v. Hunt, 75 Mo. App. 468; Merchants' Exch. Mut. Benev. Soc. v. Sessing- haus, 59 Mo. App. 106. New Mexico. — TJ. S. v. Gwyn, 4 N. M. 635, 42 Pac. 167. New York.— Geneva Bank v. Hotchkiss, Code Rep. N. S. (N. Y.) 153, 5 How. Fr. (N. Y.) 478. Ohio. — Hinde v. Whitney, 31 Ohio St. 53. Oregon. — Watkins v. Mason, 11 Oreg. 72, 4 Pac. 524. Tennessee. — Lang v. Ingalls Zinc Co., 99 Tenn. 476, 42 S. W. 198 ; Hume v. Commercial Bank, 1 Lea (Tenn.) 220. Texas. — Powers v. Schmidt, 87 Tex. 385, 28 S. W. 1055 ; Missouri Pac. R. Co. v. Scott, 78 Tex. 360, 14 S. W. 791. Virginia. — Wells v. Jackson, 3 Munf. (Va.) 458. Washington. — Johnson v. Lighthouse, 8 Wash. 32, 35 Pac. 403; Dwyer v. Sehlumpf, 6 Wash. 25, 32 Pac. 1005. West Virginia. — Kearfoot v. Dandridge, 45 W. Va. 673, 31 S. E. 947. United States. — Meagher v. Minnesota Thresher Mfg. Co., 145 U. S. 608, 12 S. Ct. 876, 36 L. ed. 834; U. S. v. Girault, 11 How. (U. S.) 22, 13 L. ed. 587; Baker v. Old Nat. Bank, 91 Fed. 449, 63 U. S. App. 34, 33 C. C. A. 570. See 2 Cent. Dig. tit. "Appeal and Error," § 484. 85. Davis, etc., Bldg., etc., Co. v. Hillsboro Creamery Co., 9 Ind. App. 553, 37 N. E. 294. See also Bradshaw v. Miners' Bank, 81 Fed. 902, 53 U. S. App. 399, 26 C. C. A. 673, wherein it was held that the right of appeal is not af- fected by the fact that there is no decree against one of the respondents who was not served with process, and who, though a APPEAL AND ERROR 589 (n) Dismissal as to One Party. A judgment or decree dismissing as to one of several defendants sought to be jointly charged is not final so as to permit an appeal. 86 d. Judgment by Divided Court. The fact that a judgment is rendered by an evenly divided court does not impair its character as a final judgment. 87 e. Part of Judgment or Order. An appeal cannot be taken from a part only of a judgment or order, 88 in the absence of a statute permitting it, 89 unless such part is not connected with, or dependent upon, the remaining portion. 90 It has also been held that if a party elects to avail himself of such parts of a judg- ment as are favorable to him, he cannot, where all the parts are dependent upon one another, appeal from those which are adverse. 91 But where an action is against two defendants whose liabilities are separate and distinct, or is upon two distinct subject-matters, and a several judgment is rendered in favor of one defendant and against the other, or in favor of plaintiff as to one subject-matter and against him as to the other, the fact that an appeal has been brought by the proper, is not a necessary, party to the suit. And see Bryson v. Thurmond, 103 Ga. 463, 30 S. E. 269, wherein it was held that where, in a suit against two persons, a plea in abate- ment for want of service has been sustained by the court as to one of the defendants, and no steps are subsequently taken to perfect service, such judgment is a final disposition of the case as to that defendant, and any er- ror therein can be corrected only by direct writ of error. 86. Colorado. — Hagerman v. Moore, 2 Colo. App. 83, 29 Pac. 1014. Georgia. — Zorn v. Lamar, 71 Ga. 80; Shealy v. Toole, 66 Ga. 573. Illinois. — Thompson v. Follansbee, 55 111. 427; Packer v. Roberts, 44 111. App. 232; Hoff- man, etc., Mfg. Co. v. Haxton Steam Heater Co., 18 111. App. 484. Ohio. — An order dismissing a petition as to some of the defendants is a final order as to them. Connell v. Brumback, 18 Ohio Cir. Ct. 502. Texas. — Owens v. Mitchell, 33 Tex. 225. Compare Welge v. Jackson, (Tex. Civ. App. 1895) 32 S. W. 371. Washington. — An order dismissing an ac- tion as to some of the defendants, though not all, is appealable. Pennsylvania Mortg. In- vest. Co. v. Gilbert, 13 Wash. 684, 43 Pac. $41, 45 Pac. 43. West Virginia. — A decree dismissing a bill as to one defendant is, as to that defendant, a final decree. Dick v. Robinson, 19 W. Va. 159. United States. — Hohorst v. Hamburg- Amer- ican Packet Co., 148 TJ. S. 262, 13 S. Ct. 590, 37 L. ed. 443; Beck, etc., Lithographing Co. v. Waeker, etc., Brewing, etc., Co., 76 Fed. 10, 22 C. C. A. 11. Dismissal of one caveat. — An order upon a motion for the dismissal of one of several caveats filed against the probate of a will is not a final judgment from which error will lie. Habersham v. Wetter, 59 Ga. 11. 87. Hartman v. Greenhow, 102 U. S. 672, 26 L. ed. 271. 88. Alabama. — Booker v. Jemison, 4 Ala. 408. Montana. — Plaisted v. Nowlan, 2 Mont. 359 ; Barkley v. Logan, 2 Mont. 296. North Carolina. — Bain v. Bain, 106 N. C. 239, 11 S. E. 327; Hicks v. Gooch, 93 N. C. 112. Ohio. — Wright v. Western Union Tel. Co., 4 Ohio Cir. Ct. 375. Oregon. — Farmers' Bank v. Key, 33 Oreg. 443, 54 Pac. 206. Washington. — Where judgment is partly in favor of a party and partly adverse to him, he should appeal from the adverse part only, and not from the whole judgment. Healy v. Seward, 5 Wash. 319, 31 Pac. 874. See 2 Cent. Dig. tit. "Appeal and Error,'' § 866. 89. A statute permitting an appeal from any specific part of a judgment does not ex- tend to a money judgment for a definite sum. Hampton v. Logan County, (Ida. 1896) 43 Pac. 324; Cromwell v. Burr, 9 Daly (N. Y.) 482. Such a statute permits an appeal from so much of an order as requires a party, sub- stituted as a defendant in lieu of her de- ceased ancestor, to pay the costs of the action, though no appeal be taken from the residue thereof. Van Loan v. Squires, 51 Hun (N. Y.) 360, 4 N. Y. Suppl. 371, 21 N. Y. St. 526. See also Bank of Commerce v. Fuqua, 11 Mont. 285, 28 Pac. 291, 28 Am. St. Rep. 461, 14 L. R. A. 588. 90. California. — Luck v. Luck, 83 Cal. 574, 23 Pac. 1035, wherein it was held that, in divorce, a judgment denying plaintiff's prayer, and awarding the custody of the children to defendant, is final, and appeal lies from any part of the decree. Iowa. — Gleiser v. McGregor, 85 Iowa 489, 52 N. W. 366. Minnesota. — Hall v. McCormick, 31 Minn. 280, 17 N. W. 620. Oregon. — Inman v. Henderson, 29 Oreg. 116, 45 Pac. 300. Rhode Island. — Harris v. Harris, 2 R. I. 538. Tennessee. — Sharp v. Fields, 5 Lea (Tenn.) 326. United States. — Worthington v. Beeman, 91 Fed. 232, 63 U. S. App. 536, 33 C. C. A. 475. 91. Murphy v. Spaulding, 46 N. Y. 556; Harris v. Taylor, 20 N. Y. Wkly. Dig. 379. Vol. II 590 APPEAL AND ERROR unsuccessful defendant from the judgment against him, and has been determined by the appellate court, while it estops plaintiff from questioning that portion of the judgment, does not preclude him from appealing from the residue. 9 * f. Necessity of Taxation of Costs. In some states a judgment is not deemed final, so as to support an appeal, until the costs are taxed and inserted therein. 93 g. Refusal to Enter Judgment. A refusal of the court to enter judgment is not a final judgment from which an appeal will lie. 94 h. Void Judgments of Orders. Although a judgment is void, it is so far to be considered in existence by the appellate court that it may be reviewed and reversed, and the parties restored to the positions they originally occupied. 95 92. Genet v. Davenport, 60 N. Y. 194. 93. Richardson v. Rogers, 37 Minn. 461, 35 N. W. 270; Sloop Leonede v. U. S., 1 Wash. Terr. 153; Joint School-Dist. No. 7 v. Kemen, 68 Wis. 246, 32 N. W. 42; Hoye v. Chicago, etc., R. Co., 65 Wis. 243, 27 N. W. 309, 310; Milwaukee County v. Pabst, 64 Wis. 244, 25 N. W. 11; Smith v. Hart, 44 Wis. 230. See 2 Cent. Dig. tit. "Appeal and Error," § 428. But see Craig v. The Hartford, McAll. (U. S.) 91, 6 Fed. Cas. No. 3,333, wherein it was held that a decree which is final in all other respects is not converted into an inter- locutory decree in that it directs a taxation of costs. See also Williams v. Wait, 2 S. D. 210, 49 N. W. 209, 39 Am. St. Rep. 768, wherein it was held that an appeal will not be dismissed because taken before the costs and disburse- ments in the court below are taxed and in- serted in the entry of the judgment appealed from. In Idaho it has been held that, when the party entitled to costs fails to file his memo- randum thereof within the time prescribed, he thereby waives his right to costs, and the clerk has no right thereafter to insert them in the record of judgment; and in such a case the fact that the costs do not appear in the record of judgment does not make the judg- ment not a final judgment and not appealable. Cantwell v. McPherson, 2 Ida. 1044, 29 Pac. 102. 94. Branford v. Erant, 1 N. M. 579; Lane v. Ellinger, 32 Tex. 369. 95. Alabama. — Ayres v. Dobson, 5 Stew. & P. (Ala.) 441. But as a decree of the probate court, void upon its face, may be vacated by that court on motion, no appeal will lie from the decree. Hays v. Cockrell, 41 Ala. 75. California. — Merced Bank v. Rosenthal, 99 Cal. 39, 31 Pac. 849, 33 Pae. 732. Colorado. — Filley v. Cody, 4 Colo. 109; Cooper v. American Cent. Ins. Co., 3 Colo. 318. Connecticut. — Stonington v. States, 31 Conn. 213. But where a judgment is ren- dered for plaintiff, which cannot be enforced by legal process because unauthorized and void, no appeal lies therefrom. Seymour v. Belden, 28 Conn. 443. Georgia. — Walker v. Banks, 65 Ga. 20. Illinois. — Ross v. Hamer, 52 111. App. 251. Indiana. — Louisville, etc., R. Co. v. Lock- ridge, 93 Ind. 191 ; Shoemaker v. Grant County, 36 Ind. 175. But where a judgment is void because rendered in vacation, no ap- Vol. II peal lies therefrom. Backer v. Eble, 144 Ind. 287, 43 N. E. 233. Kentucky. — A default judgment, without service of process upon, or entry of appear- ance by, defendant is void, and may be re- versed on appeal after a motion in the lower court to set aside the judgment has been over- ruled. Hermann v. Martin, 21 Ky. L. Rep. 1396, 55 S. W. 429. See also Swafford v. Howard, 20 Ky. L. Rep. 1793, 50 S. W. 43. Maryland. — Price v. Taylor, 21 Md. 356. And where, by mistake, a judgment was en- tered as of Sunday, the judgment may be stricken out on motion, and entered as of an- other day; and from a refusal to grant such motion an appeal may be taken. Ecker v. New Windsor First Nat. Bank, 62 Md. 519. Massachusetts. — Waters v. Randall, 8 Mete. (Mass.) 132. Minnesota. — An order refusing to vacate an unauthorized judgment passes upon and de- termines the positive legal rights of a party, and is therefore appealable. Piper v. John- ston, 12 Minn. 60. Missouri. — Ferguson v. Ferguson, 36 Mo. 197; Smith v. Jacobs, 77 Mo. App. 254. A judgment on default, in a suit to foreclose a mortgage, being made final, is irregular, and can be set aside on motion by defendant ; but, not having made such motion, he cannot avail himself of the irregularity by a writ of error to the supreme court. Lawther v. Agee, 34 Mo. 372. New Mexico. — A judgment in an action at law begun and ended in vacation is void ; and there being, therefore, no final judgment, an appeal therefrom will be dismissed. Staab v. Atlantic, etc., R. Co., 3 N. M. 349, 9 Pac. 381. New York. — Catlin v. Rundell, 1 N. Y. App. Div. 157, 37 N. Y. Suppl. 979, 73 N. Y. St. 521; Gormly v. Mcintosh, 22 Barb. (N. Y.) 271 ; Wands v. Robarge, 24 Misc. (N. Y.) 273, 53 N. Y. Suppl. 700 ; Loeb v. Smith, 24 Misc. (N. Y.) 200, 52 N. Y. Suppl. 677; Smith v. Van Kuren, 2 Barb. Ch. (N. Y.) 473. North Carolina. — Darden v. Maget, 18 N. C. 498. Oregon. — Stites v. MeGee, (Oreg. 1900) 61 Pac. 1129; Therkelsen v. Therkelsen, 35 Oreg. 75, 54 Pac. 885, 57 Pac. 373. Tennessee. — Ex p. Martin, 5 Yerg. (Tenn.) 456, 26 Am. Dec. 276. See also McDonald ». McDonald, 5 Yerg. (Tenn.) 306. Texas. — Hearn v. Cutberth, 10 Tex. 216. But a judgment or decree of a district court, pronounced at a time when, by law, no dis- APPEAL ANB ERROR 591 2. Interlocutory Decisions. In some jurisdictions appeals from enumerated interlocutory orders are authorized by statute. But as such appeals are the cre- ation of statute, they cannot be extended by implication, and will only lie when expressly authorized. 96 S. Particular Decisions — a. Admission of Attorney. In New York it has been held that an order denying an application for'admission to the bar is appeal- able to the court of appeals, under the provision of the code giving appeals from final orders affecting a substantial right in special proceedings. 97 b. Bills of Review. An order granting leave to file a bill of review is not a final order from which an appeal lies. 98 Otherwise, however, of an order deny- ing leave to file such bill. 99 e. Certiorari. An order granting or refusing, or quashing or refusing to quash, a writ of certiorari, is not appealable. 1 d. Conduct, Plaee, or Time of Trial — (i) Calendars. The privilege of a trict court could be held, Is not appealable. Campbell v. Chandler, 37 Tex. 32; Doss v. Waggoner, 3 Tex. 515; Hodges v. Ward, 1 Tex. 244. Washington. — Fox v. Naehtsheim, 3 Wash. 684, 29 Pac. 140. West Virginia. — Cook v. Dorsey, 38 W. Va. 196, 18 S. E. 468. Wisconsin. — Ashland Lodge No. 63, etc. v. Williams, 100 Wis. 223, 75 N. W. 954, 69 Am. St. Rep. 912; Calkins ;;. Hays, 4 Wis. 200; Abrams v. Jones, 4 Wis. 806. United States. — Wilson v. Daniel, 3 Dall. (U. S.) 401, 1 L. ed. 655. A decree rendered by a district judge in a circuit court, in a case where he has no vote, is good until va- cated, and therefore appealable. Baker v. Power, 124 U. S. 167, 8 S. Ct. 416, 31 L. ed. 382. See 2 Cent. Dig. tit. "Appeal and Error," § 749. 96. See the statutes of the several states and the following cases : California. — De Barry v. Lambert, 10 Cal. 503 ; Juan v. Ingoldsby, 6 Cal. 439. Indiana. — Reese v. Beck, 9 Ind. 238 ; Wool- ley v. State, 8 Ind. 377. Minnesota. — Fulton v. Andrea, 72 Minn. 99, 75 N. W. 4. Missouri. — Voorhis v. Western Union Bldg., etc.,' Assoc, 59 Mo. App. 55. New York. — Townsend v. Hendricks, 40 How. Pr. (N. Y.) 143. Virginia. — Elder v. Harris, 75 Va. 68. In North Carolina, where an interlocutory order will deprive a party of a substantial right if the alleged error shall not be cor- rected before the final judgment, an appeal lies. Skinner v. Carter, 108 N. C. 106, 12 S. E. 908; Leak v. Covington, 95 N. C. 193; Merrill v. Merrill, 92 N. C. 657. In West Virginia it has been held that an interlocutory decree, to be appealable, must adjudicate all the questions raised, in the pleadings or otherwise, and determine the principles and rules by which relief must be administered. Wood v. Harmison, 41 W. Va. 376, 23 S. E. 560. 97. Matter of Cooper, 22 N. Y. 67, 20 How. Pr. (N. Y.) 1; Matter of Graduates, 11 Abb. Pr. (N. Y.) 301. In Maryland it has been held that no ap- peal lies from an order of the county court admitting a person as an attorney of that court. State v. Johnston, 2 Harr. & M. (Md.) 160. { 98. Maxfield v. Freeman, 39 Mich. 64. In Mississippi it has been held that a bill to review a partition is not a part of the orig- inal cause, and a decree sustaining such bill is a final decree from which an appeal will lie. Gilleylen v. Martin, 73 Miss. 695, 19 So. 482. 99. Beecher v. Marquette, etc., Rolling Mill Co., 40 Mich. 307; Lee v. Braxton, 5 Call (Va.) 459. See also State v. Lanahan, 17 Mont. 518, 43 Pac. 712, wherein it was held that a judgment of the district court refusing a writ of review against a justice court is ap- pealable. But see Bowyer v. Lewis, 1 Hen. & M. (Va.) 553, wherein it was held that an order rejecting a motion to allow a bill of re- view, where the right of property had been determined but an account remained to be taken, is merely interlocutory. 1. Georgia. — Macon ». Shaw, 14 Ga. 162. Illinois. — Board of Supervisors v. Magoon, 109 111. 142; Hersey v. Schaedel, 6 111. App. 188. Maryland.— Crockett v. Farke, 7 Gill (Md.) 237. New Jersey. — State v. Jersey City, 43 N. J. L. 662; State v. French, 24 N. J. L. 736. New York. — An order denying a motion to- quash a common-law certiorari, issued in a ease not reviewable by certiorari, is appeal- able. People v. Public Park Com'rs, 97 N. Y. 37. See also Matter of Corwin, 135 N. Y. 245, 32 N. E. 16, 48 N. Y. St. 238. North Carolina.— Farmers Nat. Bank v. Burns, 107 N. C. 465, 12 S. E. 252. Texas. — Hamman v. Lewie, 34 Tex. 474. West Virginia. — A final decision on a writ of certiorari is reviewable on writ of error from the court of appeals. Arnold v. Lewis County Ct., 38 W. Va. 142, 8 S. E. 476; Cunningham v. Squires, 2 W. Va. 422, 98 Am. Dec. 770. See also Welch v. Wetzel County, 29 W. Va. 63, 1 S. E. 337. Wisconsin. — ■ See State v. Oconomowoc, 104 Wis. 622, 80 N. W. 942. See, generally, Ceetiokaei; and 2 Cent. Dig. tit. "Appeal and Error," § 571. Vol. II 592 APPEAL AND ERROR preference of a cause upon the calendar is a substantial right, and an appeal lies from a denial thereof. 2 (n) Change of Venus. An order granting or refusing a change of venue is not appealable. 8 (in) Continuance. An order granting or refusing a continuance is not a final order from which an appeal lies. 4 (iv) Removal of Cause — (a) In General. Though there are decisions to the effect that an order removing or refusing to remove a cause from a state court to a federal court is not appealable, 5 the great weight of authority, and 2. Herzfeld v. Strauss, 24 N. Y. App. Div. 95, 49 N. Y. Suppl. 92 ; Hinkley v. Troy, etc., R. Co., 42 Hun (N. Y.) 281; Schwartz v. Wolf rath, 24 Misc. (N. Y.) 406, 28 N. Y. Civ. Proe. 55, 53 N. Y. Suppl. 263; Buell a. Hol- lins, 16 Misc. (N. Y.) 551, 38 N. Y. Suppl. 879, 74 N. Y. St. 772. See 2 Cent. Dig. tit. "Appeal and Error," § 732. An order denying a motion for leave to transfer a ease from the equity docket to the law docket is appealable. Wright v. Herlong, 16 S. C. 620. 3. Alabama. — Bryan v. State, 43 Ala. 321. Iowa. — Kay v. Pruden, 101 Iowa 60, 69 N. W. 1137. Kentucky. — Mercer v. Glass, 89 Ky. 199, 11 Ky. L. Pep. 373, 12 S. W. 194. And an order refusing a change cannot be reviewed even upon appeal from the final judgment. Owensboro, etc., R. Co. v. Barclay, 19 Ky. L. Rep. 997, 43 S. W. 177. Louisiana. — Fields v. Gagne, 33 La. Ann. 339. Maryland. — Davis v. State, 3 Harr. & J. (Md.) 154. Michigan. — Greeley v. Stilson, 27 Mich. 153. Minnesota. — Allis v. White, 59 Minn. 97, 60 N. W. 809. Nevada. — State v. Shaw, 21 Nev. 222, 29 Pae. 321. New York. — Pascocello v. Brooklyn Heights R. Co., 26 Misc. (N. Y.) 412, 56 N. Y. Suppl. 177. Ohio.— Snell v. Cincinnati St. R. Co., 60 Ohio St. 256, 54 N. E. 270. South Carolina. — McCown v. Northeastern R. Co., 55 S. C. 384, 33 S. E. 506. Texas. — Vance v. Hogue, 35 Tex. 432. Utah. — An order changing the place of trial is an appealable order. Elliot v. Whitmore, 10 Utah 246, 37 Pae. 461. Washington. — Bogle v. Puget Sound Co-op- erative Colony, 3 Wash. 138, 28 Pae. 376. Wisconsin. — Evans v. Curtiss, 98 Wis. 97, 73 N. W. 432. United States. — MeFaul v. Ramsey, 20 How. (U. S.) 523, 15 L. ed. 1010. See 2 Cent. Dig. tit. "Appeal and Error,'' §§ 374, 726. Remand after change of venue. — No appeal lies from an order remanding a cause to a court from which there has been an attempt to change the venue. Hamrick v. Danville, etc., Gravel Road Co., 30 Ind. 147; Turner v. Browder, 18 B. Mon. (Ky.) 825; Wygall v. State Treasurer, 33 Tex. 328. Vol. II 4. California. — Haraszthy v. Horton, 46 Cal. 545. Colorado. — Lutterell v. Swisher, 5 Colo. 54. Florida. — Read v. Gooding, 20 Fla. 773. Georgia.— Cartter v. Rome, etc., Constr. Co., 89 Ga. 158, 15 S. E. 36; Haygood v. Georgia Banking, etc., Co., 60 Ga. 291. Iowa. — Jaffray v. Thompson, 65 Iowa 323, 21 N. W. 659. Kentucky. — Owings v. Beall, 1 Litt. ( Ky. ) 257. Louisiana. — Newman v. Wildenstein, 42 La. Ann. 925, 8 So. 607. " Maine. — Rumsey v. Bragg, 35 Me. 116. Maryland. — Hopkins v. State, 53 Md. 502 ; Cumberland Coal, etc., Co. v. McKaig, 27 Md. 258. Massachusetts. — Reynard v. Brecknell, 4 Pick. (Mass.) 302. New York. — Martin v. Hicks, 6 Hun (N. Y.) 74, 51 How. Pr. (N. Y.) 355; McKeon v. Kel- lard, 6 Misc. (N. Y.) 31, 26 N. Y. Suppl. 72, 55 N. Y. St. 513. North Carolina. — Jaffray v. Bear, 98 N. C. 58, 3 S. E. 914; Clark v. Latham, 53 N. C. 1. But an appeal lies if a continuance is granted to await the recovery from insanity of defend- ant. Stratford v. Stratford, 92 N. C. 297. South Carolina. — Latimer v. Latimer, 42 S. C. 205, 20 S. E. 159; Morgan v. Keenan, 27 B.C. 248, 3 S. E. 297. Texas. — Tinsley v. Trimble, 35 Tex. 425; Dow v. Hotchkiss, 2 Tex. 471. Wisconsin. — Whitefoot v. Leffingwell, 90 Wis. 182, 63 N. W. 82. United States.— Missouri, etc., R. Co. v. Elliott, 102 Fed. 96, 42 C. C. A. 188. See 2 Cent. Dig. tit. "Appeal and Error," § 729. 5. California. — Brooks v. Calderwood, 19 Cal. 124; Hopper v. Kalkman, 17 Cal. 517. Minnesota. — St. Anthony Falls Water- power Co. v. King Wrought-Iron Bridge Co., 23 Minn. 186, 23 Am. Rep. 682. Mississippi. — Jackson v. Alabama Great Southern R. Co., 58 Miss. 648. Nevada. — State v. Curler, 4 Nev. 445. Tennessee. — Jones v. Davenport, 7 Coldw. (Tenn.) 145. Compare Campbell v. Wallen, Mart. & Y. (Tenn.) 266. Texas. — Durham v. Southern L. Ins. Co., 46 Tex. 182, wherein it was held that the right of a party to have a cause transferred on his application could only be inquired into by the supreme court of a state on a refusal of the application after final judgment. See also Rosenfield V. Condict, 44 Tex. 464. APPEAL AND ERROR 593 what is believed to be the better reason, hold that such an order is one from which an appeal will lie. 6 (b) Remand to State Court. An order of a United States circuit court, remanding or refusing to remand a case to the state court from which it was removed, is an order from which no appeal or writ of error will lie. 7 (v) Trial bt Jury — (a) Actions at Law. An order denying a jury trial in a legal action affects a substantial right, and is appealable. 8 (b) Suits im, Equity. From an order settling issues in an equity case, in which the judge may try all the issues, or, may, either on the application of counsel or on his own motion, send auy question on which he prefers the judg- ment of the jury to that tribunal, no appeal lies. 9 e. Costs — (i) Judgment for Costs. A judgment merely for costs, without a final disposition of the cause, is not a final judgment. 10 But a judgment for costs United States. — Akerly v. Vilas, 1 Abb. (U. S.) 284, 2 Bias. (U. S.) 110, 1 Fed. Cas. No. 119. 6. Alabama. — Ex p. Southern Tel. Co., 73 Ala. 564. Georgia. — Stafford v. Hightower, 68 Ga. 394. Indiana. — Burson v. National Park Bank, 40 Ind. 173, 13 Am. Rep. 285 [.overruling Au- rora v. West, 25 Ind. 148]. Louisiana. — Johnson v. New Orleans Nat. Banking Assoc, 33 La. Ann. 479 ; Goodrich v. Hunton, 29 La. Ann. 372; Bosenfield v. Adams Express Co., 21 La. Ann. 233. Compare Bod- •enheimer's Succession, 35 La. Ann. 1033. Massachusetts. — Bryan v. Richardson, 153 Mass. 157, 26 N. E. 435; Ellis v. Atlantic, «tc., E. Co., 134 Mass. 338. Michigan. — Crane v. Keeder, 28 Mich. 527, 15 Am. Rep. 223. New York. — De Camp v. New Jersey Mut. L. Ins. Co., 2 Sweeny (N. Y.) 481 [distin- guishing Illius v. New York, etc., R. Co., 13 N. Y. 597]. Ohio. — Home L. Ins. Co. v. Dunn, 20 Ohio St. 175, 5 Am. Rep. 642; Hadley v. Dunlap, 10 Ohio St. 1. West Virginia. — Henen v. Baltimore, etc., R. Co., 17 W. Va. 881. Wisconsin. — Whiton v. Chicago, etc., R. •Co., 25 Wis. 424, 3 Am. Rep. 101 ; Akerly v. Vilas, 24 Wis. 165, 1 Am. Rep. 166. United States. — Kanouse v. Martin, 15 How. (U. S.) 198, 14 L. ed. 660. See 2 Cent. Dig. tit. "Appeal and Error," §§ 472, 724. 7. Act of congress of March 3, 1887, § 6 [24 Stat, at L. pp. 552, 555, c. 373], as amended by act of congress of Aug. 13, 1888 [25 Stat, at L. p. 433, c. 866] ; May v. State Nat. Bank, 59 Ark. 614, 28 S. W. 431; Illinois Cent. R. Co. v. Brown, 156 U. S. 386, 15 S. Ct. 656, 39 L. ed. 461 ; Bender v. Pennsylvania Co., 148. U. S. 502, 13 S. Ct. 640, 37 L. ed. •537; Joy v. Adelbert College, 146 U. S. 355, 13 S. Ct. 186, 36 L. ed. 1003; Birdseye v. Shaeffer, 140 U. S. 117, 11 S. Ct. 885, 35 L. ed. 402; Gurnee v. Patrick County, 137 V. S. 141, 11 S. Ct. 34, 34 L. ed. 601; Texas Land, etc., Co. v. Scott, 137 U. S. 436, 11 S. Ct. 140, 34 L. ed. 730 ; Richmond, etc., R. Co. v. Thouron, 134 U. S. 45, 10 S. Ct. 517, 33 L. ed. 871; Chicago, etc., R. Co. v. Gray, [38] 131 U. S. 396, 9 S. Ct. 793, 33 L. ed. 212; Sherman v. Grinnell, 123 U. S. 679, 8 S. Ct. 260, 31 L. ed. 278; Wilkinson v. Nebraska, 123 U. S. 286, 8 S. Ct. 120, 31 L. ed. 152; Morey v. Loekhart, 123 U. S. 56, 8 S. Ct. 65, 31 L. ed. 68 ; Patten v. Chilley, 50 Fed. 337, 5 U. S. App. 9, 1 C. C. A. 522; In re Coe, 49 Fed. 481, 5 U. S. App. 6, 1 C. C. A. 326. See 2 Cent. Dig. tit. "Appeal and Error,'' §§ 472, 725. 8. Beary v. Hoster, 53 Hun (N. Y.) 632, 6 N. Y. Suppl. 330, 24 N. Y. St. 878 ; Dean v. Empire State Mut. Ins. Co., 9 How. Pr. (N. Y.) 69. See 2 Cent. Dig. tit. "Appeal and Error," § 633. A ruling sustaining or overruling a motion to have certain issues in an action at law transferred for trial in equity is an order af- fecting the substantial rights of the parties from which an appeal will lie. Matter of Bradley, 108 Iowa 476, 79 N. W. 280; Price v. Mtna Ins. Co., 80 Iowa 408, 45 N. W. 1053. 9. Massachusetts. — Crittenden v. Field, 8 Gray (Mass.) 621; Ward v. Hill, 4 Gray (Mass.) 593. New Jersey. — An order of the chancellor, made at the final hearing, for an issue to be tried by a jury, is appealable. American Dock, etc., Co. v. Public Schools, 37 N. J. Eq. 266 ; Newark, etc., R. Co. v. Newark, 23 N. J. Eq. 515 [disapproving Black v. Lamb, 12 N. J. Eq. 108]. New York. — Clarke v. Brooks, 1 Abb. Dec. (N. Y.) 355; Seymour v. McKinstry, 13 Hun (N. Y.) 284; Paul v. Parshall, 14 Abb. Pr. N. S. (N. Y.) 138 ; Wood v. New York, 4 Abb. Pr. N. S. (N. Y.) 152; Lansing v. Russell, 4 How. Pr. (N. Y.) 213. Compare Ellensohn v. Keyes, 6 N. Y. App. Div. 601, 39 N. Y. Suppl. 774. Pennsylvania. — Scheetz's Appeal, 35 Pa. St. 88. South Carolina. — Hammond v. Foreman, 43 S. C. 264, 21 S. E. 3. See 2 Cent. Dig. tit. "Appeal and Error," § 586. 10. Crockett v. Lewis, 66 Mo. 671 ; Evans v. Russell, 61 Mo. 37; State v. Newton, 26 Mo. App. 11; Reynolds v. Teeumseh, 48 Nebr. 785, 67 N. W. 792; Little v. Gamble, 47 Nebr. 827, 66 N. W. 849; Barnhouse v. Adams, 47 Nebr. 756, 66 N. W. 826; Warren v. McKen- Vol. II 594 APPEAL AND ERROR on the dismissal of the suit is a final judgment from which an appeal will lie. 11 And an appeal lies from a judgment for costs in an independent proceeding to recover them. 12 (n) Taxation of Costs. Rulings on a taxation of costs in an action are not, as a rule, appealable of themselves ; and are reviewable, if at all, only on appeal from the final judgment. 13 f. Creditors' Suits. A decree, in a creditor's suit, ascertaining the amounts and priorities of all the debts sought to be established as liens, and ordering the sale of the property for payment of the debts, is a final decree from which an appeal will lie ; 14 and the same is true of an order distributing the proceeds of the sale. 15 It has been held, however, that a decree which does not order a sale or payment of complainant's demand, is merely interlocutory. 16 g. Cross-Bill. A decree upon a cross-bill, pending the original suit, is but a partial decree, from which no appeal lies. 17 It has been held, however, that zie, 23 Ohio St. 626; Patterson v. Hall, 30 Tex. 464; Neyland v. White, 25 Tex. 319; Holt v. Wood, 23 Tex. 474, 76 Am. Dec. 72. See 2 Cent. Dig. tit. "Appeal and Error," § 481. 11. O'Connor v. Koch, 56 Mo. 253. But see Strieker v. Holtz, 50 Iowa 291, wherein it was held that no appeal lies from a judgment for costs rendered against a plaintiff on dismissal of suit for his non-appearance. 12. State v. Byrd, 93 N. C. 624; Taney v. Woodmansee, 23 W. Va. 709. 13. Alabama. — Randolph v. Rosser, 7 Port. (Ala.) 249. California. — Flubacher v. Kelly, 49 Cal. 116; Levy v. Getlesan, 27 Cal. 685. But an order striking out a cost bill subsequent to the rendition and entry of the judgment is appealable, and can be reviewed without an appeal from the judgment. Yorba v. Dobner, 90 Cal. 337, 27 Pae. 185. See also Jones v. Frost, 28 Cal. 245. Connecticut. — An order denying a motion for costs, on the ground that the cause had been withdrawn before the return-day, and be- fore it had been entered upon the docket of the court, is a, final judgment, and is appeal- able. Wildman v. Munger, 70 Conn. .380, 39 Atl. 599. District of Columbia. — Johnson v. District of Columbia, 7 Mackey (D. C.) 220. Indiana. — A final order overruling a mo- tion for retaxation of costs is a final judg- ment. Hill v. Shannon, 68 Ind. 470. Kansas. — Kandt v. Chicago, etc., R. Co., 6 Kan. App. 920, 49 Pac. 692. Kentucky. — Com. v. Fugate, 1 T. B. Mon. (Ky. ) 1; Williams v. Jackman, 2 J. J. Marsh. (Ky.) 352. Minnesota. — Febler v. Southern Minnesota R. Co., 28 Minn. 156, 9 N. W. 635; Minne- sota Valley R. Ce. v. Flynn, 14 Minn. 552. Missouri. — Manning v. Standard Theater Co., 63 Mo. App. 366. Montana. — State v. Millis, 19 Mont. 444, 48 Pac. 773. Nevada. — Where the case as made in the court below is one of which the supreme court might have appellate jurisdiction, it has ju- risdiction of an appeal from an order retax- ing costs, made (ubsequent to judgment. Vol. II. Comstock Mill, etc., Co. v. Allen, 21 Nev. 325, 31 Pae. 434. New Hampshire. — Friel v. Plumer, 69 N. H. 498, 43 Atl. 618, 76 Am. St. Rep. 190. New York. — Brown v. Leigh, 50 N. Y. 427. North Carolina. — An appeal lies from an order construing a judgment and ordering re- taxation of costs thereunder. Morristown Mills Co. v. Lytle, 118 N. C. 837, 24 S. E. 530. See also Guilford ». Beaufort County, 120 N. C. 23, 27 S. E. 94. Oregon. — Burt v. Ambrose, 11 Oreg. 26, 4 Pac. 465. South Carolina. — An appeal lies from a. judgment confirming a taxation of costs in an action at law. Stegall v. Bolt, 11 S. C. 522. And an order refusing to allow a party to tax costs incurred on appeal is appealable. Hall v. Hall, 45 S. C. 4, 22 S. E. 881. Vermont. — Lamoille County Sav. Bank, etc., Co. v. Buck, 69 Vt. 369, 38 Atl. 62. Virginia. — Shipman v. Fletcher, 95 Va. 585, 29 S. E. 325; Ashby v. Kiger, 3 Rand. (Va.) 165. Wisconsin. — An interlocutory judgment im- posing costs on a party is appealable. San- born v. Perry, 86 Wis. 361, 56 N. W. 337. And the same is true of an order ratifying the refusal of the clerk to tax the costs. State v. Reesa, 57 Wis. 422, 15 N. W. 383. United States. — In the courts of the United States no appeal lies from a decree for costs, except where they are made payable from a fund in court. Foster v. Elk Fork Oil, etc., Co., 99 Fed. 617, 40 C. C. A. 21. See, generally, Costs ; and 2 Cent. Dig. tit. "Appeal and Error," § 823 et seq. 14. Gore v. Striekler, 24 W. Va. 689; An- drews v. National Foundry, etc., Works, 73 Fed. 516, 34 U. S. App. 632, 19 C. C. A. 548. See 2 Cent. Dig. tit. " Appeal and Error," § 458. 15. McLaughlin v. List, 5 Ky. L. Rep. 291. 16. Portwood v. Outon, 1 B. Mon. (Ky.) 149. See also Ogilvie v. Knox Ins. Co., 2 Black (U. S.) 539, 17 L. ed. 349, wherein it was held that, on a creditors' bill, the court cannot, until after a report by a master and an ascer- tainment of all the facts, make a final decree which will support an appeal. 17. Treadway v. Coe, 21 Conn. 283; Ayres v. Carver, 17 How. (U. S.) 591, 15 L. ed. 179. APPEAL AND ERROR 595 where the only issues tried are those made by a cross-petition and reply, and there is a decree rendered against defendant, he may appeal. 18 h. Disbarment of Attorney. An appeal will lie from an order suspending or disbarring an attorney. 19 i. Dismissal or Nonsuit — (i) Judgment of Dismissal or Nonsuit. As a general rule an appeal may be taken from a judgment of dismissal or nonsuit, as such judgment is a final determination of the cause. 20 See 2 Cent. Dig. tit "Appeal and Error," § 511. A decree on an intervening petition in a foreclosure suit, claiming priority over the mortgage, which decree adjudges the priority, fixes the amount due, and directs provision to be made for such priority in the order of sale, is final and appealable, though the main suit has not reached a final decree. Central Trust Co. v. Madden, 70 Fed. 451, 25 U. S. App. 430, 17 C. C. A. 236. See also Thornton v. High- land Ave., etc., R. Co., 94 Ala. 353, 10 So. 442. Orders finally dismissing interpleaders, and an auxiliary petition by plaintiff to enjoin them from enforcing a judgment, and vacating an injunction previously granted thereunder, embody final decisions as to such interpleaders, and are appealable, although the suit between the original parties is still pending. Standley v. Roberts, 59 Fed. 836, 19 U. S. App. 407, 8 C. C. A. 305. Striking out cross-bill. — In Iowa an order striking out a cross-bill is appealable. Ma- haska County State Bank v. Christ, 82 Iowa 56, 47 N. W. 886. 18. Dodsworth v. Hopple, 33 Ohio St. 16; Taylor v. Leith, 26 Ohio St. 426. See also Grant v. East, etc., R. Co., 50 Fed. 795, 2 U. S. App. 182, 1 C. C. A. 681, wherein it was held that a decree dismissing an auxiliary bill, but retaining the cause, and referring it to a mas- ter to ascertain the priority and validity of certain liens, and marshaling conflicting claims to bonds in question, is final as to the auxiliary complainants. 19. Arkansas. — Beene v. State, 22 Ark. 149. Connecticut. — Matter of Westcott, "6 Conn. 585, 34 Atl. 505. Illinois. — Winkelman v. People, 50 111. 449. Indiana. — Ex p. Trippe, 66 Ind. 531; Walls v. Palmer, 64 Ind. 493. Iowa. — An order overruling a motion for the appointment of an attorney to conduct proceedings for disbarment does not affect any substantial rights, and is therefore not ap- pealable. Byington v. Moore, 70 Iowa 206, 30 N. W. 485. Kentucky. — See Rice v. Com., 18 B. Mon. (Ky.) 472. Massachusetts. — See Randall, Petitioner, 11 Allen (Mass.) 472. Missouri. — Strother v. State, 1 Mo. 605. New York.— Matter of Eldridge, 82 N. Y. 161, 37 Am. Rep. 558. North Carolina. — Remedy is by writ of cer- tiorari in the nature of a writ of error. Ex p. Biggs, 64 N. C. 202. Oklahoma. — Matter of Brown, 2 Okla. 590, 39 Pac. 469. Pennsylvania. — The supreme court will not grant relief to an attorney who has been stricken off the rolls of the district court, either by certiorari, appeal, mandamus, or any other proceeding. Com. v. Judges, 5 Watts & S. (Pa.) 272. South Dakota. — In re Houghton, 5 S. D. 537, 59 N. W. 733. Tennessee. — Brooks v. Fleming, 6 Baxt. (Tenn.) 331, holding, however, that no appeal lies from the action of the court discharging a motion to strike an attorney from the roll. Texas. — Casey v. State, 25 Tex. 380. But no appeal lies to the supreme court from a judgment in a district court fer defendant in a proceeding charging an attorney with dis- honorable conduct. State v. Tunstall, 51 Tex. 81. Wisconsin. — In re Orton, 54 Wis. 379, 11 N. W. 584. United States. — Mandamus is a proper remedy to restore an attorney at law disbarred by a subordinate court. Ex p. Robinson, 19 Wall. (U. S.) 513, 22 L. ed. 205; Ex p. Brad- ley, 7 Wall. (U. S.) 364, 19 L. ed. 214. See, generally, Attorney and Client ; and 2 Cent. Dig. tit. "Appeal and Error," § 625. 20. Numerous authorities sustain the text, among which may be cited the following cases : Alabama. — Hubbard v. Baker, 48 Ala. 491; Duncan v. Hargrove, 22 Ala. 150. Arkansas. — Compare Yell v. Outlaw, 14 Ark. 621. California. — No appeal lies from a judg- ment of nonsuit. Kimple v. Conway, 69 Cal. 71, 10 Pac. 189. Colorado. — Corning Tunnel Co. v. Pell, '4 Colo. 184. Connecticut. — Woodruff v. Bacon, 34 Conn. 181. But an appeal does not lie from a judg- ment of nonsuit for not complying with an interlocutory order. Hoyt v. Brooks, 10 Conn. 188. Florida.— Cook v. Cook, 18 Fla. 634. Idaho. — Lalande v. McDonald, 2 Ida. 283, 13 Pac. 347. Illinois. — Bourke v. Chicago Sanitary Dist., 92 111. App. 333. Indiana. — Koons v. Williamson, 90 Ind. 599. Kansas. — Moore v. Toennisson, 28 Kan. 608. Kentucky. — Wood v. Downing, (Ky. 1901) 62 S. W. 487. Louisiana. — State v. Judge, 9 La. Ann. 353 ; Heath v. Vaught, 16 La. 515. Maine. — White v. Bradley, 66 Me. 254; Perley v. Little, 3 Me. 97 Maryland. — Henderson v. Maryland Home F. Ins. Co., 90 Md. 47, 44 Atl. 1020. Vol. II 596 APPEAL AND ERROR (n) Refusal to Gmant Dismissal or Nonsuit. No appeal lies from the refusal of the trial court to dismiss or nonsuit plaintiff. 21 Massachusetts. — Snell v. Dwight, 121 Mass. 348; Wentworth v. Leonard, 4 Cush. (Mass.) 414. Minnesota. — An appeal will not lie from an order dismissing an action for want of prose- cution. Gottstein v. St. Jean, 79 Minn. 232, 82 N. W. 311. See also Thorp v. Lorenz, 34 Minn. 350, 25 N. W. 712; Searles v. Thompson, 18 Minn. 316. Mississippi. — Gill v. Jones, 57 Miss. 367. Missouri. — Bowie v. Kansas City, 51 Mo. 454. Montana. — Holter Lumber Co. v. Fireman's Fund Ins. Co., 18 Mont. 282, 45 Pac. 207; Kleinsehmidt v. McAndrews, 4 Mont. 8, 223, 2 Pac. 286, 5 Pac. 281. Nebraska. — Rogers v. Russell, 11 Nebr. 361, 9 N. W. 547. New Jersey. — Voorhees v. Combs, 33 N. J. L. 482; Central R. Co. v. Moore, 24 N. J. L. 284. New York. — Van Wormer v. Albany, 18 Wend. (N. Y.) 169; Sehcmerhorn v. Jenkins, 7 Johns. (N. Y.) 373; Smith v. Sutts, 2 Johns. . Arm- strong, 58 Mo. App. 214; Springfield Mill- ing Co. v. Ramey, 57 Mo. App. 33; Hauser v. Andersch. 56 Mo. App. 485. Vol. II Nebraska. — An order discharging an at- tachment is reviewable on error. Adams County Bank v. Morgan, 26 Nebr. 148, 41 N. W.'993. New Mexico. — When an affidavit in attach- ment is traversed, and trial is had on the is- sues raised, an appeal cannot be taken from the judgment until final judgment is entered in the main case to which the attachment is auxiliary. Schofield v. American Valley Co., 9 N. M. 485, 54 Pac. 753. Neto York. — An order refusing or vacating an order granting an attachment is not ap- pealable to the court of appeals in any case, unless the order shows that it was refused or vacated for want of power; and an order granting an attachment is not appealable un- less it presents a question of law or absolute legal right. Allen v. Meyer, 73 N. Y. 1. North Carolina. — An appeal lies from an order refusing to dismiss an attachment. Judd v. Crawford Gold-Min. Co., 120 N. C. 397, 27 S. E. 81; Sheldon v. Kivett, 110 N. C. 408, 14 S. E. 970. North Dakota. — An order vacating an at- tachment is an appealable order. Red River Valley Bank v. Freeman, 1 N. D. 196, 46 N. W. 36. Ohio. — An order overruling a motion to dis- solve or discharge an attachment is a final judgment. Young v. Gerdes, 42 Ohio St. 102. Oregon. — An intermediate order dissolving an attachment is not appealable. Farmers' Bank v. Key, 33 Oreg. 443, 54 Pac. 206. Pennsylvania. — No appeal will lie from an order dissolving an attachment, as it is merely interlocutory. Slingluff v. Sisler, 193 Pa. St. 264, 44 Atl. 423. South Dakota. — An order dismissing an at- tachment is appealable. Wyman v. Wil- marth, 1 S. D. 35, 44 N. W. 1151; Quebec Bank v. Carroll, 1 S. D. 1, 44 N. W. 723. Virginia. — Where, in an attachment, an or- der is entered adjudging the rights of the par- ties, but afterward intervening creditors file petitions, and defendant moves to quash the attachment, the order entered on the motion to quash is a final order. Offtendinger v. Ford, 86 Va. 917, 12 S. E. 1. Washington. — Wash. Laws (1893), c. 61, authorizing an appeal from an order refus- ing to dissolve an attachment, does not make an order dissolving an attachment appeal- able. Jensen v. Hughes, 12 Wash. 661, 42 Pac. 127. Wisconsin. — An order refusing to set aside proceedings under a writ of attachment con- tinues a provisional remedy within Wis. Laws (1895), c. 212, § 1, subd. 3, granting appeals from such orders. Shakman v. Koch, 93 Wis. 595, 67 N. W. 925. Wyoming. — An order dissolving an attach- APPEAL AND EBB OB 611 (e) Intervention. A judgment in favor of interpleading claimants in an attachment suit is final and appealable. 70 (o) Sale of Property, where goods taken in attachment are sold, an order distributing the proceeds of the sale is final, as it disposes of the fund. 71 (in) Garnishment. An order discharging a garnishee is final and appealable, 72 and the same is true of an order formally directing a garnishee to pay the funds in his hands to plaintiff or into court. 73 x. Receivers — (i) Appointment. Orders appointing, removing, refusing to appoint, or refusing to remove receivers are generally deemed to be interlocutory, and hence not appealable unless the statute authorizes an appeal. 74 ment may be reviewed without bringing up the whole ease after final judgment. C. D. Smith Drug Co. v. Casper Drug Co., 5 Wyo. 510, 40 Pae. 979, 42 Pac. 213. United States. — An order dissolving an at- tachment, made prior to the determination of the case on the merits, is not a final judgment from which a writ of error lies. Atlantic Lumber Co. v. L. Bucki, etc., Lumber Co., 92 Fed. 864, 63 U. S. App. 382, 35 C. C. A. 59. See, generally, Attachments; and 2 Cent. Dig. tit. "Appeal and Error," §§ 389-391, 661-664. 70. Doane v. Glenn, 1 Colo. 417. 71. Gumbel v. Pitkin, 113 U. S. 545, 5 S. Ct. 616, 28 L. ed. 1128. 72. Alabama. — Steiner v. Birmingham First Nat. Bank, 115 Ala. 379, 22 So. 30. Iowa. — National Bank v. Chase, 71 Iowa 120, 32 N. W. 202; Bebb v. Preston, 1 Iowa 460. Kansas. — Reighart v. Harris, 5 Kan. App. 461, 49 Pac. 336; Bradley v. Byerley, 3 Kan. App. 357, 42 Pac. 930. Minnesota. — McConnell v. Rakness, 41 Minn. 3, 42 N. W. 539. Nebraska. — Turpin v. Coates, 12 Nebr. 321, 11 N. W. 300. Vermont. — Page v. Hurd, 1 Aik. (Vt.) 105. See, generally, Garnishment ; and 2 Cent. Dig. tit. "Appeal and Error," § 667. In Rhode Island it has been held that under R. I. Pub. Laws, c. 597, providing that a per- son aggrieved by the judgment of a district court in a civil action may appeal therefrom to the court of common pleas for a final hear- ing of said action, plaintiff, in an action be- gun by foreign attachment, cannot appeal when the district court renders judgment in his favor, but discharges the trustee. Clapp v. Smith, 16 R. I. 368, 16 Atl. 246. 73. Furstenheim v. Adams, 42 Ark. 283; Deering v. Richardson-Kimball Co., 109 Cal. 73, 41 Pac. 801 ; Forepaugh v. Appold, 17 B. Mon. (Ky.) 625. Order for judgment. — In Minnesota it has been held that no appeal will lie from an or- der of the district court entering judgment against a garnishee. Croft v. Miller, 26 Minn. 317, 4 N. W. 45. ' 74. District of Columbia. — Emmons v. Gar- nett, 7 Mackey (D. C.) 52. Georgia. — An interlocutory order appoint- ing a receiver is reviewable. Mathis v. Weaver, 94 Ga. 730, 19 S. E. 709. Idaho.— Jones v. Quayle, (Ida. 1893) 32 Pac. 1134. Illinois. — Farson v. Gorham, 117 111. 137, 7 N. E. 104; Matter of Eichenbaum Plumbing Co., 77 111. App. 363; Brachtendorf v. Kehm, 72 111. App. 228. Indiana. — • An order appointing a receiver is appealable. State v. Union Nat. Bank, 145 Ind. 537, 44 N. E. 585, 57 Am. St. Rep. 209 ; Buchanan v. Berkshire L. Ins. Co., 96 Ind. 510. Iowa. — An appeal lies from an order ap- pointing or refusing to appoint a receiver. Callanan v. Shaw, 19 Iowa 183. Kansas. — Boyd l*. Cook, 40 Kan. 675, 20 Pac. 477. Maryland. — An appeal lies from an order appointing a receiver, but an order refusing to rescind the order of appointment, not be- ing in the nature of a, final decree, is not ap- pealable. R. Frank Williams Co. v. U. S. Baking Co., 86 Md. 475, 38 Atl. 990. Michigan. — Orders appointing receivers, whereby the possession of property is de- vested are appealable. Mardian v. Wayne Cir. Judge, 118 Mich. 353, 76 N. W. 497. Minnesota. — An order appointing a re- ceiver is an order granting a provisional rem- edy, and hence is appealable. State v. Egan, 62 Minn. 280, 64 N. W. 813. See also In re Graeff, 30 Minn. 358, 16 N. W. 395. Mississippi. — An order discharging a re- ceiver appointed on ex parte showing is ap- pealable. Pearson v. Kendrick, 74 Miss. 235, 21 So. 37. Missouri. — An order appointing a receiver, and directing the delivery to him of property in suit pending an accounting, is not a final judgment from which an appeal will lie. Greeley v. Missouri Pac. R. Co., 123 Mo. 157, 27 S. W. 613. Montana. — Forrester v. Boston, etc., Con- sol. Copper, etc., Min. Co., 22 Mont. 430, 56 Pac. 868. Nebraska. — An order appointing a receiver is appealable, in advance of the final disposi- tion of the cause. M. A. Seeds Dry-Plate Co. v. Heyn Photo-Supply Co., 57 Nebr. 214, 77 N. W. 660. New York. — Dawson v. Parsons, 137 JN. x. 605, 33 N. E. 482, 51 N. Y. St. 930. North Carolina. — An appeal lies from an order granting or refusing the appointment of a receiver (Jones v. Thome, 80 N. C. 72) ; but an order to show cause why a receiver should not be appointed is a mere notice, and is not appealable (Gray v. Gaither, 71 N. O. 55) . Ohio.— An order annulling an order of a Vol. II 612 APPEAL AND ERROR (n) Compensation. An order fixing the compensation of a receiver, and directing him to appropriate in payment a fund in his hands as receiver, is appealable. 75 (in) Leave to Sue. An order granting or denying leave to sue a receiver is an order affecting a substantial right, and is therefore appealable. 76 (iv) Management of Property. An order directing a receiver to pay a certain rate of wages to his employees is final and appealable. 77 y. Reference — (i) A warding or Refusing Reference. An order merely directing or refusing a reference to state an account is interlocutory only. 78 It judge at chambers vacating the appointment of a receiver is a final order, affecting a sub- stantial right in a special proceeding, and appealable. Cincinnati, etc., R. Co. v. Sloan, 31 Ohio St. 1. Oregon. — An appeal will not lie from an order overruling a motion to vacate an order appointing a receiver. Basche v. Pringle, 21 Oreg. 24, 26 Pac. 863. Tennessee. — Enochs v. Wilson, 11 Lea (Tenn.) 228. Texas. — An appeal lies from an interlocu- tory order appointing a receiver to take charge of property involved in a suit. Stone v. Stone, 18 Tex. Civ. App. 80, 43 S. W. 567. Utah. — An order appointing a receiver is appealable. Ogden City v. Bear Lake, etc., Waterworks, etc., Co., 16 Utah 440, 52 Pac. 697, 41 L. R. A. 305. Virginia. — A decree of the circuit court in equity, appointing a receiver, is appealable. Shannon v. Hanks, 88 Va. 338, 13 S. E. 437. Washington. — • An appeal lies from any or- der appointing or removing, or refusing to ap r point or remove, a receiver. Armstrong v. Ford, 10 Wash. 64, 38 Pac. 866. West Virginia. — An order or decree refus- ing to appoint a receiver to take possession and control of property is not appealable. Robreeht v. Robreeht, 46 W. Va. 738, 34 S. E. 801. Wisconsin. — Nash v. Meggett, 89 Wis. 486, 61 N. W. 283. Wyoming. — An order appointing a receiver in a foreclosure suit is a final order affecting substantial rights, from which an appeal will lie. Anderson v. Matthews, (Wyo. 1899) 57 Pac. 156. United States. — Milwaukee, etc., R. Co. v. Soutter, 154 U. S. 540, 14 S. Ct. 1158, 17 L. ed. 604. See, generally, Receivers ; and 2 Cent. Dig. tit. "Appeal and Error," §§ 400, 683. 75. Grant v. Los Angeles, etc., R. Co., 116 Cal. 71, 47 Pac. 872; Hanover Ins. Co. v. Germania Ins. Co., 46 Hun (N. Y.) 308; Og- den City v. Bear Lake, etc., Waterworks, etc., Co., 18 Utah 279, 55 Pac. 385; Union Nat. Bank v. Mills, 103 Wis. 39, 79 N. W. 20. See also Battery Park Bank v. Western Carolina Bank, 127 N. C. 432, 36 S. E. 39, wherein it was held that an appeal may be taken from an order allowing a receiver of an insolvent bank, before final settlement, commissions and charges objected to by the creditors. But see State v. Alabama, etc., R. Co., 54 Ala. 139, wherein it was held that a chancellor's de- Vol. II cretal order, ascertaining and declaring the compensation of a receiver appointed in the case, and his solicitor, and directing its taxa- tion as costs against the complainant, with- out settling the equities of the case, is not a final decree from which an appeal will lie. 76. Matter of Commercial Bank, 35 N. Y. App. Div. 224, 54 N. Y. Suppl. 722 ; Miller v. Loeb, 64 Barb. (N. Y.) 454; Meeker v. Sprague, 5 Wash. 242, 31 Pac. 628. See, generally, Receivebs. Leave to defend. — An order allowing a re- ceiver to defend an action affects the final judgment, and is appealable. Honegger v. Wettstein, 13 Abb. N. Cas. (N. Y.) 393. Leave to intervene. — A judgment refusing to permit a creditor to intervene in proceed- ings in which a receiver has been appointed is appealable. Voorhees v. Indianapolis Car, etc., Co., 140 Ind. 220, 39 N. E. 738. Suing federal receiver in state court. — An order made by a federal court, granting leave to sue its receiver in a state court, is discre- tionary and administrative, and is not ap- pealable. New York Security, etc., Co. v. Il- linois Transfer R. Co., 104 Fed. 710, 44 C. C. A. 161. 77. Guarantee Trust, etc., Co. v. Philadel- phia, etc., R. Co., 69 Conn. 709, 38 Atl. 792, 38 L. R. A. 804. Approval of contract. — An order, in rail- road foreclosure proceedings, approving, on certain conditions, a contract by the receiver for the erection of a bridge, is not appealable. La Crosse R. Bridge, 2 Dill. (U. S.) 465, 14 Fed. Cas. No. 7,969. Issuance of certificates. — An order author- izing a receiver to issue receiver's certificates, which shall be a first lien on the property in the hands of the court, and to expend the pro- ceeds in the maintenance of the property, is appealable. State v. Port Royal, etc., R. Co., 45 S. C. 464, 23 S. E. 380. See also Crosby v. Morristown, etc., R. Co. (Tenn. Ch. 1897) 42 S. W. 507. 78. A laham n.— Richardson r. Peagler, 111 Ala. 478, 20 So. 434 ; Jackson County v. Gul- latt, 84 Ala. 243, 3 So. 906. Illinois. — C. & C. Electric Motor Co. v. Lewis, 47 111. App. 576; Anderson v. Lund- burg, 41 111. App. 248. Kansas. — Savage v. Challiss, 4 Kan. 319. Kentucky. — Dengler v. Dengler, 8 Kt. L. Rep. 344, 1 S. W. 645; Farmers Bank v. Rankin, 8 Ky. L. Rep. 530. Louisiana. — Junek v. Hezeau, 12 La. Ann. 248. APPEAL AND ERROR 613 has been held, however, that an order of reference in a case where a reference is not authorized by law is an appealable order. 79 _ (n) Decision on Report of Referee— (a) In General. An interlocutory judgment entered on the report of a referee is not appealable. 80 But a decree overruling exceptions to a report, distinctly adjudicating the question raised by such exceptions, is as to such questions a final decree, from which an appeal will he. 81 _ It has also been held that an order setting aside a report of a referee, and ordering a jury trial, is appealable. 83 (b) Recommitting Report. An order recommitting, or refusing to recommit a report or a part thereof to a referee is not appealable. 83 z. Speeial Proceedings — (i) In General. By statute in some states, orders made in a special proceeding, affecting a substantial right, are appealable. 84 Maryland. — Hungerford v. Bourne, 3 Gill & J. (Md.) 133; Snowden v. Dorsey, 6 Harr. & J. (Md.) 114. Minnesota. — Bond v. Welcome, 61 Minn. 43, 63 N. W. 3. Mississippi. — Ames v. Williams, 73 Miss. 772, 19 So. 673. New Jersey. — Schnitzius v. Bailey, (N. J. 1889) 18 Atl. 192. Sew York. — Cruger v. Douglass, 2 N. Y. 571, 4 How. Pr. (N. Y.) 215; Cosgriff v. Dewey, 89 Hun (N. Y.) 4, 34 N. Y. Suppl. 999, 69 N. Y. St. 111. North Carolina. — Williams v. Walker, 107 N". C. 334, 12 S. E. 43; Blaekwell v. McCaine, 105 N. C. 460, 11 S. E. 360. But in an action wherein defendant pleads a plea in bar, an order referring the cause, made, contrary to defendant's objection, prior to the disposition of the plea in bar, is appealable. Austin v. Stewart, 126 N. C. 525, 36 S. E. 37. Pennsylvania. — Offerle v. Reynolds Lum- ber Co., 170 Pa. St. 29, 32 Atl. 540; Beitler v. Zeigler, 1 Penr. & W. (Pa.) 135. South Carolina. — Devereux v. McCrady, 49 S. C. 423, 27 S. E. 467. But where, in a suit to foreclose a mortgage, defendant sets up usury and a counter-claim for usurious inter- est, an order refusing a reference, and requir- ing the issues of usury and counter-claim to be tried by a jury, though interlocutory, is appealable. McLaurin v. Hodges, 43 S. C. 187, 20 S. E. 991. South Dakota. — An order appointing a ref- eree to hear and determine all the issues is appealable. Russell v. Whitcomb, (S. D. 1901) 85 N. W. 860. Tennessee. — Berryhill v. McKee, 3 Yerg. (Tenn.) 156. Virginia. — Penn v. Chesapeake, etc., R. Co., (Va. 1895) 23 S. E. 3. West Virginia. — Buehler v. Cheuvront, 15 W. Va. 479. Wisconsin. — A writ of error lies in a case in which the court has power to award, and does award, a compulsory reference. Butt- rick v. Roy, 72 Wis. 164, 39 N. W. 345. United States. — Grant v. Phoenix Mut. L. Ins. Co., 121 U. S. 118, 7 S. Ct. 849, 30 L. ed. 909; Pittsburgh, etc., R. Co. v. Baltimore, etc., R. Co., 61 Fed. 705, 22 U. S. App. 359, 10 0. C. A. 20. See, generally, References; and 2 Cent. Dig. tit. "Appeal and Error," §| 377, 473. 79. St. Paul, etc., R. Co. v. Gardner, 19 Minn. 132, 18 Am. Rep. 334; Whitaker v. Desfosse, 7 Bosw. (N. Y.) 678; Kain v. De- lano, 11 Abb. Pr. N. S. (N. Y.) 29; Cram v. Bradford, 4 Abb. Pr. (N. Y.) 193. 80. California. — Peck v. Courtis, 31 Cal. 207. Idaho. — Jones v. Quayle, (Ida. 1893) 32 Pac. 1134. Michigan. — Bewick v. Alpena Harbor Imp. Co., 39 Mich. 700. New York. — Garczynski v. Russell, 75 Hun (N. Y.) 512, 27 N. Y. Suppl. 461, 57 N. Y. St. 669; People v. Kent, 58 How. Pr. (N. Y.) 407. Tennessee. — Brandon v. Crouch, 11 Heisk. (Tenn.) 605. See 2 Cent. Dig. tit. "Appeal and Error," §§ 736-739. 81. Garrett v. Bradford, 28 Gratt. (Va.) 609. 82. Stevenson v. Felton, 99 N. C. 58, 5 S. E. 399. 83. Kentucky. — Vinson v. Freese, 8 Ky. L. Rep. 350, 1 S. W. 478. New York. — An order denying a motion to send back a cause tried by a referee to him for further findings will not be reviewed in the court of appeals save upon appeal from the judgment. Quincey v. Young, 53 N. Y. 504. See also Hunt v. Chapman, 62 N". Y. 333 ; Mat- ter of Post, 64 Hun (N. Y.) 635, 19 N. Y. Suppl. 18, 46 N. Y. St. 129. North Carolina. — Alexander v. Alexander, 120 N. C. 472, 27 S. E. 121 ; Warren v. Stan- cill, 117 N. C. 112, 23 S. E. 216; Torrence v. Davidson, 90 N. C. 2 ; Jones v. Call, 89 N. C. 188; Barrett v. Henry, 85 N. C. 321; State v. Magnin, 85 N. C. 114. South Carolina. — McCrady v. Jones, 36 S. C. 136, 15 S. E. 430; Symmes v. Symmes, 18 S. C. 601.' Tennessee. — Matter of Johnson, 9 Lea (Tenn.) 625; Porter v. Burton, 10 Heisk. (Tenn.) 584. West Virginia. — Hooper v. Hooper, 29 W. Va. 276, 1 S. E. 280. See 2 Cent. Dig. tit. "Appeal and Error," § 738. 84. California. — Brown v. Starr, 75 Cal. 163, 16 Pac. 760; Adams v. Woods, 18 Cal. 30. Idaho. — Curtis v. Richards, (Ida. 1895) 40 Pac. 57. Vol. II €14 APPEAL AND ERROR (n) Contempt Proceedings. An order which is absolute in adjudging defendant in contempt, and prescribing a punishment, is appealable. 85 But an ■order adjudging a contempt, and prescribing a punishment conditional upon the action of the party in contempt, is not a final order, and is therefore not appeal- able. 86 It has also been held that an order punishing a person for contempt in disobeying an injunction is not appealable, where the contempt proceeding was not, and could not be, used as a remedy to enforce obedience to the injunction, or to indemnify the party injured. 87 E. Dependent on Rendition, Form, or Entry of Judgment or Order — 1. Necessity of Formal Judgment or Order — a. In General. The existence of a judgment or an appealable order being a jurisdictional fact, 88 an appeal or writ of error will not lie unless there has been such a judgment or order in the court below. 89 A judgment must be complete and certain in itself, and must appear to Iowa. — Dryden v. Wyllis, 51 Iowa 534, 1 N. W. 703. Minnesota. — Gurney v. St. Paul, 36 Minn. 163, 30 N. W. 661,- Turner v. Holleran, 11 Minn. 253. Nebraska. — Baldwin v. Foss, 14 Nebr. 455, 16 N. W. 480. New York. — Matter of King, 130 N. Y. 602, 29 N. E. 1096, 42 N. Y. St. 726; Matter of Delaware, etc., Canal Co., 69 N. Y. 209; Mat- ter of Livingston, 34 N. Y. 555; Hyatt v. Beeley, 11 N. Y. 52. Ohio. — Powers v. Reed, 19 Ohio St. 189; Lehman v. McBride, 15 Ohio St. 573; Hett- riek v. Wilson, 12 Ohio St. 136, 80 Am. Dec. 337. South Carolina. — Lowndes v. Miller, 25 S. C. 119. Wisconsin. — Ellis v. Southwestern Land Co., 94 Wis. 531, 69 N. W. 363; Morse v. Stockman, 65 Wis. 36, 26 N. W. 176; Mil- waukee, etc., R. Co. v. Strange, 63 Wis. 178, 23 N. W. 432. See 2 Cent. Dig. tit. "Appeal and Error," § 619. As to orders in condemnation proceedings see Eminent Domain. In supplementary proceedings see Execution. 85. Illinois. — Lester v. People, 150 111. 408, 23 N. E. 387, 37 N. E. 1004, 41 Am. St. Rep. 375. But an appeal will not lie from an order directing that an attachment be issued against defendant for his failure to pay temporary alimony. McEwen v. McEwen, 55 111. App. 340. Indiana. — McKinney v. Frankfort, etc., R. Co., 140 Ind. 95, 38 N. E. 170, 39 N. E. 500. New York. — Brinkley v. Brinkley, 47 N. Y. 40; Erie R. Co. v. Ramsey, 45 N. Y. 637; Boon v. McGucken, 67 Hun (N. Y.) 251, 22 N. Y. Suppl. 424, 50 N. Y. St. 901; Newell v. Cut- ler, 19 Hun (N. Y.) 74. Wisconsin. — Witter v. Lyon, 34 Wis. 564. United States. — Butler v. Fayerweather, 91 Fed. 458, 63 U. S. App. 120, 33 C. C. A. 625. See, generally, Contempt; and 2 Cent. Dig. tit. " Appeal and Error," § 526. Order made in action. — An order adjudg- ing a defendant guilty of contempt in disobey- ing the judgment in an action, and appointing a referee to ascertain and report plaintiff's loss and injury, is not appealable to the court of appeals, since such order is interlocutory, Vol. II and not final, and is made in the action, and not in a special proceeding. Ray v. New York Bav Extension R. Co., 155 N. Y. 102, 49 N. E. 662. An order refusing to set aside a previous order, granting an attachment against de- fendant as for a contempt in refusing to ap- pear in proceedings supplementary to a judg- ment, is appealable. Lamonte v. Pierce, 34 Wi3. 483. 86. Semrow v. Semrow, 26 Minn. 9, 46 N. W. 446; Brinkley v. Brinkley, 47 N. Y. 40; New York, etc., R. Co. v. Ketehum, 3 Abb. Dec. (NY.) 347. 87. State v. Davis, 2 N. D. 461, 51 N. W. 942. 88. See supra, III, D. 89. Baldwin v. Roman, (Ala. 1900) 28 So. 40; Weissinger v. State, 11 Ala. 540, holding that a statement of the questions arising in a case does not supply the place of the judg- ment. Delaware. — Hession v. Wilmington, 2 Marv. (Del.) 1, 42 Atl. 422. Georgia. — Buford v. Kennedy, 85 Ga. 212, 11 S. E. 561. Illinois. — Hutchinson v. Ayers, 117 111. 558, 7 N. E. 476. Iowa. — Warder v. Schwartz, 65 Iowa 170, 21 N. W. 502. Kansas. — Jones v. Carter, 60 Kan. 855, 55 Pac. 345. Louisiana. — Frazier v. Vance, 6 Rob. (La.) 271 (an appeal by an intervener); Whitte- more v. Watts, 4 Rob. (La.) 47. Maine. — Butterfield v. Briggs, 92 Me. 49, 42 Atl. 229. Maryland. — Phillips v. Pearson, 27 Md. 242, where it was held that the record entry: " Viewing the whole case as it is presented, this appeal cannot be sustained, and must be dismissed with costs as to the defendant," must be regarded simply as an opinion of the judge. Mississippi. — Wharton v. State, 41 Miss. 680. Montana. — Murphy v. King, 6 Mont. 30, 9 Pac. 585 ; Beattie v. Hoyt, 3 Mont. 140. Now Jersey. — Den v. Fen, 21 N. J. L. 700. New York. — Boyd v. Cronkrite, 10 Hun (N. Y.) 574. North Carolina. — Fisher v. Carroll, 46 N. C. 27; McKenzie v. Little, 31 N. C. 45. APPEAL AND ERROR 615 be an adjudication of the court, and not a memorandum. 90 The form of the judg- ment is immaterial. The technical phraseology consideratvm est is not necessary. It is sufficient if it is linal and the party may be injured. 91 But, in substance, it must show intrinsically and distinctly, and not inferentially, that the matters in the record have been determined in favor of one of the litigants, or that the rights of the parties in litigation have been adjudicated. 92 Error will not lie on a Ohio. — Wilson v. Holeman, 2 Ohio 253 ; Reed v. De Wolf, Wright (Ohio) 418. Texas. — ' Ewing v. Kinnard, 9 Tex. 105. See 2 Cent. Dig. tit. " Appeal and Error," § 875 et seq. A division of opinion in the court, though it operates as a denial of the prayer of the pe- tition, if not followed by any judgment does not amount to an action of the court from which either party could appeal or prosecute error. Graham v. Doe, 4 Ind. 615. See supra, III, A, B. A peremptory writ of mandamus was re- garded at common law as the final determi- nation of the rights of the parties. But it was necessary to enter a formal judgment be- fore the case could be reviewed by an appel- late court. People v. Throop, 12 Wend. (N. Y.) 183. In Hex v. Dean and Chapter oi Dublin, 1 Str. 536, it was held that it was against the nature of a writ of error to lie on any judg- ment but in causes where an issue might be joined and tried, or where a judgment might be had on demurrer, and that it would not lie on an award of a peremptory mandamus, and in Pender v. Herle, 3 Bro. P. C. 505 [cited in People v. Brooklyn, 13 Wend. (N. Y.) 130], the house of lords made a similar ruling on the ground that the granting or denying of a mandamus was a 1 mere award of the court, and not a strict formal judgment. See also Eex v. Oundle, 1 A. & E. 283, 28 E. C. L. 147. But in Connecticut, where the relator may demur to the return, the award is a formal judgment and writ of error will lie. New Haven, etc., Co. v. State, 44 Conn. 376. And in South Dakota a formal judgment must be rendered, as the basis for the peremptory writ, before the writ can issue, and no ap- peal will lie from a peremptory writ as such. State v. Young, 6 S. D. 406, 61 N. W. 165. See also State v. Delafield, 64 Wis. 218, 24 N. W. 905. See supra, III, D, 3, m. An award of arbitrators entered by pro- thonotary, but not by the court, will not sup- port a writ of error. Wilson v. Colwell, 3 Watts (Pa.) 212. Recitals or memoranda of the clerk do not constitute a formal entry of the judgment within the rule. Birmingham R., etc., Co. v. Baker, (Ala. 1900) 28 So. 87; McDonald v. Alabama Midland R. Co., 123 Ala. 227, 26 So. 165; Metzger v. Morley, 184 111. 81, 56 N. E. 299 [affirming 83 111. App. 113]. See infra, III, E, 12. Report of referee. — An appeal cannot be taken from the action of a referee, but only from the judgment of the court entered on his report. Kille v. Reading Iron Works, 134 Pa. St. 225, 26 Wkly. Notes Cas. (Pa.) 1, 19 Atl. 547, construing the Pennsylvania act of May 4, 1889. See supra, III, D, 3, y. 90. Belli'. Otts, 101 Ala. 186, 13 So. 43, 46 Am. St. Rep. 117, where the record showed a verdict giving damages to plaintiff, and that " judgment is rendered against defendants, Mace and Edwards, for the land sued for, to- gether with all the costs in this behalf, for which execution may issue," and it was held that this was not a judgment that would sup- port an appeal. 91. Johnson v. Gillett, 52 111. 358 (where it was recited that " The court this day, after due deliberation, rejects the claim") ; Wells v. Hogan, 1 111. 337 (where the order of the court was absolute that a writ of restitution should issue unless defendant executed a bond within a certain time, and it did not appear that the bond was executed, and the judg- ment was held to be sufficiently formal ) . In Brown v. Parker, 97 Fed. 446, 38 C. C. A. 261, which was an action by an assignee for the conversion of property claimed to have passed under the assignment, it was held that a judgment against plaintiff for blank costs, stated to have been entered on a verdict re- turned for the defendant by the direction of the court, determines the right of the prop- erty and may be reviewed on error. 92. Colorado. — Skinner v. Beshoar, 2 Colo. 383. Idaho. — In Gray v. Cederholm, 2 Ida. 41, 3 Pac. 12, wherein the probate court docket en- try showed that complaint was filed, sum- mons issued and served, demurrer to complaint filed, and also entry of fees for overruling de- murrer in entering default, for entering final judgment, certifying copy for roll, docketing judgment, making judgment-roll, and sheriff's fees and damages. The court refused to en- tertain the appeal. Missouri. — Rubey v. Shain, 51 Mo. 116, wherein it was held that the appeal was not supported by an' entry that " the demurrer was by the court overruled, to which ruling the defendant at the time excepted, and de- fendants filing no further pleadings, judg- ment is rendered for plaintiff." Nebraska. — Bradford v. Higgins, 31 Nebr. 192, 47 N. W. 749. New York. — Parrington v. O'Conner, 6 Daly (N Y.) 209; Swarthout v. Custis, 4 N. Y. 415; Howland v. Coffin, 47 Barb. (N Y.) 653, 32 How. Pr. (N. Y.) 300, in which last case it was held that an appeal would lie from n direction that plaintiff re- cover a specified amount, and defendant a like amount, and that they offset each other. Compare Central Trust Co. v. New York City, etc., R. Co., 42 Hun (N. Y.) 602. Vol. II 616 APPEAL AND ERROR rule to ascertain what amount of money is due on a previous judgment. 93 The judgment must show against whom it is rendered. 94 Costs are an incident or appendage of the judgment, but a judgment for their recovery is not a decision of the matter in issue, and is therefore no such final judgment as can by law come within the revisory power of the appellate court. 95 When a writ of error is sued out, the court to which it is directed will return the facts truly, and the reviewing court will determine whether there is any judgment which can be reviewed. 96 b. Based on Findings or Verdict. A writ of error or appeal will not lie from the verdict of a jury without an entry of judgment thereon, 97 nor from the find- ing of facts or conclusions of law by the court not followed by judgment. 95 Hence, the opinion of the court, no order being entered in accordance therewith, is not reviewable. 99 Texas. — Scott v. Burton, 6 Tex. 322, 55 Am. Dec. 782. 93. Stockley v. Bewley, 6 Houst. (Del.) 14. A finding of the jury upon a feigned issue to fix the amount due on a judgment by con- fession is not the subject of a writ of error. Brewer v. Ware, 18 N. J. L. 370. See also infra, III, E, 1, b. 94. Gray v. Cederholm, 2 Ida. 41, 3 Pac. 12; Robinson v. Tousey, 6 Blackf. (Ind.) 256. 95. Scott v. Burton, 6 Tex. 322, 55 Am. Dec. 782; Warren v. Shuman, 5 Tex. 441. See also Reid v. Vanderheyden, 5 Cow. (N. Y.) 719. See supra, II, A, 6 ; III, D, 3, e. 96. Jessup v. Cook, 1 N. J. L. 124. 97. Alabama. — Little v. Fitts, 33 Ala. 343. Florida. — Rain v. Savage, 14 Fla. 201. Georgia. — MeGowan v. Luf burrow, 81 Ga. 358, 7 S. E. 314; Roach v. Suiter, 51 Ga. 169. Illinois. — Evanston v. Dowden, 55 111. App. 217. Iowa. — Clark v. Van Loon, 108 Iowa 250, 79 N. W. 88, 75 Am. St. Rep. 219; Jones t>. Givens, 77 Iowa 173, 41 N. W. 608. Kentucky. — Rule v. Hayden, 3 B. Mon. (Ky.) 319. Missouri. — Sperling v. Stubblefield, 83 Mo. App. 266. Nebraska. — Seven Valleys Bank v. Smith, 43 Nebr. 237, 61 N. W. 606. New York. — Benkard v. Babcock, 27 How. Pr. (N. Y.) 391. South Carolina. — Whitesides v. Barber, 22 S. C. 47. 98. Arkansas. — Reynolds.?;. Craycraft, 26 Ark. 468. California. — Miller v. Sharpe, 54 Cal. 590; Lorenz v. Jacobs, 53 Cal. 24. Connecticut. — Tweedy v. Nichols, 27 Conn. 518; Robinson v. Mason, 27 Conn. 270. Florida. — Demens v. Poyntz, 25 Fla. 654, 6 So. 261. Indiana. — Northeutt v. Buckles, 60 Ind. 577. Iowa. — Andrew v. Concannon, 76 Iowa 251, 41 N. W. 8. Kansas. — Steele v. Newton, 41 Kan. 512, 21 Pac. 644; Callen v. Junction City, 41 Kan! 466, 21 Pac. 647. Massachusetts. — Robinson v. Mutual L. Ins. Co., 170 Mass. 369, 49 N. E. 645. Minnesota. — Johnson v. Northern Pac Vol. II etc., R. Co., 39 Minn. 30, 38 N. W. 804; Von Glahn v. Sommer, 11 Minn. 203. Missouri. — Philips v. Ward, 51 Mo. 295 ; Bybee v. Maxwell, 43 Mo. 209. New York. — Drew v. Rearick, 3 Thomps. & C. (N. Y.) 337; Weston v. Ketcham, 39- N. Y. Super. Ct. 54. Ohio. — Reynolds v. Rogers, 5 Ohio 169. Washington. — Bartlett v. Reichennecker, 5- Wash. 369, 32 Pac. 96. Wisconsin. — Webster-Glover Lumber, etc., Co. v. St. Croix County, 63 Wis. 647, 24 N. W. 417. See 2 Cent. Dig. tit. " Appeal and Error," § 877. 99. Arkansas. — Moss v. Ashbrooks, 15 Ark. 169. Kentucky. — Smith v. Wilson, 4 Ky. L. Rep. 719. Maryland. — Chappell v. Chappell, 82 Md. 647, 33 Atl. 650. Minnesota. — Thompson v. Howe, 21 Minn. 1; Wilson v. Bell, 17 Minn. 61. New York. — Troy Waste Mfg. Co. v. Har- rison, 73 Hun (N. Y.) 528, 26 N. Y. Suppl. 109, 56 N. Y. St. 183 (where it was said that " courts do not act as advisory tribunals " ) ; Matter of Callahan, 66 Hun (N. Y.) 118, 20- N. Y. Suppl. 824, 49 N. Y. St. 425; Snyder v. Beyer, 3 E. D. Smith (N. Y.) 235 (where there was an expression of opinion that " the- plaintiffs are entitled to costs"); Starr v. Silverman, 25 Misc. (N. Y.) 784, 55 N. Y. Suppl. 611; Wright v. Delafield, 11 How. Pr. (N. Y.) 465. North Carolina. — Baum v. Currituck Shooting Club, 94 N. C. 217 (where the court expressed the opinion that plaintiff could not. recover, and directed the issue to be found for defendant) ; Taylor v. Bostic, 93 N. C. 415. Pennsylvania. — Harper v. Roberts, 22 Pa. St. 194. United States. — Herrick v. Cutcheon, 55 Fed. 6, 5 U. S. App. 250, 5 C. C. A. 21, hold- ing that the words "opinion — decree for complainant," did not constitute the decree for an injunction. See 2 Cent. Dig. tit. "Appeal and Error," §§ 878, 879 ; and supra, III, A. A mere oral decision is of no avail without an order making it of record. Maas v. Ellis, \l £' Y ^ Civ - Proe - 323 > Smith »■ Spalding, S. C. 31, 19 S. E. 1016. APPEAL AND ERROR 617 e. Necessity of Signature. No appeal in chancery will be heard until the decree has been drawn up and signed. 1 But a writ of error may be sued out before the judgment is actually signed. 2 d. Where Judgment Has Been Set Aside or Arrested. While an appeal may be taken from a judgment notwithstanding the fact that such judgment has been set aside on an ex parte application, 3 error will not lie where judgment has been arrested for the insufficiency of the declaration. 4 2. Judgments by Confession. While in some jurisdictions an appeal will lie from a judgment by confession, 5 the general rule is that no appeal or writ of error will lie from such a judgment. 6 3. Judgments by Default — a. In General. The oetter rule seems to be that no appeal lies from an order entering a default, on proof of service, no applica- tion being made to the lower court for a correction of the entry. 7 But in some 1. Brown v. Mead, 16 Vt. 148. An entry in the transcript of the docket entries of the chancellor: "April 18, 1893. Submitted for decree on demurrers to the bill, and demurrers sustained," is not a decree. Mann v.' Hyams, 101 Ala. 431, 13 So. 681, construing Ala. Civ. Code, § 3612. 2. It is not the signing of the judgment- roll but the rendition of the judgment which forms the test. It is sufficient if the judg- ment be given before the return of the writ. Arnold v. Sanford, 14 Johns. (N. Y.) 417; Richardson v. Backus, 1 Johns. (N. Y.) 493. See 2 Cent. Dig. tit. "Appeal and Error," § 880. By the practice in Louisiana, however, a judgment not signed by the judge cannot be enforced, and so, before signature, a writ of error cannot issue to enforce it. Nicholls v. Maddox, 52 La. Ann. 496, 26 So. 994 ; Lahar- gue v. Waggaman, 28 La. Ann. 904; Consoli- dated Assoc, v. Mason, 24 La. Ann. 518; New York L., etc., Ins. Co. v. Wilson, 8 Pet. (U. S.) 291, 8 L. ed. 949. This applies to a judgment dissolving an injunction (State v. Wharton, 25 La. Ann. 2) and to one making an injunc- tion perpetual after the trial on the merits (Carondelet Canal Nav. Co. v. New Orleans, 44 La. Ann. 394, 10 So. 871). But in those courts where it is the practice to sign judg- ments only at the end of the term, an appeal may be taken between the rendition of the judgment and the signing thereof. Vicks- burg, etc., R. Co. v. Hamilton, 15 La. Ann. 521. 3. Florsheim Bros. Dry Goods Co. v. Wil- liams, 45 La. Ann. 1196, 14 So. 120. In Davis V. Barr, 5 Serg. & R. (Pa.) 516, judgment had been entered on a bond and warrant, and the parties agreed to proceed as if upon a feigned issue, and that the court should give judg- ment on the facts stated in the case as if there had been a special verdict. The judg- ment was set aside, and it was held that writ of error would not lie. 4. Home v. Barney, 19 Johns. (N. Y.) 247; and see 2 Cent. Dig. tit. "Appeal and Error," § 881. 5. Easter v. Snelling, 30 Ga. 503 (where it is said that the confession stands in the place of, and has the effect of, a verdict) ; Melins v. Home, 29 Ga. 536; Nisbet v. Lawson, 1 Ga. 275; Troxel v. Clark, 9 Iowa 201; Burge v. Burns, 1 Morr. (Iowa) 287; Hugg v. Cam- den, 20 N. J. L. 583 [citing Bacon Abr. tit. Error]. 6. The reason of the rule is that the errors are considered as having been released. Delaware. — Gum v. Adams, 9 Houst. (Del.) 200, 31 Atl. 895. Illinois. — Hall v. Hamilton, 74 111. 437; Caruthers v. Niblack, 73 111. App. 197; Boyles v. Chytraus, 66 111. App. 592; Werkmeister v. Beaumont, 46 111. App. 369. Compare also Hinds v. Hopkins, 28 111. 344. Louisiana. — Skinner v. Dameron, 5 Rob. (La.) 447; Williams v. Duer, 14 La. 523 (holding that La. Prac. Code, art. 567, deny- ing the appeal, does not apply to a judgment pro confesso taken wrongly upon an answer admitting a conditional indebtedness) ; State v. Judge, MeGloin (La.) 11. North Carolina. — Rush v. Halcyon, 67 N. C. 47. Ohio. — Shorb v. Lair, Tappan (Ohio) 339. Pennsylvania. — Hawk v. Jones, 24 Pa. St. 127, holding that an act authorizing a writ of error upon a judgment quod partitio flat does not extend to a case where such judgment is entered by confession. The Pennsylvania act of April 4, 1877, giving a right to appeal from a judgment entered on a warrant of attorney or on a judgment note, applies to A case where judgment is entered in a warrant con tained in a lease (Times Pub. Co. v. Siebrecht. 11 Wkly. Notes Cas. (Pa.) 339), but does not cover the case of a refusal to open a judg ment confessed in a suit commenced by ami cable scire facias. (Jones' Appeal, 1 Walk, (Pa.) 355.) Tennessee. — Williams v. Neil, 4 Heisk (Tenn.) 279, construing Tenn. Code, § 3107. Texas. — Garner v. Burleson, 26 Tex 348. See 2 Cent. Dig. tit. "Appeal and Error,' § 882; and infra, IV, B, 2, d, (n) . Attorney acting for both parties cannot confess judgment. — In In re New Orleans, 10 La. Ann. 311, it was held that a judgment rendered on the motion of one who was acting as attorney for both parties was not a judg- ment by confession. 7. California. — Ricketson v. Torres, 23 Cal. 636. Vol. II 618 APPEAL AND ERROR states, by statute, if a greater sum is awarded than the amount claimed in the declaration, the defendant may have the judgment by default corrected on appeal. 8 However, questions of jurisdiction and of the sufficiency of the complaint upon the point whether the facts stated constitute a cause of action are never waived in any case. 9 Whether the default was, or was not, properly entered is a question Florida.— Megin V. Filor, 4 Fla. 203. Georgia. — Clifton v. Livor, 24 Ga. 91. Idaho. — But see, contra, Hardiman i>. South Chariot Min. Co., 1 Ida. 704. Illinois. — Hess v. People, 84 111. 247. Indiana.— Bell v. Corbin, 136 Ind. 269, 36 N. E. 23. Iowa. — But see, contra, Woodward v. Whitescarver, 6 Iowa 1 ; Doolittle v. Shelton, 1 Greene (Iowa) 271. Minnesota. — Thompson v. Haselton, 34 Minn. 12, 24 N. W. 199 (an order setting aside service by publication made upon an or- der to show cause why the relief should not be granted) ; Dols v. Baumhoefer, 28 Minn. 387, 10 N. W. 420. But see, contra, White -i>. litis, 24 Minn. 43; Grant V. Schmidt, 22 Minn. 1; Kennedy v. Williams, 11 Minn. 314; Karns v. Kunkle, 2 Minn. 313, construing Minn. Rev. Stat. c. 81, §§ 2, 22. Mississippi. — Winn v. Levy, 2 How. (Miss.) 902, a judgment on nihil dicit, between which and a, judgment by default, the court said, there was little, if any difference. Missouri. — Andrew County v. Owens, 46 Mo. 386. New York. — Hawkins v. Smith, 91 Hun (N. Y.) 299, 36 N. Y. Suppl. 333, 71 N. Y. St. 117; Edelson v. Epstein, 27 Misc. (N. Y.) 543, 58 N. Y. Suppl. 334 — this last case con- struing Consol. Act. § 1367, in a case arising in the New York city municipal court. For the New York practice under the various stat- utes see Henderson v. McNally, 48 N. Y. App. Div. 134, 62 N. Y. Suppl. 582; Beebe i>. Nas- sau Show Case Co., 41 N. Y. App. Div. 456, 58 N. Y. Suppl. 769; Dreyfus v. Carroll, 28 Misc. (N. Y.) 222, 58 N. Y. Suppl. 1116; Em- pire Hardware Co. v. Young, 27 Misc. ( N. Y. ) 226, 57 N. Y. Suppl. 753; and 2 Cent. Dig. tit. "Appeal and Error," § 885. Oregon. — Fassman v. Baumgartner, 3 Oreg. 469, construing Oreg. Code, § 526, allowing an appeal from a judgment for want of answer. South Carolina. — Washington v. Hesse, 56 S. C. 28, 33 S. E. 787; Odom v. Burch, 52 S. C. 305, 29 S. E. 726. Vermont. — But see, contra, Smith v. Lang- worthy, 1 Aik. (Vt.) 106. Washington. — But see, contra, Baker v. Prewett, 3 Wash. Terr. 474, 19 Pac. 149; Gar- rison 4'. Cheeney, 1 Wash. Terr. 489. See 2 Cent. Dig. tit. "Appeal and Error," § 885 ; and infra, IV, B, 2, c, d. An interlocutory judgment by default against some of several defendants. — Under a statutory provision providing that " where there are several defendants in a suit, and some of them appear and plead, and others make default, the cause may proceed against the others, but only one final judgment shall be given in the action," no appeal lies from an interlocutory judgment by default against Vol. II some of the defendants less than the whole number where the others have answered. Lee v. Black, 27 Ark. 336, construing Gould's Dig. Ark. c. 133, § 80. See also Lenow v. Lenow, 8 Gratt. (Va.) 349, a case for an attachment, where the absent defendant did not appear. From a default judgment entered by con- sent there can be no appeal. Port v. Parfit, 4 Wash. 369, 30 Pac. 328. See also Fatten v. Starrett, 20 Me. 145. Default judgment of affirmance, rendered by the general term, is not reviewable by the court of appeals. Stevens v. Glover, 83 N. Y. 611. It is not an "actual determination." McMahon v. Rauhr. 47 N. Y. 67, construing N. Y. Code, § 352. And see Elkinton v. Fen- nimore, 13 Pa. St. 173. Judgment affirming a default judgment is not appealable. Keller v. Feldman, 2 Misc. (N. Y.) 179, 29 Abb. N. Cas. (N. Y.) 426, 23 N. Y. Civ. Proc. 37, 21 N. Y. Suppl. 581, 49 N. Y. St. 718. 8. Northern Trust Co. v. Albert Lea Col- lege, 68 Minn. 112, 71 N. W. 9. And see Reidy v. Bleistift, 31 Misc. (N. Y.) 181, 63 N. Y. Suppl. 974 [affirming 30 Misc. (N. Y.) 203, 61 N. Y. Suppl. 915]. Variance between summons and declaration. — In Thompson v. Turner, 22 111. 389, the damages claimed in the summons with which the defendants were served were one hundred dollars, but the declaration laid the damages at six hundred dollars, and judgment by de- fault was given accordingly. It was held that the defendants could not take advantage of the variance on error. 9. Sanderson, J., in Hallock v. Jaudin, 34 Cal. 167. See also Hurry v. Coffin, 2 N. Y. Civ. Proc. 319 ; Rhode Island Mortg., etc., Co. v. Spokane, 19 Wash. 616, 53 Pac. 1104, con- struing 2 Hill's Code Wash., § 193, which provides that if no objection be taken by de- murrer or answer, the defendant waives the same except as to jurisdiction of the court, or that the complaint does not state a cause of action. This latter case distinguished State v. Superior Ct., 12 Wash. 548, 41 Pac. 895, which was an appeal from a justice court and governed by the practice peculiar to such ap- peals, and Port v. Parfit, 4 Wash. 369, 30 Pac. 328. No appeal from a voidable judgment. — Hill's Code Oreg., § 71, is similar to the pro- vision of the Washington code just referred to. Construing this section together with sec- tion 536, it has been held that while a party failing to demur or answer may appeal from a void judgment rendered against him — that is, when the court has no jurisdiction — he cannot appeal from a judgment that is merely voidable by reason of a detective statement of the cause of action. Askren v. Squire, 29 Oreg. 228, 45 Pac. 779 [distinguishing Trul- APPEAL AND ERROR 619 which may be adjudicated upon an appeal from the final judgment rendered in the cause. 10 b. Damages Assessed Upon Default. If, after a judgment by default, dam- ages are assessed by an inquisition, this being the means of perfecting the judg- ment rendered in the exercise of ordinary jurisdiction, an appeal may be taken from a judgment entered upon the inquisition. 11 e. Decrees Pro Confesso. The decree which follows a bill taken pro confesso in chancery corresponds to a judgment by default, or nil dicit, in a court of law, and from it no appeal lies, 12 such decree being considered as binding and as con- clusive as any decree rendered in the most solemn manner, concluding defendant so far at least as the decree is supported by the allegations of the bill, taking the same to be true. 13 But where the dismissal of an appeal is asked on the ground lenger v. Todd, 5 Oreg. 36, where there was no proper 'service]. 10. Hallock v. Jaudin, 34 Cal. 167 ; Stevens v. Ross, 1 Cal. 94 ; Kidd v. Four- Twenty Min. Co., 3 Nev. 381 [disapproving dictum in Paul v. Armstrong, 1 Nev. 82] ; Maples v. Geller, 1 Nev. 233; Schwartz v. Schendel, 24 Misc. (N. Y.) 733, 53 N. Y. Suppl. 829; Allison v. T. A. Snider Preserve Co., 20 Misc. (N. Y.) 367, 45 N. Y. Suppl 923 ; Williamson v. Nick- lin, 34 Ohio St. 123. Discontinuance as to one defendant — De- fault against the other. — Where neither de- fendant appeared, and plaintiff discontinued as to one without sufficient cause shown, and took judgment by default against the other, it was held that there was a right to appeal. Kendall v. Lassiter, 68 Ala. 181. 11. Connecticut. — Mead v. Coggshall, Kirby (Conn.) 17. Illinois. — Chicago, etc., R. Co. v. Ward, 16 111. 522. Maryland. — Forrester v. Sisco, 49 Md. 586 [distinguishing Wilmington, etc., R. Co. v. Condon, 8 Gill & J. (Md.) 443, which was a condemnation proceeding in which a special jurisdiction was conferred]. Michigan. — Wells v. Booth, 35 Mich. 424. Minnesota. — See Kent v. Bown, 3 Minn. 347, where, however, the answer was with- drawn, and it was said there was no default. See 2 Cent. Dig. tit. "Appeal and Error," § 888. 12. Maryland. — Ringgold's Case, 1 Bland (Md.) 5 [citing Maynard v. Pomfret, 3 Atk. 468; Davis v. Davis, 2 Atk. 21; Carew v. Johnson, 2 Sch. & Lef . 300 ; Ogilvie v. Heme, 13 Ves. Jr. 563; Geary v. Sheridan, 8 Ves. Jr. 192 ; Jopling v. Stuart, 4 Ves. Jr. 619 ; Heyn v. Heyn, Jac. 49, 4 Eng. Ch. 49]. New Jersey. — Barber v. West Jersey Title, etc., Co., 52 N. J. Eq. 287, 29 Atl. 486 ; Town- send v. Smith, 12 N. J. Eq. 350, 72 Am. Dec. 403 [citing Vowles v. Young, 9 Ves. Jr. 172; Cunningham v. Cunningham, 1 Ambl. 89], where it was said that if the absence was involuntary or accidental, and it was intended to make a defense, the chancellor should be petitioned for a rehearing, which in practice would be freely granted. New York. — Murphy V. American L. Ins., etc., Co., 25 Wend. (N. Y.) 249; Kane v. Whittick, 8 Wend. (N. Y.) 219; Sands v. Hil- dreth, 12 Johns. (N. Y.) 493. Virginia. — See Davis v. Com., 16 Gratt. (Va.) 134. West Virginia. — Baker v. Western Min., etc., Co., 6 W. Va. 196, where it was said that an application should have first been made to the judge rendering a decree to correct the errors. See 2 Cent. Dig. tit. "Appeal and Error," § 889. Contra. — Woodward v. Whitescarver, 6 Iowa 1. And in Florida, from a final decree rendered upon a decree pro confesso made ab- solute under the rule, an appeal may be taken, and upon such an appeal the legality of all the proceedings prior to the default is open for review. Garvin v. Watkins, 29 Fla. 151, 10 So. 818; Hart v. Stribling, 21 Fla. 136; Betton v. Williams, 4 Fla. 11. Neglect to answer. — In Hart v. Strong, 15 Vt. 377, defendant appeared but neglected to answer, and the bill was taken as confessed and referred to a master to ascertain the amount due, and a decree made on the report. It was held that there could be no appeal. In Blanchard v. Cooke, 144 Mass. 207, 11 N. E. 83, defendant having appeared, and the bill having, for want of an answer, been taken for confessed against him, it was held that he had still the right to be heard upon the form of the decree, and to appeal from it. 13. Thompson v. Wooster, 114 U. S. 104, 5 S. Ct. 788, 29 L. ed. 105 [citing Ogilvie v. Heme, 13 Ves. Jr. 563, 1 Smith Ch. Pr. 153, 1 Daniels Ch. Pr. (1st ed.) 696]. Practice in the United States supreme court. — Under the rules and practice of the supreme court of the United States, a decree pro confesso is not a decree as of course, ac- cording to the prayer of the bill, nor merely such as complainant chooses to make it ; but is made by the court according to what is proper to be decreed upon the statements of the bill assumed to be true. If the allegations are distinct and positive, they may be taken as true without proof; but if they are indefinite, or the demand of complainant is in its nature uncertain, the requisite certainty must be af- forded by proof. But in either event, al- though defendant may not be allowed on appeal from a subsequent decree — as from a decree confirming a sale — to question the want of testimony or the insufficiency or amount of the evidence, he is not precluded from contesting the sufficiency of the bill, or Vol. II 620 APPEAL AND ERROR of the default of appellant in the court below, the decree must recite all those facts which, by the rules and practice of chancery courts, entitle a party to default his adversary. 14 d. Refusal to Enter Default or Decree Pro Confesso. Under a statute allow- ing an appeal where a substantial right is denied, which right plaintiff might lose if the order is not reviewed before final judgment, an appeal will lie from the refusal of a judgment by default, final upon a verified complaint, for a sum cer- taiu, when no verified answer is filed, there being no extension of time allowed for the filing of such answer. 15 A statute authorizing a writ of error to a refusal to enter judgment for want of the sufficiency of an affidavit of defense is intended to reach only clear cases of errors in law, and thus to prevent the delay of a trial. 16 4. Judgments on Consent. 17 A judgment, order, or decree entered by consent, in a case where the court has jurisdiction, will not support an appeal or writ of error. 18 But in order to amount to a waiver of error it must plainly appear that from insisting that the averments contained in it do not justify the decree. Ohio Cent. R. Co. 17. Central Trust Co., 133 TJ. S. 83, 10 S. Ct. 235, 33 L. ed. 561 ; Masterson 17. How- ard, 18 Wall. (U. S.) 99, 21 L. ed. 764. 14. Stevens v. Townsend, 1 Dougl. (Mich.) 77, where it was held that the fact that no one appeared to argue the cause was not a de- fault that would deprive the party of his right of appeal. 15. Griffin v. Asheville Light Co., Ill N. C. 434, 16 S. E. 423, construing Clark's Code Civ. Proc. N. C. (1900), § 548. But see Cle- ment 17. Foster, 99 N. C. 255, 6 S. E. 186, where the appeal was held premature. See 2 Cent. Dig. tit. "Appeal and Error,'' § 887. 16. Griffith 17. Sitgreaves, 81* Pa. St. 378, 33 Leg. Int. (Pa.) 281, 2 Wkly. Notes Cas. (Pa.) 707. 17. See infra, TV, B, 2, c. 18. Arkansas. — Salski 17. Boyd, 32 Ark. 74. California. — Matter of Lorenz, 124 Cal. 495, 57 Pac. 381; Erlanger v. Southern Fac. R. Co., 109 Cal. 395, 42 Pac. 31. Florida. — White 17. Walker, 5 Fla. 478. Georgia. — Zorn v. Lamar, 71 Ga. 80. Illinois. — Frank 17. Bruck, 4 111. App. 627. Indiana. — Floyd County v. Scott, ( Ind. 1898 ) 49 N. E. 395 ; Indianapolis, etc., R. Co. 17. Sands, 133 Ind. 433, 32 N. E. 722. Kentucky. — -Duncan 17. Louisville, 13 Bush (Ky.) 378, 26 Am. Rep. 201. Louisiana. — Brand v. Jones, 15 La. 449. Maryland. — Gable 17. Williams, 59 Md. 46. See, contra, remarks of chancellor in Chesa- peake Bank v. McClellan, 1 Md. Ch. 328. Michigan. — Brick 17. Brick, 65 Mich. 230, 31 N. W. 907, 33 N. W. 761. Nebraska. — Anderson 17. Carson, 54 Nebr. 678, 74 N. W. 1072; Weander 17. Johnson, 42 Nebr. 117, 60 N. W. 353. New Jersey. — Pemberton «. Pemberton, 41 N. J. Eq. 349, 7 Atl. 642 [affirming Matter of Pemberton, 40 N. J. Eq. 520, 4 Atl. 770]. New York. — Bolles v. Cantor, 6 N. Y. App. Div. 365, 39 N. Y. Suppl. 652. Ohio. — But see, contra, Brewer 17. Connecti- cut, 9 Ohio 189. South Carolina. — Varn 17. Vara, 32 S. C 77, 10 S. E. 829. Vol. II Tennessee. — Jones 17. McKenna, 4 Lea (Tenn.) 630; Williams 17. Neil, 4 Heisk. (Tenn.) 279; House 17. Wakefield, 2 Coldw. (Tenn.) 325. Virginia. — Bransford 17. Kara, 87 Va. 242, 12 S. E. 404, where there was a stipulation that judgment should be entered in accord- ance with the decision in another case. West Virginia. — Rose 17. Brown, 17 W. Va. 649, holding that a decree ordering that cer- tain property shall be rented, where defendant " asks that it be rented instead of sold," and complainant " assented thereto," is a consent decree. United States. — But see Pacific R. Co. 17. Ketchum, 101 U. S. 289, 25 L. ed. .932, 935, construing U. S. Rev. Stat. (1878), § 692, wherein Waite, C. J., said: "If, when the case gets here, it appears that the decree ap- pealed from was assented to by the appellant, we cannot consider any errors that may be assigned which were in law waived by the consent, but we must still receive and decide the case. If all the errors complained of come within the waiver, the decree below will be affirmed, but only after hearing." See 2 Cent. Dig. tit. "Appeal and Error," § 883. Application of the rule has been made to a decree which was procured by fraud, the only remedy in such a ease being by an independ- ent proceeding to have it set aside. Jones 17. McKenna, 4 Lea (Tenn.) 630; Jones 17. Wil- liamson, 5 Coldw. (Tenn.) 371; Rose 17. Brown, 17 W. Va. 649. Consent to appeal. — Such a decree or order cannot be appealed from, though, by the con- sent of both parties, either may appeal. Jar- vis 17. Palmer, 1 Barb. Ch. (N. Y.) 379. See also supra, II, B. Correction of order by consent. — An order which, by stipulation, is corrected so as to truthfully show the ground on which it is based, is not an order entered by consent so as to prevent appeal. Matter of Glenside Woolen Mills, 92 Hun (N. Y.) 188 36 N Y Suppl. 593, 71 N. Y. St. 646. Order made by consent before instead of after judgment. — In an action to dissolve a partnership, an order, directing the partners to join with the receiver in a conveyance of APPEAL AND ERROR 621 the decree was in fact agreed to be final and conclusive. 19 Thus the asking a court to make a formal ruling upon a proceeding which has been fully considered in that court, so as to enable the party feeling aggrieved to appeal, is an entirely different thing from consent to the conditions on which a controversy is to be determined, adjusted, or settled. 20 The judgment must conform to the consent. 21 5. Judgments on Ex Parte Proceedings. No appeal lies from an ex parte order. 22 M 6. Judgments on Motion or Summary Proceedings. The rule is that decisions on summary applications cannot be thrown into the shape of records, and become the subject of revision in any other court. 23 the property on the sale, may by consent be entered before, as well as after, judgment, and is not appealable. Dawson v. Parsons, 74 Hun (N. Y.) 221, 26 N. Y. Suppl. 327, 56 N. Y. St. 372. 19. San Francisco Sav. Union v. Myers, 72 Cal. 161, 13 Pac. 403; Olmstead v. Webb, 5 App. Cas. (D. C.) 38 [citing Morris v. Davies, 5 CI. & F. 163, 7 Eng. Eeprint 365] ; Emery v. Seavey, 144 Mass. 403, 11 N. E. 654. 20. Wastl v. Montana Union R. Co., 13 Mont. 500, 34 Pac. 844, where defendant, knowing that his time for appeal was about to expire, consented to submit to the court, without argument, his motion for a new trial. Procuring entry of judgment does not amount to consent. Skinner v. Quin, 43 N. Y. 99. See also Vincent v. MeNamara, 70 Conn. 332, 39 Atl. 444; Stevenson v. Matte- son, 13 Mont. 108, 32 Pac. 291. Where the party against whom a verdict and judgment had been rendered applies for a new trial, but, on the filing of a written consent thereto by the opposite party, requests the court to over- rule his motion, stating that it was made pro forma in order to obtain an appeal, he will not thereby preclude himself from relief on the appeal where the circumstances of the case show that his object was to prevent the delay which would result from a new trial, and to obtain, as soon as possible, a final de- cision by the appellate court. Watt v. Rice, 1 La. Ann. 280. See also infra, IV, B, 2, d. An agreement in a mortgage authorizing a decree in case of default, is only a consent to dispense with the intermediate proceedings in order to facilitate a decree — not that the decree shall be binding at all hazards. " It is certainly his privilege to see that the decree adopts the terms of the mortgage." If it were not so, the mortgagor would be precluded from showing that no decree ought to pass upon a case made by the petition and mort- gage, however defectively the allegations and the case may be stated. Williams v. Wil- liams, 7 Gill (Md.) 302, 306, construing Md. Acts (1883), c. 181. 21. The rule does not apply in the case of an appeal from a judgment which was not rendered as authorized by the agreement. Sprowl v. Stewart, 19 La. Ann. 433. Nor does the general rule apply to a ease where such agreement and judgment are in contravention of the positive provisions of a statute. Thus, a judgment for plaintiff for the entire sum due on a usurious contract, though entered on stipulation of the parties, is appealable under a statute which imposes upon the court in such a case the duty of rendering judgment for the principal sum, less payments already made, and for a penalty of a certain per- centage for the use of the state. Ocobock v. Nixon, (Ida. 1899) 57 Pac. 309, construing Ida. Rev. Stat. § 1266. 22. The proper method is to apply to have such order set aside, and, if the application is denied, then to take an appeal. State v. First Judicial Dist. Ct., 52 Minn. 283, 53 N. W. 1157; Matter of Reddish, 47 N. Y. App. Div. 187, 62 N. Y. Suppl. 261; Kelly v. Jay, 79 Hun (N. Y.) 535, 29 N. Y. Suppl. 933, 61 N. Y. St. 552; Matter of Dunn, 59 Hun (N. Y.) 626, 14 N. Y. Suppl. 14, 37 N. Y. St. 802; Brown v. Georgi, 26 Misc. (N. Y.) 128, 56 N. Y. Suppl. 923; Brast v. Kanawha Oil Co., 46 W. Va. 613, 33 S. E. 302. And see Ramsour v. Young, 26 N. C. 133, where the court, on the ex parte application of a sheriff, gave him advice as to how he should distribute funds raised by sale of property seized in be- half of creditors, and it was held that there could be no appeal by a creditor. See 2 Cent. Dig. tit. "Appeal and Error," § 892. In Gibson v. Martin, 8 Paige (N. Y.) 481, it was held that an ex parte order of the vice- chancellor, which was merely irregular, could be corrected on application to the vice-chan- cellor, and that therefore no appeal would lie. But in Hyslop v. Powers, 9 Paige (N. Y.) 322, an erroneous decree was held appealable, though the party did not appear to argue the CEIS6 bfilOW. 23. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 893. Forfeiture of forthcoming bond. — Writ of error will not lie to a statutory judgment upon the forfeiture of a forthcoming bond. Smiser v. Robertson, 16 Ark. 599. Compare, however, Smith v. Basinger, 12 Tex. 227. Motion to amerce a sheriff for negligence in the service of process is a motion in the cause within the meaning of Clark's Code Civ. Proc. N. C. (1900), § 547, and an appeal will lie from its refusal. Swain v. Phelps, 125 N. C. 43, 34 S. E. 110. Order to set off judgments. — In Scott v. Rivers, 1 Stew. & P. (Ala.) 24, 28, 21 Am. Dec. 646, which was an order of a court of law directing one judgment to be set off against another, the proposition of the text was adopted as the correct rule of practice, the court conceiving that "no serious injury can result from it, as the summary proceed- Vol. II 622 APPEAL AND ERROR 7. Judgments on Proceedings at Chambers or in Vacation. No appeal lies from an order made at chambers. 34 So, the finding of a judge in vacation is not a final judgment from which an appeal can be taken, 25 unless it is to be regarded as final upon stipulation of the parties to that effect. 26 8. Judgments on Submission of Controversy or Agreed Case. 27 A writ of error will not lie upon a judgment rendered on a case stated by the parties for the opin- ion of the court, there being no reservation of the right to appeal. 28 But it has ing cannot be regarded as res adjudicata which will conclude either party from the benefit of any equity to which he would other- wise have been entitled. The propriety of this rule is further sustained from the con- sideration that the power of setting one judg- ment against another is a matter more appro- priately due to chancery." See also Simson v. Hart, 14 Johns. (N. Y.) 63; Wellock v. Cowan, 16 Serg. & E. (Pa.) 318. 24. Dakota. — Bostwick v. Knight, 5 Dak. 305, 40 N. W. 344, construing Dak. Laws (1887), c. 20, § 23, subd. 5. Iowa. — Judd v. Ferguson, 39 Iowa 397, stating the rule as it was prior to Sept. 1, 1873. Nebraska. — But see, contra, Porter v. Flick, (Nebr. 1900) 84 N. W. 262, citing earlier cases, and holding that in Nebr. Code Civ. Proc, § 582, providing for review of judgments of the district court, the word " court " means not only the tribunal over which the judge presides, but the judge him- self, when exercising at chambers judicial power conferred by statute. New York. — But see Palen v. Bushnell, 68 Hun (N. Y.) 554, 22 N. Y. Suppl. 1044, 52 N. Y. St. 556, construing N. Y. Code Civ. Proc, § 2433. North Dakota. — But see, contra, Travelers' Ins. Co. v. Mayer, 2 N. D. 234, 50 N. W. 706, construing special statute. Ohio. — Atwood v. Whipple, 5 Ohio Cir. Ct. 118. Oklahoma. — Allen v. Reed, (Okla. 1900) 60 Pac. 782. South Carolina. — Carmand v. Wall, 1 Bailey (S. C.) 209. Wisconsin.— Whereatt v. Ellis, 68 Wis. 61, 30 N. W. 520, 31 N. W. 762. United States. — Lambert v. Barrett, 157 U. S. 697, 15 S. Ct. 722, 39 L. ed. 865 ; Carper v. Fitzgerald, 121 U. S. 87, 7 S. Ct. 825, 30 L. ed. 882 (where it was held that a direction of the judge that his order of discharge in habeas corpus proceedings should be reported in the circuit court, and that the other papers should be filed, did not make the order ap- pealable) ; Hentig v. Page, 102 U. S. 219, 26 L. ed. 159; In re King, 51 Fed. 434 (order denying application for writ of habeas cor- pus). England. — Dowson v. Drosophore Co., 12 Reports 138, 1 Mews Eng. Dig. tit. "Appeal," pp. 466-474. See 2 Cent. Dig. tit. "Appeal and Error," § 895 ; and supra, III, A, 2. Under Tenn. Code, § 3760, the proceedings in a habeas corpus case, including all the papers and the final order, are required to be returned to the nearest court of the trial Vol. II judge, there to become a record. Under this provision, a judgment discharging a prisoner made at chambers is appealable. Vanvabry v. Staton, 88 Tenn. 334, 12 S. W. 786. 25. Post v . Carpenter, 2 Fla. 441 ; Hook v. Bicheson, 106 111. 392 (construing 111. Eev. Stat. e. 37, § 65, providing that, if such a judgment be not set aside or modified at the next succeeding term, it shall become final) ; Marshall v. Yoos, 17 111. App. 298; James v. Fellowes, 23 La. Ann. 523 ; Abrahams v. Com., 11 Leigh (Va.) 707. Contra, see Moore v. Ferrell, 1 Ga. 6; Pinckney v. Henegan, 2 Strobh. (S. C.) 250, 49 Am. Dec. 592; Ander- son v. Matthews, (Wyo. 1889) 57 Pac. 156 (construing Wyo. Laws (1895), c. 21, §§ 1, 2, providing that district court shall be open at all times for the entry of judgments, and that judgments entered in vacation shall be of the same force as if rendered in term- time ) . Under Miss. Code (1880), §§ 151, 2608, 2309, there is a right of appeal from a judgment rendered in vacation on the trial of an issue in a case of a contested election. Perkins v. Carraway, 59 Miss. 222. 26. King v. Green, 2 Stew. (Ala.) 133, 19 Am. Dec. 46; Olney Nat. Bank v. Cope, 3 111. App. 203. 27. See supra, II, and infra, IV. 28. Com. v. Callahan, 153 Pa. St. 625, 25 Atl. 1000 ; Chase v. Miller, 41 Pa. St. 403. See 2 Cent. Dig. tit. "Appeal and Error," § 884. Agreement as for a special verdict. — Where the right to a writ of error was not reserved, the right is not preserved by a declaration in the agreement for a case stated that it shall be in the nature of a special verdict. Altoona v. Irvin, 3 Pennyp. (Pa.) 115. "The principle established is, that, when the parties have agreed that a certain judg- ment shall be rendered for either of them, according to the opinion of the judges, on a case stated, the Court of Errors cannot re- scind that agreement, and enter a different judgment. It is the same in principle as if they had agreed that judgment should be en- tered according to the opinion of any other individuals; or that it should depend on any other collateral event. When the opinion is given, or the other event happens, and the judgment is entered accordingly, it is so en- tered by the consent and agreement of the parties, in like manner as if they had in any other mode ascertained what was right and just between them, and had afterward come into court and consented to a judgment ac- cordingly." Wellington v. Stratton, 11 Mass. 394, 395, per Jackson, J. See also the follow- ing cases: APPEAL AND ERROR 623 been held that this rule does not apply where mixed questions of law and fact are presented, if the court is called upon to decide questions of law, or where ques- tions of law arise necessarily out of the facts and are distinctly presented to the court, the decision of which questions must control the determination of the merits of the cause. 29 9 Judgments on Trial of Issues. When questions of law arising upon the facts are decided by the court without a jury, and fire raised in the proper mode, they will be considered on appeal ; but on such appeal the facts will be considered only so far as is necessary to understand and apply the law. 30 The fact that an issue has been awarded and the verdict of a jury rendered in a cause upon which the decree of a court of equity is based does not take away or limit the control of the appellate court over the decree. 31 By statute, in some states, an appeal lies upon the judgment in certain actions wherein any issue has been joined. 32 The finding of an issue of fact by the court upon the evidence, either with or without the con- Delaware. — Elliott v. Montell, 7 Houst. (Del.) 194, 30 Atl. 854. Georgia. — Harrington v. Harrington, 15 Ga. 561. Massachusetts. — Johnson v. Shed, 21 Pick. (Mass.) 225. New Jersey. — Pray v. Jersey City, 33 N. J. L. 506. Pennsylvania. — Gwynn v. O'Hern, 72 Pa. St. 29 ; Hughes v. Peaslee, 50 Pa. St. 257. Tennessee. — Compare, however, Memphis Freight Co. v. Memphis, 3 Coldw. (Tenn.) 249. Wisconsin. — Walworth County Bank v. Farmers' L. & T. Co., 22 Wis. 231. See 2 Cent. Dig. tit. "Appeal and Error," § 884. A change in the constitution of the court by legislative enactment, between the time of agreement to submit the case to the decision of the court and the time of argument, will not operate to invalidate the agreement where no application is made for the modification of it. Galbreath v. Colt, 4 Yeates (Pa.) 551. The United States supreme court will, how- ever, review a judgment rendered in a ease submitted to a state court under a statutory provision by voluntary agreement of the parties, without any compulsory proceeding of any kind against defendant. Aldrich v. ^Etna Ins. Co., 8 Wall. (TJ. S.) 491, 19 L. ed. 473. 29. Arkansas. — Johnson v. Reed, 8 Ark. 202 [distinguishing Campbell v. Thurston, 6 Ark. 441] ; Real Estate Bank v. Rawdon, 5 Ark. 558. In these cases the court was required to decide the law arising upon facts admitted, and there was said to be no possible distinc- tion between facts established to be true by the special finding of the jury, or facts ad- mitted to be true upon an agreed case. Florida.— Holbrook v. Allen, 4 Fla. 87, 101. Maine. — Warren v. Coombs, 44 Me. 88; Mason v. Currier, 43 Me. 355. A submission to the judge to determine the controversy waives objections interposed during the trial to the competencv of evidence. Exceptions in such a case do not lie to rulings ot the judge In matters of law any more than to his con- clusions in those of fact. Hersey v. Verrill, 39 Me. 271 [distinquishing Ministerial, etc., Fund v. Reed, 39 Me. 41, where the right to except was reserved]. See also Roxbury v. Huston, 37 Me. 42. Massachusetts. — By Mass. Gen. Stat. c. 114, § 10, an appeal niay be taken from a judg- ment rendered by the superior court on an agreed statement of facts, if no inference of facts is to be drawn by the court in order to render judgment on the case stated. Com. v. Cutter, 95 Mass. 393 [distinguishing Coch- rane v. Boston, 1 Allen (Mass.) 480, a case where the appeal was dismissed]. See also Furlong v. Leary, 8 Cush. (Mass.) 409; Hovey v. Crane, 10 Pick. (Mass.) 440. In Hutchinson v. Tucker, 121 Mass. 402, it was held that no appeal would lie from judgment entered on an auditor's report, submitted to the court, but not agreed on as a statement of facts. Ohio. — Franklin Bank v. Buckingham, 12 Ohio 482; Mason v. Embree, 5 Ohio 277. Vermont. — Noble v. Jewett, 2 D. Chipm. (Vt.) 36. See 2 Cent. Dig. tit. " Appeal and Error," § 884. Compare, however, Brown v. Galesburg Pressed Brick, etc., Co., 32 111. App. 650; Prince v. Dulin, 32 111. App. 118; Washing- ton v. McGee, 3 Dana (Ky.) 445; U. S. v. Eliason, 16 Pet. (U. S.) 291, 10 L. ed. 968. Consent of one party only. — If the court takes the case as on » submission when only one party consents, an appeal will lie from the judgment rendered. Mills v. Noles, 1 Ohio 534. 30. Tinges v. Moale, 25 Md. 480, 90 Am. Dec. 73, construing Md. Const. (1864), art. 4, § 6. See 2 Cent. Dig. tit. "Appeal and Error,'' § 897. 31. The office of a jury in a court of equity is not, as in a court of law, to definitely and finally settle questions of fact, but simply to inform the conscience of the chancellor where he has doubt. Freeman v. Staats, 9 N. J. Eq. 816. 32. Richards v. Allen, 8 Pick. (Mass.) 405, holding that in trust e process the trustee's denial of plaintiff's allegation that there are goods deposited with the trustee constitutes an issue within the meaning of Mass. Stat. (1820), c. 79, § 4. Vol. II 624 APPEAL AND ERROR sent of parties, was a proceeding unknown at the common law, and, in the absence of statute authorizing that mode of proceeding, no exception can be taken to any admission or rejection of testimony, or upon any other question of law which may grow out of the evidence where no jury is impaneled. 38 10. Order for Judgment. An order for judgment is not a final judgment from which an appeal can be taken. 34 But an appeal from an order for judgment, instead of from a judgment, will not be dismissed if such order contains all the effective words of a judgment. 85 11. Pro Forma Judgment. A judgment or decree entered pro forma, with the consent of the parties, is not such a final judgment or decree as will support an appeal or writ of error. 86 33. Wear v. Mayer, 2 McCrary (U. S.) 172, 6 Fed. 658. For the practice in the federal courts see Stringfellow v. Cain, 99 U. S. 610, 25 L. ed. 421; Cannon v. Pratt, 99 U. S. 619, 25 L. ed. 446 — both of these eases construing 18 U. S. Stat, at L. p. 27; Merrill v. Floyd, 53 Fed. 172, 5 U. S. App. 224, 3 C. C. A 494, constru- ing U. S. Rev. Stat. (1878), §§ 649, 700; Doty v. Jewett, 19 Fed. 337, construing U. S. Eev. Stat. (1878), § 566. 34. Alabama. — Morgan v. Flexner, 105 Ala. 356, 16 So. 716. California. — Harris v. San Francisco Sugar Refining Co., 41 Cal. 393, an order confirming the report of a referee, and ordering the judg- ment for plaintiff. Florida. — Gates v. Hayner, 22 Fla. 325, an entry upon a demurrer to a declaration, de- murrer being sustained. Idaho. — Hodgins v. Harris, (Ida. 1895) 43 Pac. 72 (an order written at the end of conclusions of law, directing the manner of distributing proceeds of sale in a foreclosure proceeding) ; Ah Kle v. McLean, 2 Ida. 812, 26 Pac. 937 (construing Ida. Eev. Stat., § 4807). Minnesota. — State v. Bechdel, 38 Minn. 278, 37 N. W. 338; Shepard v. Pettit, 30 Minn. 119, 14 N. W. 511 (an order denying a motion to modify a conclusion of law) ; Hodgins v. Heaney, 15 Minn. 185 (constru- ing Minn. Gen. Stat. (1866), c. 86, §§ 3-6, the court saying that the time within which an appeal can be taken begins to run from the date of the entry of judgment). Compare Ker- nan v. St. Paul City R. Co., 64 Minn. 312, 67 N. W. 71, construing Minn. Laws (1895), u. 320. .Nebraska. — Stone v. Neeley, 34 Nebr. 81, 51 N. W. 314. New York. — Kilmer v. Bradley, 80 N. Y. 630; Clarke v. Brooks, 1 Abb. Dec. (N. Y.) 355 ; Curtis v. Barker, 24 N. Y. App. Div. 71, 48 N. Y. Suppl. 934; Unckles v. Hentz, 19 N. Y. App. Div. 165, 45 N. Y. Suppl. 894 [affirming 18 Misc. (N. Y.) 644, 43 N. Y. Suppl. 749] ; Keene v. Tribune Assoc, 76 Hun (N. Y.) 488, 27 N. Y. Suppl. 1045, 58 N. Y. St. 484; Stokes v. Stokes, 76 Hun (N. Y.) 314, 28 N. Y. Suppl. 165, 59 N. Y. St. 187; Pasternaker v. Weiss, 29 Misc. (N. Y.) 314, 60 N. Y. Suppl. 494; Waltenberg v. Bernhard, 27 Misc. (N. Y.) 794, 58 N. Y. Suppl. 325 [dismissing appeal from 26 Misc. (N. Y.) 659, 56 N. Y. Suppl. 396]. Vol. II North Carolina. — Dunns v. Batchelor, 20 N. C. 52, where the entry was " The defend- ant is entitled to a credit to be ascertained by M. Ferrall and J. H. Simmons, and the clerk is then authorized to enter a remittitur, judgment of the Court accordingly and for costs." Wisconsin. — Dean v. Williams, 2 Pinn. (Wis.) 91, 1 Chandl. (Wis.) 22. See 2 Cent. Dig. tit. "Appeal and Error," § 897. 35. Spehn r. Huebschan, 83 Wis. 313, 53 N. W. 550. See also New Orleans, etc., E. Co. v. Morgan, 10 Wall. (U. S.) 256, 19 L. ed. 892, a peculiar form of judgment held to be appropriate to the form of the process adopted in Louisiana, where the case arose. 36. Alabama. — Stone v. Lewin, 8 Ala. 395. Florida. — Darden v. Lines, 2 Fla. 569. Illinois. — Moody v. Peake, 13 111. 343. Maine. — Milliken v. Morey, 85 Me. 340, 27 Atl. 188. New York. — Wing v. New York, etc., E. Co., 1 Hilt. (N. Y.) 235; Gridley v. Daggett, Code Rep. N. S. (N. Y.) 386, 6 How. Pr. (N. Y.) 280. North Carolina. — Hines v. Hines, 84 N. C. 122. Pennsylvania. — Kerr v. Pittsburgh, 11 Serg. & E. (Pa.) 359; West's Appeal, 3 Serg. & E. (Pa.) 92. Tennessee. — Read v. Robb, 4 Yerg. (Tenn.) 66. Washington. — McMullen v. McGilvrey, 1 Wash. Terr. 513. See 2 Cent. Dig. tit. "Appeal and Error," § 896; and infra, TV, B, 2, c, d. But where points may be reserved for con- sideration of the appellate court' on questions of law, pro forma rulings are sufficient to take the ease up. Andrews v. King, 77 Me. 224. See infra, V, B, 4. Allowing pro forma affirmances to expedite an appeal has not met with approval, such affirmances having been allowed only in ex- treme eases — never where explanation and argument are required. Ward v. Ward, 21 N. Y. Suppl. 795. In cases of great importance, however, ap- peals have been allowed in the discretion of the court. Police Jury f. McDonogh, 8 La. Ann. 341. See also the remarks of Taney, C. J., in U. S. v. Stone, 14 Pet. (U. S.) 524, 10 L. ed. 572. APPEAL AND ERROR 625 12. The Entry of Judgment. In order that a judgment may be reviewed by an appellate court it must be entered in permanent form as a record of the court. 37 The entry must be intended as an entry of judgment. 38 A docket memoran- dum of the judge, intended to operate merely as a direction to the clerk as to what judgment should be entered, will not support an appeal. 89 An errone- ous entry by the clerk is not sufficient. 40 And an entry amounting to a mere memorandum or recital by the clerk, and not showing a consideration and judg- ment by the court, does not present anything for review." An indorsement 37. Alabama. — Pickering i. Townsend, 118 Ala. 351, 23 So. 703. California.— Matter of Sheid, 122 Cal. 528, 55 Pac. 328; Matter of Pearson, 119 Cal. 27, 50 Pac. 929. Colorado. — But see Corning v. Ryan, 3 Colo. 525, construing Colo. Rev. Stat. § 134. Illinois. — Metzger v. Morley, 184 111/81, 56 N. E. 299 [affirming 83 111. App. 113]. Michigan. — People v. McCutcheon, 40 Mich. 244. Nevada. — But see, contra, in this state, where it is held that judgment is as final when pronounced by the court as when it is entered and recorded by the clerk, as required by statute. Kehoe v. Blethen, 10 Nev. 445; California State Tel. Co. v. Patterson, 1 Nev. 150. New York. — Daniels v. Southard, 36 N. Y. App. Div. 540, 55 N. Y. Suppl. 692, constru- ing N. Y. Code Civ. Proc. § 1304. North Dakota. — McTavish r. Great North- ern R. Co., 8 N. D. 333, 79 N. W. 443. Pennsylvania. — Dorscheimer's Estate, 9 Pa. Super. Ct. 422. South Dakota. — McCarthy v. Speed, 12 S. D. 7, 80 N. W. 135, 50 L. R. A. 184, 190; Martin v. Smith, 11 S. D. 437, 78 N. W. 1001; McCormick Harvesting Maeh. Co. v. Woulph, 11 S. D. 252, 76 N. W. 939; Sinkling v. Illi- nois Cent. R. Co., 10 S. D. 560, 74 N. W. 1029; Coburn v. Brown County, 10 S. D. 552, 74 N. W. 1026 ; Chamberlain v. Hedger, 10 S. D. 290, 73 N. W. 75 ; State r. Lamm, 9 S. D. 418, 69 N. W. 592. See 2 Cent. Dig. tit. " Appeal and Error," § 898; and, generally, Judgments. Failure to include costs. — An order for the dismissal of a complaint, with costs to be taxed, signed by the judge and entered by the clerk, leaves nothing further to be done to finally dispose of the action, and is a final ap- pealable judgment though the costs be not taxed and inserted therein. Prescott, etc., R. Co. v. Atchison, etc., R. Co., 84 Fed. 213, 51 U. S. App. 599, 28 C. C. A. 481. Necessity for entry of judgment in an inter- mediate court. — An appeal to the court of ap- peals, from an order of the general term affirming the judgment of the trial court, is not authorized, such an order being simply an authority for the entry of the judgment of af- firmance. Derleth v. De Graff, 104 N. Y. 661, 10 N. E. 351; Kilmer v. Bradley, 80 N. Y. 630; McGregor v. McGregor, 32 N. Y. 479. Objection to entry, by one of two judges. — There being a division of opinion on a motion for judgment, one of two judges directed that judgment be entered, and the other objected [40] to the entry. The judgment was entered, and was held sufficient to support a writ of error. Cahill v. Benn, 6 Binn. (Pa.) 99. Ruling on demurrer. — Error will lie to a ruling sustaining a demurrer to a petition on the ground that it does not state facts suffi- cient to constitute a cause of action, though the record fails to show that a final judgment for costs was entered. Williamson v. Kansas, etc., Coal Co., 6 Kan. App. 443, 50 Pac. 106. 38. Stevens v. Solid Muldoon Printing Co., 7 Colo. 86, 1 Pac. 904 (where the record re- cited that the action was dismissed at the plaintiff's cost) ; Alvord v. McGaughey, 5 Colo. 244. What constitutes entry. — On the considera- tion of the question as to when the time al- lowed within which to perfect an appeal be- gins to run, the following rulings have been made as to when a judgment is to be consid- ered entered: California. — When it is "entered at length in the minute-book of the court." Matter of Pearson, 119 Cal. 27, 50 Pac. 929. construing Cal. Code Civ. Proc. §§ 1704, 1715. New York. — When it is left with the clerk to be copied into the records. Gay v. Gay, 10 Paige (N. Y.) 369. Ohio. — At the date of filing in accordance with a direction to counsel to prepare and file a decree on lines stated, and not at the time of such announcement and direction. State v. Seward, 16 Ohio Cir. Ct. 443, 9 Ohio Cir. Dec. 168. Texas. — When it is entered on the minutes of the court. New Birmingham Iron, etc., Co. v. Blevens, 12 Tex. Civ. App. 410, 34 S. W. 828. Wisconsin. — When it is entered in brief on the minute-book of the clerk, though not re- corded at length upon the order-book. Uren v. Walsh, 57 Wis. 98, 14 N. W. 902, constru- ing Wis. Rev. Stat. § 3042. 39. Morgan v. Flexner, 105 Ala. 356, 16 So. 716. 40. The appellate court cannot be com- pelled to decide an appeal from a judgment never rendered. The error must be corrected in the lower court. Kindel v. Beck, etc., Lithographing Co., 19 Colo. 310, 35 Pac. 538, 24 L. R. A. 311 ; Campbell v. Adams, 38 Barb. (N. Y.) 132. A judgment " is what is considered and or- dered by the court; and not necessarily what is entered by the clerk." Gaynor v. Clements, 16 Colo. 209, 26 Pac. 324. 41. Tennessee Coal, etc., Co. V. Hansford, 125 Ala. 349, 28 So. 45 (an entry that " where- upon the demurrers to the complaint are by Vol. II 626 APPEAL AND ERROR to the effect that a motion is granted, coupled with the direction that judgment should be entered accordingly without further entry, is not a final judgment from which an appeal can be taken. 42 But a slight informality in the entry of the judgment will not prevent a review by the appellate court. 43 IV. RIGHT OF REVIEW. 44 A. Persons Entitled — 1. General Principles — a. Appellant's Connection With Aetion Below — (i) Must Have Been a Party or Privy. According to the established practice, no one can appeal from a judgment or decree, or bring a writ of error to review it, unless he was a party to the action below, or was made so either by an express order of the court to that effect, or by being treated as such, or unless he is a legal representative of a party, or his privity of estate, title, or interest appears from the record. 45 the court heard and overruled " ) ; Blanken- ship v. Owens, (Ala. 1900) 27 So. 974, (a recital that plaintiff demurred to defendant's special plea, and the court overruled the de- murrer ) . And to the same effect see Metzger v. Morley, 184 111. 81, 56 N. E. 299 [affirming 83 111. App. 113], where this recital appeared, on the record: "And judgment on the verdict for $1,521.09." Discussing such a recital, the court, in Martin v. Barnhardt, 39 111. 9, 13, said : " It does not state, by implication even, that it was found, ordered, considered or ad- judged by the court that the one or the other party should have or recover anything of the other. It does not state by whose or by what authority a judgment was rendered. It fails to state in whose favor or against whom it was rendered, nor does it even award exe- cution." 42. Sedgwick v. Dawkins, 17 Fla. 811; Whitaker e. Desfosse, 7 Bosw. (N. Y.) 678; Com. v. Mitchell, 80 Pa. St. 57; Thornton v. Eaton, 45 Wis. 621, where a jury was waived and direction was given that judgment be en- tered in accordance with the finding of the court. An order directing entry of judgment on a verdict is not appealable. Delaware, etc., R. Co. v. Burkard, 109 N. Y. 648, 16 N. E. 550, 15 N. Y. St. 517. Indorsement by judge. — In Schlesinger r. Allen, 69 111. App. 137, however, it was held that an order that an injunction should issue, indorsed on the back of the bill, would sup- port the appeal, though no further order was entered by the clerk. 43. ^Etua Ins. Co. v. Swift, 12 Minn. 437 (where there was a failure to insert in the judgment that defendant go without day) ; Moody v. Deutseh, 85 Mo. 237, 244 (where the entry was as follows : " It is, therefore, or- dered and adjudged by the court that this cause be dismissed, and that defendants re- cover of plaintiff, W. B. Moody, all costs ac- crued herein, and have thereof execution " ) ; Rogers v. Gosnell, 51 Mo. 466 (where the judgment was " that defendant go hence, and that he recover his costs " ) ; New Orleans, etc., R. Co. v. Morgan, 10 Wall. (U. S.) 256, 19 L. ed. 892 (where it was said that there " must be some variation from the form of a judgment as at common law to render it ap- Vol. II propriate to the form of the process adopted " in the federal courts in Louisiana ) . 44. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 899 et seq. As to parties on appeal see infra, VI. 45. Alabama. — McNeill v. Kyle, 86 Ala. 338, 5 So. 461 ; Hunt v. Houtz, 62 Ala. 36. Arkansas. — Austin v. Crawford County, 30 Ark. 578. Compare, however, Cleburne County v. Morton, (Ark. 1900) 60 S. W. 307; Ouachita County v. Rolland, 60 Ark. 516, 31 S. W. 144 — decided under Sandels & H. Dig. Ark. (1894), § 1270. California. — Norton v. Walsh, 94 Cal. 564, 29 Pac. 1109; Dunphy ©. Potrero Co., (Cal. 1884) 4 Pac. 1171. Colorado. — Fischer #. Hanna, 21 Colo. 9, 39 Pac. 420; Eyster v. Gaff, 2 Colo. 225. Florida. — Hamberg v. Liverpool, etc., Ins. Co., (Fla. 1900) 27 So. 872; Fensacola v. Reese, 20 Fla. 437. Georgia. — Swift v. Thomas, 101 Ga. 89, 28 S. E. 618 ; Pilotage Com'rs v. Tabbott, 72 Ga. 89; Townsend v. Davis, 1 Ga. 495, 44 Am. Dec. 675. Illinois. — Matter of Sturms, 25 111. 390; Harwood v. Cox, 26 111. App. 374. Iowa. — Ferguson v. Lucas County, 44 Iowa 701 ; State v. Jones, 11 Iowa 11. Kentucky. — Rout v. Mountjoy, 3 B. Mon. (Ky.) 300; Stevens v. Stevens, 2 Dana (Ky.) 428. Maine. — Reed v. Cumberland, etc., Canal Corp., 65 Me. 53 ; Merrill v. Suffolk Bank, 81 Me. 57, 50 Am. Dec. 649. Maryland. — McKim v. Mason, 3 Md. Ch. 186. Minnesota. — Hollinshead v. Banning, 4 Minn. 116. Mississippi. — Starling v. Flash, (Miss. 1894> 16 So. 875; Beazley v. Prentiss, 13 Sm. & M. (Miss.) 97. Compare Flournoy v. Smith, 3 How. (Miss.) 62. Missouri. — Thompson v. Northcott, 1 Mo. 224. Nebraska. — Burlington, etc., R. Co. 0. Martin, 27 Nebr. 56, 66 N. W. 15. Nevada. — Virgin v. Brubaker, 4 Nev. 31. New Hampshire. — Foss v. Lord, 59 N. H. 529. New York. — People v. Railroad Com'rs, 160 X. Y. 202, 54 N. E. 697 [affirming 40 N. Y. APPEAL AND ERROR 627 (n) Statutes Extending Relief. In some states statutes expressly confer the right of appeal upon " every person aggrieved by any final judgment or decree m any civil cause." * In other states the statutes confer this right of appeal, by persons other than parties to the action, only from an order, sentence, decree, or denial of a judge of probate or orphan's court. 47 App. Div. 559, 58 N. Y. Suppl. 94] ; People v. Sanborn, 46 N. Y. App. Div. 630, 61 N. Y. Suppl. 529 ; Matter of Griscom, 28 N. Y. App. Div. 72, 50 ST. Y. Suppl. 893; Overseers of Poor v. Beedle, 1 Barb. (N. Y.) 11; Sheffield Farms Co. v. Burr, 13 Misc. (N. Y.) 51, 34 N. Y. Suppl. 74, 68 N. Y. St. 29; Martin v. Kanouse, 2 Abb. Pr. (N. Y.) 390. North Carolina. — Parks v. Adams, 113 N. O. 473, 18 S. E. 665 ; Lowery v. Lowery, 64 N. 0. 110; Clark's Code Civ. Proc. N. C. (1900), p. 733, and eases there cited. Ohio. — Eeid v. Quigley, 16 Ohio 445. South Carolina. — Elkin v. Gregory, 30 S. C, 422, 9 S. E. 335; Witte v. Clarke, 17 S. C. 313. Texas. — Stephenson v. Texas, etc., B. Co., 42 Tex. 162; Wood v. Yarbrough, 41 Tex. 540. Virginia. — Wingfield v. Crenshaw, 3 Hen. &M. (Va.) 245. Washington. — Nicol v. Skagit Boom Co., 12 Wash. 230, 40 Pae. 984. Wisconsin. — State v. Milwaukee, 90 Wis. 487, 63 N. W. 751; McCarty v. Ashland County, 61 Wis. 1, 20 N. W. 654; White v. Sherry, 37 Wis. 225. United States. — Hunt v. Oliver, 109 U. S. 177, 3 S. Ct. 114, 27 L. ed. 897; Indiana Southern E. Co. v. Liverpool, etc., Ins. Co., 109 U. S. 168, 3 S. Ct. 108, 27 L. ed. 895; J. H. v. Cockcroft, 104 TJ. S. 578, 26 L. ed. 856; Buel v. Farmers' L. & T. Co., 104 Fed. 839. England. — 2 Bacon Abr. 195; 2 Saund. 46a, note 6. See 2 Cent. Dig. tit. "Appeal and Error," § 903 et seq. A stranger to a garnishee proceeding cannot sue out a writ of error in the name of the garnishee defendant. Borgalthous v. Farm- ers', etc., Ins. Co., 36 Iowa 250; Hollinshead v. Banning, 4 Minn. 116. Appeal from order granting writ of assist- ance. — One who is not a, party to the record cannot appeal from an order granting a writ of assistance. Such person must move to va- cate the order granting the writ, and in that way place himself on the record, and then, if the motion is denied, appeal from the order denying his motion; or, if the writ is exe- cuted, move to be restored to the possession, and if the motion be denied, take his appeal. People v. Grant, 45 Cal. 97. Appellant of same name as defendant. — One not served with process, nor made a party, cannot appeal therefrom, although of the same name as the person sued. Eorke v. Gold- stein, 86 111. 568. Becoming party after final judgment.— One who was not a party to a suit will not be permitted, after final judgment rendered, to come in and prosecute an appeal. Johnson v. Williams, 28 Ark. 478; Shabanaw ». C. C. Thompson, etc., Co., 80 Wis. 621, 50 N. W. 781. Persons for use not named. — In an action brought by A for the use of B and others not, named, the persons not named are not enti- tled to appeal. Union Nat. Bank v. Barth, 179 111. 83, 53 N. E. 615 [affirming 74 111. App. 383] ; Yarish v. Cedar Eapids, etc., R.. Co., 72 Iowa 556, 34 N. W. 417; Fleming v. Mershon, 36 Iowa 413. Privies, by law having an interest in the judgment or in the property affected by it,, may bring error. Shirley v. Lunenburg, 11 Mass. 379 ; Porter v. Eummery, 10 Mass. 64. 46. It is obvious that in jurisdictions where such statutes exist it is not essential that ap- pellant should be a party of record to the liti- gation in which the judgment is rendered, or privy thereto; it is sufficient if he be ag- grieved thereby. Weer v. Gand, 88 111. 490 (construing 111. Eev. Stat. (1874), c. 3, § 123) ; Henkleman v. Peterson, 40 111. App. 540; Nolan v. Johns, 108 Mo. 431, 18 S. W. 1107 (construing Mo. Eev. Stat. (1879), § 3710) ; Clark's Code Civ. Proc. N. C. (1900), § 547. See infra, IV, A, 1, c, (v). The Maryland act of 1864, c. 156, allowing an appeal from a final decree, or order in the nature of a final decree, passed by a court of equity, by a party to the suit, with or with- out the assent or joinder of co-plaintiffs or co-defendants in such appeal, was designed to extend and not to limit the right of appeal, and cannot be construed as restricting that right in all cases to such persons only as are technical parties to the suit. Hall v. Jack, 32 Md. 253. Under the Louisiana code, any person, whether a party or stranger to the cause, may appeal from a final judgment if he alleges that he is aggrieved thereby, and from an inter- locutory judgment when such judgment may cause him an irreparable injury, provided the amount or value in dispute is sufficient, and the party is not debarred by his own act from taking an appeal. Mutual L. Ins. Co. v. Houchins, 52 La. Ann. 1137, 27 So. 657; Bland v. Edwards, 52 La. Ann. 8£2, 27 So. 289; Fortier's Succession, 51 La. Ann. 1562, 26 So. 554; Dufossat v. Fontenot, 49 La. Ann. 898, 22- So. 46 ; Cooley v. Cooley, 38 La. Ann. 195; State v. Brown, 29 La. Ann. 861 (public officer); Keys v. Eiley, 12 La. Ann. 19 (attaching creditors) ; Vignie v. Blache, 5 La. 108 (one injured by injunction). But one against whom the judgment cannot have the force of res judicata has no right to appeal therefrom (Sue v. Viola, 2 La. Ann. 986). Where borough limits are changed by annex- ing new territory, under the Pennsylvania act of April 30, 1851, any person affected may ap- peal to the court. In re Edwardsville, 8 Kulp (Pa.) 339. 47. Maine.— Briard v. Goodale, 86 Me. 100. 29 Atl. 946, 41 Am. St. Rep. 526 (construing Vol. II 628 APPEAL AND ERROR b. Appellant Must Have Interest in Suit — (i) In General. A second requisite of a valid appeal is that appellant should have an interest in the subject- matter of the suit. If he has not such interest his appeal will be dismissed. 48 Me. Eev. Stat. c. 63, § 23 ) ; Veazie Bank v. Young, 53 Me. 555 ; Deering v. Adams, 34 Me. 41; Sturtevant v. Tallman, 27 Me. 78. Maryland.— Cecil v. Cecil, 19 Md. 72, 81 Am. Dee. 626; Stevenson v. Schriver, 9 Gill & J. (Md.) 324. Massachusetts. — Farrar r. Parker, 3 Allen (Mass.) 556; Penniman v. French, 2 Mass. 140. New Hampshire. — Shirley v. Healds, 34 N. H. 407; Bryant v. Allen, 6 N. H. 116. Pennsylvania. — Garber v. Com., 7 Pa. St. 265. Under Minn. Gen. Stat. (1878), c. 49, § 14, a party who has not appeared in the probate court can only appeal when he " had not due notice or opportunity to be heard." It has been held that " opportunity " as here used means such opportunity as the party is en- titled to by law. Hence the mere fact that no- tice, duly served by publication, did not con- vey actual notice to a party does not amount to a want of opportunity within the meaning of the statute. Matter of Hause, 32 Minn. 155, 19 N. W. 973. On appeal to the district court by two contestants, A and B, from a judgment of a probate court admitting a will to probate, the appeal was dismissed as to A, but prosecuted to judgment in the district court by the contestant B. It was held that A was not a party to the judgment and had no right tQ appeal therefrom. Matter of Al- len, 25 Minn. 39. 48. California. — Matter of Blythe, 108 Cal. 124, 41 Pac. 33; Speyer v. Ihmels, 21 Cal. 280, 81 Am. Dec. 157. Connecticut. — Yudkin v. Gates, 60 Conn. 426, 22 Atl. 776; Ailing v. Shelton, 16 Conn. 436. District of Columbia. — Washington Brick Co. v. Belt, 13 App. Cas. (D. C.) 202. Georgia. — Braswell v. Equitable Mortg. Co., 110 Ga. 30, 35 S. E. 322. Illinois. — Winne v. People, 177 111. 268, 52 N. E. 377; Douglas v. Soutter, 52 111. 154; Coe v. Simmons Boot, etc., Co., 61 111. App. •602. Indiana. — See Tipton County v. Pershing, 22 Ind. App. 147, 53 N. E. 297. Kentucky. — Whaley v. Com., (Ky. 1901) ■61 S. W. 35; Mullins v. Bullock, 14 Ky. L. Rep. 40, 19 S. W. 8. Louisiana. — Guilbeau v. Detiege, 32 La. Ann. 909 ; State v. Jackson, 28 La. Ann. 30 ; State v. Markey, 21 La. Ann. 743; Arrow- smith v. Rappelge, 19 La. Ann. 327 ; Lafitte v. Duncan, 4 Mart. N. S. (La.) 622. Maryland. — Glenn v. Reid, 74 Md. 238, 24 Atl. 155; Stewart v. Codd, 58 Md. 86. Massachusetts. — Lewis v. Bolitho, 6 Gray (Mass.) 137; Northampton v. Smith, 11 Mete (Mass.) 390. Minnesota. — Burns v. Phinney, 53 Minn 431, 55 N. W. 540. Mississippi. — Dougherty v. Compton, 3 Sm .& M. (Miss.) 100. Vol. II Missouri. — Kinealy v. Maeklin, 67 Mo. 95. Nebraska. — Plattsmouth First Nat. Bank v. Gibson, (Nebr. 1900) 84 N. W. 259. Nevada. — Sherman v. Clark, 4 Nev. 138, 97 Am. Dec. 516. New York. — Bush v. Rochester City Bank, 48 N. Y. 659 ; Matter of New York, 52 N. Y. App. Div. 478, 65 N. Y. Suppl. 77. North Carolina. — Faison v. Hardy, 118 N. C. 142, 23 S. E. 959. Pennsylvania. — Lawrence County's Appeal, 67 Pa. St. 87. South Carolina. — Ex p. Neal Loan, etc., Co., 58 S. C. 269, 36 S. E. 584; Emory v. Davis, 4 Rich. (S. C.) 23. Virginia. — Eican -v. Lancasterian School, 2 Patt. & H. (Va.) 53. Washington. — Kitsap County v. Carson, 1 Wash. Terr. 419. Wisconsin. — McGregor v. Pearson, 51 Wis. 122, 8 N. W. 101 ; State v. Wolfrom, 25 Wis. 468; Strong v. Winslow, 3 Pinn. (Wis.) 27, 3 Chandl. (Wis.) 21. United States. — Savannah v. Jesup, 106 U. S. 563, 1 S. Ct. 512, 27 L. ed. 276; Bayard v. Lombard, 9 How. (U. S.) 530, 13 L. ed. 245. New Orleans v. Peake, 52 Fed. 74, 2 U. S. App. 403, 2 C. C. A. 626. See 2 Cent. Dig. tit. "Appeal and Error," § 934 et seq.; and infra, XIV, B, E, 8. As to necessity of actual controversy to give jurisdiction on appeal see supra, II, A. A party who is a mere stake-holder, liable for the payment of the money which he is ordered to bring into court for distribution, cannot be heard, on appeal, to object to the passage of the order, which, although passed unnecessarily or irregularly, in no manner af-' fected his rights. Hall v. Jack, 32 Md. 253; Craig's Appeal, 38 Pa. St. 330. In a controversy for office under the intru- sion act, a third party, not holding or claim- ing the office in dispute, cannot appeal from the judgment of the court a qua. State v. Mount, 21 La. Ann. 755. The fact that the party is interested in a representative capacity only — as an officer suing to recover public money, or an executor suing for assets — and not in his own right, does not deprive him of the right to appeal. State v. Judge, 22 La. Ann. 119. / Whether an appellant has such an interest in the estate as entitles him to appeal from a decree allowing the probate of a will is ordinarily a question for the court. Morey v. Sohier, 63 N. H. 507, 3 Atl. 636, 56 Am. Rep. 538. On writ of error to the circuit court, to review the decision of the probate court in the probate of a will, the circuit court will look into the will to determine whether plain- tiff in error was so interested as to entitle him to prosecute the writ. Tibbatts v. Berry, 10 B. Mon. (Ky.) 473. Objection, when to be taken.— An objection, that appellants from a judgment settling an administrator's account have no interest in APPEAL AND ERROR 629 (n) Nature of Interest — (a) In General. The appellant's interest, to suffice, must be an immediate pecuniary interest in the particular cause. 49 (b) Decree for Costs. A party against whom a judgment or decree for costs has been taken has such an interest in the suit as entitles him to appeal. 60 (m) Defendant as to Whom Suit Has Been Dismissed. A defendant asto whom a suit has been dismissed or demurrer sustained cannot appeal, or join in an appeal, from a judgment or decree subsequently rendered against his co-defendant. 51 the estate, cannot be raised by an objection by appellee to the introduction of evidence in the appellate court. In re Swan, 54 Mo. App. 17. Who are interested parties. — The rule al- lowing interested parties to appeal has been applied to mortgagee required by decree to take a certain sum and release his mortgage (White v. Hampton, 13 Iowa 259), legatee under a will (King v. Middlesborough Town, etc., Co., 20 Ky. L. Rep. 1859, 50 S. W. 37; Warehime v. Graf, 83 Md. 98, 34 Atl. 364), representatives of an insolvent assignor (Ken- ton Ins. Co. v. First Nat. Bank, 93 Ky. 129, 14 Ky. L. Rep. 32, 19 S. W. 185), disinter- ested person required by order to produce his private books for inspection (Marion Nat. Bank v. Abell, 88 Ky. 428, 10 Ky. L. Rep. 980, 11 S. W. 300), fraudulent grantee of real estate (Allen v. Smith, 80 Me. 486, 15 Atl. 62), representatives of a lunatic (Moore v. White, 4 Harr. & J. (Md.) 548), state revenue agent in proceedings for the collec- tion of back taxes (Adams v. Kuhn, 72 Miss. 276, 16 So. 598 ) , owner of the reversion in land authorized to be sold by the decree of a judge of probate (Tilton v. Til ton, 41 N. H. 479), committee of lunatic {In re Ol- son, 10 S. D. 648, 75 N. W. 203), guardian (Orr v. Wright, (Tex. Civ. App. 1898) 45 S. W. 629 ) , claimant of the informer's share in a forfeiture (Wheaton v. U. S., 8 Blatehf. (U. S.) 474, 29 Fed. Cas. No. 17,487), and a manufacturer under an infringing patent (Andrews v. Thum, 64 Fed. 149, 21 TJ. S. App. 459, 12 C. C. A. 77). 49. It is not sufficient that he be interested in the question litigated, or that, by the de- termination of the question litigated, he may be a party in interest to some other suit grow- ing out of the decision of that question. State v. Markey, 21 La. Ann. 743; Raleigh v. Rog- ers, 25 N. J. Eq. 506; Swaekhamer v. Kline, 25 N. J. Eq. 503; Morris v. Garrison, 27 Pa. St. 226; Elcan v. Laneasterian School, 2 Patt. & H. (Va.) 53. See also Zumwalt v. Zumwalt, 3 Mo. 269. See 2 Cent. Dig. tit. "Appeal and Error," § 934. Indirect interest. — A sheriff convicted of selling lottery tickets cannot appeal on the ground of danger of being suspended from his office. State v. Houston, 30 La. Ann. 1174. So, an allegation that plaintiffs' official juris- diction is decreased as supervisors of a town does not give them any interest in a proceed- ing to divide the township, and set off a new town. Winne v. People, 177 111. 268, 52 N. E. 377. Nor has a servant of a, corporation any appealable interest in the matter of the ap- pointment of a receiver therefor, because of being in possession of its property as such servant, or because his salary may be cut by the receiver. McFarland v. Pierce, 151 Ind. 546, 45 N. E. 706,47 N. E. 1. Substantial interest. — A sole defendant, in an action for personal injuries, has such in- terest in an order bringing in a new defend- ant and directing service of a supplemental complaint as entitles him to appeal. Heffern v. Hunt, 8 N. Y. App. Div. 585, 40 N. Y. Suppl. 914, 75 N. Y. St. 307. So, a defendant in default has a substantial interest in hav- ing a judgment joint as to himself and a co- defendant who pleads, and, if the same be on a separate assessment of damages, he has the right of appeal therefrom. Waugh v. Suter, 3 111. App. 271. 50. Kingsley v. Delano, 172 Mass. 37, 51 N. E. 186; McCabe v. Farnsworth, 27 Mich. 52; Landa v. McGehee, (Tex. 1892) 19 S. W. 516. Compare Martin v. Porter, 84 Cal. 476, 479, 24 Pac. 109, wherein it was held that in replevin, where defendant denies possession or ownership, he is entitled to appeal from the judgment that " plaintiff do have and recover of and from the defendant the possession of all the personal property described in the com- plaint," although no costs were awarded, since, if the denials of his answer had been sustained, the proper judgment would have been that plaintiff take nothing, and that de- fendant recover his costs. 51. California. — Ramsey v. Flournoy, 58 Cal. 260. Florida. — Witt v. Baars, 36 Fla. 119, 18 So. 330. Illinois. — Harms v. Jacobs, 155 111. 221, 40 N. E. 488 ; Hedges v. Mace, 72 111. 472. Maryland. — Hanson v. Worthington, 12 Md. 418. Mississippi. — Barrett v. Carter, 69 Miss. 593, 13 So. 625. Missouri. — Evans v. Menefee, 1 Mo. 442. See 2 Cent. Dig. tit. "Appeal and Error," § 923. As a discontinuance as to one defendant in a civil action abates a pending motion made by him, his co-defendants cannot appeal from a superfluous order denying such motion. White v. Sherry, 37 Wis. 225. Compare also Ballard v. Kennedy, 34 Fla. 483, 16 So. 327, to the effect that where the heirs at law of a deceased mortgagor have been made parties defendant, along with the administrator, to a bill of foreclosure of a mortgage upon the lands of the deceased, and have had their pleadings to such bill stricken out, and the bill is subsequently dismissed as Vol. II 630 APPEAL AND ERROR (it) Nominal Parties. A person who is merely a nominal party to an action, having no interest therein, cannot appeal ; 52 bat a nominal plaintiff for use in a garnishee proceeding may appeal upon the strength of the interest which he represents. 53 (v) Party Whose Interest Has Determined — (a) In General. Though a party is interested at the commencement of a suit, he cannot prosecute an appeal from a judgment rendered therein after his interest has determined. 54 Yet it has been held that where a grantee pendente lite is not allowed to be made a party, the grantor may appeal although he has conveyed all his interest. 65 (b) Bankrupts. It is very generally held that a defendant who receives his discharge in bankruptcy pending an action has no further interest therein, and cannot bring a writ of error to a judgment rendered against him prior to his dis- charge. 56 But whether the mere adjudication of bankruptcy, or the execution of an assignment for the benefit of creditors, thus deprives the bankrupt of such interest as is requisite to an appeal is a disputed question. 57 (c) Fraudulent Grantor. A grantor by a deed adjudged fraudulent as to creditors has no such interest in the land conveyed as authorizes him to appeal from a decree setting the deed aside. 58 to them, but is carried into final decree against the administrator alone, such heirs at law are so affected by such final decree as to give them the right to an appeal from such final decree, though they are not named the parties thereto. Parties stricken out by amendment. — -De- fendants, who filed a cross-bill, and were after- ward stricken out as parties by an amend- ment to the bill, had no standing in court after such dismissal, and, not being parties to the final decree, they had no right to ap- peal from it where it did not affect their rights. Vandeford v. Stovall, 117 Ala. 344, 23 So. 30. 52. R, discovering a defect in plaintiff's title, procured from the original owner of the premises a deed to himself, acting as agent of a corporation. In a suit against R and the corporation, plaintiff recovered judgment against both defendants for the possession of the land, and against the corporation for damages. It was held that R, being merely a nominal party, was not injured by the judg- ment and could not appeal. Hawley v. Whit- aker, (Tex. Civ. App. 1895) 33 S. W. 688. See 2 Cent. Dig. tit. "Appeal and Error," § 965; and infra, VI, B, 1, b. 53. Murphy v. Consolidated Tank Line Co., 32 111. App. 612. 54. Georgia. — Hicks v. Cohen, 72 Ga. 210. Indiana. — Stauffer v. Salimonic Min., etc., Co., 147 Ind. 71, 46 N. E. 342. Kentucky. — Crigler v. Conner, 12 Ky. L. Rep. 502, 14 S. W. 640. Maryland. — Johns v. Caldwell, 60 Md. 259. New York. — Idley v. Bowen, 11 Wend. (N. Y.) 227; Reid v. Vanderheyden, 5 Cow. (N. Y.) 719. Pennsylvania. — Eichert's Estate, 155 Pa St. 59, 25 Atl. 824. South Carolina. — Martin v. Adams, 29 S. C 597, 6 S. E. 860. Texas. — Coupland v. Tullar, 21 Tex. 523. See 2 Cent. Dig. tit. "Appeal and Error," § 935 et seq. ; and infra, XIV, E, 4. As to transfer or devolution of interest see infra, VI, F. Vol. II 55. Moore v. Jenks, 173 111. 157, 50 N. E. 698 [reversing 68 111. App. 445]. 56. Kelly v. Israel, 11 Paige (N. Y.) 147; Knox v. Exchange Bank, 12 Wall. (U. S.) 379, 20 L. ed. 287 ; and 2 Cent. Dig. tit. "Ap- peal and Error," § 938; and infra, VI, F. 2. But see Wheeless v. Fisk, 28 La. Ann. 731. When court fails to notice plea. — Pending a suit to foreclose a deed of trust, defendant filed his petition and received his discharge in bankruptcy. It was held that he had the right of appeal from a final decree against him for plaintiff's demand in the foreclosure suit, the court having failed to notice his plea, notwithstanding the bankruptcy. Young v. Cardwell, 6 Lea (Tenn.) 195. When defendant is not protected by dis- charge. — A tutor, against whom a judgment has been rendered for an amount due the minor, and who has subsequently been dis- charged under the bankrupt act, not being protected by the proceedings in bankruptcy, may appeal from the judgment against him. Collins v. Marshall, 10 Rob. (La.) 112. 57. That bankrupt or insolvent cannot ap-f peal or bring error see: Alabama. — Bailey v. Melntyre, 43 Ala. 664. Dakota. — Sioux Falls Nat. Bank v. Sioux Falls First Nat. Bank, 6 Dak. 113, 50 N. W. 829. Illinois. — Jenkins v. Greenbaum, 95 111. 11. Kentucky. — Parks v. Doty, 13 Bush (Ky.) 727. J Louisiana. — Knight v. Callender, 10 La. 226. See 2 Cent. Dig. tit. "Appeal and Error," § 938. That bankrupt or insolvent may appeal or bring error see O'Neil v. Dougherty, 46 Cal. 575 ; Francis v. Burnett, 84 Ky. 23 ; Sanford v. Sanford, 58 N. Y. 67, 17 Am. Rep. 206; Thomson v. Fairfield, 21 N. Y. Suppl. 712, 50 N. Y. St. 472; Barger v. Buckland, 28 Gratt. (Va.) 850. See 2 Cent. Dig. tit. "Appeal and Error," 8 9oo. 58. Hunt v. Childress, 5 Lea (Tenn.) 247. APPEAL AND ERROR 631 (d) Mortgagor Who Has Disposed of Equity of Redemption. A mortgagor Tvho has disposed of Ins equity of redemption cannot appeal from a decree passed for the sale of the mortgaged premises. 59 (e) Resignation or Removal from Office. An unsuccessful party who occu- pies a fiduciary relation as administrator 60 or guardian 61 cannot prosecute an appeal after he has resigned or been removed from office. 62 (f) Vendor Pendente^ Lite. A complainant who has parted with all his interests in the subject of litigation pendente lite cannot appeal from a judgment even though it injuriously affects such interest. 63 (vi) Unnecessary Pasty. It has been held that persons having no interest in the proceedings, and who are not entitled to be made parties, but who are inad- vertently made so, have no right to appeal ; u but there are decisions to the contrary. 65 e. Appellant Must Be Prejudiced — (i) Ln General. A third requisite of a valid appeal is that appellant should have been aggrieved by the judgment or decree complained of. 66 See also 2 Cent. Dig. tit. "Appeal and Er- Tor," § 936. A assigned a claim which he held against an estate to his wife, in consideration, as he testified, of money due from him to her ; but, on a, proceeding against him in the nature of a creditors' bill, the assignment was declared void as against creditors. A receiver was appointed, and the transfer to A of the money due to him from the estate, or any interfer- ence with it by A or his wife, was enjoined. It was held that A could appeal from this order, as it would not protect him from pro- ceedings by his wife to enforce her rights under the assignment. Reed v. Baker, 42 Mich. 272, 3 N. W. 959. 59. McDonald v. Workmen's Bldg. Assoc, 60 Md. 589; Rau v. Robertson, 58 Md. 506; Kiefer v. Winkens, 39 How. Pr. (N. Y.) 176. Interposing defense of usury. — • But a mort- gagor who, having sold his equity of redemp- tion, is made a party, and sets up the defense of usury on a foreclosure proceeding, has a right to appeal from a decree against him, be- cause the decree would bar him from setting up the same defense to a suit on the bond. Andrews v. Stelle, 22 N. J. Eq. 478. Wife's inchoate right of dower. — A party to a, decree of foreclosure and sale, who has parted with, his interest subsequent to the commencement of the suit, but prior to the entry of the decree, cannot, in his own right, maintain an appeal from the decree. But where his wife, who is also a party to the suit, still has an inchoate right of dower in the subject of the suit he may unite with her in such an appeal. Kiefer v. Winkens, 3 Daly (N. Y.) 191. 60. McCormiek Harvesting Mach. Co. v. Snedigar, 3 S. D. 302, 53 N. W. 83; Graham v. Blackburn, 10 Tex. 314. 61. Hamilton v. Moore, 32 Miss. 205. 62. See infra, VI, F, 5; and 2 Cent. Dig. tit. " Appeal and Error," § 937. But see Printup v. Cherokee R. Co., 45 Ga. 365, wherein it was held that a writ of error, brought to review a judgment enjoining a certain person, as agent of the state, will not be dismissed on the ground that, after suing out the writ of error, and before the hearing, he was removed from such agency. 63. Gordon v. Gibbs, 3 Sm. & M. (Miss.) 473; Hackley v. Hope, 4 Keyes (N. Y.) 123; Reid v. Vanderheyden, 5 Cow. (N. Y.) 719; Card v. Bird, 10 Paige (N. Y.) 426. See 2 Cent. Dig. tit. "Appeal and Error," § 936. As to right of purchaser pendente lite to appeal see infra, IV, A, 2, a, (vin) . Where a party, against whom a final decree has been made, sells his right to the subject- matter of the suit, an appeal from such de- cree, in the name of the party against whom the same was made, cannot be sustained. But if the purchaser is entitled to appeal he must make himself a party to the suit, and bring the appeal in his own name. Mills v. Hoag, 7 Paige (N. Y.) 18, 31 Am. Dec. 271. 64. McMurray v. State Bank, 74 Mo. App. 394 ; McClure v. Mauperture, 29 W. Va. 633, 2 S. E. 761; and 2 Cent. Dig. tit. "Appeal and Error," § 905. 65. Ricketson v. Torres, 23 Cal. 636. See also Bowlus v. Shanabarger, 19 Ohio Cir. Ct. 137, 10 Ohio Cir. Dec. 167. Proper party. — An owner of property may appeal from a judgment subjecting the prop- erty to the lien of a subcontractor, although he was only a proper, and not a necessary, party to the action. Hilliker v. Francisco, 65 Mo. 598. 66. Alabama. — Hunt v. Houtz, 62 Ala. 36. Colorado. — Fischer v. Hanna, 21 Colo. 9, 39 Pae. 420. Connecticut. — Ailing v. Shelton, 16 Conn. 436. Georgia.— Collier v. Hyatt, 110 Ga. 317, 35 S. E. 271; Bowen v. Groover, 76 Ga. 101; Townsend v. Davis, 1 Ga. 495, 44 Am. Dee. 675. Illinois. — Hedges v. Mace, 72 111. 472 ; Pope v. North, 33 111. 440. Indiana. — Emmons v. Keller, 39 Ind. 178 ; Pierse v. West, 29 Ind. 266. Iowa. — Bremer County Bank v. Bremer County, 42 Iowa 394. Kansas.— Craft v. Bent, 8 Kan. 328. Kentucky. — Miller v. Pryse, 20 Ky. L. Rep. Vol. II 632 APPEAL AND ERROR (n) Decree Prejudicial in Part. It is not necessary, however, that a party should be entirely defeated in order that he may have a right to appeal. 67 (in) Judgment in Appellant's Favor. While, as a rule, a plaintiff has no right to appeal from a judgment in his own favor, 68 it has been held that, if 1544, 49 S. W. 776; Williams v. Tyler, 13 Ky. L. Rep. 392, 17 S. W. 276. Louisiana. — New Orleans v. Dufossat, 46 La. Ann. 398, 14 So. 884 ; Williams v. Trepag- nier, 4 Mart. N. S. (La.) 342. Maryland. — Ringgold v. Barley, 5 Md. 186, 59 Am. Dec. 107. Michigan. — Besaneon v. Brownson, 39 Mich. 388. Minnesota. — Commonwealth Ins. Co. r. Pi- erro, 6 Minn. 569. Mississippi. — See Southern Pine Co. i. Mit- chell, (Miss. 1896) 19 So. 583. Missouri.— State v. Talty, 139 Mo. 379, 40 S. W. 942; Othenin v. Brown, 66 Mo. App. 318. 'Nebraska. — B. F. Sturtevant Co. v. Bohn Sash, etc., Co., 59 Xebr. 82. 80 X. W. 273; Cowherd v. Kitchen, 57 Nebr. 426, 77 X. W. 1107. Neiv Jersey. — Black v. Kirgan, 15 X. J. L. 45, 28 Am. Dec. 394. North Carolina. — Hoke v. Carter, 34 X. C. 327. Ohio. — Munger v. Jeffries, 7 Ohio X. P. 55. Pennsylvania. — Morris v. Garrison, 27 Pa. St. 226. South Carolina. — Globe Phosphate Co. v. Pinson, 52 S. C. 185, 29 S. E. 549. South Dakota.— Woods c. Pollard, (S. D. 1900) 84 N. W. 214. Virginia. — Edmund v. Scott, 78 Va. 720; Little r. Bowen, 76 Va. 724. West Virginia.— Miller v. Rose, 21 W. Va. 291. Wisconsin. — Bragg v. Blewett, 99 Wis. 348, 74 N. W. 807 ; Herndon v. Bock, 97 Wis. 548, 73 X. W. 39. See 2 Cent. Dig. tit. "Appeal and Error," § 947 et seq. ; and infra, XIV, E, 8. Beneficiary under a will, not injuriously af- fected by a decree confirming a devise to an- other person, cannot complain of such decree. Decker v. Decker, 121 111. 341, 12 X. E. 750. Defendant not served with process. — One, named as » defendant in the pleadings, but neither served with process nor appearing, nor mentioned in the decree, cannot assign error. Moffett v. Hanner, 154 111. 649, 39 N. E. 474. This rule has been so applied as to prevent an appeal merely for the purpose of having a decree in appellant's favor affirmed. Green v. Blaekwell, 32 X. J. Eq. 768. Nor can a party appeal from a decision, which decision is correct so far as his inter- ests are concerned, because the rights of other persons are violated by it. Arkansas. — Daniel v. Daniel, 39 Ark. 266; Porter v. Singleton, 28 Ark. 483. California. — Rankin v. Central Pac. R. Co., 73 Cal. 93, 15 Pac. 57; Scotland v. East Branch Min. Co., 56 Cal. 625. Colorado. — McRobbie v. Higginbotham 11 Colo. 312, 18 Pac. 31. Vol. II Georgia. — Hudson v. Hudson, 84 Ga. 611, 10 S. E. 1098. Illinois.— Lagger v. Mutual Union Loan, etc., Assoc, 146 III. 283, 33 X. E. 946; Chi- cago v. Cameron, 120 111. 447, 11 X. E. 899; Ransom v. Henderson, 114 111. 528, 4 N. E. 141. Indiana. — lies v. Cox, 83 Ind. 577. Louisiana. — Sompayrac r. Hyams, 23 La. Ann. 273. Maryland. — Simms v. Lloyd, 58 Md. 477. Nebraska. — Hoops r. McXiehols, 38 Xebr. 76, 56 X. W. 721. New York. — Hyatt v. Dusenbury, 106 N. Y. 663, 12 N. E. 711 : Faxon v. Mason, 90 Hun (X. Y.) 426, 35 X. Y. Suppl. 950, 70 X. Y. St. 624: Bullard v. Kenyon, 78 Hun (X. Y.) 26, 29 X. Y. Suppl. 772, 61 X. Y. St. 58. Pennsylvania. — Lyon v. Allison, 1 Watts (Pa.) 161. South Carolina. — Dauntless Mfg. Co. v. Davis, 22 S. C. 584. Virginia. — Cunningham v. Smithson, 12 Leigh (Va.) 32. Wisconsin. — McGregor v. Pearson, 51 Wis. 122, 8 X. W. 101. United States. — Crawshay v. Souter, 6 Wall. (TJ. S.) 739, 18 L. ed. 845. See 2 Cent. Dig. tit. "Appeal and Error," § 947 et seq.; and infra, XIV, E, 8. 67. That a party defeats a part of the relief asked for does not deprive him of the right to appeal from so much of the order as grants, relief against him. Melntyre v. German Sav. Bank, 59 Hun (X. Y.) 536, 13 X. Y. Suppl. 674, 37 X. Y. St. 545. Limits of the rule. — But a party who is. aggrieved by one part only of a decree cannot, by appeal, call in question another part thereof which has no bearing or effect upon his rights or interests — he can appeal only from such parts of the decree as affect him. Idley r. Bowen, 11 Wend. (X. Y.) 227; Cuyler v. Moreland, 6 Paige (X. Y.) 273; Sage v. Cen- tral R. Co., 93 U. S. 412, 23 L. ed. 933. 68. Watkins v. Martin, 24 Ark. 14, 81 Am. Dec. 59 ; Fischer v. Hanna, 21 Colo. 9, 39 Pac. 420; Xorthrop r. Jenison, 12 Colo. App. 523, 56 Pac. 187 ; Sutton r. Jones. 9 Colo. App. 36, 47 Pac. 400 ; Raymond v. Barker, 2 Root (Conn.) 370; Holton v. Ruggles, 1 Root (Conn.) 318; Hayden v. Stone, 112 Mass. 346; and 2 Cent. Dig. tit. "Appeal and Error," § 947 et seq. But see, contra, Miller r. Mar- tin, 8 X. J. L. 201 ; Lenoir v. South, 32 X. C. 237. Thus, where, upon two charges of fraud filed by a judgment creditor against his debtor pending such debtor's application to take the oath for the relief of poor debtors, the latter is convicted on one charge and acquitted on the other, and sentenced to jail, the creditor cannot appeal to the supreme court. Smith v. Dickinson, 140 Mass. 171, 3 X. E. 40. But APPEAL AND ERROR 633 such a party has been injured by such a judgment, he may sue out a writ of error to reverse it. 69 (iv) Necessary Parties Not Served Wits Process. One who is a nec- essary party to a suit, and against whom process is prayed, may prosecute a writ of error to the judgment although process was not served upon him and he did not appear in the court below. 70 (v) Parties Aggrieved May Appeal. Most of the appeal statutes declare that any party aggrieved by a judgment or decree may appeal therefrom. This embraces parties who are subsequently brought into the action, 71 as well as those by or against whom it was originally instituted. 73 In legal acceptation a party is aggrieved by a judgment or decree when it operates on his rights of property, or bears directly upon his interest. 78 defendant is not affected by a declaration in the judgment that it is in his favor when in reality it is against him. He has the right to appeal from it to correct any errors. Hewes v. Baxter, 45 La. Ann. 1049, 13 So. 817. So, if a bill in equity be dismissed as insufficient in law, one aggrieved, though » defendant in form, may appeal from the de- cree of dismissal. Atkinson v. MeCormick, 76 Va. 791. 69. Connecticut. — Seymour v. Belden, 28 Conn. 443. Florida. — Hale v. Crowell, 2 Fla. 534, 50 Am. Dec. 301. Illinois. — Hartman v. Belleville, etc., R. Co., 64 111. 24; Fisk v. Carbonized Stone Co., 67 111. App. 327. Kentucky. — Gentry v. Barnett, 6 T. B. Mon. (Ky.) 113. New York. — Parker v. Newland, 1 Hill (N. Y.) 87; Ingalls v. Lord, 1 Cow. (N. Y.) 240. United States, — Capron v. Van Noorden, 2 Cranch (U. S.) 126, 2 L. ed. 229. England. — Johnson v. Jebb, 3 Burr 1772. See 2 Cent. Dig. tit. "Appeal and Error," § 949 et seq. 70. State v. Jacksonville, etc., R. Co., 15 Fla. 201; Hansen v. Klicka, 78 111. App. 177; Moore v. Guest, 8 Tex. 117; and 2 Cent. Dig. tit. "Appeal and Error," § 906. A person whom the record shows to be a party and aggrieved may appeal, though he has not previously appeared in the case. In re Meade, (Cal. 1897) 49 Pac. 5. 71. Alabama. — Wheeler v. Kennedy, 1 Ala. 292. California. — Jones v. Thompson, 12 Cal. 191. Illinois. — Woodburn v. Woodburn, 123 111. 608, 14 N. E. 58, 16 N. E. 209. New Mexico. — Santa F6 Pac. R. Co. v. Bos- sut, (N. M. 1900) 62 Pac. 977. New York. — Atty.-Gen. v. North America L. Ins. Co., 77 N. Y. 297, 6 Abb. N. Cas. (N. Y.) 293 [overruling People v. North America L. Ins. Co., 15 Hun (N. Y.) 18]; Locke v. Mabbett, 3 Abb. Dec. (N. Y.) 68. North Carolina. — Loven v. Parson, 127 N. C. 301, 37 S. E. 271 [distinguishing Clark v. Deloach Mills Mfg. Co., 110 N. C. Ill, 14 S. E. 518]. Pennsylvania. — Hessel V. Fritz, 124 Pa. St. 229, 23 Wkly. Notes Cas. (Pa.) 299, 16 Atl. 853. See 2 Cent. Dig. tit. "Appeal and Error," § 947 et seq. Parties aggrieved within this rule are garn- ishees (Sheldon v. Hinton, 6 111. App. 216; Santa F6 Pac. R. Co. v. Bossut, (N. M. 1900) 62 Pac. 977 ) , and persons not parties to the action, who specially appear for the purpose of appealing from a judgment rendered against them (Loven v. Parson, 127 N. C. 301, 37 S. E. 271 [distinguishing Clark v. Deloach Mills Mfg. Co., 110 N. C. Ill, 14 S. E. 518]). 72. Alabama. — Scholze v. Steiner, 100 Ala. 148, 14 So. 552. Kentucky. — Wilson v. Pereival, 1 Dana (Ky.) 419. Louisiana. — State v. Echeveria, 33 La. Ann. 709 ; State v. Miltenberger, 33 La. Ann. 263. Maine. — Bridgton v. Bennett, 23 Me. 420. New Jersey. — Mclntyre v. Easton, etc., R. Co., 26 N. J. Eq. 425. United States. — Ex p. South, etc., Alabama R. Co., 95 U. S. 221, 24 L. ed. 355. See 2 Cent. Dig. tit. "Appeal and Error," § 947 et seq. Decree affecting rights of defendants inter se. — A decree may be made determining the rights of co-defendants in a controversy be- tween themselves, in which complainant has no interest; and, it seems, the party ag- grieved may appeal from such decree. Van- derveer v. Holcomb, 17 N. J. Eq. 547. And the same is true in any action, under the re- formed procedure. Clark's Code Civ. Proc. N. C. (1900), pp. 570-572, 733. But in an action of ejectment, where all that is claimed is recovered, one lessor of plaintiff cannot bring a writ of error against another be- cause more was recovered on the demise of the latter, and less on that of the former, than should have been. The rights of each can only be determined in a suit between themselves. Fortune v. Center, 2 Ohio St. 537. So, an order of the court, directing a verdict in favor of one of several joint tort-feasors sued to- gether, is not the subject of exception by the other defendants when, by the pleadings, no question is raised among themselves of the liability of such defendant. Warren v. Bos- ton, etc., R. Co., 163 Mass. 484, 40 N. E. 895. 73. Ely v Frisbie, 17 Cal. 250; McFarland v. Pierce, 151 Ind. 546, 45 N. E. 706, 47 N. E. 1 ; Briard v. Goodale, 86 Me. 100, 29 Atl. 946, 41 Am. St. Rep. 526 ; Veazie Bank ». Young, 53 Me. 555; Deering v. Adams, 34 Me. 41; Vol. II 631 APPEAL AND ERROR d. Deprivation of Right 74 — (i) Absence from State. The fact that an appellant has resided out of the state several years is no ground for denying him the right to appeal from a judgment rendered against him. 75 (n) Contempt of Court. So, where an appeal or writ of error is a matter ' of right, the party aggrieved by a judgment or decree is not deprived of the privilege of having it reviewed by the fact that he is in contempt of court. 76 (in) Denial of Interest. In certain actions relating to real property, a person made defendant will not be heard to complain of a decree affecting merely the land, when he has, by his answer, disclaimed any interest therein. 77 (iv) Failure of Co -Party to Appeal. A defendant who is injured by a judgment against a co-defendant may appeal therefrom, although the defendant against whom the judgment is rendered does not do so. 78 State v. Talty, 139 Mo. 379, 40 S. W. 942. See also 2 Cent. Dig. tit. "Appeal and Error," § 947 et seq. The test in determining who is the party ag- grieved is found in the question : " Would the party have had the thing if the erroneous judgment had not been given? " If yes, then he is the party aggrieved. But his right to do the thing must be immediate, and not the remote consequence of the judgment had it been differently given. Adams v. Woods, 8 Cal. 306. If, in his pleading, a party states a valid cause of action, he may appeal from a judgment therein against him, whether he has a valid cause of action, sustainable by proof, or not. Bowlus v. Shanabarger, 19 Ohio Cir. Ct. 137, 10 Ohio Cir. Dec. 167. 74. Failure to give security. — ■ Although a party against whom judgment is rendered be unable to give security to prevent its execu- tion, he may appeal, if he judge it for his in- terest, to prevent the decision from passing into rem judicatam. Hyde v. Jenkins, 6 La. 427. Failure to file exceptions to a master's re- port is no ground for dismissing the appeal of one of two co-administrators from a final de- cree. French v. Peters, (Mass. 1901) 59 N. E. 449, construing the Massachusetts statute. Fault of co-appellant.— Where the surety on an injunction bond, who has neither ap- peared nor answered, has not been notified of the judgment, his right to appeal is not af- fected by defects in the transcript occurring through the fault of the other appellant. Verges v. Gonzales, 33 La. Ann. 410. Fault of public officer. — The rule that a party having the right of appeal cannot be de- prived thereof by the wilful or accidental acts of public officers applies to an appeal by a taxpaver from an audit of township accounts. Plains Tp. Audit, 15 Pa. Co. Ct. 408, 7 Kulp (Pa.) 406. 75. Ricketson v. Torres, 23 Cal. 636; Fine v. Pitner, 1 Overt. (Tenn.) 299, holding that an absent party may appeal by attorney. And see 2 Cent. Dig. tit. "Appeal and Error," § 901 et seq. Fugitive from justice. — Nor does the fact that a party is a fugitive from justice affect Ms right of appeal from a judgment on his recognizance. State v. Plazencia, 6 Rob. (La.) 441, 41 Am. Dec. 271. If an appellant escapes from custody pending appeal, the appellate Vol. II court in its discretion may either dismiss the appeal, or hear and determine the cause, or continue it. State v. Cody, 119 N. C. 908, 26 S. E. 252, 56 Am. St. Rep. 692. 76. Florida. — Palmer v. Palmer, 28 Fla. 295, 9 So. 657. Illinois. — People v. Pendergast, 117 111. 588, 6 N. E. 695; People v. Horton, 46 111. App. 434, failure to pay alimony and counsel fee. Missouri. — State v. Field, 37 Mo. App. 83, assignee for creditors continuing to act after his removal. Rhode Island. — Hazard v. Durant, 11 R. I. 195. West Virginia. — Ruhl v. Ruhl, 24 W. Va. 279, commissioner for sale of land failing to pay over proceeds. See 2 Cent. Dig. tit. "Appeal and Error," § 902. 77. California. — People v. Wilson, 26 Cal. 127, an action to recover delinquent taxes as- sessed against land. Iowa. — Palmer v. Merrill, 70 Iowa 227, 30 N. W. 494, foreclosure of mechanic's lien. Kansas. — Page v. Havens, 9 Kan. App. 888, 60 Pae. 1096, foreclosure of mortgage. Nebraska. — Myers v. Mahoney, 43 Nebr. 208, 61 N. W. 580, foreclosure of mortgage. Wyoming. — Hinton v. Winsor, 2 Wyo. 206, foreclosure of mortgage. United States. — Brigham City v. Toltec Ranch Co., 101 Fed. 85, 41 C. C. A. 222, an ejectment suit. 78. McDaniel v. Correll, 19 111. 226, 68 Am. Dee. 587 (holding that, where the proceed- ings in a suit to set aside a will are irregular as to some of the parties, an appeal will lie, from the decree for such irregularities, by the other parties as to whom such proceedings were regular, though the parties as to whom they were irregular do not complain) ; French v. Peters, (Mass. 1901) 59 N. E. 449. So, where the owner of property and several lien-claim- ants are defendants to an action, the fact that the owner does not appeal from an erro- neous judgment does not prevent the lien- claimants from doing so if they are aggrieved thereby. Murray v. Guse, 10 Wash. 25, 38 Pac. 753. Failure to join in appeal. — Where co-de- fendants answer separately, basing their de- fense upon independent grounds, and judg- ment goes against all, a separate appeal by one defendant does not affect the right of the APPEAL AND ERROR 635 2. Application to Particular Litigants — a. Persons in Individual Capacity — {i) Claimants _ of Property.™ A claimant who is permitted to appear in a suit and maintain his title to the property involved is to be regarded as a party, and is entitled to appeal. 80 But it is generally held that one who is not a party to a suit, but who claims the property by title paramount, and whose title would not be affected by the decree, has no appealable interest therein. 81 If two claimants interplead to recover the possession of money paid into court by a third person, and the money is awarded to one of them, the other may appeal from such iudg- ment although he is not named therein. 82 ' (n) Creditors of Defendant. A judgment creditor of a defendant against whom a judgment is rendered, not being a party to the action, cannot appeal or sue out a writ of error; 88 but where the creditor has been made a party 84 or a quasi-party to the action or proceeding this rule does not apply. 85 other defendants to subsequently appeal from the judgment as to them. State v. King, 6 S. D. 297, 60 N. W. 75. Failure to join in appeal to intermediate court. — One who has not taken or joined in an appeal to an intermediate court cannot appeal from the decision of such intermediate court. Jaekspn v. Hosmer, 14 Mich. 88. 79. See 2 Cent. Dig. tit. " Appeal and Er- ror," § 929. 80. Jones v. Calloway, 56 Ala. 46; Bass v. Fontleroy, 11 Tex. 698; Hutchinson v. Bige- low, 23 Vt. 504; and see also Clark's Code Civ. Proc. N. C. (1900), § 547. 81. Raleigh v. Rogers, 25 N. J. Eq. 506; Swackhamer v. Kline, 25 N. J. Eq. 503 ; Hem- menway v. Corey, 16 Vt. 225. But there are decisions to the contrary. Herd v. Cist, 14 Ky. L. Rep. 644, 20 S. W. 1035; Pillot v. Cooper, 7 La. Ann. 656. 82. Brooks v. Doxey, 72 Ind. 327; and see State v. Rightor, 35 La. Ann. 515. Extent of rule. — The party instituting the interpleader, however, has no interest in the determination of the question of ownership, and cannot appeal from the judgment (Craw- ford v. Shriver, 139 Pa. St. 239, 21 Atl. 518) unless his personal interests are affected by the decree. If they are he may appeal; and the fact that one of the parties called on by the bill to litigate their rights does not ap- peal does not impair or destroy the right of complainants in the bill of interpleader (Cooper v. Jones, 24 Ga. 473). 83. Alabama. — Boden v. Jasper, 122 Ala. 374, 25 So. 198. Illinois.— Mclntyre v. Sholty, 139 111. 171, 29 N. E. 43; India-Rubber Co. v. C. J. Smith, etc., Co., 75 111. App. 222. Iowa. — Phillips v. Shelton, 6 Iowa 545. Louisiana. — But see Payne v. Ferguson, 23 La. Ann. 581 ; State v. Judge, 13 La. Ann. 199 ; Livingston v. White, 2 La. Ann. 902 ; Compton v. Compton, 6 Rob. (La.) 154; Rutherford v. Cole, 5 Mart. (La.) 217 — for the rule in this state. New Jersey. — Sherer v. Collins, 17 N. J. L. 181 ; Black v. Kirgan, 15 N. J. L. 45, 28 Am. Dec. 394. Pennsylvania. — Hauer's Appeal, 5 Watts & S. (Pa.) 473. South Dakota. — See also Gales v. Plankin- ton Bank, 13 S. D. 622, 84 N. W. 192. Sen 2 Cent. Dig. tit. "Appeal and Error," § 930. Suspending right to execution. — Where plaintiff obtains judgment against a company whose property is in the hands of a receiver, the fact that the court suspends plaintiff's right to an execution, and requires the judg- ment to be certified to the court having con- trol of the receivership, is not ground for ap- peal by defendant. International, etc., R. Co. v. McRae, 82 Tex. 614, 18 S. W. 672, 27 Am. St. Rep. 926. 84. Louisiana. — Dalton v. Viosca, 22 La. Ann. 251, holding that » plaintiff in a rule, by alleging that a third party is an attaching creditor, and making such party a defend- ant in the rule, is estopped from denying that he is a creditor, and such creditor, there- fore, can appeal from the judgment on the rule. New Hampshire. — Barker v. Barker, 39 N. H. 408. New York. — Atty.-Gen. v. North America L. Ins. Co., 77 N. Y. 297, 6 Abb. N. Cas. (N. Y.) 293. Ohio. — Bowlus v. Shanabarger, 19 Ohio Cir. Ct. 137, 10 Ohio Cir. Dec. 167, action to set aside a fraudulent conveyance. Vermont. — Chaffee v. Malarkee, 26 Vt. 242, where subsequent attaching creditors came in and defended the suit. 85. Quasi-parties within this rule are cred- itors, who, in the progress of the settlement of an estate, are required to come in and prove their debts (Pearson v. Darrington, 32 Ala. 227) ; creditors, coming in before a master in chancery, to whom a creditor's bill has been referred to take proofs of all claims against the estate of defendant, having claims disal- lowed on exceptions to the report (Derrick v. Lamar Ins. Co., 74 111. 404) ; and persons in- terested in the allowance or distribution of funds the control of which is involved in the suit (Zinn v. Dzialynski, 14 Fla. 187; Ad- kins v. Baker, 7 Ga. 56; Swift v. Martin, 20 111. App. 515; Columbia Finance, etc., Co. r. Morgan, 19 Ky. L. Rep. 1761, 44 S. W. 389, 628, 45 S. W. 65; Hayward v. Graham Book, etc., Co., 59 Mo. App. 453, 1 Mo. App. Rep. 44; Blake v. Domestic Mfg. Co., (N. J. 1897) 38 Atl. 241; National Bank v. Sprague, 21 N. J. Eq. 458; Harland v. Newcombe, 2 Ohio Cir. Ct. 330; Feamster v. Withrow, 9 Vol. II 636 APPEAL AND ERROR (in) Garnishees. A garnishee cannot reverse or avoid a judgment on account of mere errors or irregularities in the proceedings in the principal action. 86 (rv) Interveners. One allowed, by order of the court, to intervene in a cause may appeal from the decree. 87 But one whose claim to intervene in a suit has been rejected by the court cannot appeal from the final judgment ren- dered in the suit ; M he may, however, immediately appeal from the order or decree dismissing his petition, 89 without waiting for the final decree in the cause. 90 (v) Partners. It has been held that a partner may appeal from an order overruling a motion to quash the garnishment of a debt, due the firm, to satisfy a judgment against the partner individually, although he would be individually benefited by such order. 91 (vi) Private Corporations. A corporation, a party defendant to an action, niiiy appeal from any judgment, .order, or decree by which its corporate interests are aggrieved, 92 or which is prejudicial to the interests of stock-holders " 3 who are not parties to the suit. 94 W. Va. 296; Williams r. Morgan, 111 U. S. 684, 4 S. Ct. 638, 28 L. ed. 559). Pennsylvania act of June 16, 1836, relating to the distribution of the proceeds of sheriffs' sales, embraces only judgment or lien credit- ors of defendant in execution. His contract creditors, who have acquired no judgment or lien, are strangers to questions of distribution, and have no right to be admitted or heard, and are not entitled to a writ of error. Smith v. Reiff, 20 Pa. St. 364. The mortgagee of a testatrix, who, without filing pleadings or statement, introduced his mortgage in evidence at the hearing of the pe- tition for distribution, is not entitled to ap- peal from the decree of distribution in his own name. Matter of Crooks, 125 Cal. 459, 58 Pac. 89. 86. A garnishee has no concern with the merits of the controversy further than to see that there is a judgment which is so far free from invalidity as not to be void. Georgia. — Exchange Bank v. Freeman, 89 Ga. 771, 15 S. E. 693. Indiana. — Earl r. Matheney, 6U Ind. 202. Louisiana. — Germania Sav. Bank v. Peuser, 40 La. Ann. 796, 5 So. 75 ; Hanna v. Lauring, 10 Mart. (La.) 568, 13 Am. Dec. 339. Maine. — Veazie Bank v. Young, 53 Me. 555. New York.— Hall v. Brooks, 89 N. Y. 33. Texas. — Alamo Ice Co. r. Yancey, 66 Tex. 187, 18 S. W. 499. See 2 Cent. Dig. tit. " Appeal and Error,'' § 944. 87. Tuttte v. Claflin, 88 Fed. 122, 31 C. C. A. 419. See also 2 Cent. Dig. tit. "Appeal and Error," §§ 921, 928, 933. As to intervention or addition of new par- ties on appeal see infra, VI, E. 88. People v. Pfeiffer, 59 Cal. 89; Lorber v. Connor, 82 Iowa 739, 47 N. W. 1006; Field r. Mathison, 3 Rob. (La.) 38; Shackleford v. Gates, 35 Tex. 781. Contra, Phelps v. Long, 31 N. C. 226. 89. Thornton v. Highland Ave., etc., R. Co., 94 Ala. 353, 10 So. 442. Sureties, whose application to intervene in an action on an undertaking in replevin has been denied, can appeal to the supreme court. Coburn v. Smart, 53 Cal. 742. Where a debt has been assigned by a cred- Vol. II itor, and the debtor is summoned as his trus- tee, and the assignment is disclosed, and the court of common pleas refuses to let the as- signee become a party, he may bring the ques- tion before the supreme court by a bill of ex- ceptions. Ammidown i\ Wheelock, 8 Pick. (Mass.) 470. Where a person was sued as casual ejector, and the court improperly refused him permis- sion to plead, on the ground that he was bound to give a bond, under N. C. Rev. Stat. c. 31, § 51, and thereupon entered judgment by de- fault against him, he was entitled to an ap- peal. Phelps v. Long, 31 N. C. 226. Where an application is made to a court to appoint a trustee, any person who claims the property alleged to be trust property as his own has a right to appear and become a party, and to resist the appointment, and, if the de- cree be against him, to appeal. Bass v. Font- leroy, 11 Tex. 698. 90. Stieh v. Dickinson, 38 Cal. 608; Hall v. Jack, 32 Md. 253; Keathly v. Branch, 84 N. C. 202; Clark's Code Civ. Proc. N. C. (1900), § 189, and cases there cited. 91. Rich v. Solari, 6 Mackey (D. C.) 371. But, under the Missouri administration law, a surviving partner cannot appeal from judg- ment of a county or probate court allowing a demand against the effects of a firm in the hands of the deceased partner's administrator. Asbury v. Mcintosh, 20 Mo. 278. As to designation and description of part- ners see infra, VI, G, 3. 92.' St. Louis, etc., Coal, etc., Co. v. Ed- wards, 103 111. 472; Sherman v. Beacon Constr. Co., 58 Hun (N. Y.) 143, 11 N. Y. Suppl. 369, 33 N. Y. St. 881. 93. Republic L. Ins. Co. v. Swigert, 135 111. 150, 25 N. E. 680, 12 L. R. A. 328. But in Dennis c. Table Mountain Water Co., 10 Cal. 369, where a decree, rendered in a suit against a corporation, contained a direction for the sale of the interest of individuals not parties to the suit, it was held that the cor- poration could not appeal from the decree for error in embracing individuals. See 2 Cent. Dig. tit. "Appeal and Error," §§ 920, 952. 94. Where the stock-holders are parties to the action the corporation has no right to ap- peal from a judgment by which it is not ag- APPEAL AND ERROR 637 (vn) Purchasers at Judicial Sale. A purchaser at a judicial sale who complies witli the terms thereof has the right to appeal from an order setting aside the sale. 95 (vm) Purchasers Pendente Lite. Although it has been held that the purchase of land pending suit concerning it gives to the purchaser such a privity of interest as will authorize him to prosecute a writ of error, 96 it is generally held that such purchaser is a stranger to the record and cannot appeal merely because he has succeeded to the interests of the party against whom judgment is entered. 97 (ix) Stock -Holders. An individual stock-holder cannot prosecute an appeal from a judgment against the corporation by which he is only indirectly affected. 98 grieved, but which is merely prejudicial to stock-holders. Board of Liquidation v. New Orleans Waterworks Co., 39 La. Ann. 202, 1 So. 445. 95. California. — Boland's Estate, 55 Cal. 310. Illinois. — Comstock r. Purple, 49 111. 158. Mississippi. — Flournoy v. Smith, 3 How. (Miss.) 62. Missouri. — Wauchope v. McCormick, 158 Mo. 660, 59 S. W. 970. Nebraska. — Penn Mut. L. Ins. Co. v. Creigh- ton Theatre Bldg. Co., 51 Nebr. 659, 71 N. W. 279. New Jersey. — Conover v. Walling, 15 N. J. Eq. 167. New York. — Mortimer v. Nash, 17 Abb. Pr. (N. Y.) 229 note; Delaplaine v. Lawrence, 10 Paige (N. Y.) 602. North Carolina. — Murphrey v. Wood, 47 N. C. 63. Texas. — Davis v. Stewart, 4 Tex. 223. Virginia. — Todd v. Gallego Mills Mfg. Co., 84 Va. 586, 5 S. E. 676. Washington. — Wood v. Seattle, (Wash. 1900) 62 Pac. 135. United States. — Kneeland v. American L. & T. Co., 136 U. S. 89, 10 S. Ct. 950, 34 L..ed. 379; Blossom v. Milwaukee, etc., R. Co., 1 Wall. (U. S.) 655, 17 L. ed. 673; Magann v. Segal, 92 Fed. 252, 34 C. C. A. 323. See 2 Cent. Dig. tit. "Appeal and Error," S 931. Assignee of a purchaser at chancery sale does not become a party, so as to entitle him to appeal from a subsequent decree affecting his rights, unless such assignment is reported by the master or authorized by the court. Newland v. Gaines, 1 Heisk. (Tenn.) 720. Purchaser who refused to comply with the terms of sale, and at a resale attempted to bid through an agent in disregard of the terms of the sale, has no standing to appeal from a decree confirming the sale to another person. Hildreth v. Turner, 89 Va. 858, 17 S. E. 471. Extent and limits of rule. — It has also been held that a purchaser may appeal from an or- der confirming the sale over his objections. Matter of Pearsons, 98 Cai. 603, 33 Pac. 451. But he cannot bring a writ of error to reverse the judgment on which the sale was made. U. S. Bank v. White, Wright (Ohio) 574. A purchaser at a sale under an order of the county court has no right of appeal from such order, although it should be obtained by an improper party, unless such purchaser should be a party required by statute to be made a party to such proceeding. Levy v. Riley, 4 Oreg. 392. 96. Mosier v. Flanner-Miller Lumber Co., 66 111. App. 630. An assignee of a mortgage on land, who sues to restrain a mechanic's lienor from re- moving a building erected thereon by the mortgagor, has such an interest as entitles him to appeal from the judgment rendered against him on the merits, though he has ob- tained judgment of foreclosure, bid in the land for the full amount thereof, received a certificate of purchase, and the order of sale, as to him, has been returned fully satisfied. Logan v. Suit, 152 Ind. 434, 53 N. E. 456. In California, under Code Civ. Proc. (1897), § 385, if real property is conveyed during the pendency of litigation in regard to it, the grantee may thereunder continue to prosecute or defend the action in the name of his grantor, or may cause himself to be substi- tuted in his place. Hence a grantee may ap- peal from an order refusing relief from a judgment taken against the grantor by de- fault, and an objection that there was no judgment as to the grantee is untenable. Ma- lone v. Big Flat Gravel Min. Co., 93 Cal. 384, 28 Pac. 1063. In Kentucky, it seems that the writ of er- ror must be brought in the name of the orig- inal party, although the purchaser need not show any express power. Marr v. Hanna, 7 J. J. Marsh. (Ky.) 642, 23 Am. Dee. 449; Mason v. Peck, 7 J. J. Marsh. (Ky.) 300. 97. Florida.— State v. Florida Cent. R. Co., 15 Fla. 690. Illinois. — Louisville, etc., Consol. R. Co. v. Surwald, 150 111. 394, 37 N. E. 909. Massachusetts. — Leonard v. Bryant, 11 Mete. (Mass.) 370. Texas.— Ferris v. Streeper, 59 Tex. 312; Clarke v. Koehler, 32 Tex. 679. West Virginia. — Stout v. Philippi Mfg., etc., Co., 41 W. Va. 339, 23 S. E. 571, 56 Am. St. Rep. 843. See 2 Cent. Dig. tit. "Appeal and Error," § 927. As to right of vendor pendente 'lite to ap- peal see supra, IV, A, 1, b, (v), (f) . 98. State v. Florida Cent. R. Co., 15 Fla. 690; McFarland v. Pierce, 151 Ind. 546, 45 N. E. 706, 47 N. E. 1 ; People v. Commercial Bank, 6 N. Y. App. Div. 194, 39 N. Y. Suppl. Vol. II 638 APPEAL AND ERROR (x) Sureties. The sureties on an official bond become parties to the record by a judgment against the principal on the bond, and may appeal from such judgment." b. Persons in Representative Capacity — (i) Assignees in Insolvency} An assignee of an insolvent debtor may maintain a writ of error to reverse a judg- ment rendered against the bankrupt, 3 or to reverse an order removing the assignee and directing him to turn over the assets to a successor. 8 But it has been held 1000; Dunbar v. American Casket Co., 19 Ohio Cir. Ct. 585. See also 2 Cent. Dig. tit. "Ap- peal and Error," §§ 920, 952. But see State v. Judge, 31 La. Ann. 823 ( holding that a stock-holder may suspensively appeal from an interlocutory decree ordering a sale of corporate property to be made by persona without legal power to sell, irrepar- able injury being threatened) ; and Henry v. Jeanes, 47 Ohio St. 116, 24 N. E. 1077 (hold- ing that a judgment ordering the cancellation of the lease of a railroad, such lease being exe- cuted by its owner to another company, is a, judgment directly affecting the stock-holders of the lessor; and that when the company re- fuses to appeal from the decree, any one of the stock-holders, on behalf of himself and other stock-holders, may appeal therefrom un- der the provisions of Ohio Rev. Stat. § 5226, as a " person directly affected " thereby, when there is reason to believe that the officers of the company have an interest in common with the plaintiffs in the case, and that in refus- ing, or neglecting, to appeal, they are acting in, and controlled by, that interest). And it has been held in Maine, under an act making the private property of stock-holders in a bank liable to attachment or levy in a suit by a holder of its bills, that, where property of a stock-holder has been levied on under a judgment against the bank, the seizure makes him privy in law to the judgment, though he was not a party to the action, and he may maintain a writ of error for its reversal with- out joining any other stock-holders. Rankin v. Sherwood, 33 Me. 509; Merrill v. Suffolk Bank, 31 Me. 57, 50 Am. Dee. 649. 99. The reason assigned for this is that, in the absence of fraud or collusion, a judgment against a principal is conclusive as against his surety. Illinois. — Weer v. Gand, 88 111. 490, surety on guardian's bond. Kentucky. — Boyd County v. Ross, 95 Ky. 167, 15 Ky. L. Rep. 520, 25 S. W. 8, 44 Am. St. Rep. 210, surety on sheriff's county levy- bond. Massachusetts. — Farrar v. Parker, 3 Allen (Mass.) 556, surety on bond of deceased in- solvent guardian. Mississippi. — Patterson v. Gathings, 48 Miss. 639, surety on forthcoming bond. Missouri. — Nolan v. Johns, 108 Mo. 431, 18 S. W. 1107; Loehner v. Hill, 19 Mo. App. 141 — sureties on injunction bonds. Pennsylvania. — Garber v. Com., 7 Pa. St. 265, surety on administrator's bond. Rhode Island. — Belcher v. Branch, 11 R. I. 226, surety on administrator's bond. Vol. n See 2 Cent. Dig. tit. "Appeal and Error," § 944. Exceptions and limits to rule. — A surety upon a guardian's bond has no right of appeal from the decree of a judge of probate allow- ing a guardianship account filed by the ad- ministratrix of the deceased guardian. Tux- bury's Appeal, 67 Me. 267 ; Woodbury v. Ham- mond, 54 Me. 332. Sureties on an injunction bona are not parties to the judgment in the original suit, and have no right to appeal therefrom. St. Louis Zinc Co. v. Hesselmeyer, 50 Mo. 180. They have no appealable inter- est in a judgment dismissing the case for want of jurisdiction (Lake Bisteneau Lum- ber Co. v. Mimms, 49 La. Ann. 1294, 22 So. 735 ) , or in an order dissolving the injunction, where no damages were assessed against them (Richardson v. Chevalley, 26 La. Ann. 551). A surety on a replevin undertaking who, af- ter judgment for defendant in that action, successfully defends in another state a suit upon the undertaking, on the ground that the erroneous entry of judgment in the replevin suit discharged him from liability on his un- dertaking, cannot afterward contest a motion by defendant for the amendment of the judg- ment in the replevin suit by appeal from the order granting it. Berthold v. Fox, 21 Minn. 51. But compare Hotchkiss v. Piatt, 7 Hun (N. Y.) 56, which was a reference to ascer- tain damages sustained by defendant in con- sequence of an injunction, wherein it was held that, the sureties on the injunction bond hav- ing appeared before the referee and opposed the confirmation of the report, they might appeal from the order confirming the report although they were not regularly made par- ties to the action by service of the proper no- tice. 1. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 910. As to designation and description of per- sons in representative capacity see infra, VI, G, 4. 2. Johnson v. Thaxter, 12 Gray (Mass.) 198; Day v. Laflin, 6 Mete. (Mass.) 280. Contra, Johnson v. Louisville City Nat. Bank, (Ky. 1900) 56 S. W. 710. 3. Teackle v. Crosby, 14 Md. 14; State v. Field, 37 Mo. App. 83. A provisional syndic may appeal from a judgment denying him the right to render his account through the channel of the court, after public notification to all concerned, in- stead of presenting it directly to the defin- itive syndic. Wood v. His Creditors, 35 La. Ann. 257. APPEAL AND ERROR 639 that he has no standing, either in his own right as assignee, or on behalf of the general creditors, to appeal from a decree distributing the fund. 4 (n) Attorneys. An attorney has no right, in his own name and on his own motion, to appeal from an order or judgment of the court below affecting the interests of his client. 5 (in) Guardians and Next Friends. His guardian, 6 a guardian ad litem,' 1 or his next friend when he has no guardian or guardian ad litem, may appeal on behalf of an infant whenever it is necessary to protect the infant's interests. 8 (iv) Heirs. It has been held that the heirs at law of a decedent have an appealable interest in a judgment or decree affecting the possession or title of real estate belonging to such decedent ; 9 but the heirs of a decedent have no 4. Graff's Estate, 146 Pa. St. 415, 23 Atl. 397; Mellon's Appeal, 32 Pa. St. 121. Com- pare Salmon V. Pierson, 8 Md. 297, wherein it was held that a trustee in insolvency, being the representative of the creditors, may ap- peal where the decision affects the interests of all the creditors, or when he has an inter- est, as trustee, in reference to his allowance. But a conventional trustee, appointed to sell property and distribute the proceeds among creditors, has no right of appeal from an order fixing the amount of a particular claim pre- ferred by a creditor. McColgan v. McLaugh- lin, 58 Md. 499 ; Frey v. Shrewsbury Sav. Inst., 58 Md. 151. In a controversy between creditors, in which the syndic is without interest, the latter can- not appeal. Beer v. Their Creditors, 12 La. Ann. 774. So, the assignee of an insolvent estate, who was the losing party in the trial before a referee, of certain issues between him and the creditors, could not complain of a judgment whereby the costs of reference were divided equally between him and such cred- itors, as he could have been adjudged to pay all such costs. Perdew v. Coffin, 11 Colo. App. 157, 52 Fac. 747. 5. Cook v. Adams, 27 Ala. 294; Riddle v. Hanna, 25 Ala. 484; Matter of Blythe, 103 Cal. 350, 37 Pac. 392 ; National Park Bank v. Lanahan, 60 Md. 477 ; Besancon v. Brownson, 39 Mich. 388. See also' 2 Cent. Dig. 'tit. "Ap- peal and Error," § 909. But compare Green v. Stringfellow, 50 Ga. 486, holding that where an instrument is pro- duced, signed by plaintiff in error, stating that the case was carried to the supreme court without authority from him, and con- senting to its dismissal, his counsel will not be permitted to proceed with the litigation for the recovery of fees except upon showing that the ease had been settled by defendants in error with notice of the contract under which the counsel was to be compensated. An attorney appointed by the court to rep- resent unknown heirs has authority to prose- cute a writ of error. Russell v. Randolph, 11 Tex. 460. A person appearing as attorney in fact for certain creditors of the intestate, and oppos- ing the grant of administration, may appeal, though not interested in any other respect in the subject of controversy. Bohn v. Shep- pard, 4 Munf. (Va.) 403. Where counsel fees in divorce cases are in- Tolved. — Under the New York code the solici- tor of a petitioner for divorce, though not a party to the action, may appeal from an order refusing him a, counsel fee, upon a discon- tinuance of the proceedings (Louden v. Lou- den, 65 How. Pr. (N. Y.) 411) ; but in other jurisdictions it has been held that the pro- vision of the divorce act concerning the wife's solicitor's fees is for the wife's benefit, and, if she refuses to appeal from an order disallow- ing such fees, .her solicitor has no standing to do so (Steger v. Steger, 165 111. 579, 46 N. E. 888; Pereyra's Appeal, 126 Pa. St. 220, 24 Wkly. Notes Cas. (Pa.) 42, 17 Atl. 602) ; al- though, in Illinois, it seems that the solicitor may bring a writ of error (Anderson v. Steger, 173 111. 112, 50 N. E. 665). 6. Matter of Johnson, 87 Iowa 130, 54 N. W. 69 (guardian appointed by will of adopting parent) ; Baumgarden's Succession, 35 La. Ann. 675 (tutor of minor). 7. Thomas v. Safe-Deposit, etc., Co., 73 Md. 451, 21 Ml. 367, 28 Atl. 3; Loftis v. Loftis, 94 Tenn. 232, 28 S. W. 1091. Curator ad hoc. — Under the Louisiana code a curator ad hoc, appointed to defend a non- resident, has the right of appeal. Langley v. Burrows, 15 La. Ann. 392. 8. Cook v. Adams, 27 Ala. 294; Riddle v. Hanna, 25 Ala. 484. See also 2 Cent. Dig. tit. "Appeal and Error," §§ 912, 941. Next friend has no standing to prosecute an. appeal where the interests of the minor are protected by a guardian or guardian ad litem. Lawless v. Reagan, 128 Mass. 592; E. B. v. E. C. B., 28 Barb. (N. Y.) 299. Next friend of insane person. — The next friend of an insane petitioner may appeal from a judgment of the circuit court remand- ing petitioner to an insane asylum, and may prosecute the appeal until a guardian ad litem is appointed. King v. McLean Asylum, 64 Fed. 325, 21 U. S. App. 407, 12 C. C. A. 139, 26 L. R. A. 784. But an uncle and next friend of a non compos cannot, as such, sus- tain an appeal from the probate court against the guardian without showing himself to be heir, next of kin, or creditor. Penniman v. French, 2 Mass. 140. 9. Illinois. — Bower v. Grayville, etc., R. Co., 92 111. 223. Kentucky. — Callaghan v. Carr, 2 Litt.. (Ky.) 153. Louisiana. — Boutte v. BouttS, 30 La. Ann- 177. Vol. II 640 APPEAL AND ERROR appealable interest in a mere personal judgment or decree against the estate of their intestate ancestor. 10 (v) Personal Representatives. 11 An executor or administrator may appeal 12 or bring error from a judgment against the decedent, in an action brought by or against the latter, in the same manner as the decedent might have done. 13 An executor has an appealable interest in an order of court affecting the property and the trusts of the testator's will. 14 But an executor or adminis- trator cannot appeal from a decree affecting the title to land which has vested in the heirs, 15 nor can an executor or administrator appeal from an order of distribution where the court had jurisdiction. 16 But an executor or adminis- trator may appeal from a judgment rendered in an action brought by him ; 17 Maine. — Bates v. Sargent, 51 Me. 423, con- struing Me. Rev. Stat. c. 71, § 17. Wisconsin. — Betts v. Shotton, 27 Wig. 667. 10. Andat v. Gilly, 12 Rob. (La.) 323. See also 2 Cent. Dig. tit. "Appeal and Error," § 946. And this rule applies although the estate be insolvent and real property -will have to be sold to create assets to discharge the judg- ment appealed from. Mclntyre v. Sholty, 139 111. 171, 29 N. E. 43. In a proceeding to determine heirship, parties who do not except to or attack a finding that they are not akin to decedent are not parties, within Cal. Code Civ. Proc, §§ 657, 938, pro- viding that such party may appeal in cer- tain cases. Blythe v. Ayres, 102 Cal. 254, 36 Pac. 522, 588; Blythe v. Savage, (Cal. 1894) 36 Pac. 844. One made a party to a creditors' bill against an administrator and heirs, who makes de- fense, and against whom a decree is rendered as an heir, may appeal therefrom although he was not designated as an heir in the bill. White v. Kennedy, 23 W. Va. 221. 11. See 2 Cent. Dig. tit. "Appeal and Er- ror," §§ 911, 941. As to revival on death of party see infra, VI, D. 12. Davies v. Nichols, 52 Ark. 554, 13 S. W. 129 ; Ex p. Trapnall, 29 Ark. CO ; O'Connor v. O'Connor, 45 W. Va. 354, 32 S. E. 276. Con- tra, Goldschmid v. Meline, 86 Md. 370, 38 Atl. 783. Executor must be made a party, hence the mere filing of letters testamentary, after a final judgment against her testator, does not enable an executrix to prosecute an appeal from the judgment. State v. Florida Cent. R. Co., 15 Fla. 690. Executor of residuary legatee. — -An appeal from a decree of the judge of probate, allow- ing the account of an executor, should be made by the executor or administrator of a residuary legatee, where such a one is named in the will, and not by one entitled to a dis- tributive share of the estate of such residuary legatee. Downing v. Porter, 9 Mass. 386. Executor or administrator whose letters have been revoked cannot appeal from a judg- ment rendered in an action wherein he was a party when such revocation took place. Ed- ney v. Baum, 53 Nebr. 116, 73 N. W. 454. One who has qualified in another state as executrix of a person against whom a judg- ment by default had been Tendered in New Vol. II York before his death, but which executrix has not so qualified in the latter state, can- not appeal from an order denying a motion to reopen the judgment. Philipe v . Levy, 15 N. Y. Civ. Proc. 68, 56 N. Y. Super. Ct. 606, 3 N. Y. Suppl. 664, 16 N. Y. St. 889. 13. Headon v. Turner, 6 Ala. 66; Webster v. Hastings, 56 Nebr. 245, 76 N. W. 565. Compare, also, generally, Abatement and Revival, III. 14. Levy v. Williams, 9 Rich. (S. C.) 153; In re Luscombe, (Wis. 1901) 85 N. W. 341. Decree construing will. — An executor or trustee, representing the interests of persons who are otherwise unrepresented in the cause, is entitled to appeal from a decree construing a will which injuriously affects those inter- ests. Green v. Blackwell, 32 N. J. Eq. 768. So, an executor who is directed to administer an estate in conformity to a will may appeal from a judgment recognizing the rights of the survivor in community. McKenna's Succes- sion, 23 La. Ann. 369. Order requiring executor to redeem land. — Executors of an estate may appeal from an order requiring them to redeem decedent's land from a foreclosure sale. Matter of Hey- denfeldt, 117 Cal. 551, 49 Pac. 713. ' 15. Bower v. Grayville, etc., R. Co., 92 111. 223 ; and to the same effect see Turner v. Wat- ers, 14 Md. 62. Order directing sale to pay debts. — An ad- ministrator cannot appeal from an order di- recting him to institute proceedings for the sale of the land of his intestate in order to pay debts, since such administrator has no in- terest in the matter. McCollister v. Greene County Nat. Bank, 171 111. 608, 49 N. E. 734. When there is a deficiency of assets. — The executors of an estate have such interest that they can appeal from a judgment for fore- closure of a mortgage given by testatrix, pro- viding that judgment for deficiency be ren- dered against the heirs and devisees to the ex- tent of the estate which shall have descended or been devised to them. Reinig v. Hecht, 58 Wis. 212, 16 N. W. 548. 16. Matter of Williams, 122 Cal. 76, 54 Pac. 386; Gosslin v. Her Legitimate Heirs, 2 La. 141; Chew's Appeal, 3 Grant (Pa.) 208. But, when such order is prematurely made, it seems he may appeal therefrom. Matter of Smith, 117 Cal. 505, 49 Pac. 456. 17. Bliss v. Fosdick, 76 Hun (N. Y.) 508, 27 N. Y. Suppl. 1053, 58 N. Y. St. 498 [revers- ing 24 N. Y. Suppl. 9391. APPEAL AND ERROR 641 and an administrator who is aggrieved, 18 by an order fixing his compensation at less than he was entitled to, may appeal. 19 (vi) Receivers™ The receiver of a corporation may appeal or sue out a writ of error from a judgment in a suit brought by 21 or against him. 22 But it has been held that a receiver, appointed pending an action against the party for whose effects he was appointed, cannot enter an appeal in the action in his own name, as receiver, without first having himself made a party thereto, 28 nor can he appeal from an order removing him or vacating his appointment unless he is a party to the action in which he was appointed. 24 A trustee or receiver, appointed by a court of equity to sell real estate, cannot appeal from an order setting aside a sale which he had reported for ratification, 25 nor can a receiver appeal from an order forthe payment or distribution of the funds in his hands, 26 nor from a decree which settles his accounts and directs him to pay a balance into court, 27 unless the decree denies him the right to compensation for his services, or fixes the amount at less than it should be. 28 (vn) Trustees of Property. ' It has been held that a trustee of property has such concern in a judgment or decree affecting the interest of his cestuis que trustent as entitles him, in behalf of the cestius que trustent, to appeal therefrom. 29 So, an administrator de bonis non may bring a writ of error on a judgment against the previous executor or administrator. Stoutz v. Huger, 107 Ala. 248, 18 So. 126; Dale v. Roose- velt, 8 Cow. (N. Y.) 333. Contra, Grout v. Chamberlin, 4 Mass. 611. 18. Unless aggrieved by an order or decree, an administrator cannot appeal therefrom. Decoux's Succession, 5 La. Ann. 140 (a de- cree in his favor appointing him administra- tor, which could be avoided by refusal to ac- cept appointment) ; Sherer v. Sherer, 93 Me. 210, 44 Atl. 899, 74 Am. St. Rep. 339. See also, generally, supra, IV, A, 1, c. 19. Parker v. Gwynn, 4 Md. 423. 20. See 2 Cent. Dig. tit. "Appeal and Er- ror," §§ 910, 940. 21. Rust v. United Waterworks Co., 70 Fed. 129, 36 U. S. App. 167, 17 C. C. A. 16. 22. Thorn v. Pittard, 02 Fed. 232, 8 U. S. App. 597, 10 C. C. A. 352. A receiver of a firm which has been dissolved by decree may appeal from a judgment against one or more members of the firm, though no judgment is entered against him, the only disposition of defenses interposed by him being by rulings made during the trial. Honegger v.' Wettstein, 47 N. Y. Super. Ct. 125. 23. Dupree v. Drake, 94 Ga. 456, 19 S. E. 242. Authority of court necessary. — A receiver, being the mere servant or agent of the court, cannot appeal from an order in the action un- less authorized so to do by the court. Mc- Kinnon v. Wolfenden, 78 Wis. 237, 47 X. W. 436. In supplementary proceedings a receiver may not be substituted for the debtor whose estate he represents, in an action against the latter, against plaintiff's will. He may not, therefore, appeal, under N. Y. Code Civ. Proc. § 1296, providing that one aggrieved, who is entitled to be substituted, may appeal. Ross v. Wigg, 100 N. Y. 243, 3 N. E. 180. 24. In re Premier Cycle Mfg. Co., 70 Conn. 473, 39 Atl. 800; L'Engle v. Florida Cent. R. Co., 14 Fla. 266; Ellicott v. Warford, [41] 4 Md. 80; Conner v. Belden, 8 Daly (N. Y.) 257. A clerk and master in equity is no such party to a suit pending in his court as to en- title him, under N. C. Rev. Code, c. 4, § 23, to appeal from an interlocutory order appointing another than himself a commissioner to sell real estate. Green v. Harrison, 59 N. C. 253, 82 Am. Dec. 415. 25. Hallam v. Oppenheimer, 3 App. Cas. (D. C.) 329; Haskie v. James, 75 Md. 568, 23 Atl. 1030 ; Lurman v. Hubner, 75 Md. 268, 23 Atl. 646. 26. The receiver, being the agent of the court, is not, ordinarily, in the absence of stat- ute, authorized to appeal from a decree of the court directing the application or distribution of the funds in his hands. Battery Park Bank v. Western Carolina Bank, 127 N C. 432, 37 S. E. 461. But see, contra, Ellicott v. Elli- cott, 6 Gill & J. (Md.) 35; and People v. St. Nicholas Bank. 77 Hun (N. Y.) 159, 28 N. Y. Suppl. 407, 59 N. Y. St. 881, wherein it is said that, by statute in New York, a receiver may appeal from an order directing him to pay out money in his hands to claimants thereof. 27. Dorsey v. Sibert, 93 Ala. 312, 9 So. 288; Hinckley v. Gilman, etc., R. Co., 94 U. S. 467, 24 L. ed. 166. But compare Ruhl v. Ruhl, 24 W. Va. 279, wherein it is held that a commis- sioner to make sale of realty, ordered impris- oned for alleged contempt in failing to pay over money under what was a void decree, is entitled to have the order reviewed. So, where the claimants of a fund, the proceeds of a sale, acquiesce in the decree distributing it, the receiver or trustee appointed to make the sale has no appealable interest. Stewart v. Codd, 58 Md. 86; Battery Park Bank v. Western Carolina Bank, 127 N. C. 432, 37 S. E. 461. 28. Herndon v. Hurter, 19 Fla. 397; Ho- bart v. Hobart, 23 Hun (N. Y.) 484. Contra, Fredeldey v. Diserens, 26 Ohio St. 312. 29. Woodside v. Grafflin, 91 Md. 422, 46 Atl. 968; Ellicott v. Ellicott, 6 Gill & J. (Md.) 35; Bockes v. Hathorn, 78 N. Y. 222; Hall t'. Virginia Bank, 14 W. Va. 584. Vol. II 642 APPEAL AND ERROR So too it has been held that a mortgage trustee may appeal from a decree affecting his commissions. 80 e. States. 31 A state, like an individual, has a right to appeal from a judg- ment to which it is a party and by which it has been aggrieved ; ffl but it cannot appeal from one to which it is not a party. 33 d. United States. 34 Under the act of congress of March 3, 1887, authorizing suits against the United States, the latter may appeal from any judgment, for any amount, rendered against it. 35 See 2 Cent. Dig. tit. " Appeal and Error," §§ 913, 942. A trustee in a railroad mortgage who inter- venes, with leave of the court, as a party com- plainant in a suit by one of the bondholders and certain creditors of the railroad company, claiming superior liens on the mortgaged prop- erty, represents all the bondholders, and may appeal from a decree rendered in such suit. Hassall v. Wilcox, 115 U. S. 598, 6 S. Ct. 189, 29 L. ed. 504. But where it does not appear from the record what interest or right appel- lant styling himself " trustee " had in the pro- ceedings, for whom he was trustee, or that the moneys out of which the claim was paid were a part of any fund in which he had an inter- est, his appeal should be dismissed. Fitz- gerald v. Evans, 49 Fed. 426, 4 TJ. S. App. 154, 1 C. C. A. 307. Trustees to execute trusts in a will are such parties in interest as may prosecute a writ of error or appeal from a decision of the county court against the validity of the will. Tib- batts v. Berry, 10 B. Mon. (Ky.) 473. See also Matter of Stevens, 53 Hun (N. Y.) 637, 6 N. Y. Suppl. 635, 957, 25 N. Y. St. 989, 993, where trustees under a will, having interest similar to the interests of the executors, were allowed to appear and appeal from an order denying motion for stay of proceedings, the motion having been made by the executors alone. But from a, decree of the judge of pro- bate, appointing a guardian to a minor child, the trustees of a fund bequeathed for the bene- fit of such child have no authority to appeal. Deering v. Adams, 34 Me. 41. Extent and limits of rule. — It has been held that the fact that the cestui que trust is a party to the action, and might appeal in his own name, does not impair the trustee's power, in a proper ease, to appeal in his own name for the reversal of a judgment adverse to the cestui (Bockes v. Hathorn, 78 N. Y. 222) ; but the contrary has been held (Press !>. Woodley, 160 111. 433, 43 N. E. 718). Thus, in Ratliff v. Patton, 37 W. Va. 197, 16 S. E. 464, it was held that where, after an appeal was obtained and perfected by a trustee, the cestui que trust appeared and dismissed the appeal, so far as she was concerned, and the trustee did not appear to have any private in- terest in the controversy, the appeal should have been dismissed as to the trustee also. See also Bryant v. Thompson, 128 N. Y. 426, 28 K. E. 522, 40 N. Y. St. 439, 13 L. R. A. 745, to the effect that where executors and trustees under a will bring an action to de- termine which of two parties are entitled to a certain fund in the trustee's hands, and the judgment rendered is acquiesced in by both of the alleged claimants to the fund, who are Vol. II parties and are of age, the trustees are not entitled to appeal. See also, generally, supra, IV, A, 1, c. 30. White r. Malcolm, 15 Md. 529. 31. See 2 Cent. Dig. tit. "Appeal and Er- ror," §§ 914, 943. 32. State v. Eves, (Ida. 1898) 53 Pac. 543, holding that a state is a party aggrieved by a judgment upon an usurious contract which fails to enforce the penalty provided for by statute, and may appeal from the denial of a. motion for the modification of such judgment. The territory of Montana, being a corpora- tion and having the right to make contracts and sue thereon, was allowed, in a civil ac- tion, to bring appeal to review a judgment by which it is aggrieved. Territory v. Hilde- brand, 2 Mont. 426. Who should take appeal. — -An appeal from a judgment against the state, in an action in its name to recover a forfeiture, can be taken only by the district attorney or, possibly, by the attorney-general. State r. Duff, 83 Wis. 291, 53 jST. W. 446. But in Louisiana it has been held that where the attorney-general is absent from the state, or neglects or declines to take the appeal, the governor may appeal. State v. Graham, 25 La. Ann. 629; State v. Dubuclet, 22 La. Ann. 602. Compare Smith v. New Orleans, 43 La. Ann. 726, 9 So. 773 (hold- ing that suit having been brought against a state tax-collector for revocation of a tax- title made by him to the state, and judgment having been rendered annulling it, he is com- petent quod hoc to prosecute an appeal for the state) ; and Lawson v. Hart, 40 W. Va. 52, 20 S. E. 819 (wherein it is held that the commissioner of school lands, not being a proper party in an action by the state, under W. Va. Acts ( 1893 ) , c. 24, § 6, for the sale of such lands which have been forfeited by non- payment of the purchase-price or taxes, is not entitled to appeal from a decree in such ac- tion) ; and State v. Wertzel, 84 Wis. 344, 346, 54 N. W. 579 (holding that, under Wis. Rev. Stat. § 3298, providing that, in actions to re- cover forfeitures, " no appeals shall be taken . . . from a judgment against the state, un- less directed by the attorney-general or dis- trict attorney," an appeal in an action to re- cover a forfeiture for an encroachment on a town road is properly taken, by the attorney for the town, by written direction of the district attorney of the county). 33. Fry r. Britton, 2 Heisk. (Tenn.) 606; South Carolina r. Wesley, 155 U. S. 542, 15 S. Ct. 230, 39 L. ed. 254.' 34. See 2 Cent. Dig. tit. " Appeal and Er- ror," §§ 914, 943. 35. 24 U. S. Stat, at L. c. 359. U. S. Rev. Stat. Suppl. (1891), p. 559, c. 359. APPEAL AND ERROR 643 B. Waiver of Right 36 — 1. Express Waiver — a. Before Trial. In some juris- dictions an agreement of parties, entered into before the trial, that the judgment of the trial court shall be a iinal determination, will not deprive either party of his right of appeal. 37 b. Subsequent to Trial. If, for a legal and valid consideration, 38 a party who has prayed an appeal from a judgment against him agrees to withdraw it, and not thereafter to appeal, such an agreement will be enforced by the appellate tri- bunal by dismissing the appeal. 39 So too it has been held that a release of errors Under the act or congress of May 15, 1820 [U. S. Rev. Stat. (1878), § 3636], the govern- ment has no appeal in summary proceedings against a delinquent officer. U. S. v. Davis, 131 U. S. 36, 9 S. Ct. 657, 33 L. ed. 93; U. S. v. Nourse, 6 Pet. (U. S.) 470, 8 L. ed. 467; TJ. S. v. Yukers, 60 Fed. 641, 23 U. S. App. 292, 9 C. C. A. 171. From a decision by the court of private land claims in favor of the petitioner, the United States may appeal, for, while the government may have no interest in the result, it is a proper and necessapy party to the suit. U. S. v. De Conway, 175 U. S. 60, 20 S. Ct. 13, 44 L. ed. 72. 36. See 2 Cent. Dig. tit. " Appeal and Er- ror," § 953 et seq. 37. Sanders v. White, 22 Ga. 103; Brown v. Galesburg Pressed Brick, etc., Co., 132 111. 648, 24 N. E. 522; Fahs v. Darling, 82 111. 142; Weir v. Stephenson, 13 111. 374; State v. Judge, 14 La. Ann. 323; Runnion v. Ramsay, 93 N. C. 410; Falkner v. Hunt, 68 N. C. 475; Binford v. Alston, 15 N. C. 351. See 2 Cent. Dig. tit. "Appeal and Error," § 1008 et seq. But agreement to waive right of appeal does not take away the power of the court to re- view the proceedings on writ of error. Put- nam v. Churchill, 4 Mass. 516; Wynn v. Bel- las, 34 Pa. St. 160. Such agreements, however, are enforceable in some jurisdictions. Oliver v. Blair, (Cal. 1885) 5 Pac. 917; Cole v. Thayer, 25 Mich. 212; Townsend v. Masterson, etc., Stone Dressing Co., 15 N. Y. 587; Saling p. German Sav. Bank, 15 Daly (N. Y.) 527, 8 N. Y. Suppl. 469, 28 N. Y. St. 880; New v. Fisher, 11 Daly (N. Y.) 308; Canarie v. Knowles, 11 N. Y. Civ. Proc. 418; Com. v. Johnson, 6 Pa. St. 136. Compare, however, Meekin v. Brooklyn Heights R. Co., 51 N. Y. App. Div. 1, 64 N. Y. Suppl. 291 [.affirmed, in 164 N. Y. 145, 58 N. E. 50], holding that, when an appeal is taken to ■ the appellate court from an order, reviving an action against defendant in which there is a stipulation for judgment absolute against it in the event of affirmance, defendant can ap- peal to the court of appeals on a question of law involved; and see Hall v. Woleott, 10 Mass. 218, where, in an action pending, de- fendant demurred, reserving the right of waiv- ing his demurrer in the supreme court, and agreeing that plaintiff should have the benefit of a verdict. It was held this waived defend- ant's right of review, but not the plaintiff's, who, obtaining a verdict in the supreme court with, which he was dissatisfied, had the right to a writ of review. Submission to referees. — -A party, by con- senting to a reference of the cause, with an agreement that the award of the referees shall be final and that judgment shall be entered thereon, waives his right of review. Parsons v. Hilliard, 61 N. H. 642; Carroll v. Locke, 58 N. H. 163 ; Cuncle v. Oripps, 3 Penr. & W. (Pa.) 291, 23 Am. Dec. 84; Andrews v. Lee, 3 Penr. & W. (Pa.) 99; Gorman v. Falkner, 2 Pearson (Pa.) 316; Shainline's Appeal, 2 Walk. (Pa.) 325; and 2 Cent. Dig. tit. "Ap- peal and Error," §§ 1010, 1011. But a stipu- lation that a temporary injunction should be vacated, that the issues be referred to a ref- eree named, and that, if the issues should be finally determined in favor of plaintiff, de- fendant should do certain things, does not pre- clude an appeal from the referee's determina- tion. Laney v. Rochester R. Co., 81 Hun (N. Y.) 346, 24 N. Y. Civ. Proc. 156, 30 N. Y. Suppl. 893, 63 N. Y. St. 148. Waiver in instrument sued on. — In Pennsyl- vania a waiver of the right of appeal, con- tained in a, note sued upon, will be enforced where the only defense pleaded existed at the time the note was given ( Soden v. Wheaton, 6 Pa. Co. Ct. 416; Snyder v. Halter, 6 Pa. Co. Ct. 418) ; but will be inoperative to prevent an appeal when the defense arose subsequent to the delivery of the note (Wells v. Wilson, 6 Pa. Co. Ct. 417 ; Minich v. Basom, 2 Pa. Dist. 709 ) . So of waiver of right of appeal con- tained in a lease. Strojny v. Merofchinski, 9 Kulp (Pa.) 444. See also 2 Cent. Dig. tit. " Appeal and Error," § 1013. A waiver should be insisted on in the court below at the time the appeal was prayed. It is too late to make the objection in the ap- pellate court. Morris v. Palmer, 32 Miss. 278. 38. Maryland. — Ward v. Collins, 14 Md. 158, sufficiency of consideration. Massachusetts. — Powell v. Turner, 139 Mass. 97, 28 N. E. 453, validity of consider- ation. Nebraska.— Clark v. Strong, 14 Nebr. 229, 15 N. W. 236, failure of consideration. Nevada. — Wheeler v. Floral Mill, etc., Co., 10 Nev. 200, sufficiency of consideration. New York.— Hill p. Hermans, 59 N". Y. 396, validity of consideration. Virginia. — Southern R. Co. v. Glenn, 98 Va. 309, 36 S. E. 395, necessity of consideration. 39. Maryland. — Mackey v. Daniel, 59 Md. 484; Lester v. Howard,, 24 Md. 233; Ward v. Hollins, 14 Md. 158. New York. — Ogdensburgh, etc., R. Co. v. Vermont, etc., R. Co., 63 N. Y. 176. Ohio. — Emeriek v. Armstrong, 1 Ohio 513. Texas. — Johnson v. Halley, 8 Tex. Civ. App. 137, 27 S. W. 750. England.— Cates v. West, 2 T. R. 183 ; Cam- den v. Edie, 1 H. Bl. 21. Vol. II 644 APPEAL AND ERROR for a valuable consideration *> will estop the party from prosecuting a writ of error. 41 2. Implied Waiver — a. Acquiescence in Judgment of Order — (i) In General. If a party to an action acquiesces in a judgment or order against him he thereby waives his right to have such judgment or order reviewed by an appellate court. 42 See 2 Cent. Dig. tit. "Appeal and Error," § 1008 et seq. As to dismissal of appeal on consent of par- ties see infra, XIV, C. But a stipulation, entered into after an ap- peal is taken, providing for a distribution of a portion of the fund in controversy, will not de- prive appellants of the benefit of their appeal when the stipulation itself shows that it was not intended as an abandonment of the ap- peal. Seattle p. Liberman, 9 Wash. 276, 37 Pac. 433. Attorney-general may waive his right to appeal in an action brought by him under the provisions of the act authorizing him to in- stitute certain actions. People v. Stephens, 52 N. Y. 306. 40. Forbearance is a sufficient consideration for a release of errors. Barnes r. Moody, 5 How. (Miss.) 636, 37 Am. Dec. 172. 41. Alabama. — Cotton v. Wilson, Minor (Ala.) 118, holding that a release of errors, to be effective, must be under seal. Arkansas. — -Martin v. Hawkins, 20 Ark. 150, an agreement under seal. Indiana. — Millar v. Farrar, 2 Blackf. (Ind.) 219. If a release of errors, filed under the statute to obtain an injunction, be not sealed it is of no validity. Clark v. Goodwin, 1 Blackf. (Ind.) 74. Kentucky. — March v. Talbott, 1 Dana (Ky.) 443, an agreement under seal " to waive all exceptions to the decree as it now stands." Massachusetts. — But see Goodridge v. Ross, 6 Mete. (Mass.) 487, holding that, where a writ of error is brought to reverse a judgment recovered on a note against an infant, who appeared by attorney, a promise made by him after he comes of age, to pay the note is neither a release, nor a waiver of the error, nor a bar to a writ of error. Mississippi. — Barnes r. Moody, 5 How. (Miss.) 638, 37 Am. Dec. 172. Pennsylvania. — Ulshafer v. Stewart, 71 Pa. St. 170. United States.— Elwell r. Fosdick, 134 TJ. S. 500, 10 S. Ct. 598, 33 L. ed. 998, holding that, where a decree has been entered, and a sale made and confirmed, in a suit to foreclose a first mortgage on a railroad, in which suit the trustee under a second mortgage was a party, a release of errors in the proceedings, executed by such trustee in good faith and at the in- stance of a majority of the second-mortgage bondholders, will prevent a subsequent appeal in the name of the trustee by others of such bondholders who were not parties to the suit, they having declined to contribute to the cost of the litigation. See 2 Cent. Dig. tit. "Appeal and Error," § 1002 et seq. Errors cured by release. — A judgment ren- dered on a nine-days' service of summons, Vol. II though reversible for insufficient service, is valid, and such service is cured by a release of errors. Helphenstine v. Vincennes Sat. Bank, 65 Ind. 582, 32 Am. Rep. 86. Release by one of several joint defendants. — A release of errors, executed by one of sev- eral co-defendants to an action, estops him from bringing a writ of error ( Clark v. Good- win, 1 Blackf. (Ind.) 74) ; but does not bind the other defendants (Blanchard r. Gregory, 14 Ohio 413). In Van Houten v. Ellison, 2 N. J. L. 220, where one of two plaintiffs in error released the error, the judgment of the court was that the other plaintiff have leave to prosecute alone. A release of error by one joint plaintiff may be pleaded in bar of a writ of error by the other ; but such rule does not apply to joint defendants. Genin v. In- gersoll, 2* W. Va. 558. Contra, Cole v. Thayer, 25 Mich. 212. An error which is personal to one of several defendants may be released by him (Henriekson c. Van Winkle, 21 111. 274) ; and such release precludes a co-defendant from maintaining a writ because of such error (El- lis i. Bullard, 11 Cush. (Mass.) 496). See also 2 Cent. Dig. tit. " Appeal and Error," § 1007. Release by partner. — A release of errors by one partner in an action against the firm will bind his copartner. Wood v. Goss, 21 111. 604; Hull v. Garner, 31 Miss. 145. 42. Treadwell's Estate, 111 Cal. 189, 43 Pac. 584; Roman Catholic Church v. Perche, 40 La. Ann. 201, 3 So. 542; State r. Strong, 32 La. Ann. 173; De Egana's Succession, 18 La. Ann. 59; Genety v. Davenport, 59 N. Y. 648 ; People v. Rochester, etc., R. Co., 15 Hun (N. Y.) 188. See 2 Cent. Dig. tit. " Appeal and Error," § 957 et seq.; and cases cited infra, notes 43-55. As to recognition of validity of judgment see infra, IV, B. 2, f. Acquiescence must be unconditional, volun- tary, and absolute. Jackson r. Michie, 33 La. Ann. 723. Acquiescence by one of several appellants, or his attorney, cannot prejudice the right of appeal of another appellant who was not a party to the act of acquiescence. State v. Marks. 30 La. Ann. 70. As to what circumstances constitute acqui- escence under the Louisiana practice see Ran- dall r. New Orleans, etc., R. Co., 45 La. Ann. 778. 13 So. 166: Chaffe e. Mackenzie, 43 La. Ann. 1062. 10 So. 369; Ware r. Morris. 42 La. Ann. 760, 7 So. 712: New Orleans City R. Co. r. Crescent Citv R. Co.. 33 La. Ann. 1273: State v. Brown, 29 La. Ann. 861 (merely submitting to the execution of a judgment ) : Bougere's Succession, 28 La. Ann. 743 (omission to apply for a suspensive ap- peal). APPEAL AND ERROR 645 (ii) Acceptance of Terms or Conditions. If a trial court imposes terms as the condition upon which a continuance 48 or amendment will be allowed, 44 or upon which an order will be granted, 45 or other thing will be done or not done, 46 and the party upon whom the terms are imposed accepts them, he will be deemed to have acquiesced in the ruling and cannot afterward question its validity in the appellate court. 47 (in) Amendment of Pleadings. If a party, after judgment upon demurrer to pleadings is given against him, under leave of court, amends the pleading demurred to he acquiesces in the judgment upon the demurrer, and will not be permitted to assign it for error "in the appellate court. 48 But the election of Where the same person is interested in a double capacity — namely, as receiver in the action, and also as entitled to a share in the distribution — he cannot sustain an appeal, taken as receiver, from an order directing the receiver to turn over the assets in his hands, on the ground that the order does not properly protect his interests as distributee, when he did not appeal as distributee. With- erbee v. Witherbee, 55 N. Y. App. Div. 151, 66 N. Y. Suppl. 1039. So, where the husband appealed, in right of his wife as one of the next of kin of the te'tator, it was held that he could not appeal in his own right. Foster v. Foster, 7 Paige (N. Y.) 48. Where the subjects of a judgment are dis- tinct, acquiescence in one will not defeat the appeal as to the judgment on another and dis- tinct demand. Kaiser's Succession, 48 La. Ann. 973, 20 So. 184; Liles v. New Orleans Canal, etc., Co., 6 Rob. (La.) 273. 43. Lewis v. Wood, 42 Ala. 502. But see Kennedy v. Wood, 54 Hun (N. Y.) 14, 7 N. Y. Suppl. 90, 26 N. Y. St. 34, holding that the rule does not apply where the party performed the conditions under protest. 44. Logeling v. New York El. R. Co., 5 N. Y. App. Div. 198, 38 N. Y Suppl. 1112. But compare De Camp v. Mclntire, 115 N. Y. 258, 22 N. E. 215, 26 N. Y. St. 266, which was an action on a note. On motion for nonsuit on the ground that the note was barred, plaintiff asked leave to amend the com- plaint and substitute as his cause of action a claim for lumber sold. An order was entered permitting him to withdraw a juror, and move at special term for amendment, and pro- vided that, if the motion should be denied, the complaint should be dismissed, " as moved by defendant at the trial." The motion was denied, and judgment ordered dismissing the complaint. It was held that plaintiff was not debarred from appealing from the judgment, as the order was intended to place the parties, if the motion should be denied, in their origi- nal position. 45. Flanders 1). Merrimac, 44 Wis. 621. 46. Matter of O'Brien, 145 N. Y. 379, 40 N. E. 18, 64 N. Y. St. 829, holding that, where a decree provides for the revocation of letters testamentary unless the executors file a bond, and such executors rile a bond and continue to act, they cannot thereafter appeal from the decree. Qualified conditions. — A bill in equity was dismissed as to specific performance, but re- tained for compensation on condition that the complainants, within the time prescribed, filed the original contract in court for the purpose of cancellation — otherwise the bill to stand dismissed. It was held that unquali- fied affirmation of this conditional decree was not required, and that complainants might de- liver up the contract and appeal from that portion of the decree, although they retain the benefit of the other portion of the decree. Rider v. Gray, 10 Md. 282, 69 Am. Dec. 135. 47. See 2 Cent. Dig. tit. " Appeal and Er- ror," § 961. 48. Alabama. — Sheppard v. Shelton, 34 Ala. 652. Connecticut. — Goodrich v. Alfred, 72 Conn. 257, 43 Atl. 1041. Florida. — Hooker v. Johnson, 8 Fla. 453; Ellison v. Allen, 8 Fla. 206. Maryland. — Stoddert v. Newman, 7 Harr. & J. (Md.) 251. Maine. — Simpson v. Norton, 45 Me. 281. New York. — Austin v. Wauful, 59 Hun (N. Y.) 620, 13 N. Y. Suppl. 184, 36 N. Y. St. 779; McElwain v. Willis, 9 Wend. (N. Y.) 548. South Dakota. — Boucher v. Clark Pub. Co., (S. D. 1900) 84 N. W. 237. United States. — Northern Pac. R. Co. v. Murray, 87 Fed. 648, 59 U. S. App. 487, 31 C. C. A. 183. See 2 Cent. Dig. tit. "Appeal and Error," § 960. But leave to amend not acted on does not bar an appeal. Brasfield v. French, 59 Miss. 632. Electing to stand by original complaint. — Where, after the granting of a nonsuit, plain- tiffs, on their request, are given leave to amend, but, within the time allowed, elect to stand by their complaint, and request the court to vacate orders made subsequent to the order of nonsuit, this is not inviting or consenting to the nonsuit in such a way as to preclude them from having the action of the trial court reviewed in a higher court. Bin- gel !>. Brown, (Colo. App. 1900) 61 Pac. 435. Misjoinder of parties. — A suit against four defendants was dismissed on demurrer for a misjoinder apparent, as was alleged, on the face of the proceedings, but the court permit- ted plaintiff to amend a declaration by strik- ing out three of the defendants and retaining the suit against the fourth. It was held that the judgment sustaining the demurrer might be appealed from, notwithstanding the amend- ment, because it was final as to those three, though the amended declaration had not yet Vol. II 646 APPEAL AND ERROR a plaintiff to strike out, under protest, one of two causes of action has been held to be no waiver of the right to appeal from the erroneous order of the court requir- ing him to make the election. 49 (iv) Answering Over. A defendant, by answering over after his demurrer to the complaint has been overruled, 50 or the plaintiffs demurrer to a plea in abatement has been sustained, 51 or after the denial of a motion to require an amendment of the complaint on account of the alleged inclusion of irrelevant and redundant matter, 52 or because of a defective verification, 53 will be considered as having acquiesced in the decision, and cannot afterward assign the ruling of the court as error. 54 (v) Proceeding With Trial. A party who has appealed from, or entered an exception to, an interlocutory order or decree will not be held to have acqui- esced in such order or decree, so as to waive his appeal, by proceeding with, or participating in, the subsequent steps in the trial. 55 gone to final judgment against the fourth. Sutherlin r. Underwriters' Agency, 53 6a. 442. Stipulation to contrary. — A plaintiff in ejectment who, under permission of the court, files an amended complaint for damages, waives the right to appeal from the ruling that he could not maintain the action in its original form, and is not aided by a stipula- tion agreeing that such question shall be sub- mitted to the court of appeals. Northern Pac. B. Co. r. Murray, 87 Fed. 648, 59 U. S. App. 487, 31 C. C. A. "183. Striking out amended petition. — In general, a plaintiff waives error in sustaining a de- murrer to his petition by filing an amended petition. But when the amended petition has been stricken from the files, because substan- tially the same as the original, he may, by proceedings in error, review the ruling of the court in striking the amended petition from the files. Wheeler v. Barker, 51 Nebr. 846, 71 X. W. 750. 49. Jones r. Johnson, 10 Bush. (Kv. ) 649. 50. Alabama.— Winn v. Dillard, 60 Ala. 369. Florida.. — Garlington r. Priest, 13 Fla.559; Eobinson v. L'Engle, 13 Fla. 482. Illinois. — Piatt r. Curtiss, 89 111. App. 575; McDavid c. Ellis, 89 111. App. 182. Indiana. — Meredith v. Lackey, 16 Ind. 1. Michigan.— Griffin v. Wattles, 110 Mich. 346, 78 X. W. 122. Missouri. — Jefferson City Sav. Assoc, r. Morrison, 48 Mo. 273. Xew York. — Brady v. Donnelly, 1 X. Y. 126. Contra. Kennedy v. Moore, 91 Iowa 39, 58 X. W. 1066; Missouri Pac. B. Co. r. Webster, 3 Kan. App. 106, 42 Pac. 845 ; Whaley r. Law- ton, 57 S. C. 256, 35 S. E. 558; Douglas County r. Walbridge, 36 Wis. 643. See 2 Cent. Dig. tit. "Appeal and Error,'' § 959. 51. Parks v. Greening, Minor (Ala.) 178: Griffin v. Wattles, 119 Mich. 346, 78 X. W. 122. See Prosser i". Chapman, 29 Conn. 515, where the court compelled defendant to plead to the merits after judgment against him on a. plea in abatement, refusing to allow him to .appeal. It was held that by his so doing he Vol. II waived his right to appeal on the plea in abatement, because the court had no right to refuse to allow such appeal, and defendant could have enforced his right thereto by man- damus. Motion to quash writ overruled. — Defend- ant moved to quash the writ because not prop- erly served. The motion to quash being over- ruled, defendants, after noting their exception, filed an answer. It was held that they did not thereby waive the objection though it would have been waived if they had proceeded without entering their exception. Sonverse v. Warren, 4 Iowa 158: Moody v. Moodv, 118 X. C. 926, 23 S. E. 933. Contra, Schaeffer r. Waldo, 7 Ohio St. 309. An appeal from an order denying a motion to set aside the service of a summons is not waived by service of an answer setting up, as a plea to the jurisdiction, the same facts re- lied on in support of the motion. McXamara v. Canada Steamship Co., 11 Daly (X. Y. ) 297, 16 X. Y. Wklv. Dig. 86. 52. Stover Mfg. Co. v. Millane, 89 111. App. 532: Barkley r. Barkley Cemetery Assoc, 153 Mo. 300. 54 S. W. 482; Franke V. Xunnen- macher, 23 Wis. 297. 53. German Sav., etc., Soc. v. Kern, (Oreg. 1900) 62 Pae. 788. 54. An order of court striking out a judg- ment by default being appealable, the right to appeal is waived by pleadings and joinder of issue subsequently thereto. Henderson v. Gib- son, 19 Md. 234." Taking an order for leave to plead in the district court, after an erroneous reversal of a judgment of a justice of the peace, the or- der being afterward vacated, is not a waiver of the error, nor does it estop the party from prosecuting an appeal to the supreme court. Eaymond v. Strine, 14 Xebr. 236, 15 X. W. 350. 55. Stokes v. Stokes, 87 Hun (X. Y.) 152, 33 X. Y. Suppl. 1024, 67 X. Y. St. 760; Dey r. Walton, 2 Hill (X. Y.) 403; Post r. Wal- lace, 110 Pa. St. 121, 2 Atl. 409; and see 2 Cent. Dig. tit. "Appeal and Error," § 963. In Love r. Johnston, 34 X. C. 367, it was held that if the parties proceeded to try the cause pending an appeal from an interlocu- tory judgment, such appeal would be dis- missed. Compare Jordan v. Wickham, 21 Mo. APPEAL AND ERROR 647 (vi) Submission to New Trial. If a party, instead of appealing from an order vacating a judgment in his favor and awarding a new trial, submits to have the case retried, he cannot afterward appeal from the order vacating the judg- ment and granting the new trial. 56 b. Compliance With Judgments or Orders — (i) Involuntary Payment or Performance of Judgment. The involuntary payment or performance of a judgment does not affect the right of appeal. 57 (n) Voluntary Payment or Performance of Judgment. The volun- tary payment or performance of a judgment is generally held to be no bar to an appeal or writ of error for its reversal, 58 unless such payment was by way of com- App. 536, wherein it was held that under the provisions of a statute giving an appeal froja a judgment on a plea of abatement, in attach- ment, a plaintiff who voluntarily goes to trial on the merits, without demanding an appeal from the judgment against him pn the plea in abatement, waives his right of appeal there- from. Rule applied. — Thus, a party, by taking judgment against one defendant after a de- murrer as to a co-defendant has been sus- tained (Ernst v. Hollis, 89 Ala. 638, 8 So. 122 ) , or by appearing before a commissioner in condemnation proceedings and cross-exam- ining witnesses (Matter of New York, etc., R. Co., 126 N. Y. 632, 26 N. E. 1100, 36 N. Y. St. 459), or proceeding with an accounting before a receiver (Davidge v. Coe, 54 N. Y. Super. Ct. 360) or a trial before a court (Curtis v. Moore, 3 Minn. 29; Leverson v. Zimmerman, 31 Misc. (N. Y.) 642, 64 N. Y. Suppl. 723), or referee (Barker v. White, 58 N. Y. 204; Read v. Lozin, 31 Hun (N. Y.) 286; Doyle v. Metropolitan El. R. Co., 29 Abb. N. Cas. (N. Y.) 272, 1 Misc. (N. Y.) 376, 20 N. Y. Suppl. 865, 49 N. Y. St. 118 [af- firmed in 136 N. Y. 505, 32 N. E. 1008, 49 N. Y. St. 746] ; but see, contra, Porter v. Parmly, 38 N. Y. Super. Ct. 490; Ubsdell v. Root, 1 Hilt. (N. Y.) 173, 3 Abb. Pr. (N. Y.) 142), will not be deemed to have acquiesced in the judgment on demurrer, the order ap- pointing the commissioners or receiver, the refusal of an application for the removal of the cause to another court, or in the order of reference. But see, for limits of this rule, Turner v. Indianapolis, 96 Ind. 51 (relating to the effect of appearance at special term) ; New Orleans 9. Seixas, 35 La. Ann. 36; Howard v. South- ern R. Co., 122 N. C. 944, 29 S. E. 778; Car- son v. Hyatt, 118 U. S. 279, 6 S. Ct. 1050, 30 L. ed. 167; Stone v. South Carolina, 117 U. S. 430, 6 S. Ct. 799, 29 L. ed. 962 (relating to effect of appearance before federal court) ; and Humes v. Shillington, 22 Md. 346 (wherein it was held that caveators to the probate of a will under the facts of the case did not waive their right of appeal by sub- mitting to an interlocutory order and pro- ceeding with the hearing) . 56. Kentucky.— Tyler v. Wigginton, 12 Ky. L. Rep. 46. Missouri. — Helm v. Bassett, 9 Mo. 52; Trun- dle v. Providence Washington Ins. Co., 54 Mo. App. 188. New York. — Schlesinger v. Springfield F. & M. Ins. Co.. 58 N. Y. Super. Ct. 112, 9 N. Y. Suppl. 727, 31 N. Y. St. 169; Grunberg v. Blumenlahl, 66 How. Pr. (N. Y.) 62. Ohio. — Andrews v. Youngstown, 35 Ohio St. 218; Collins v. Davis, 33 Ohio St. 567. Wisconsin. — Kayser v. Hartnett, 67 Wis. 250, 30 N. W. 363. See 2 Cent. Dig. tit. "Appeal and Error," § 965. In McLendon v. Darden, 53 Ala. 67, a new trial was granted without warrant of law. The appellant, forced to trial, appealed on the ground that the subsequent proceedings were unauthorized and void. It was held that he was not barred of the right of appeal because of his involuntary participation in the second trial. 57. California. — Ramsbottom v. Fitzgerald, (Cal. 1898) 55 Fac. 984; Kenney v. Parks, 120 Cal. 22, 52 Pac. 40. Iowa. — Burrows v. Stryker, 45 Iowa 700; Grim v. Semple, 39 Iowa 570. Louisiana. — Verges v. Gonzales, 33 La. Ann. 410 ; Johnson v. Clark, 29 La. Ann. 762. Nebraska. — Green v. Hall, 43 Nebr. 275; 61 N. W, 605, 47 Am. St. Rep. 761. New York. — Brown v. New York, 9 Hun (N. Y.) 587. Tennessee. — Peabody v. Fox Coal, etc., Co., (Tenn. Ch. 1899) 54 S. W. 128. Wisconsin. — Hixon v. Oneida County, 82 Wis. 515, 52 N. W. 445. - See 2 Cent. Dig. tit. "Appeal and Error," § 971 et seq. Payment of fine for contempt. — No appeal lies from a judgment imposing a fine for con- tempt, after the fine is paid, though it be paid under protest. State v. Conkling, 54 Kan. 108, 37 Pac. 992, 45 Am. St. Rep. 270. 58. Alabama. — Brown i. Peters, 94 Ala. 459, 10 So. 261. Florida. — Burrows i. Mickler, 22 Fla. 572, 1 Am. St. Rep. 217. Georgia. — Richmond, etc., R. Co. <.. Buice, 88 Ga. 180, 14 S. E. 205. Illinois. — Page v. People, 99 111. 418; Riche- son v. Ryan, 14 111. 74, 56 Am. Dec. 493. Indiana. — Belton v. Smith, 45 Ind. 291; Hill v. Starkweather, 30 Ind. 434. Kentucky. — Figg v. Richardson, 5 Ky. L. Rep. 510. Michigan. — Watson v. Kane, 31 Mich. 61. New Jersey. — Peer v. Cookerow, 14 N. J. Eq. 361. New York. — Hayes v. Nourse, 107 N. Y. Vol. II 648 APPEAL AND ERROR promise and agreement to settle the controversy, 59 or unless the payment or perform- ance of the judgment was under peculiar circumstances which amounted to a con- fession of its correctness. 60 There are, however, courts which hold that such volun- tary payment of the judgment is a waiver of defendant's right of appeal. 61 But, where an order appealed from is of such a nature that its execution has left nothing upon which a judgment of reversal can operate, the appeal will be dismissed. 577, 14 N. E. 508, 1 Am. St. Rep. 891; Seher- merhorn v. Wheeler, 5 Daly (N. Y. ) 472; Wells a. Danforth, Code Rep. N. S. (N. Y.) 415; Perry v. Woodburv, 17 N. Y. Suppl. 530^ 44 N. Y. St. 287. Ohio. — Pittsburgh, etc., R. Co. v. Martin, 53 Ohio St. 386, 41 N. E. 690; Alban v. Evans, 2 Ohio Dec. 298. Oregon. — Edwards r. Perkins, 7 Oreg. 149. Texas. — People's Cemetery Assoc, v. Oak- land Cemetery Assoc, (Tex. Civ. App. 1901) 60 S. W. 679 ; Cravens r. Wilson, 48 Tex. 321. Washington. — Hartson v. Dale, 9 Wash. 379, 37 Pac. 475; Chambers v. Hoover, 3 Wash. Terr. 20, 13 Pac. 905. Wisconsin. — Chapman ( . Sutton, 68 Wis. 657, 32 N. W. 683; Sloane v. Anderson, 57 Wis. 123, 13 N. W. 684, 15 N. W. 21 ; Pratt v. Page, 18 Wis. 337. United States. — O'Hara v. McConnell, 93 U. S. 150, 23 L. ed. 840. See 2 Cent. Dig. tit. "Appeal and Error," § 971 et seq. Payment by co-party. — A judgment was recovered against three partners, only two of whom were served. Pending appeal by de- fendants, one of them paid the judgment. It was held that, though the matter in contro- versy be settled as to plaintiff and defendants, still, as the judgment would fix a liability on the defendant not served to contribute to- ward the payment made by his co-defendants, the court will retain the case, and decide it on the merits. Ferguson v. Millender, 32 W. Va. 30, 9 S. E. 38. See also, on this point, Thomp- son v. Rogers, 8 Ky. L. Rep. 875, and com- pare Sager v. Hoy, 15 R. I. 528, 9 Atl. 847. Payment of the costs in the court below by the unsuccessful party is not such an ac- quiescence in the judgment as will preclude him from appealing therefrom. State v. Mart 7 land, 71 Iowa 543, 32 N. W. 485; Meyer v. Schurbruck, 37 La. Ann. 373; Cuny v. Dud- ley, 6 Rob. (La.) 77; Brinkerhoff v. Elliott, 43 Mo. App. 185; Champion v. Plymouth Cong. Soc, 42 Barb. (N. Y.) 441; Burch v. Newbury, 4 How. Pr. (N, Y.) 145. See also 2 Cent. Dig. tit. "Appeal and Error," § 976. But see Dambmann v. Schulting, 6 Hun (N. Y.) 29. In that ease plaintiff had leave to discontinue upon the payment of defend- ant's costs and an extra allowance. He paid the costs and allowance under protest, and then appealed from that part of the order al- lowing the one hundred dollars extra allow- ance. It was held that plaintiff's compliance with the conditions of the order was a waiver of the right of appeal. The promise of the unsuccessful party to pay the amount of money for which he was found liable does not estop him from appeal- ing from the judgment. Hatch v. Jacobson, Vol. II 94 111. 584; Parks v. Doty, 13 Bush (Ky.) 727; Goodridge v. Ross, 6 Mete. (Mass.) 487; Dyett v. Pendleton, 8 Cow. (N. Y.) 325. 59. Garner v. Prewitt, 32 Ala. 13; Mar- tinez Bank c. Jahn, 104 Cal. 238, 38 Pac. 41 ; Friedlander r. Avondale, 8 Ohio Cir. Ct. 608; Little r. Bowers, 134 U. S. 547, 10 S. Ct. 620, 93 L. ed. 1016. So, where, after judgment against the as- signee of an insolvent debtor, in an action by him to set aside a, mortgage given by the debtor, the assignee,, in good faith, and upon the advice of counsel, sold the mortgaged property by permission of the mortgagee, and applied the proceeds on the mortgage debt, and the mortgagee was then discharged, it was held that the right of appeal was thereby waived by the assignee and the creditors whom he represented. Ray v. Hixon, 90 Wis. 39, 62 N. W. 922, 48 Am. St. Rep. 899. Conclusive proof that settlement was volun- tary is necessary. Piano Mfg. Co. v. Rasey, 69 Wis. 246, 34 N. W. 85. Right of attorney to costs. — An appeal from a judgment which has been subsequently settled, and of which satisfaction has been ac- knowledged, will not be heard by the court merely to protect the rights of the respond- ent's attorney to costs. Cock i\ Palmer, 1 Rob. (N. Y) 658. 60. Plogstart v. Rothenbucher, 37 Mo. 452. See also Gilstrap v. Eelts, 50 Mo. 428. 61. Iowa. — Sanford v. Belle Plaine First Nat. Bank, 94 Iowa 680, 63 N. W. 459 ; Hin- trager v. Mahoney, 78 Iowa 537, -43 N. W. 522, 6 L. R. A. 50. Louisiana. — Powell v. Hernsheim, 37 La. Ann. 581; David o. East Baton Rouge, 27 La. Ann. 230. Compare Kling v. Sejour, 4 La. Ann. 128. But the fact that a defendant has exe- cuted the judgment is no ground to dismiss an appeal taken by a third person. State v. Strong, 32 La. Ann. 173. New Mexico. — Alarid v. Romero, 5 N. M. 522, 25 Pac. 788. North Dakota. — Rolette County v. Pierce County, 8 N. D. 613, 80 N. W. 804. United States. — San Mateo County r. South- ern Pac. R. Co., 116 U. S. 138, 6 S. Ct. 317, 29 L. ed. 589. 62. California. — See San Diego School Dist. v. San Diego County, 97 Cal. 438, 32 Pac. 517. loica. — Borgalthous v. Farmers, etc., Ins. Co., 36 Iowa 250. Kansas. — Fenlon v. Goodwin, 35 Kan. 123, 10 Pac. 553. Massachusetts. — Stone v. Davis, 14 Mass. 360. Montana. — Barber v. Briscoe, 8 Mont. 214, 19 Pac. 589. Neic Jersey. — Coryell ». Holcombe, 9 N. J. Eq. 650. APPEAL AND ERROR 649 unless such right was specially reserved. 63 The partial execution of the judgment has been held to have the same effect. 64 e. Consenting to Judgment or Order — (i) Judgment. "Where a judg- ment or decree has been rendered by consent of parties, no errors in the proceedings will be considered on appeal. 65 So, if a plaintiff voluntarily sub- mits to a nonsuit in consequence of the erroneous conclusion of his evidence, or for other reasons, he cannot appeal or bring error. 66 A judgment or decree New York. — Negley v. Short, 18 N. Y. Civ. Proo. 45, 7 N. Y. Suppl. 674, 27 N. Y. St. 274. Pennsylvania. — Allegheny Bank's Appeal, 48 Pa. St. 328. Rhode Island. — Sager v. Moy, 15 P. I. 528, 9 Atl. 847. As to what is not voluntary payment or performance see Gilbert v. Adams, 99 Iowa 519, 68 N. W. 883; Sample v. Collins, 81 Iowa 23, 46 N. W. 742; Prentice v. Chewning, 1 Rob. (La.) 71; Hanaw v. Bailey, 83 Mich. 24, 46 N. W. 1039, 9 L. R. A. 801. Payment of a judgment to avoid its com- pulsory execution is not voluntary Burrows v. Stryker, 45 Iowa 700; Grim v. Semple, 39 Iowa 570; Verges v. Gonzales, 33 La. Ann. 410 ; Yale v. Howard, 24 La. Ann. 458. 63. Michel v. Sheriff, 23 La. Ann. 53. It was held, however, in Little v. Bowers, 134 U. S. 547, 10 S. Ct. 620, 33 L. ed. 1016, that the fact that a party at the time of making the payment files a written protest does not make the payment involuntary. 64. Stinson v. O'Neal, 32 La. Ann. 947; De Egana's Succession, 18 La. Ann. 59 ; Milli- ken v. Rowley, 3 Rob. (La.) 253; Williams v. Duer, 14 La. 523. Partial satisfaction of a judgment, whether obtained by a levy or voluntary payment, does not operate as an extinguishment of the judgment or a release of errors, or take away or impair the jurisdiction of an appellate court to review the judgment. U. S. v. Dash- iel, 3 Wall. (U. S.) 688, 18 L. ed. 268. 65. Alabama. — Garner v. Prewitt, 32 Ala. 13; Clements v. Johnson, 3 Stew. & P. (Ala.) 269. But see Reynolds v. Reynolds, 11 Ala. 1023. Georgia. — -McBride v. Hunter, 64 Ga. 655, holding that one who has consented to enter- ing a verdict against him cannot except thereto, even though he has reserved the right. Illinois. — People v. Land Owners, 108 111. 442. Indiana. — Hudson v. Allison, 54 Ind. 215. Iowa. — Warford v. Eads, 10 Iowa 592. Kentucky. — Craycraft v. Duncan, 6 Ky. L. Rep. 651, holding that the fact that appel- lant's counsel may have prepared the judg- ment does not affect the right of appeal from it. Louisiana. — Lallande v. Jones, 14 La. Ann. 714. Maine. — Woodman v. Valentine, 22 Me. 401 ; Patten v. Starrett, 20 Me. 145. New York. — Atkinson v. Manks, 1 Cow. (N. Y.) 691. Pennsylvania. — Mintz v. Brock, 193 Pa. St. 294, 44 Atl. 417. Texas. — Wells, v. Houston, (Tex. Civ. App. 1900) 56 S. W. 233 (consenting to partition before trial) ; McDaniel v. Monday, 35 Tex. 39; Tait v. Matthews, 33 Tex. 112; Dunman v. Hartwell, 9 Tex. 495, 60 Am. Dec. 176. Virginia. — Cooke v. Pope, 3 Munf. (Va.) 167. United States. — U. S. v. Babbitt, 104 U. S. 767, 26 L. ed. 921. But the consent of a de- fendant in equity to a decree for a perpetual injunction and an account does not prevent him from appealing from a subsequent decree of the court as to the amount for which he shall account. Livingston v. Woodworth, 15 How. (U. S.) 546, 14 L. ed. 809. See 2 Cent. Dig. tit. "Appeal and Error," § 969. Judgment nil dicit only default. — Judg- ment by nil dicit is not a release of errors (Dinsmore v. Hand, Minor (Ala.) 126; Do- mestic Bldg. Assoc, v. Nelson, 66 111. App. 601) ; nor does the failure of a defendant in an equity case to answer in the court below preclude an appeal (Lippy v. Masonheimer, 9 Mo. 310 ) . So, upon an appeal from the de- cision of a vice-chancellor, if appellant makes default at the hearing, the decree or order ap- pealed from would be affirmed with costs; but if respondent makes default the cause must be heard ex parte, and if the decision of the vice-chancellor is reversed respondent is precluded from appealing to the court of er- rors. Stiles v. Burch, 5 Paige (N. Y.) 132. But the failure of a party demurring to a pleading to attend and argue the demurrer in the court below will not prevent his insisting upon his demurrer upon appeal from an order overruling the same. Hall v. Williams, 13 Minn. 260. 66. Alabama. — Mathis v. Oates, 57 Ala. 112; Tate v. McCrary, 21 Ala. 499. California. — Sleeper v. Kelly, 22 Cal. 456; Imley v. Beard, 6 Cal. 666. Colorado. — Corning Tunnel Co. v. Pell, 4 Colo. 184. Georgia. — Jones v. Mobile, etc., R. Co., 64 Ga. 446. Illinois. — Barnes v. Barber, 6 111. 401. Indiana.— Vestal v. Burditt, 6 Blackf . (Ind.) 555; Kelsey v. Ross, 6 Blackf. (Ind.) 536. Iowa. — Marsh v. Graham, 6 Iowa 76. Kentucky. — Illinois Bank v. Hicks, 4 J. J. Marsh. (Ky.) 128. Louisiana. — Brandt v. Shaumburgh, 1 Mart. N. S. (La.) 698. Mississippi. — Ewing v. Glidwell, 3 How. (Miss.) 332, 34 Am. Dec. 96. Missouri. — Atkinson v. Lane, 7 Mo. 403; Howell v. Pitman, 5 Mo. 246; Holdridge v. Marsh, 28 Mo. App. 283. Vol. II •650 APPEAL AND ERROR •entered in conformity with facts admitted by appellant will not be revised on ■appeal. 67 (n) Orders. A party cannot complain of an order as erroneous which was passed with his consent. 68 d. Procuring Judgment or Order — (i) In General. It is the universal rule that a party upon whose motion an order is made cannot appeal therefrom. 69 New York. — Van Wormer v. Albany, 18 Wend. (N. Y.) 169. Ohio. — Bradley v. Sneath, 6 Ohio 490. Tennessee. — Union Bank v. Carr, 2 Humphr. (Tenn.) 344; Trice v. Smith, 6 Yerg. (Tenn.) 319. Texas. — Morgan v. Johnson, 4 Tex. 117. Virginia. — Thornton v. Jett, 1 Wash. (Va.) 138. United States. — Evans v. Phillips, 4 Wheat. (U. S.) 73, 4 L. ed. 516. Contra, Collins v. Swanson, 121 N. C. 67, 28 S. E. 65; Tiddy v. Harris, 101 N. C. 589, 8 S. E. 227 ; Mobley v. Watts, 98 N. C. 284, 3 S. E. 677; Graham v. Tate, 77 N. C. 120. Limits of rule. — A writ of error lies to a judgment of nonsuit where plaintiff suffers the judgment in consequence of an express in- struction to the jury against his right to recover. English v. Devarro, 5 Blackf. (Ind. ) 588. So, a consent to take a nonsuit, with leave to move to set it aside, is no waiver of exceptions. Natoma Water, etc., Co. v. Olarkin, 14 Cal. 544. In Ohio an appeal will lie from a voluntary nonsuit in an action of replevin. Reed v. Carpenter, 2 Ohio 79. 67. Oliver v. Oliver, 179 111. 9, 53 N. E. 304; Clarkson v. Graham, 21 Tex. Civ. App. 355, 52 S. W. 269 ; National Bank v. Kilgore, 17 Tex. Civ. App. 462, 43 S. W. 565 ; McCaf- ierty v. Celluloid Co., 104 Fed. 305. 68. Alabama. — Winter v. Rose, 32 Ala. 447. Iowa. — Chicago, etc., R. Co. v. Chicago, etc., ~R. Co., 91 Iowa 16, 58 N. W. 918. Maine. — Thompson v. Perkins, 57 Me. 290. Massachusetts. — Winchester v. Winchester, 121 Mass. 127. Michigan. — Campau v. Campau, 19 Mich. 130. New York. — Goldenson !>. Lawrence. 1 Misc. (N. Y.) 1, 20 N. Y. Suppl. 616, 48 N. Y. St. ■636; Smith v. Grant, 11 N. Y. Civ.. Proc. 354. See 2 Cent. Dig. tit. "Appeal and Error," § 967. Applications of rule. — Thus, if a party con- sents to the amendment of a pleading (Flor- ence Bank v. Gregg. 46 S. C. 169, 24 S. E. 64) , the overruling of a demurrer (G. M. Williams Co. v. Mairs, 72 Conn. 430, 44 Atl. 729 [but the fact that appellant's demurrer was over- Tuled by consent does not preclude him from attacking the judgment upon the ground that it rests upon a complaint inherently defective. Banbury v. Arnold, 91 Cal. 606, 27 Pae. 934]), the exclusion of his evidence (Wilson v. Mc- Adams, 10 Iowa 590), the revival of an action in the name of an administrator (Townsend v. Jeffries, 24 Ala. 329), the dismissal of a motion to vacate a judgment (Marsden v. Vol. II Soper, 11 Ohio St. 503), the appointment of a receiver (State v. King, 46 La. Ann. 110, 14 So. 902; Smith v. Lowery, 56 S. C. 493, 35 S. E. 129), or the confirmation of a sale (State v. Doane, 35 Nebr. 707, 53 N. W. 611; Ironton Second Nat. Bank v. Ewing, 21 W. Va. 208 [but the filing and affirming, by the court, of the report of a master in chancery, with- out objection by appellant's counsel, is not such an entry of decree by consent of parties as to estop him from appealing therefrom. Hershee v. Hershey, 15 Iowa 185] ), he cannot afterward predicate an exception and assign- ment of error on the passage of such order. So, consenting to an order of reference waives the right to appeal from an order re- fusing a motion for the dissolution of an in- junction (Hinson v. Brooks, 67 Ala. 491); or consenting that a cause be transferred to another court for trial waives an appeal pre- viously perfected (Lillie v. Skinner, 46 Iowa 329). Refusing offer of new trial.— The fact that a proposal of plaintiff, to consent to set aside a verdict he has obtained, is refused by de- fendant does not in any manner affect the right of defendant as a litigant. Illinois Cent. R. Co. v. King, 69 Miss. 852, 13 So. 824. The fact that a party declines an offer of a new trial, on the terms that he pay the costs, does not estop him from prosecuting error to reverse the judgment on the ground of im- proper instructions. Wiley v. Brimfield, 59 111. 306. Remittitur. — Where a motion for a new trial is granted, to go into effect unless plain- tiff stipulates to reduce the verdict, in which event the motion is denied, plaintiff, by giv- ing the stipulation and entering judgment thereon, waives his right to appeal from the judgment, although he entered the remittitur under protest, and although the court may have been wrong in finding that the judgment was excessive. Alabama, etc., R. Co. v. Davis, 69 Miss. 444, 13 So. 693; Lanman v. Lewiston R. Co., 18 N. Y. 493; Clarke v. Meigs, 10 Bosw. (N. Y.) 337; Sperry v. Hillman, 13 N. Y. Suppl. 271, 36 N. Y. St. 52; Iron R. Co. r. Mowery, 36 Ohio St. 418, 38 Am. Rep. 597. 69. California. — Storke v. Storke, 111 Cal. 514, 44 Pac. 173; Matter of Radovich, 74 Cal. 536, 16 Pac. 321, 5 Am. St. Rep. 466. New Jersey. — Reading v. Reading, 24 N. J. L. 358. New York. — Hooper v. Beecher, 109 N. Y. 609, 15 N. E. 742, 23 N. E. 1151, 14 N. Y. St. 40; Alleva v. Hagerty, 32 Misc. (N. Y.) 711, 65 N. Y. Suppl. 690, holding that plaintiff cannot appeal from a dismissal entered on his own request. APPEAL AND ERROR 651 (n) Judgments by Confession. So a judgment by confession does not admit of an appeal, and cannot be reviewed on writ of error. 70 e. Receiving Benefits Under Judgment or Order 71 — (i) In General. It is a rule well established that a party who obtains the benefit of an order or judgment, and accepts the benefit or receives the advantage, shall be afterward precluded from asking that the order or judgment be reviewed, or from denying the authority which granted it. 72 Texas. — But see Rogers v. Burbridge, 5 Tex. Civ. App. 67, 24 S. W. 300, holding that where defendants are non-residents, and have not appeared, and the only ground of jurisdiction is an attachment of their land, plaintiffs may appeal from a judgment of dismissal entered at their own request after the court has quashed the attachment, and on such appeal they may allege as error the quashing of the attachment. Washington. — Clallam County v. Clump, 15 Wash. 593, 47 Pac. 13, holding that neither party can appeal from an order setting aside the verdict, and awarding a new trial, where both moved therefor. See 2 Cent. Dig. tit. "Appeal and Error," § 970. Having obtained a confirmation of a com- missioner's report of appraisal of the value of easements taken for its benefit, an elevated railway is not thereby estopped, under N. Y. laws (1875), e. 606, prescribing proceedings to be taken by elevated railway companies to acquire title to lands, from taking an appeal from the order confirming such report, in or- der to obtain a further hearing. Matter of Metropolitan El. R. Co., 59 Hun (N. Y.) 622, 13 N. Y. Suppl. 367, 36 N. Y. St. 606. 70. Alabama. — Wilson v. Collins, 9 Ala. 127; McConnell v. White, Minor (Ala.) 112. Illinois. — Hall v. Hamilton, 74 111. 437. Indiana. — Lewis v. Brackenridge, 1 Blackf. (Ind.) 112, holding that a judgment by con- fession by the principal is conclusive against the bail. Louisiana.— Stewart v. Betzer, 20 La. Ann. 137. Missouri. — St. Louis, etc., R. Co. tf. Evans, etc., Fire Brick Co., 15 Mo. App. 590. New York. — Traffarn v. Getman, 49 Hun (¥. Y.) 611, 3 N. Y. Suppl. 867, 19 N. Y. St. 295. North Carolina.— State v. Griffis, 117 N. C. 709, 23 S. E. 164; Rush v. Halcyon Steam- boat Co., 67 N. C. 47. Texas.— Merritt v. Clow, 2 Tex. 582. Thus, in suits by attachment wherein the property attached has been replevied, a judgment by confession is as binding upon the sureties upon the replevin bond as it is upon their principal. Garner v. Burleson, 26 Tex. 348. Virginia. — McRae v. Turnpike Co., 3 Rand. (Va.) 160 (holding that a confession of judg- ment on a forthcoming bond is a release of er- rors, if any, in the original judgment) ; Ed- monds v. Green, 1 Rand. (Va.) 44; Cooke v. Pope, 3 Munf. (Va.) 167. United States.— Catlett v. Cooke, 2 Cranch C. C. (U. S.) 9,5 Fed. Cas. No. 2,515. Confessions under warrant of attorney. — Ind. Rev. Stat. (1852), p. 152, § 384, provid- ing that " the confession shall operate as a release of errors," was not intended to extend to judgments entered up by virtue of a war- rant of attorney. McPheeters v. Campbell, 5 Ind. 107. But, where a warrant to confess judgment expressly contains a release of er- ror and a waiver of the right of appeal, no appeal lies. Boyd v. Crary, 35 Ind. 363 ; Mil- ler v. Macklot, 13 Ind. 217. But such a stipu- lation is held not binding in Illinois. Lake v. Cook, 15 111. 353. In Wisconsin, it has been held that, where a judgment by confession is entered against a partnership on a warrant of attorney under seal, signed by one of the partners in the partnership name without consent of his co- partner, a writ of error will not lie from the judgment by such copartner. The proper mode is for the partner who did not sign or authorize the signing of the warrant of at- torney to make his motion to vacate the judg- ment, such motion being founded upon affi- davits showing the facts. Remington v. Cum- mings, 5 Wis. 138. The admission of the correctness of a claim is not a confession of judgment. Defendant may prove payment, a set-off, etc., and such admission will not deprive him of his right to appeal. Campbell v. Randolph, 13 111. 313. Where the confession was made by mistake or procured by fraud it seems that a court of chancery will afford relief. Wilson v. Collins, 9 Ala. 127. But see Lawson r. Bruen, 29 La. Ann. 866, in which it was held that an appeal will not be dismissed on the ground that ap- pellant confessed judgment in the court be- low, when he contests the confession, and the latter seems to be the only ground of the judgment. 71. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 979 et seq. 72. Illinois. — Holt r. Rees, 46 111. 181; Ruckman v. Alwood, 44 111. 183. Indiana. — McGrew v. Grayston, 144 Ind. 165, 41 N. E. 1027 (selling lands allotted in partition) ; Sterne v. Vert, 111 Ind. 408, 12 N. E. 719, 108 Ind. 232, 9 N. E. 127. Iowa. — Mississippi, etc., R. Co. v. Bying- ton, 14 Iowa 572, where party accepted dam- ages allowed in condemnation proceedings. Kansas. — Cronkhite v. Evans-Snider-Buel Co., 6 Kan. App. 173, 51 Pac. 295. New York.— Carll v. Oakley, 97 N. Y. 633; Canary v. Knowles, 41 Hun (N. Y.) 542; Glackin v. Zeller, 52 Barb. (N. Y.) 147; Hess v. Smith, 16 Misc. (N. Y.) 55, 37 N. Y. Suppl. 635, 73 N. Y. St. 85; Radway v. Graham, 4 Abb. Pr. (N. Y.) 468. Vol. II 652 APPEAL AND ERROR (n) Accepting Payment 13 — (a) Of Money Paid Voluntarily. It is the general rule that if the prevailing party obtains a judgment or decree which is so indivisible that it must be sustained or reversed as a whole, he cannot prosecute an appeal or writ of error to reverse it after having accepted money voluntarily tendered by the judgment debtor in discharge or partial satisfaction of it. 74 (b) Of Money Paid Into Court. So, if money, deposited by defendant in court, be withdrawn by plaintiff in satisfaction of his judgment, he estops himself from seeking to have it reviewed. 75 (c) Of Money Paid Upon Execution. And, for stronger reasons, if plain- tiff sues out an execution and coerces payment of the judgment, he will be held Oregon. — Moore v. Floyd, 4 Oreg. 260, hold- ing that the right to proceed on a judgment and enjoy its fruits and the right of appeal are not concurrent — on the contrary, they are totally inconsistent. An election to take one of these courses is, therefore, a renun- ciation of the other. Washington. — Lyons v. Bain, 1 Wash. Terr. 482. Wisconsin. — MeKinnon v. Wolfenden, 78 Wis. 237, 47 N. W. 436, holding that a party cannot appeal from an order after he has ob- tained the benefit of a subsequent order made at his request and based upon the order from which he attempts to appeal. United States. — Crawshay r. Souter, 6 Wall. (U. S.) 739, 18 L. ed. 845; Chase v. Driver, 92 Fed. 780, 34 C. C. A. 668"; Albright v. Oyster, 60 Fed. 644, 19 U. S. App. 651, 9 C. C. A. 173 (receiving conveyance of lands under a decree ) . See 2 Cent. Dig. tit. " Appeal and Error,'' § 979. A party cannot avail himself of that por- tion of a decree which is favorable to him, and secure its fruits, while prosecuting an ap- peal to reverse in the appellate court such portions as militate against him. Moore v. Williams, 29 111. App. 597; Bennett v. Van Syckel, 18 N. Y. 481. Substantial benefit must accrue to the party. Wallace v. Castle, 68 N. Y. 370 ; Kelly v. Bloom, 17 Abb. Pr. (NY.) 229. The only exceptions admitted are where the parts of the judgment or decree are sepa- rate and independent, and the receipt of a ben- efit from one part is not inconsistent with an appeal from another (Funk v. Mercantile Trust Co., 89 Iowa 264, 56 N. W. 496 ; Cocks v. Haviland, 55 Hun (N. Y.) 605, 7 N. Y. Suppl. 870, 28 N. Y. St. 622; Matter of Raber, 4 N. Y. St. 845; Wishek v. Ham- mond, (N D. 1900) 84 N W. 587) ; or where the right to the benefit is conceded by the op- posite party, so that it could not be denied should the other portions of the decree grant- ing it be reversed (see cases cited infra, IV, B, 2, e, (ii) et seq.) . 73. See 2 Cent. Dig. tit. " Appeal and Er- ror," § 984 et seq. 74. Alabama. — Murphy v. Murphy, 45 Ala 123. Arkansas. — Bolen v. Cumby, 53 Ark. 514, 14 S. W. 926; Watkins v. Martin, 24 Ark. 14 81 Am. Dec. 59. California. — Matter of Baby, 87 Cal. 200 25 Pae. 405, 22 Am. St. Rep. 239. Illinois. — Corwin v. Shoup, 70 111. 246 ; Vol. II Holt v. Pees, 46 111. 181; Morgan v. Ladd, 7 111. 414. Indiana. — Newman v. Kiser, 128 Ind. 258, 26 N. E. 1006; State v. Kamp, 111 Ind. 56, 11 N E. 960; Holman v. Stannard, 14 Ind. App. 146, 42 N. E. 645. Iowa. — Indiana Dist. v. Delaware Dist. Tp., 44 Iowa 201. Compare Dudman t. Earl, 49 Iowa 37. Kansas. — Stern v. Craig, 59 Kan. 771, 51 Pae. 782. Kentucky. — But see Turner r. Johnson, 18 Ky. L. Rep. 202, 31 S. W. 1027, 35 S. W. 923, wherein it was held that, under Ky. Civ. Code, § 757, providing that, when a party recovers judgment for only part of his de- mand, the enforcement of such judgment shall not prevent him from prosecuting an appeal as to the part not recovered, an appeal should not be dismissed because appellant has col- lected a judgment rendered for part of his demand. See also Wills v. Weaver, 5 Ky. L. Rep. 600. Louisiana. — Flowers v. Hughes, 46 La. Ann. 436, 15 So. 14. Maryland. — Stuart v. Baltimore, 7 Md. 500. Missouri. — Cassell v. Fagin, 11 Mo. 207, 47 Am. Dec. 151. Nebraska. — Harte v. Castetter, 38 Nebr. 571, 57 N W. 381; Gray v. Smith, 17 Nebr. 682, 24 N. W. 340. New York. — Matter of New York, etc., R. Co., 39 Hun (N. Y.) 338. Contra, Clowes v. Dickenson, 8 Cow. (N. Y.) 328. Ohio. — Matthews v. Davis, 39 Ohio St. 54; Neel v. Toledo, 5 Ohio Cir. Ct. 203. Oregon. — Bush v. Mitchell, 28 Oreg. 92, 41 Pae. 155. Pennsylvania. — Gibson's Appeal, 108 Pa. St. 244. Virginia. — Compare Morriss v. Garland, 78 Va. 215. Wisconsin. — Laird v. Giffin, 84 Wis. 286, 54 N. W. 584. See 2 Cent. Dig. tit. "Appeal and Error," § 986. 75. Indiana. — Martin v. Bott, 17 Ind. App. 444, 46 N. E. 151. Iowa. — McKelvey v. Burlington, etc., R. Co., (Iowa 1894) 58 N. W. 1068. Kentucky. — Brown v. Vaneleave, 86 Ky. 381, 9 Ky. L. Rep. 593, 6 S. W. 25. Neio York. — Graham v. Sapery, 19 Misc. (NY.) 690, 44 N. Y. Suppl. 1109. Wisconsin. — Webster-Glover Lumber, etc., Co. v. St. Croix County, 71 Wis. 317, 36 N. W. 864. APPEAL AND ERROR 653 to have elected to take it as rendered, and cannot prosecute an appeal or writ of error. 76 (d) Rule Where Appeal Cannot Affect Appellant's Right to Sum Collected — (1) Appellant Entitled to Sum in Any Event. But this rule has no application to cases where the appellant is shown to be so absolutely entitled to the sum collected upon the judgment that the reversal of it will not affect his right to it. 77 (2) Appeal foe Purpose of Modifying Judgment. So, an appellant, by the collection of a judgment in his favor, will not be estopped from appealing for the purpose of modifying the judgment so as to increase the amount of his recovery 78 — as where the judgment allows a counter-claim, 79 makes a deduction for usurious interest, 80 for the value of improvements, 81 or disallows certain items of account. 83 76. Alabama. — Bradford v. Bush, 10 Ala. 274; flail v. Hrabrowski, 9 Ala. 278. Iowa. — Beichelt v. Seal, 76 Iowa 275, 41 N. W. 16 ; Buena Vista County v. Iowa Falls, etc., R. Co., 55 Iowa 157, 7 N. W. 474. Kansas. — Merchants' Nat. Bank v. Quin- ton, 9 Kan. App. 882, 57 Pac. 261. Kentucky. — Com. v. South, 80 Ky. 582; Paine v. Woolley, 80 Ky. 568; Meek v. Lacy, 6 Ky. L. Pep. 510. Louisiana. — Campbell v. Orillion, 3 La. Ann. 115; State v. Judge, 4 Rob. (La.) 85. Maryland. — Hay v. Jenkins, 28 Md. 564. Massachusetts. — Jarvis v. Mitchell, 99 Mass. 530. Missouri. — Waddingham v. Waddingham, is 7 Mo. App. 596. New York. — Knapp v. Brown, 45 M. Y. 207, 11 Abb. Pr. N. S. (N. Y.) 118. Pennsylvania. — Hall v. Lacy, 37 Pa. St. 366; Smith v. Jack, 2 Watts & S. (Pa.) 101; Laughlin v. Peebles, 1 Penr. & W. (Pa.) 114. Texas. — Fly v. Bailey, 36 Tex. 119; Mat- low v. Cox, 25 Tex. 578. Contra, see Bond v. Greenwald, 4 Heisk. (Tenn.) 453. Causing a copy of a judgment to be served on plaintiff is not such an execution of it as deprives him of the right of appeal. Leggett v. Peet, 1 La. 288. Execution issued without authority. — It is not a sufficient ground for a dismissal of the appeal that payment of the iudgment has been enforced by execution, when it is shown to the court, by proper affidavits, that the execution was issued without instructions from either plaintiff or his attorney, and with- out their knowledge, and that plaintiff has refused to receive the money from the clerk. Chapman v. Lee, 51 Ala. 106; May v. Sharp, 49 Ala. 140. Keturn of execution unsatisfied. — Where a plaintiff, who has perfected an appeal from a judgment in his own favor, causes an execu- tion to issue on the judgment, which is re- turned unsatisfied, he does not thereby waive his right to prosecute his appeal. Hornish v. Peck, 53 Iowa 157, 1 N. W. 641, 4 N. W. 898. The recovery of a judgment against one of two joint wrong-doers is not, until paid or satisfied, a bar to the prosecution of an ap- peal to review the trial as to the other. Hur- ley v. New York, etc., Brewing Co., 13 N. Y. App. Div. 167, 43 N. Y. Suppl. 259. 77. In cases of this character there can be no injustice or vexatious oppression to appel- lee in allowing appellant to receive that to which he is unquestionably entitled, and to confine future litigation only to so much of appellant's claim as may be bona fide dis- puted. Alabama. — Phillips v. Towers. 73 Ala. 406; Tarleton v. Goldthwaite, 23 Ala. 346, 58 Am. Dee. 296; Gowen v. Jones, 20 Ala. 128. Indiana. — Sills v. Lawson, 133 Ind. 137, 32 N. E. 875. Iowa. — Mountain v. Low, 107 Iowa 403, 78 N. W. 55. New York. — Mellen v. Mellen, 137 N. Y. 606, 33 N. E. 545, 51 N. Y. St. 73; Matter of Amsterdam Water Com'rs, 36 Hun (N. Y. ) 534. North Dakota. — Tyler v. Shea, 4 N. D. 377, 61 N. W. 468, 50 Am. St. Rep. 660. Washington. — Utterback v. Meeker, 16 Wash. 185, 47 Pac. 428. Wisconsin. — Fiedler v. Howard, 99 Wis. 388, 75 N. W. 163, 67 Am. St. Rep. 865. United States.- — Erwin v. Lowry, 7 How. (U. S.) 172, 12 L. ed. 655. The collection of the uncontroverted part of his demand does not preclude appellant from appealing from a. judgment dismissing the suit as to that part of the demand which is controverted. Campbell v. Cincinnati South- ern R. Co., 80 Ky. 585; Haman v. Steele, 11 Ky. L. Rep. 287. And upon this point com- pare State v. Central Pao. R. Co., 21 Nev. 172, 26 Pac. 225, 1109; Embry v. Palmer, 107 U. S. 3, 2 S. Ct. 25, 27 L. ed. 346. 78. Farmers' Bank v. Calk. 4 Ky. L. Rep. 617; New Rochelle Gas, etc., Co. v. Van Ben- schoten, 47 N. Y. App. Div. 477, 62 N. Y. Suppl. 398; Merriam v. Victory Placer Min. Co., 37 Oreg. 321, 56 Pac. 75, 58 Pac. 37, 60 Pac. 997. 79. Benkard v. Babcock, 17 Abb. Pr. (N. Y.) 421 ; Monnet v. Merz, 60 N. Y. Super. Ct. 256, 17 N. Y. Suppl. 380, 43 N. Y. St. 59. 80. Beals v. Lewis, 43 Ohio St. 220, 1 N. E. 641. 81. Clay r. Miller, 4 Bibb (Ky.) 461. 82. Byram v. Polk County, 76 Iowa 75, 40 N. W. 102 ; Nicholas County v. McNew, 7 Ky. L. Rep. 364. Where, in replevin of chattels, the judg- ment awarded a portion to plaintiff, and or- Vol. II 654 APPEAL AND ERROR This rule has also been applied where appellant accepted the amount decreed, though the decree failed to allow proper interest as damages w or as a penalty. 84 (3) Eeceipt of Balance After Peiok Liens Satisfied. So, the receipt by an appellant of the balance remaining after the satisfaction of prior liens does not estop him from appealing from that part of the decree adjudging the priority of those liens. 85 (4) When Judgment Settles Distinct Conteoveesies. "When a judgment or decree settles two or more distinct controversies, the acceptance of a sum of money, to which appellant is declared to be entitled by one portion of the judg- ment or decree, does not estop him from appealing from another and independent adjudication therein. 86 (e) Rule Where Restitution Is Made. 117 In some decisions it has been inti- mated that a restitution of the money collected upon a judgment restores the right to appeal or bring error ; M but in those jurisdictions where the question has been directly passed upon it has been held otherwise. 89 (f) What Constitutes Acceptance — (1) By Attorney. An acceptance, by an attorney of record, of money paid to him or into court, in satisfaction of a judg- ment or in compliance with a decree, is an acceptance bj his client, and, generally, binds the latter. 90 dered another portion thereof to be returned to defendant, defendant did not waive his right to appeal from the judgment by accept- ing such chattels, where he had claimed that the court was without jurisdiction. Jaynes v. Jaynes, 8 N. Y. Civ. Proc. 94. 83. McCalley v. Otey, 103 Ala. 469, 15 So. 954; Seymour v. Spring Forest Cemetery Assoc, 4 N. Y. App. Div. 359, 38 N. Y. Suppl. 726, 74 N. Y. St. 245. 84. Commonwealth's Appeal, 128 Pa. St. 603, 18 Atl. 386. 85. Funk v. Mercantile Trust Co., 89 Iowa 264, 56 N. W. 496; Reynes v. Dumont, 130 U. S. 354, 9 S. Ct. 486, 32 L. ed. 934. Thus, where property is sold under a decree fore- closing two mortgages, the receipt, by the party decreed to have the junior lien, of the proceeds remaining after satisfaction of the other mortgage will not estop such party to prosecute an appeal from the provisions of the decree which determine the priority of liens. Hinchman v. Point Defiance R. Co., 14 Wash. 349, 44 Pac. 867. 86. Upton Mfg. Co. v. Huiske, 69 Iowa 557, 29 N. W. 621 (where plaintiff sued on two promissory notes) ; Matter of Bogert, 25 Misc. (N. Y.) 466, 55 N. Y. Suppl. 751 (where a tax was assessable on distinct properties) ; Woeltz v. Woeltz, 93 Tex. 548, 57 S. W. 35 (a proceeding seeking both divorce and cancella- tion of a deed) ; Gilfillan v. MeKee, 159 U. S. 303, 16 S. Ct. 6, 40 L. ed. 161 (where decree determined the rights of the parties in two distinct funds) ; Worthington v. Beeman, 91 Fed. 232, 63 U. S. App. 536, 33 C. C. A. 475 (where the judgment was upon two distinct counts ) . 87. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 983. 88. Thus, it has been held that a party who has collected the money upon a judgment will not be permitted to prosecute a writ of error until he has refunded the money (Mur- phy v. Murphy, 45 Ala. 123; Garner v. Pre- witt, 32 Ala. 13; Riddle v. Hanna, 25 Ala. Vol. II 484; Earle v. Reid, 25 Ala. 463; Knox v. Steele, 18 Ala. 815, 54 Am. Dec. 181; Brad- ford v. Bush, 10 Ala. 274) ; and that a judg- ment creditor who accepts a tender in satis- faction of the judgment cannot appeal with- out returning the money so received (Houck v. Swartz, 25 Mo. App. 17 ) . 89. Paine v. Woolley, 80 Ky. 568; Port- land Constr. Co. v.' O'Neil, 24 Oreg. 54, 32 Pac. 764; Dunham v. Randall, etc., Co., 11 Tex. Civ. App. 265, 32 S. W. 720. 90. Ruckman v. Alwood, 44 111. 183; New- man v. Kiser, 128 Ind. 258, 26 N. E. 1006; McCracken v. Cabel, 120 Ind. 266, 22 N. E. 136; Seigel v. Metzger, 1 Ind. App. 367, 27 N. E. 647; Lyons v. Bain, 1 Wash. Terr. 482; 2 Cent. Dig. tit. " Appeal and Error," § 985; and see Shingler v. Martin, 54 Ala. 354, for a special application of this rule under the Alabama practice. Refusal of attorney to accept sum tendered. — Where, in ejectment, there is coupled with a judgment for defendant an order that a cer- tain sum be paid plaintiff, the leaving of this sum by defendant with plaintiff's attorney, which sum the attorney refuses to accept, is not a satisfaction of the judgment so as to prevent an appeal by plaintiff. Alexander v. Jackson, (Cal. 1890) 25 Pac. 415. The fact that a statute allows plaintiff an attorney's fee does not make the acceptance of the same by the attorney the latter's indi- vidual act, but is, in effect, the act of plain- tiff, and binds him. Root v. Heil, 78 Iowa 436, 43 N. W. 278. When attorney files lien for his fee. — On the report of a referee the court decreed a certain sum to be paid to plaintiff by defend- ants, which sum was accordingly paid to the clerk. The latter paid a part of it to plain- tiff's attorney, who had filed a lien for his fee, which amount was repaid to the clerk by plaintiff as soon as he heard of it. It was held that plaintiff had not waived his right of appeal. Jewell v. Reddington, 57 Iowa 92, 10 N". W. 306. APPEAL AND ERROR 655. (2) By Co-Paety. A receipt given by one appellant, for money paid on a judgment in favor of himself and his co-appellant, is binding on the latter. 91 (3) By Fiscal Officer. The acceptance of the amount of a judgment in favor of a county or city by the treasurer thereof has been held to be binding upon such county or city, although, in the case of the county, the board of county commissioners had not authorized the acceptance of the amount. 92 (4) Pboof of Acceptance. To justify an appellate court in dismissing an appeal on the ground that the judgment appealed from has been satisfied, the proof of the fact must be clear and satisfactory. 93 If the affidavits filed by the parties leave the fact of settlement in doubt, 94 or the opposing affidavits directly contradict the moving affidavits as to the purpose' and understanding of the par- ties, the appeal will not be dismissed. 95 (in) Accepting Sum Allotted Under Order of Distribution. If a distributee of a decedent's estate, 96 or an heir who is a party to a partition suit, 97 or a creditor suing to set aside a deed made by his debtor, 98 or interested in the distribution of the proceeds of property sold on the foreclosure of a mechanic's lien " or under execution, 1 accepts the sum allotted to him by the order of distri- bution, he waives his right to appeal therefrom. 2 (iv) Accepting Costs. The imposition of costs as a condition of granting an order 3 allowing a defendant to answer, 4 or a petitioner to intervene, 5 or per- mitting a plaintiff to amend his summons and complaint, 6 or modifying a 91. Williams v. Richards, 152 Ind. 528, 53 N. E. 765; Holman v. Stannard, 14 Ind. App. 146, 42 N. E. 645. 92. State v. Hebel, 70 Ind. 314; New Or- leans v. Metropolitan Bank, 44 La. Ann. 698, 11 So. 146. But where, under N. Y. Laws (1850), c. 140, a company paid to the city chamberlain the sum awarded by the commissioners as dam- ages for land taken belonging to New York city, it was held that the city, not having used the money, nor interfered with it, was not precluded from appealing from the order. Matter of New York, etc., R. Co., 98 N. Y. 12. 93. The court will regard as conclusive the written evidence of settlement and payment of the judgment appealed from when the gen- uineness of the receipt showing payment is not questioned by the appellee. New Orleans v. Metropolitan Bank, 44 La. Ann. 698, 11 So. 146. The mere entry of satisfaction of the judg- ment sought to be revised by writ of error is not ground to dismiss the writ when the ques- tion of satisfaction involves the whole merits of the ease. Tombigbee R. Co. v. Bell, 4 Sm. & M. (Miss.) 685. 94. Lewis v. Tilton, 62 Iowa 100, 17 N. W. 199. 95. Piano Mfg. Co. v. Rasey, 69 Wis. 246, 34 N. W. 85. Settlement in fraud of assignee's rights. — A motion by appellants to dismiss their ap- peal, on the ground that the judgment has been satisfied, will be granted though opposed by persons who claim to succeed to the rights of respondent, and who ask to be substituted on the ground that the alleged satisfaction was in fraud of their rights; the granting of the motion leaving the question to be settled in the superior court, which is the proper forum. Nunan v. Valentine, 83 Cal. 588, 23 Pac. 713. 96. Matter of Shaver, 131 Cal. 219, 63 Pac. 340. 97. Alexander v. Alexander, 104 N. Y. 643, 10 N. E. 37. 98. Dunham v. Randall, etc., Co., 11 Tex. Civ. App. 265, 32 S. W. 720. 99. Prairie Lumber Co. v. Korsmeyer, (Kan. 1896) 43 Pac. 773. 1. Smith v. Powell, 5 Kan. App. 652, 47 Pac. 992. Contra, Higbie v. Westlake, 14 N. Y. 281; Matter of Day, 18 Wash. 359, 51 Pac. 474. 2. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 990. 3. Miller v. Wright, 60 Hun (N. Y.) 579, 14 N. Y. Suppl. 468, 39 N. Y. St. 44 iaf/wmed: in 129 N. Y. 639, 29 N. E. 1031, 41 N. Y. St. 948] ; Prentiss v. Bowden, 25 N. Y. Civ. Proc. 144, 14 Misc. (N. Y.) 185, 2 N. Y. Annot. Cas. 163, 35 N. Y. Suppl. 653, 70 N. Y. St. 517 ; Lewis v. Irving P. Ins. Co., 50 Abb. Pr.. (N. Y.) 140 note; Lupton i>. Jewett, 19 Abb. Pr. (N. Y.) 320, 1 Rob. (N. Y.) 639; Taus- sig v. Hart, 33 N. Y. Super. Ct. 157; Drake.. v. Scheunemann, 103 Wis. 458, 79 N. W. 74S ; Smith v. Coleman, 77 Wis. 343, 46 N. W. 664. See 2 Cent. Dig. tit. "Appeal and Error," § 991. By accepting costs allowed unconditionally a party does not lose his right to appeal from- an order. Farmers' L. & T. Co. v. Bankers, etc., Tel. Co., 109 N. Y. 342, 16 N. E. 539, 15 N. Y. St. 516; Matter of Amsterdam Water Com'rs, 36 Hun (N. Y.) 534. 4. Radway v. Graham, 4 Abb. Pr. (N. Y.) 468. 5. Wood v. Richardson, 91 Hun (N. Y.) 332, 36 N. Y. Suppl. 1001, 72 N. Y. St. 103. 6. Hood v. Hood, 6 N. Y. St. 6. Although it may not be within the power of a referee to allow a certain amendment, yet if the ad- verse party accepts the terms upon which the Vol. II 656 APPEAL AND ERROR decree, 7 or granting a motion for a new trial, 8 is such a benefit that the accept- ance of the conditions waives the right to appeal. (v) Accepting Privilege of Renewing Petition. A moving party cannot appeal from an order denying his motion when he has availed himself of a provision of the order giving him leave to renew the application. 9 (vi) Selling Premises Under Foreclosure Decree. A mortgagee who proceeds to sell the mortgaged premises under a decree of foreclosure thereby waives his right to appeal from that part of the decree giving judgment for a less sum than is claimed to be due, 10 or releasing certain of defendants from per- sonal liability on the mortgage debt, 11 or directing that the sale be made subject to a lien adjudged to be prior to the mortgage. 12 f. Recognition of Validity of Judgment 1S — (i) In General. _ Any act on the part of a defendant by which he impliedly recognizes the validity of a judg- ment against him operates as a waiver of his right to appeal therefrom, or to bring error to reverse it. 14 chaser [compare Kling v. Sejour, 4 La. Ann. 128]) ; Kansas City, etc., R. Co. v. Murray, 57 Kan. 697, 47 Pae. 835 (procuring order al- lowing set-off) ; Barnes v. Lynch, 9 Okla. 156, 59 Pac. 995 (seeking equitable lien on the premises in suit ) . As to acquiescence in judgment see supra, IV, B, 2, a. Proceeding under occupying-claimant law. — Where defendant in ejectment elects, after verdict, to proceed under the occupying-claim- ant law, and has a verdict of assessment, he is estopped from bringing error to reverse the judgment rendered in such action, although the judgment had not yet been rendered when the election was made (Bradley v. Rogers, 33 Kan. 120, 5 Pac. 374) ; but he is not estopped by such election if he does not ask for a jury of assessment. Mack v. Price, 35 Kan. 134, 10 Pac. 521. But a party does not waive his right of , review by appeal or writ of error, as the case may be, by appearing in » suit on a judgment and answering that such judgment was erro- neously rendered (Martin v. Kittredge, 144 Mass. 13 note, 10 N. E. 710; Eliot v. McCor- mick, 144 Mass. 10, 10 N. E. 705) ; or by filing a petition, after having been ordered to pay alimony, to modify the decree because of com- plainant's misconduct, such misconduct having occurred before the decree was rendered, of which fact the moving party was ignorant until after the court had adjourned for the term (Daugherty v. Daugherty, 78 111. App. 187); or by purchasing from plaintiff in ejectment (Kling v. Sejour, 4 La. Ann. 128). So, a party does not waive his right to ap- peal, from an order denying his motion to dis- solve a preliminary injunction, by procuring an order correcting defects in the order grant- ing the injunction. Chicago Dollar Directory Co. v. Chicago Directory Co., 65 Fed. 463, 24 U. S. App. 525, 13 C. C. A. 8. Rule as to pleading judgment in bar. — In Pennsylvania, it has been held that pleading a judgment as a defense to another action is a recognition of the validity of the judgment and estops defendant from afterward revers- ing such judgment on error (Wills v. Kane, 2 Grant (Pa.) 60) ; but in New York it has been held that an appeal will not be dismissed amendment was allowed he cannot appeal. Grattan v. Metropolitan L. Ins. Co., 80 N. Y. 281, 36 Am. Rep. 617. 7. Marvin v. Marvin, 11 Abb. Pr. N. S. (N. Y.) 97. 8. Lamprey v. Henk, 16 Minn. 405; Cook v. McComb, 98 Wis. 526, 74 N. W. 353; Cogs- well v. Colley, 22 Wis. 399. Contra, Tyson v. Wells, 1 Cal. 378. 9. Harris v. Brown, 93 N. Y. 390 [affirming 29 Hun (N. Y.) 477]; Harrison v. Neher, 9 Hun (N. Y.) 127; Noble v. Prescott, 4 E. D. Smith (N. Y.) 139; People v. McAdam, 1 N. Y. City Ct. Suppl. 37. So, a party who acquiesces in a judgment against him, by availing himself of a right therein reserved to take another rule, on dif- ferent grounds, cannot appeal from such judg- ment. Priestly v. Shaughnessy, 10 La. Ann. 455. 10. Lombard v. Bush, 85 Iowa 718, 50 N. W. 1068; Anglo-American Land, etc., Co. v. Bush, 84 Iowa 272, 50 N. W. 1063. 11. Guaranty Sav. Bank v. Butler, 56 Kan. 267 43 Pac. 229. 12. Male v. Harlan, 12 S. D. 627, 82 N. W. 179. In a foreclosure suit, where the decree properly directs the sale of the premises, but erroneously directs the application of the pro- ceeds, the suing out of an execution on such a decree does not debar plaintiff mortgagee from taking an appeal to correct the decree in regard to the application of the proceeds. Inverarity v. Stowell, 10 Oreg. 261. In an action to foreclose a mortgage secur- ing two notes in the hands of different per- sons, where a, decree has been rendered for a foreclosure, and declaring the holders of the notes entitled to share pro rata in the pro- ceeds, the holder of one of the notes, claiming to be entitled to priority, is not barred from appealing from the order of distribution by the fact that he so far carries out the decree as to cause execution to issue, the property to be sold, and the proceeds to be paid into court. Miller v. Washington Sav. Bank, 5 Wash. 200, 31 Pac. 712. 13. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 957 et seq. 14. Sheldon v. Motter, 59 Kan. 776, 53 Pac. 127 (attornment and payment of rent to pur- Vol. II APPEAL AND ERROR 657 (n) Formal Entry of Judgment or Order. The fact that a judgment or order was formally entered on the motion of appellant is not a recognition of its validity and does not affect his right to appeal therefrom. 15 (in) Staying Execution. By statute in some of the states the taking of a stay of execution by a defendant in judgment operates as a waiver of the right of appeal. 16 g. Seeking Other Mode of Relief a — (i) Bringing Proceedings for Review. on this ground where respondent was not » party to the action to which the erroneous judgment was pleaded as a defense (Ostran- der v. Campbell, 51 Hun (N. Y.) 637, 3 N. Y. Suppl. 597, 20 N. Y. St. 806; Cornell v. Dono- van, 14 Daly (N. Y.) 292, 14 N. Y. St. 687; Brewster v. Wooster, 26 N. Y. Suppl. 912, 56 N. Y. St. 844. See also Pittsburgh, etc., R. Co. v. Swinney, 91 Ind. 399, holding that, where plaintiff pleads, in bar of an appeal from an order dismissing its condemnation proceedings, that defendant had, in another action, recovered judgment for the value of the condemned land, such plaintiff is not thereby estopped to appeal from the judgment which was pleaded as a bar. Where, in a suit to enjoin the opening of a public road, a decree is rendered finding that the road has been properly established, and that plaintiff is entitled to damages for the land taken from him, the fact that plaintiff had previously filed a conditional claim for such damages, which claim had been aban- doned before the decree was rendered, is not such a recognition of the decree as would pre- vent him from appealing from it. Smith v. Gorrell, 81 Iowa 218, 46 N. W. 992. 15. Illinois. — Board of Education v. Frank, «4 111. App. 367. Minnesota. — Warner v. Lockerby, 28 Minn. 28, 8 N. W. 879. New York. — Smith v. Dittman, 16 Daly (N. Y.) 427, 11 N. Y. Suppl. 769, 34 N. Y. St. 303. See Purdy v. Peters, 15 Abb. Pr. (N. Y.) 160, as to the right of a party to have a judg- ment formally entered for the purpose of appeal. South Carolina. — Johnson v. Henegan, 11 S. C. 93. Wisconsin. — Jones v. Davis, 22 Wis. 421. See 2 Cent. Dig. tit. "Appeal and Error," I 970. But see Van Leonard v. Eagle, etc., Mfg. Co., 60 Ga. 544, holding that, where divers lots of land, described by numbers, are levied on, claim made, and, on trial of » single issue embracing the whole property, a verdict ren- dered finding certain numbers subject to the execution, but failing to find certain other numbers either subject or not subject, the plaintiff, after entering up judgment on the verdict without moving for a new trial, is precluded from maintaining a writ of error. Causing a transcript of judgment to be filed in other counties for the purpose of pre- serving a lien upon real estate, no action to- ward enforcing the judgment having been taken by appellant, is not a waiver of right of appeal from the judgment. Tama County v. Melendy, 55 Iowa 395, 7 N. W. 669. T43] Stipulation for the entry of judgment after a verdict, and in conformity with it, is not a waiver of the right to appeal from the judg- ment. Hall v. McCormick, 31 Minn. 280, 17 N. W. 620; Everett v. Boyington, 29 Minn. 264, 13 N. W. 45. 16. Seacrest v. Newman, 19 Iowa 323; Eck- lund v. Willis, 42 Nebr. 737, 60 N. W. 1026; Sullivan Sav. Inst. v. Clark, 12 Nebr. 578, 12 N. W. 103; Miller v. Hyers, 11 Nebr. 474, 9 N. W. 645; McCreary v. Pratt, 9 Nebr. 122, 2 N. W. 352. See also 2 Cent. Dig. tit. "Ap- peal and Error," § 999. But, in the absence of statute, no such re- sult is held to follow. Indiana. — Hyer v. Norton, 26 Ind. 269. Kentucky. — Kellar v. Williams, 10 Bush (Ky.) 216. Michigan. — Churchill v. Emerick, 56 Mich. 536, 23 N. W. 211. Mississippi. — Davis v. Jordon, 5 How. (Miss.) 295. Ohio.— Russell v. Giles, 31 Ohio St. 293. Pennsylvania. — Ranck v. Becker, 12 Serg. & R. (Pa.) 412. But in Mississippi it has been adjudged that, if a forthcoming bond is taken and for- feited, a writ of error will not lie to reverse the judgment which the bond was given to stay (Sanders v. McDowell, 4 How. (Miss.) 9) ; yet if, in a joint action against the mak- ers and indorsers of a note, a forthcoming bond is given and forfeited by a part of de- fendants, this is no bar to a writ of error by a defendant who did not join in the bond ( Dorsey v. Merritt, 6 How. ( Miss. ) 390 ) . 17. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 995 et seq. An application for dissolution of an injunc- tion is no waiver of a pending appeal from the order granting the injunction. Davis v. Fasig, 128 Ind. 271, 27 N. E. 726; Mexican Asphalt Co. v. Mexican Asphalt Paving Co., 61 111. App. 354; Simon v. Walker, 26 La. Ann. 603. Moving to set aside order.— Where appel- lants against an order resort to the summary remedy of by motion to set aside the order and try this motion on the merits, they can- not afterward fall back and seek the reversal of the order by appeal. Horn v. Volcano Water Co., 18 Cal. 141. But see Matter of Flushing Ave., 98 N. Y. 445, where, pending an appeal from an order denying a motion to set aside the commissioner's report in local improvement proceedings, founded on an al- leged irregularity, a second motion was made to set aside the same order and the order con- firming the report, such second motion setting forth the facts as to the irregularity, but be- Vol. II 658 APPEAL AND ERROR It seems that the filing of a petition in the nature of a bill of review does not prevent a party from appealing from the original decree. 18 (n) Enjoining Execution of Judgment.™ In Iowa it has been held that the suing out of an injunction to restrain the execution of a judgment at law. oper- ates as a release of ail errors in such judgment. 20 In some states there are stat- utes to the same effect, 21 and their operation is not affected by the fact that the injunction is subsequently dissolved. 22 In other states' it has been held that an injunction against a judgment does not operate as a release of errors where the order of allowance does not require it. 23 (m) Moving for New Trial. "While a party against whom a judgment has been rendered, by moving for and obtaining a new trial in the court below, waives his right to appeal, 24 the mere motion for a new trial is not of itself 25 ing based mainly ou the alleged unconstitu- tionality of the act under which the proceed- ings were had. This second motion was de- nied, but it did not appear that the question of irregularity was decided, the determina- tion of that question not being necessary to a decision on the motion. It was held that the right to have the first appeal considered was not barred by the decision of the second mo- tion. 18. O'Hara v. McConnell, 93 U. S. 150, 23 L. ed. 840. Contra, Wilson v. Roberts, 38 Nebr. 206, 56 N. W. 787. See also supra, I, D, 2, a. Application for reargument. — Under Mills' Anno. Stat. Colo. (1891 ) , § 2425, a party ag- grieved by a decree adjudicating water-rights does not waive his right to appeal from the decree by applying to the district court for a review or reargument. Daum v. Conley, (Colo. 1899) 59 Pac. 753. Motion for reexamination. — A party does not waive his right to appeal from an order granting a new trial by filing a motion asking the court to reexamine the question deter- mined. Anderson v. Cahill, 65 Iowa 252, 21 N. W. 593. Under the Indiana statute, however, it has been held that a party pursuing such remedy waives his right to appeal. Harvey v. Fink, 111 Ind. 249, 12 N. E. 396; Davis v. Binford, 70 Ind. 44 ; Indiana Mut. F. Ins. Co. v. Rout- ledge, 7 Ind. 25; Hinesley v. Sheets, (Ind. App. 1897) 46 N. E. 94. Under the Kentucky code provision allow- ing an absent defendant to appear in the cir- cuit court at any time within five years after the judgment and move for a retrial of the ac- tion, such defendant is not precluded from moving for a reversal of an erroneous judg- ment against him in the court at any time for errors apparent in the record. Payne v. Witherspoon, 14 B. Mon. (Ky.) 217. 19. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 1000. 20. Gordon v. Ellison, 9 Iowa 317, 74 Am. Dec. 353. But the suing out of an injunction does not operate as a release of errors in a judgment at law when it is designed to enjoin proceedings in violation of law. Burge v. Burns, Morr. (Iowa) 287. 21. Thompson v. Munson, 43 Miss. 176; Moss v. Craft, 10 Mo. 720; Chouteau v. Douchouquette, 1 Mo. 715; McKenny v. Clark, Vol. II 84 Mo. App. 624; Blake v. Dunn, 5 Humphr. (Tenn.) 578; Henly v. Robertson, 4 Yerg. (Tenn.) 171. 22. Chouteau v. Douchouquette, 1 Mo. 715; Henly v. Robertson, 4 Yerg. (Tenn.) 171. 23. Gano v. White, 3 Ohio 20. Thus where a, party against whom a judgment has been rendered obtains an injunction merely to re- strain plaintiff from further proceedings un- der his execution, and not seeking in any way to stay the judgment, such injunction does not operate as a release of errors in the pro- ceedings in the suit at law prior to and in- cluding the judgment. St. Louis, etc., R. Co. v. Todd, 40 111. 89. An injunction to stay proceedings at law in order to operate as a release of errors must affect the judgment it- self. McConnel v. Ayres, 4 111. 210. A decree dissolving an injunction restrain- ing the execution of a judgment, and adjudg- ing that plaintiff in the injunction pay the judgment, is no bar to a writ of error upon such judgment. Utter v. Walker, Wright (Ohio) 46. 24. The reason being that the order grant- ing a new trial vacates the judgment from which the appeal could have been taken. Kower v. Gluck, 33 Cal. 401 ; Trundle v. Provi- dence-Washington Ins. Co., 54 Mo. App. 188; Jones v. Booth, 38 Ohio St. 405 ; Schweickhart v. Stuewe, 75 Wis. 157, 43 N. W. 722 ; and 2 Cent. Dig. tit. "Appeal and Error," § 997. As to effect of moving for new trial on time for taking appeal see infra, VII, A, 1, a, (vi). 25. Moving for a new trial is merely a waiver and abandonment of all exceptions taken during the trial which are not em- braced in such motion. Danley v. Robbins, 3 Ark. 144. The most usual method of present- ing exceptions for review, and the only method in some states, is by motion for new trial, reciting the grounds relied on. An ap- peal from a refusal of the motion preserves the exceptions in the record. Berry v. Singer, 10 Ark. 483; Samuel v. Cravens, 10 Ark. 380; McKinnon v. Morrison, 104 N. C. 354, 10 S. E. 513. It has been held that where the party against whom » verdict was rendered, moved the court for a new trial, on the ground of a misdirection of the jury, which direction he acquiesced in at the trial, and the motion was overruled, the right to allege exceptions to the supposed misdirection was thereby APPEAL AND ERROR 659 a waiver of an appeal, 26 writ of error, 27 or bill of exceptions 28 previously taken or sued out. (iv) Prosecuting Another Action. If a party, after judgment against him, prosecutes another action based upon the same cause, he estops himself from appealing from the first judgment, or from bringing error to review it. 29 h. Where There Has Been a Compromise and Settlement. Where, after the rendition of the judgment sought to be reversed, the matter in controversy has been the subject of a valid compromise between the parties to the litigation, which compromise leaves nothing of the controversy presented by the record in the supreme court to be decided, the appeal or writ of error will be dismissed on motion. 30 i. Where Suit Has Been Abandoned. An appeal or writ of error will not lie from a decision where appellant, subsequent to the decision, voluntarily dismisses the suit. 31 waived. Sylvester v. Mayo, 1 Cush. (Mass.) 308. But now in most states the rule is to present all exceptions on a motion for new trial, and in some states the statutes ex- pressly allow exceptions to the charge of the court to be (filed after verdict. Lowe v. Elli- ott, 107 N". C. 718, 12 S. E. 383; Taylor v. Plummer, 105 N". C. 56, 11 S. E. 266. See also infra, V, D. 26. Taylor v. Holland, 20 Ga. 11. 27. In some of the federal circuits there is a rule to this effect. But effect could be given to that rule only by requiring a party to waive, on the record, a writ of error before his motion for a new trial was heard. U. S. v. Hodge, 6 How. (U. S.) 279, 12 L. ed. 437; Brown v. Evans, 8 Sawy. (U. S.) 502, 18 Fed. 56. 28. West v. Cunningham, 9 Port. (Ala.) 104, 33 Am. Dec. 300. But compare Lee v. Tinges, 7 Md. 215, wherein it is held that, where the same questions are presented in the bill of exceptions and in a motion for a new trial, the court below should, in general, re- quire the waiver of the exceptions before en- tertaining the motion. If, however, the court hear and decide the motion without requiring such waiver, the appellate court will, never- theless, entertain the appeal. 29. Carr v. Casey, 20 111. 637 (institution of second suit by administrator) ; Liebuck v. Stahle, 66 Iowa 749, 24 N. W. 562 (bringing second action of forcible entry and detainer) ; Gordon v. Ellison, 9 Iowa 317, 74 Am. Dec. 353 (bringing action before another justice) ; Ehrman v. Astoria R. Co. 26 Oreg. 377, 38 Pac. 356 (bringing attachment action after appeal from decree refusing to foreclose a mechanic's lien ) . Audita querela, having been applied for and obtained, constitutes a waiver of the party's right to bring a writ of error. Brooks v. Hunt, 17 Johns. (N. Y.) 484. See 2 Cent. Dig. tit. "Appeal and Error," § 998. Bringing action in another state. — A hus- band brought an action in Kansas against his wife for the purpose of obtaining a divorce. In her answer and cross-petition the wife asked for a divorce and for alimony. The court refused to grant a divorce to either party, but made an equitable division of the property. To obtain a reversal of the judg- ment, the husband instituted a proceeding in error in the supreme court. While the pro- ceeding was pending, the husband established a residence in Oklahoma, and there brought an action in which he obtained a divorce from his wife, and the decree barred her from any interest in his property. It was held that he was not estopped to assert error or to further prosecute his proceeding in Kansas. Samuel v. Samuel, 59 Kan. 335, 52 Pac. 889. Bringing action in federal court. — Where, after decree of foreclosure and sale of a rail- road in a state court, a bondholder filed a bill in a federal court to set aside the sale, which bill was dismissed on the merits, the bond- holder still had the right of appeal from the decree of the state court to the state supreme court. Guaranty Trust, etc., Co. v. Budding- ton, 24 Fla. 21, 3 So. 418. Bringing action upon counter-claim. — An appeal will not be dismissjd on the ground that since it was taken appellant has brought an action to recover upon the cause of action set up in his counter-claim, it appearing that the counter-claim was stricken out for failure to furnish a bill of particulars thereof. O'Brien v. Smith, 59 Hun (N. Y.) 624, 13 N. Y. Suppl. 410, 37 N. Y. St. 43. 30. California. — People v. Burns, 78 Cal. 645, 21 Pac. 540. Colorado. — Hunter v. App. 372, 33 Pac. 932. Connecticut. — Salmon (Conn.) 242. Indiana. — Monnett 299, 11 N. E. 230. Kansas. — Ziegler v. Hyle, 45 Kan. 226, 25 Pac. 568; Rasure v. McGrath, 23 Kan. 597. Minnesota. — Babcoek v. Banning, 3 Minn. 191. Mississippi. — But see, contra, Gordon v. Gibbs, 3 Sm. & M. (Miss.) 473. New York. — Lee v. Vacuum Oil Co., 126 1ST. Y. 579, 27 N. E. 1018, 38 N. Y. St. 662; Cock v. Palmer, 19 Abb. Pr. (N. Y.) 372. Wisconsin. — Thornton v. Madison Woolen Mills, 41 Wis. 265. United States. — Dakota County v. Glidden, 113 U. S. 222, 5 S. Ct. 428, 28 L. ed. 981. See 2 Cent. Dig. tit. "Appeal and Error," § 981. 31. Georgia. — Macrea v. Nolan, 33 Ga. 205 ; Dannelly v. Speer, 7 Ga. 227 ; Mott v. Hill, 7 Ga. 79. Vol. II Dickinson, 3 Colo. v. Pixlee, 2 Day Hemphill, 110 Ind. 660 APPEAL AND ERE OR j. Where Suit Has Been Taken to Another Court for Review. "Where, under a statute, the party aggrieved is given a right of appeal to either of two courts of concurrent jurisdiction, an appeal to one waives the right to appeal to the other. 32 C. Waiver of Objections to Right of Review. The right to object to the taking of an appeal or the issuance of a writ of error may, it seems, be waived by appellee or defendant in error whenever the objection is founded upon some act or omission on the part of appellant or plaintiff in error which may be pleaded by his opponent as an estoppel to the right of review. 33 V. PRESENTATION AND RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW. 34 A. Necessity — 1. Statement of Rule. Subject to a few exceptions, which Illinois. — Bradley v. Gilbert, 155 111. 154, 39 N. E. 593; Newman v. Dick, 23 111. 338. See also Hutchinson r. Ayres, 17 111. App. 271. Indiana. — State Bank v. Hayes, 3 Ind. 400. Mississippi. — Miller v. Keith, 26 Miss. 166, where party voluntarily withdrew from suit. Texas. — O'Neal v. Wills Point Bank, 64 Tex. 644. Washington. — Mahncke v. Tacoma, 1 Wash. 18, 23 Fac. 804. See 2 Cent. Dig. tit. "Appeal and Error," § 968. After a retraxit, a retractor cannot join in the prosecution of a writ of error, as the writ would be utterly at variance with the legal effect of the retraxit; but this objection must be interposed by plea before joinder, and comes too late after the pleadings are made up in the courts. Harris r.Preston,10 Ark.201. Dismissal of levy. — Where, en demurrer to the equitable pleadings of plaintiffs in fieri facias, filed in aid of their levy, the equitable proceedings are dismissed, and plaintiffs there- upon, of their own motion, dismiss their levy, and the court enters judgment for claimants for costs, a, writ of error by plaintiffs to the sustaining of said demurrer will be dismissed. McAfee v. Kirk, 78 Ga. 356. Reason and extent of rule. — So long as the trial court leaves plaintiff a substantial cause of action, his withdrawal from the court must be regarded as voluntary, and as constituting a waiver of his right to appeal from the or- der of that court. But where the ruling of the court leaves plaintiff without a substan- tial cause of action — as where it rules that the recovery can be only for nominal dam- ages — the taking of a nonsuit by plaintiff must be regarded as involuntary, and as no waiver of the right of appeal. State v. Thompson, 81 Mo. App. 549. During the pen- dency of an action against a constable and his sureties on his bond, the constable died, and, on motion of defendants, and against the op- position of plaintiff, the writ was revived against the administrator of the constable, whereupon plaintiff abandoned the suit. This action by defendants being invalid, plaintiff did not thereby lose his right to take proper steps to have the original action revived. Com. v. York, 9 B. Mon. (Ky.) 40. 32. Field v. Great Western Elevator Co., 6 N. D. 424, 71 N. W. 135, 66 Am. St. Rep. 611. But compare Metropolitan L. Ins. Co. v. Broach, 31 111. App. 496, holding that defend- Vol. II ant, after an appeal to the circuit court, may appear in the city court, to which plaintiff has perfected an appeal, but which has been dis- missed by the judge of such court on his own motion, and may move for a reinstatement thereof, without losing his right to a trial in the circuit court in case of the dismissal by plaintiff of the latter's appeal in said city court after such reinstatement. Limits of the rule. — But where one of these courts reviews the decisions of the other, the fact that an appeal might have been taken to the superior tribunal in the first instance does not estop appellant from subsequently appealing to that court from the judgment of the inferior appellate court to which the cause was first taken. Northern Pac. R. Co. v. Amato, 144 U. S. 465, 12 S. Ct. 740, 36 L. ed. 506 [affirming 49 Fed. 881, 1 U. S. App. 113, 1 C. C. A. 468]. And the fact that an ap- pellant applies for and obtains an order of appeal, through a court having no jurisdic- tion of the matter in dispute, does not estop him from presenting his appeal in a court of competent jurisdiction. Chaplin v. Highway Com'rs, 126 111. 264, 18 N. E. 765 [reversing 27 111. App. 643] ; McWilliams v. Michel, 43 La. Ann. 984, 10 So. 11. See also Mcintosh v. Wheeler, 58 Kan. 324, 49 Pac. 77. 33. Boone v. Poindexter, 12 Sm. & M. (Miss.) 640; D'lvernois v. Leavitt, 8 Abb. Pr. (N. Y.) 59. See 2 Cent. Dig. tit. "Appeal and Error,'' § 1015 et seq. As to waiver of objections to parties on appeal see infra, VI, H, 7. This waiver may spring either from express stipulation (Ames v. Mississippi Boom Co., 8 Minn. 467 ) , or be implied from some act on the part of appellee or defendant in error, such as joining issue on the appeal or writ of error (Harris v. Preston, 10 Ark. 201; Mc- Donald v. McConkey, 54 Cal. 143: Minne- apolis Harvester Works v. Hedges, 11 Nebr. 46, 7 N. W. 531 ; Du Bois Opera-House Co. r. Du Bois, 16 Pa. Co. Ct. 210), or doing any other act showing acquiescence or evincing an intention to treat the appeal or writ of error as valid (Fay v. Harrington, 176 Mass. 270, 57 N. E. 369; Matter of Guardian Sav. Inst., 78 N. Y. 408; Henney v. Ralph, 6 Kulp (Pa.) 362; Fiedler r. Howard, 99 Wis. 388, 75 N. W. 163, 67 Am. St. Rep. 865). 34. As to questions presented by the record see infra, XIII. APPEAL AND ERROR 661 will be noticed hereafter, 35 the rule is of almost universal application that ques- tions, of whatever nature, not raised in the trial court will not he noticed on appeal, 36 and that, too, irrespective of any stipulations to the contrary which As to the scope and extent of review, gen- erally, see infra, XVII, A. 35. See infra, V, B, 1, a, (n) ; V, B, 1, e; V, B, 1, d, (I), (c). 36. Alabama. — Birmingham Loan, etc., Co. v. Anniston First Nat. Bank, 100 Ala. 249, 15 So. 945, 46 Am. St. Rep. '45. California. — Mott v. Smith, 16 Cal. 533. Colorado. — U. S. Security, etc., Co. v. Wolfe, (Colo. 1900) 60 Pac. 637; Cache la Poudre Reservoir Co. v. Windsor Reservoir Co., 25 Colo. 53, 52 Pac. 1104. Florida. — Robinson v. Springfield Co., 21 Fla. 203. Georgia. — Durden v. Meeks, 110 Ga. 319, 35 S. E. 153; Lathrop v. Adkisson, 87 Ga. 339, 13 S. E. 517. Illinois. — J. Walter Thompson Co. v. White- lied, 185 111. 454, 56 N. E. 1106, 76 Am. St. Rep. 51 ; McKenzie v. Penfield, 87 111. 38. Indiana. — Lomax v. Strange, 14 Ind. 21. Iowa. — Clough v. Ide, 107 Iowa 669, 78 N. W. 697; Wilson v. Palo Alto County, 65 Iowa 18, 21 N. W. 175. Kansas. — Kansas Pac. R. Co. v. Mihlman, 17 Kan. 224; Brown v. Flower, 9 Kan. App. 536, 58 Pac. 1015. Kentucky. — Bowling v. Davis, 19 Ky. L. Rep. 1859, 44 S. W. 643, 45 S. W. 77. Louisiana. — Watson's Tutorship, 51 La. Ann. 1641, 26 So. 409; Bludworth ('. Hunter, 9 Rob. (La.) 256. Maine. — Moody P. Clark, 27 Me. 551 ; Emery v. Vinall, 26 Me. 295. Maryland. — Bridendolph v. Zeller, 5 Md. 58. Michigan. — Brown v. O'Donnell, 123 Mich. 100, 81 N. W. 961 ; Beck v. Finn, 122 Mich. 21, 80 N. W. 785. Mississippi. — Anderson v. Leland, 48 Miss. 253; Gale v. Lancaster, 44 Miss. 413. Missouri. — Palmer v. Alexander, (Mo. 1901) 62 S. W. 691 ; Hayden v. Lauffenburger, 157 Mo. 88, 57 S. W. 721; Kansas City v. Mc- Govern, 78 Mo. App. 513. Montana. — Philipsburg v. Weinstein, 21 Mont. 146, 53 Pac. 272. 'Nebraska. — Hyde v. Hyde, 60 Nebr. 502, 83 N. W. 673; Creighton University v. Riley, 50 Nebr. 341, 69 N. W. 943. Nevada. — Longabaugh v. Virginia City, etc., R. Co., 9 Nev. 271 ; Clarke v. Lyon County, 7 Nev. 75. New Jersey. — Consolidated Traction Co. v. Behr, 59 N. J. L. 477, 37 Atl. 142; Cumber- land Lumber Co. v. Clinton Hill Lumber Mfg. Co., 57 N. J.. Eq. 627, 42 Atl. 585. New York. — Martin v. Home Bank, 160 N. Y. 190, 54 N. E. 717 [affirming 30 N. Y. App. Div. 498, 52 N. Y. Suppl. 464] ; McCann v. Albany, 158 N. Y. 634, 53 N. E. 673 [af- firming 11 N. Y. App. Div. 378, 42 N. Y. Suppl. 94] ; People v. Delaware, etc., Canal Co., 32 N. Y. App. Div. 120, 52 N. Y. Suppl. 850; Starr v. Patterson, 60 Hun (N. Y.) 583, 14 N. Y. Suppl. 901, 39 N. Y. St. 165; Hin- man v. Stillwell, 34 Hun (N. Y.) 178; Aber- nethy v. Church of Puritans Soc, 3 Daly (N. Y.) 1; Casey v. Barry, 27 Misc. (N. Y.) 835, 60 N. Y. Suppl. 768; Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561. North Carolina. — Williamson v. Canaday, 25 N. C. 349. Ohio. — Akerman v. Lima, 7 Ohio N. P. 92, 8 Ohio Dec. 430. Oregon. — Cook v. Portland, 35 Oreg. 383, 58 Pac. 353; Thompson v. Dekum, 32 Oreg. 506, 52 Pac. 517, 755. Pennsylvania. — Spencer v. Kunkle, 2 Grant (Pa.) 406; Chester City Presb. Church v. Con- lin, 11 Pa. Super. Ct. 413, 7 Del. Co. (Pa.) 437; MacKellar v. Seeds, 10 Pa. Super. Ct. 167, 44 Wkly. Notes Cas. (Pa.) 182; Central School Supply House v. School Board, 9 Pa. Super. Ct. 110. South Carolina. — Barnwell v. Marion, 54 S. C. 223, 32 S. E. 313; Sumter Bldg.,*etc, Assoc, v. Winn, 45 S. C. 381, 23 S. E. 29. South Dakota. — Dowdle v. Cornue, 9 S. D. 126, 68 N. W. 194. Texas. — Williams v. Loan, etc., Land Co., (Tex. Civ. App. 1900) 55 S. W. 374; Davis v. San Antonio, etc., R. Co., (Tex. Civ. App. 1898) 44 S. W. 1012. Utah. — Summit County v. Gustaveson, 18 Utah 351, 54 Pac. 977. Virginia. — Union Bank v. Richmond, 94 Va. 3i6, 26 S. E. 821 ; Swecker v. Swecker, 87 Va. 305, 12 S. E. 1056. Washington. — Blewett v. Bash, 22 Wash. 536, 61 Pac. 770; Dearborn Foundry Co. v. Augustine, 5 Wash. 67, 31 Pac. 327. West Virginia. — Smith v. Knight, 14 W. Va. 749. Wisconsin. — Ritter v. Ritter, 100 Wis. 468, 76 N. W. 347 ; Congar v. Chamberlain, 14 Wis. 258 ; Bogert v. Phelps, 14 Wis. 88. Wyoming. — Sherlock v. Leighton, ( Wyo. 1901) 63 Pac. 934. United States — ■ Walker v. Sauvinet, 92 U. S. 90, 23 L. ed. 678 ; Lake County v. Sut- liff, 97 Fed. 270, 38 C. C. A. 167 ; Van Gunden v. Virginia Coal, etc., Co., 52 Fed. 838, 8 U. S. App. 229, 3 C. C. A. 294. England. — Chamley v. Dunsany, 2 Sch. & Lef. 714. See 2 Cent. Dig. tit. "Appeal and Error," § 1018 et seq. As to necessity of exceptions see infra, V, B, 2, b. Of objections see infra, V, V, 1. Of motion for new trial see infra, V, B, 3. In Florida the rule stated in the text has at most a very limited application in chancery cases. The general doctrine is that the court may look into the whole cause, as it is pre- sented in the record, to reexamine questions decided against respondent and also such ques- tions as passed sub silentio in the court below, as well as to examine points made for the first time on appeal, provided such points are Vol. II 662 APPEAL AND ERROR counsel may enter into. 37 In some jurisdictions there are express statutory declarations to the effect that questions of which a review is sought must be raised in the court below. 88 2. Reasons for the Rule. While the above-stated general rule is supportable upon a number of considerations, 39 it is usually placed upon the ground that the opposite party should have the proper opportunity to avoid, by amendment or by supplying any defects in his proof, the effect of the objection. 40 3. Extent of Rule — a. Grounds of Defense or Opposition — (i) In Gen- eral.* 1 In applying the general rule that questions not raised in the lower court will uot be considered in the appellate court to the great variety of instances which may, for the sake of convenient reference, be grouped under the head of grounds of defense or opposition, it may be said, generally speaking, that if a defendant in the trial court omits a defense upon the merits which he might have made, and submits issues not involving it, he will, in the appellate court, be bound by the case made by the pleadings and evidence as exhibited by the rec- ord, and cannot urge a defense which was not presented to the lower court. 42 raised by the pleading and proof. O'Neil v. Pereival, 25 Fla. 118, 5 So. 809; Foster v. Ambler, 24 Fla. 519, 5 So. 263; Smith v. Croom, 7 Fla. 180; Southern L. Ins. Co. v. Cole, 4 Fla. 359. The doctrine is, however, subject to the limitation that neither party will be permitted to surprise or mislead his adversary, or to make objections which might have been obviated had they been presented below. Southern L. Ins., etc., Co. v. Cole, 4 Fla. 359. 37. California. — Covillaud v. Tanner, 7 Cal. 38. Illinois. — Carlyle v. Harms, 84 111. App. 264. Michigan. — But compare Turner v. Grand Rapids, 20 Mich. 390. New Vork. — Greer v. Greer, 58 Hun (N. Y.) 251, 20 N. Y. Civ. Proc. 71, 12 N. Y. Suppl. 778, 34 N. Y. St. 448. United States. — McDonald p. Smalley, 1 Fet. (U. S.) 620, 7 L. ed. 287. Limitation of doctrine. — In Pennsylvania it has been held that where a question is ar- gued on appeal by both parties as though it were properly in the record, the supreme court may pass on the question, even though it was not raised in the lower court. Sum- merson v. Hicks, 142 Pa. St. 344, 21 Atl. 875. 38. Gustafson r. Rustemeyer, 70 Conn. 125, 39 Atl. 104, 66 Am. St. Rep. 92, 39 L. R. A. 644; Tuck r. Boone, 8 Gill (Md.) 187; Bur- gess v. State, 12 Gill & J. (Md.) 64. Hence, under a statute providing that no errors are to be considered on an appeal " un- less it appears on the record that the ques- tions made were distinctly raised a\ the trial and decided adversely by the court," ques- tions which were not raised and decided in the court below will not be considered upon appeal, even though no objection is inter- posed to their consideration. Cooley v. Gil- Ian, 54 Conn. 80, 81, 6 Atl. 180. 39. The rule has been supported upon the ground that for an appellate court to con- sider questions which were not raised in the court below would be to overstep the bounds of the appellate jurisdiction and usurp the functions of a court of original jurisdiction. Vol. II Elliott App. Proc. § 481. In Coles v. Kelsey, 2 Tex. 541, 47 Am. Dec. 661, Wheeler, J., in a. dissenting opinion, states the reason for the rule in effect as follows: If an objection which was not raised in the court below could be considered in the appellate court there would be no assurance that there would ever be an end to the litigation; for, should the judgment be reversed on such ground and the cause be again brought before the appellate court, some new objections not before taken, which would require the judgment to be re- versed and the cause remanded, might be again discovered, and the same process might be repeated indefinitely, so that the assertion of a right which a party may, unfortunately, be compelled to litigate, might be attended with interminable delay, harassment, and vexation. 40. Slater v. Rawson, 1 Mete. (Mass.) 450; Beekman v. Frost, 18 Johns. (N. Y.) 544, 9 Am. Dec. 246; Wheeler, J., in Coles r. Kelsey, 2 Tex. 541, 47 Am. Dec. 661. 41. As to the capacity or right to sue see infra, V, B, 1, d, (i). As to the effect of a failure to set up par- ticular defenses see particular titles, such as Infancy; Libel and Slander. 42. Alabama. — Crenshaw County v. Flem- ing, 109 Ala. 554, 19 So. 906. Arizona. — Glencross v. Evans, (Ariz. 1894) 36 Pac. 212. California. — Matter of Young, 123 Cal. 337, 55 Pac. 1011; Hanson v. Frieker, 79 Cal. 283, 21 Pac. 751. Colorado. — Rose v. Dunklee, 12 Colo. App. 403, 56 Pac. 342. Connecticut. — Ridgefield v. Fairfield, 73 Conn. 47, 46 Atl. 245. Florida. — Pons v. Hart, 5 Fla. 457. Georgia. — Carter v. Peoples Nat. Bank, 109 Ga. 573, 35 S. E. 61; Beach v. Lattner, 101 Ga. 357, 28 S. E. 110. Illinois. — -Harrier v. Herron, 165 111. 242, 46 N. E. 211 [affirming 60 111. App. 592]; People v. Hanson, 150 111. 122, 36 N. E. 998, 37 N. E. 580 ; Ihorn v. Wallace, 88 111. App. 562 ; Union Nat. Bank v. Hines, 88 111. App. 245 [affirmed in 187 111. 109, 58 N. E. 405] ; APPEAL AND ERROR 663 This is especially true where the defense which is sought to be urged in the Chicago, etc., R. Co. v. Fietsam, 24 111. App. 245 [affirmed in 187 111. 518, 15 N. B. 169]. Indiana. — Lewis v. Stanley, 148 Ind. 351 45 N. E. 693, 47 N./E. 677; Fish v. Blasser, 146 Ind. 186, 45 N. E. 63. Iowa. — Joyce v. Perry, 111 Iowa 567, 82 N. W. 941 ; Dubuque Lumber Co. v. Kimball, 111 Iowa 48, 82 N. W. 458; Mason v. Des Moines, 108 Iowa 658, 79 N. W. 389. Kansas. — Shadduek v. Stotts, 9 Kan. App. 776, 59 Pae. 39, 61 Pae. 1131; Western Ir- rigation Co. v. Stay ton, 1 Kan. App. 739, 41 Pae. 985. Kentucky. — Behan v. Warfield, 90 Ky. 151, 11 Ky. L. Rep. 960, 13 S. W. 439 ; Milton v. Selvage, 21 Ky. L. Rep. 1689, 56 S. W. 13; Shire v. Johnson, 18 Ky. L. Rep. 853, 38 S. W. 694. Louisiana. — Holmgren v. Werner, 51 La. Ann. 1476, 26 So. 384; Abat v. Michel, 1 Mart. N. S. (La.) 240. Maine. — Tibbetts v. Penley, 83 Me. 118, HI Atl. 838; Moody v. Clark, 27 Me. 551. Maryland. — Manning v. Hays, 6 Md. 5. Massachusetts. — Burrell v. Way, 176 Mass. 164, 57 N. E. 335 ; Old Colony R. Co. v. Rock- land, etc., St. R. Co., 161 Mass. 416, 37 N. E. 370; Manning v. Albee, 14 Allen (Mass.) 7, 92 Am. Dee. 736. Michigan. — Fields v. Snow, (Mich. 1900) 82 N. W. 798 ; Railroad Com'rs v. Wabash R. Co., 82 Mich. 526, 82 N. W. 526 ; Wierengo v. American F. Ins. Co., 98 Mich. 621, 57 N. W. S33; Wardle v. Cummings, 86 Mich. 395, 49 N. W. 212, 538. Mississippi. — Shingleur-Johnson Co. v. Can- ton Cotton Warehouse Co., (Miss. 1901) 29 So. 770; Talbert v. Melton, 9 Sm. & M. (Miss.) 9. Missouri. — Ragan v. Kansas City, etc., R. Co., 144 Mo. 623, 46 S. W. 602; St. Louis Brokerage Co. v. Bagnell, 76 Mo. 554; Bray i . Seligman, 75 Mo. 31 ; Midland Elevator Co. v. Cleary, 77 Mo. App. 298 ; Terti v. American Ins. Co., 76 Mo. App. 42. Nebraska. — Downing v. Lewis, 59 Nebr. 38, 80 N. W. 261 ; State v. Cass County, 53 Nebr. 767, 74 N. W. 254. New Hampshire. — Amoskeag Mfg. Co. v. Manchester, (N. H. 1900) 46 Atl. 470; State v. Rye, 35 N. H. 368. New Jersey. — Allen v. Smith, 12 N. J. L. 159. New Mexico. — Maxwell v. Tufts, 8 N. M. ,396, 45 Pae. 979, 33 L. R. A. 854. New York. — Dr. David Kennedy Corp. v. Kennedy, 165 N. Y. 353, 59 N. E. 133 [modi- fying 36 N. Y. App. Div. 599, 55 N. Y. Suppl. 917]; Greene v. Smith, 160 N. Y. 533, 55 N. E. 210 [affirming 13 N. Y. App. Div. 459, 43 N. Y. Suppl. 610] ; Pellas v. Motley, 143 N. Y. 657, 38 N. E. 100, 62 N. Y. St. 272;. Quinlan v. Welch, 141 N. Y. 158, 36 N. E. 12, 56 N. Y. St. 680; Blair v. Flaek, 141 N. Y. 53, 35 N. E. 941, 56 N. Y. St. 571; Crom- well v. MaeLean, 123 N. Y. 474, 25 N. E. 932, 34 N. Y. St. 85 ; Spickerman v. McChes- ney, 111 N. Y. 686, 19 N, E. 266, 20 N. Y. St. 79; Mee v. McNider, 109 N. Y. 500, 17 N. E. 424, 16 N. Y. St. 732; Helck v. Rein- heimer, 105 N. Y. 470, 12 N. E. 37 ; Welling- ton v. Morey, 90 N. Y. 656; Whitney v. Martine, 88 N. Y. 535; Duryee v. Lester, 75 N. Y. 442 ; Wood v. Tunnicliff, 74 N. Y. 38 ; Wheaton v. Hibbard, 20 Johns. (N. Y.) 290, 11 Am. Dec. 284. Ohio.— Perkins v. Dibble, 10 Ohio 433, 36 Am. Dec. 97. Oregon. — Anderson v. Portland Flouring Mills Co., 37 Oreg. 483, 60 Pae. 839, 50 L. R. A. 235. Pennsylvania. — Scott v. Scott, 196 Pa. St. 132, 46 Atl. 379; Kutz's Appeal, 40 Pa. St. 90; McGraw v. Metropolitan L. Ins. Co., 5 Pa. Super. Ct. 488, 28 Pittsb. Leg. J. N. S. (Pa.) 170, 41 Wkly. Notes Cas. (Pa.) 62. Rhode Island. — Jones v. Henault, 20 R. I. 465, 40 Atl. 6. South Dakota. — Loomis v. Le Cocq, 12 S. D. 324, 81 N. W. 633. Tennessee. — Northern Bank v. Johnson, 5 Coldw. (Tenn.) 88; Ward v. Tennessee Coal, etc., Co., (Tenn. Ch. 1900) 57 S. W. 193. Texas. — Moor v. Moor, (Tex. Civ. App. 1900) 57 S. W. 992. Vermont. — Hartford v. School Dist. No. 13, 69 Vt. 147, 37 Atl. 252; Miles v. Albany, 59 Vt. 79, 7 Atl. 601. Virginia. — Osborne v. Big Stone Gap Col- liery Co., 96 Va. 58, 30 S. E. 446; Milburn Wagon Co. v. Nisewarner, 90 Va. 714, 19 S. E. 846. Washington. — Greene v. Finnell, 22 Wash. 186, 60 Pae. 144; Olson v. Snake River Valley R. Co., 22 Wash. 139, 60 Pae. 156. West Virginia.— Cann v. Cann, 45 W. Va. 563, 31 S. E. 923 ; Reed v. Nixon, 36 W. Va. 681, 15 S. E. 416. Wisconsin. — Rudd v. Bell, 55 Wis. 563, 13 N. W. 446. United States. — Canal, etc., St. R. Co. v. Hart, 114 U. S. 675, 5 S. Ct. 1127, 29 L. ed. 226 ; Morrill v. Jones, 106 U. S. 466, 1 S. Ct. 423, 27 L. ed. 267; Bates v. Coe, 98 U. S. 31, 25 L. ed. 68; Bell v. Bruen, 1 How. (U. S.) 169, 11 L. ed. 89; Grattan Tp. v. Chilton, 97 Eed. 145, 38 C. C. A. 84 [affirming -Chilton v. Gratton, 82 Fed. 873] ; Waterloo Min. Co. v. Doe, 82 Fed. 45, 48 U. S. App. 411, 27 C. C. A. 50; Tuttle v. Claflin, 76 Fed. 227, 45 U. S. App. 105, 22 C. C. A. 138 ; Seavey v. Seymour, 3 Cliff. (U. S.) 439, 21 Fed. Cas. No. 12,596; Drexel v. True, 74 Fed. 12, 36 U. S. App. 611, 20 C. C. A. 265. See 2 Cent. Dig. tit. "Appeal and Error," §§ 1018 et seq., 1079 et seq. A question as to the ownership or control of property, which defendant failed to raise in the court below, cannot be raised for the first time in the appellate court. McDonald v. Bear River, etc., Water, etc., Co., 13 Cal. 220; Cornelius v. Grant, 8 Mo. 59; Durant v. Palmer, 29 N. J. L. 544; McAfee v. Robert- son, 43 Tex. 591 ; Bogert v. Phelps, 14 Wis. B8; and see 2 Cent. Dig. tit. "Appeal and Er- ror," § 1087. Vol. II 664 APPEAL AND ERROR appellate court is inconsistent with the defense or defenses relied upon in the court below. 48 (n) Constitutionality of Statutes. In applying the general doctrine that questions not raised below will not be considered on appeal, it is held that the constitutionality of a statute cannot be first questioned on appeal, 44 especially when its constitutionality depends on questions of fact as well as of law. 45 Thus, the contention that a statute is unconstitutional because of irregularities in its passage cannot be urged for the first time on appeal ; 46 and where the supreme court of a state did not consider that a question involving the violation of the constitution of the United States was raised in the case, and passed no opinion on it, the supreme court of the United States will not pass on it on a writ of error to- such state supreme court. 47 (in) Contributory Negligence. The question of the contributory negli- gence of plaintiff or plaintiff's intestate must be urged in the court below or it cannot be considered on appeal. 48 An estoppel must be urged in the court be- low or it will not be available in the appellate court. Jones v. Grantham, 80 Ga. 472, 5 S. E. 764; Trice v. Rose, 80 Ga. 408, 7 S. E. 109; Chance v. Jennings, 159 Mo. 544, 61 S. W. 177; Bethune v. Cleveland, etc., R. Co., 139 Mo. 574, 41 S. W. 213; and see 2 Cent. Dig. tit. "Appeal and Error," § 1102. Erroneous construction of contract. — An objection that the deed upon which the suit was brought was erroneously construed in the court below will not be considered if raised for the first time on appeal. Ayling v. Kramer, 133 Mass. 12. Plaintiff's failure to arbitrate. — Objection that plaintiff could not recover for extra work, because of a provision in the contract for arbitration relative thereto, cannot be raised for the first time on appeal. Mueller v. Rosen, 179 111. 130, 53 N. E. 625 [affirming 79 111. App. 420] . 43. Colorado. — Metzler v. James, 12 Colo. 322, 19 Pac. 885; Lamping v. Keenan, 9 Colo. 390, 12 Pac. 434. Illinois. — Gilmore v. Litzelman, 41 111. App. 541 ; Chicago, etc., R. Co. v. Connors, 25 111. App. 561. Indiana. — Pool v. Davis, 135 Ind. 323 34 N. E. 1130. Iowa. — Sandusky Mach., etc., Works v. Hooks, 83 Iowa 305, 49 N. W. 61. Kansas. — Allen v. Gardner, 47 Kan. 337, 27 Pac. 982. Massachusetts. — Lyon v. Prouty, 154 Mass. 488, 28 N. E. 908. Missouri. — Naylor v. Cox, 114 Mo. 232, 21 S. W. 589. Nebraska. — Omaha Brewing Assoc, v. Wueth- rich, 47 Nebr. 920, 66 N. W. 990. New York. — Kinnan v. Forty-second St., etc., R. Co., 140 N. Y. 183, 35 N. E. 498, 55 N. Y. St. 584. Pennsylvania. — McArthur v. Chase, (Pa. 1887) 8 Atl. 204. See 2 Cent. Dig. tit. "Appeal and Error," § 1080; and infra, V, A, 3, f. 44. Colorado. — Miller v. Thorpe, 4 Colo. App. 559, 36 Pac. 891. Georgia.— Butler v. Merritt, (Ga. 1901) 38 S. E. 751. Illinois. — Chiniquy v. People, 78 111. 570. Vol. II Iowa. — Ross v. Hawkeye Ins. Co., 93 Iowa 222, 61 N. W. 852, 34 L. R. A. 466; Hopper v. Chicago, etc., R. Co., 91 Iowa 639, 60 N. W. 487. Louisiana. — Gagnet v. New Orleans, 23 La. Ann. 207. Missouri. — Baldwin v. Fries, 103 Mo. 286, 15 S. W. 760; Curtwright v. Crow, 44 Mo. App. 563. New York. — Purdy v. Erie R. Ce., 162 N. Y. 42, 56 N. E. 508, 48 L. R. A. 669 [af- firming 33 N. Y. App. Div. 643, 54 N. Y. Suppl. 1114] ; Delaney v. Brett, 51 N. Y. 78; Emmons v. Wheeler, 3 Hun (N. Y.) 545. Contra. Parsons v. Van Wyck, 56 N. Y. App. Div. 329, 67 N. Y. Suppl. 1054; Brookman v. Hamill, 54 Barb. (N. Y.) 209. Oregon. — Allen v. Portland, 35 Oreg. 420, 58 Pac. 509. South Carolina. — Bomar v. Asheville, etc., R. Co., 30 S. C. 450, 9 S. E. 512 ; Tompkins v. Augusta, etc., R. Co., 21 S. C. 420. Washington. — North River Boom Co. v. Smith, 15 Wash. 138, 45 Pac. 750. Bee 2 Cent. Dig. tit. " Appeal and Error," § 1037. So it has been held that in a suit by tax- payers to restrain collection of an assessment for a town subscription to a railroad, the con- stitutionality of the act chartering defendant company cannot be considered on appeal, though raised in the lower court, where no ruling was made thereon by the trial judge. Chamblee v. Tribble, 23 S. C. 70. 45. Hill v. Bourkhard, 5 Colo. App. 58, 36 Pac. 1115; Rice v. Carmichael, 4 Colo. App. 84, 34 Pac. 1010. 46. Zang v. Wyant, 25 Colo. 551, 56 Pac. 565, 71 Am. St. Rep. 145; Sargent v. La Plata County, 21 Colo. 158, 40 Pac. 366; Marean v. Stanley, 21 Colo. 43, 39 Pac. 1086; Auditor v. Haycraft, 14 Bush (Ky.) 284; Clearwater Bank v. Kurkonski, 45 Nebr. 1, 63 N. W. 133. 47. Bartemeyer v. Iowa, 18 Wall. (U. S.) 129, 21 L. ed. 929. And see Matheson v. Mo- bile Branch Bank, 7 How. (U. S.) 260, 12 L. ed. 692. 48. Alabama. — Alabama Midland R. Co. c. Johnson, 123 Ala. 197, 26 So. 160; Eufaula. v. Speight, 121 Ala. 613, 25 So. 1009. APPEAL AND ERROR 665 (iv) Discharge, Release, or Satisfaction of Debt. A defendant can- not assert, in the appellate court for the first time, that the debt has been released, 49 satisfied, 60 or discharged. 51 (v) Invalidity of Instrument in Suit— (a) Rule Stated. An objection to the validity of a contract or instrument in suit must be made in the court .below, and cannot be urged for the first time in the appellate court. 53 (b) Rule Applied. Thus it cannot be first objected on appeal that a contract is void under the Sunday laws ; 53 that a contract or deed is tainted with fraud 54 or usury ; 55 that it is champertous ; 56 that it is void under the statute of frauds 57 -Taylor v. Woburn, 130 Mass. 494. Mississippi. — Illinois Cent. R. Co. v. Minor, 69 Miss. 710, 11 So. 101, 16 L. R. A. 627. New Jersey. — Consolidated Traction Co. v. Behr, 59 N. J. L. 477, 37 Atl. 142. New York. — Adler v. Metropolitan St. R. Co., 33 Misc. (N. Y.) 798, 68 N Y. Suppl. 621; Pfau v. Alteria, 23 Misc. (N Y.) 693, 52 N. Y. Suppl. 88 ; Pike v. Bosworth, 7 N. Y. St. 665. Texas. — Galveston, etc., R. Co. v. Parsley, 6 Tex. Civ. App. 150, 25 S. W. 64. See 2 Cent. Dig. tit. "Appeal and Error,'' § 1103. 49. New Orleans Gas Light, etc., Co. v. Hudson, 5 Rob. (La.) 486; Goodnow v. Hill, 125 Mass. 587. 50. Pierce v. Early, 79 Iowa 199, 44 N. W. 890. Thus, where, in foreclosure, the court granted the only relief asked in the separate answer of a subsequent purchaser of part of the premises, directing that part to be sold last, and such defendant appealed, it was held that he could not be heard in the supreme court upon the question whether the mort- gage had been satisfied, not having raised that issue in his answer. Palmer v. Yager, 20 Wis. 91. 51. Serra 6 Hijo v. Hoffman, 29 La. Ann. 17; and see 2 Cent. Dig. tit. "Appeal and Er- ror," § 1109. Hence, whether certain testimony tended to show accord and satisfaction of the note in suit, such testimony having been ignored by the trial court and by counsel at the time of trial, will not be considered on appeal. Clark County Bank v. Christie, 61 Wis. 9, 20 N. W. 644. 52. California. — King v. Meyer, 35 Cal. 646. Illinois.— Fiske v. People, 188 111. 206, 58 N. E. 985, 52 L. R. A. 291 ; Chicago v. Duffy, 179 111. 447, 53 N. E. 982. Kentucky. — Daviess v. Mead, 2 Bibb (Ky.) 397. Louisiana. — State v. Breed, 10 La. Ann. 491. Michigan. — People v. Robb, 98 Mich. 397, 57 N. W. 257. Minnesota. — White v. Western Assur. Co., 52 Minn. 352, 54 N. W. 195. Missouri. — St. Louis Agricultural, etc., Assoc, v. Delano, 37 Mo. App. 284. New York. — Meakings v. Cromwell, 5 N. Y. 136; Friedman v. Rose, 83 Hun (NY.) 542, 31 N. Y. Suppl. 1040, 65 N. Y. St. 70. South Dakota. — Deindorfer v. Bachmor, 12 S. D. 285. 81 N. W. 297. Tennessee. — Precious Blood Soc. v. El- sythe, 102 Tenn. 40, 50 S. W. 759. Virginia. — Planters Bank v. Whittle, 78 Va. 737 ; James River, etc., Co. v. Littlejohn, 18 Gratt. (Va.) 53. Washington. — Fischer v. Quigley, 8 Wash. 327, 35 Pac. 1071. United States. — MeGahan v. National Bank, 156 U. S. 218, 15 S. Ct. 347, 39 L. ed. 403. See 2 Cent. Dig. tit. "Appeal and Error," § 1088 et seq. But in Massachusetts it has been held that, although the illegality of a contract sued on is not set up in defense or noticed in the trial court, where plaintiff obtains a verdict the supreme court will, on its own motion, refuse to enforce the contract. Claflin v. V. S. Credit System Co., 165 Mass. 501, 43 N. E. 293, 52 Am. St. Rep. 528. 53. Petty v. Allen, 134 Mass. 265 ; Wood- bridge v. Sellwood, 65 Minn. 135, 67 N. W. 799; Brinkman v. Luhrs, 1 Mo. App. Rep. 215. 54. Foster v. Bowman, 55 Iowa 237, 7 N. W. 513; Watkins v. Clifton Hill Land Co., 91 Tenn. 683, 20 S. W. 246; Vance v. Kirk, 29 W. Va. 344, 1 S. E. 717 ; Bradley v. Har- gadine-McKittrick Dry-Goods Co., 96 Fed. 914, 37 C. C. A. 623; and see 2 Cent. Dig. tit: "Appeal and Error," § 1097. 55. Georgia. — Dobbins v. Clark, 59 Ga. 709. Mississippi. — Paine v. Gill, 42 Miss. 98. Missouri. — St. Louis Domicile, etc., Loan Assoc, v. Augustin, 2 Mo. App. 123. New York. — Morton v. Thurber, 85 N. Y. 550. Texas.— Rutherford v. Smith, 28 Tex. 322. United States. — Ewing v. Howard, 7 Wall. (U. S.) 499, 19 L. ed. 293; Newell v. Nixon, 4 Wall. (U. S.) 572, 18 L. ed. 305. See 2 Cent. Dig. tit. "Appeal and Error," § 1098. But it has been held that, in an action to foreclose deeds of trust, where a master, by the order of reference, is precluded from tak- ing evidence upon the issue of usury, the question may be raised on appeal. Jenkins v. Bauer, 8 111. App. 634. 56. Percy Consol. Min. Co. v. Hallam, 22 Colo. 233, 44 Pac. 509; Kutcher v. Love, 19 Colo. 542, 36 Pac. 152; Hastings V. McKin- ley, Seld. Notes (N. Y.) 173, 1 E. D. Smith (N. Y.) 273. Contra, Heaton v. Dennis, 103 Tenn. 155, 52 S. W. 175. See also Champerty and Maintenance ; and 2 Cent. Dig. tit. "Ap- peal and Error," § 1095. 57. Arkansas. — Humphreys v. Butler, 51 Ark. 351, 11 S. W. 479. Georgia. — Johnson v. Latimer, 71 Ga. 470. Vol. II 666 APPEAL AND ERROR or because one of the parties was under coverture ; 5S that a bill or bond sued on was not stamped; 59 that the consideration of a contract was insufficient or that there was a failure of consideration; 60 that the instrument was invalidated by a material alteration ; 61 that the instrument was insufficiently acknowledged ; * that the contract is one which is forbidden by law ; ra that the contract is ultra vires ; M that a deed was ineffectual because never delivered ; 65 that a bond was n^t prop- erly witnessed ; 66 or that the agent making the contract was without authority to do so. 67 (vi) Laches. A defendant cannot, for the first time on appeal, urge the laches of complainant in bringing 68 or in prosecuting his suit. 69 (vn) Matters of Abatement. Matters in abatement, not going to the Illinois. — Neagle v. Kelly, 146 111. 460, 34 N. E. 947; Berkowsky v. Viall, 66 111. App, 349. Iowa. — Holt v. Brown, 63 Iowa 319, 19 N. W. 235 ; Lower v. Lower, 46 Iowa 525. Massachusetts. — Lydig v. Braman, 177 Mass. 212, 58 N. E. 696. Missouri. — Mantz v. Maguire, 52 Mo. App. 136; Perminger v. Reilley, 44 Mo. App. 255. New York. — Tliroop Grain Cleaner Co. v. Smith, 110 N. Y. 83, 17 N. E. 671, 16 N. Y. St. 831; Eiseman v. Heine, 2 N. Y. App. Div. 319, 37 ST. Y. Suppl. 861, 73 N. Y. St. 74; Grampp v. De Peyster, 80 Hun (N. Y.) 134, 29 N. Y. Suppl. 1039, 61 N. Y. St. 622; Isaacs v. New York Plaster Works, 40 N. Y. Super. Ct. 277; Johns v. Gustin, 2 Thomps. & C. (X. Y.) 662; Arteher v. Zeh, 5 Hill (N. Y.) 200. South Carolina. — Rhode v. Tuten, 34 S. C. 496, 13 S. E. 676. South Dakota. — Prior v. Sanborn County, 12 S. D. 86, 80 N. W. 169. Texas. — League v. Davis, 53 Tex. 9; Er- hard v. Callaghan, 33 Tex. 171 ; Day v. Dal- ziel, (Tex. Civ. App. 1895) 32 S. W. 377. Vermont. — Sartwell v. Sowles, 72 Vt. 270, 48 Atl. 11. See 2 Cent. Dig. tit. "Appeal and Error," § 1101. As to the time and mode of invoking the statute of frauds see Frauds, Statute of. Though the statute of frauds is pleaded as a defense, if no point in respect thereto is raised, or exception taken on the trial, the questions cannot be considered on appeal. Bommer v. American Spiral Spring Butt Hinge Mfg. Co., 81 N. Y. 468. 58. Weston v. Palmer, 51 Me. 73; Wester- velt v. Ackley, 62 N. Y. 505; Castree v. Gavelle, 4 E. D. Smith (N. Y.) 425; Murphy v. Bright, 3 Grant (Pa.) 296; Jackson v. Everett, (Tenn. 1894) 58 S. W. 340. See also Sherwin v. Sanders, 59 Vt. 499, 9 Atl. 239, 59 Am. Rep. 750 ; and see 2 Cent. Dig. tit. "Appeal and Er- ror,-" § 1094. 59. Morgan v. Briscoe, 4 Md. 271 ; Hawkins v. Wilson, 1 W. Va. 117. 60. Crone v. Garst, 88 111. App. 124; Cham- berlin v. Whitford, 102 Mass. 448; Graves v. Hillyer, (Tex. Civ. App! 1899) 48 S. W. 889; and see 2 Cent. Dig. tit. " Appeal and Error," § 1091. 61. Grimshaw v. Hart, 6 Rob. (La.) 265; Tate v. New York State Bank, 96 Va. 765, 32 Vol. II S. E. 476; and see 2 Cent. Dig. tit. "Appeal and Error," § 1092. 62. See Acknowledgments, III, A, 1, f. 63. Hurley v. Southern Express Co., 45 La. Ann. 889, 13 So. 178 ; Hastings v. New York, etc., R. Co., 53 Hun (N. Y.) 638, 6 N. Y. Suppl. 836, 25 N. Y. St. 249; Brown v. Piatt, 8 Bosw. (N. Y.) 324; Findlay v. Pertz, 74 Fed. 681, 43 U. S. App. 383, 20 C. C. A. 662. 64. Pullman's Palace Car Co. v. Central Transp. Co., 139 U. S. 62, 11 S. Ct. 489, 35 L. ed. 69; and see 2 Cent. Dig. tit. "Appeal and Error," § 1090. 65. Shipley v. Bunn, 125 Mo. 445, 28 S. W. 754. 66. Hollenback v. Fleming, 6 Hill (N. Y.) 303. 67. Iowa Homestead Co. v. Duncombe, 51 Iowa 525, 1 N. W. 725; Winchester v. King, 48 Mich. 280, 12 N. W. 220; Blair v. Flack, 141 N. Y. 53, 35 N. E. 941, 56 N. Y. St. 571 ; Mitchell v. Vermont Copper Min. Co., 67 N. Y. 280; Wolfe v. Security F. Ins. Co., 39 N. Y. 49; Wheeler, etc., Mfg. Co. v. Elberson, 84 Hun (N. Y.) 501, 32 N. Y. Suppl. 303, 65 N. Y. St. 538; Crawford v. Pyle, 190 Pa. St. 263, 44 Wkly. Notes Cas. (Pa.) 1, 42 Atl. 687; and see 2 Cent. Dig. tit. "Appeal and Error," § 1096. 68. Larkin v. Mullen, 128 Cal. 449, 60 Pac. 1091; Randolph v. Knox County, 114 Mo. 142. 21 S. W. 592. Thus where the objection that the petition for a mechanic's lien was not filed in time was not raised in the trial court, it will not be considered on appeal. Burrell v. Way, 176 Mass. 164, 57 N. E. 335. 69. Rohrbaugh v. Bennett, 30 W. Va. 186 3 S. E. 593. See 2 Cent. Dig. tit. "Appeal and Error," § 1106 et seq. Applications of rule.— Thus the objection that complainant's demand is stale, so that it will not be enforced by a court of equity, must be raised in the court below. Arkansas. — Humphreys v. Butler, 51 Ark. 351, 11 S. W. 479. Illinois. — Walker v. Denison, 86 111. 142; O'Halloran v. Fitzgerald, 71 111. 53; School Trustees v. Wright, 12 111. 432. Indiana.— State v. Holloway, 8 Blackf. (Ind.) 45. Texas. — Emmons v. Oldham, 12 Tex. 18. Virginia.— Wills v. Dunn, 5 Gratt. (Va.) 384. ' APPEAL AND ERROR 667 jurisdiction of the subject-matter, must be pleaded below, 70 and cannot be raised for the first time in the appellate court. 71 (vni) N on -Compliance Wits Conditions Pbecedent. The objection that there has been a failure to comply with a condition precedent to the right to sue must be raised below, so that plaintiff may have an opportunity to avoid the effect of the objection, and cannot be raised for the first time on appeal. 73 This doctrine has been held to apply to the objection that no demand was made before suit brought. 73 In an action to set aside a cancellation, by mutual consent, of a marine insurance policy, the insurance company cannot raise the ques- tion for the first time on appeal that the as- sured, by failing to tender the return premium to the company for a long time, was guilty of laches, and so ratified the cancellation. Dun- can v. New York Mut. Ins. Co., 138 N. Y. 88, 33 N. E. 730, 51 N. Y. St. 661, 20 L. R. A. 386. And it has been held that, where the answer in an action against the sureties on a guard- ian's bond does not allege that the ward was chargeable with laches in delaying to prosecute the guardian, the defendants cannot avail themselves of the defense on appeal even though the facts on which it is based appear in the record. Douglass v. Ferris, 138 N. Y. 192, 33 N. E. 1041, 52 N. Y. St. 138, 34 Am. St. Rep. 435. 70. See Abatement and Revival, V, D; and infra, V, B, 1, t. 71. Connecticut. — Wetmors v. Plant, 5 Conn. 541. Illinois. — McKenzie v. Penfield, 87 111. 38; Pearce v. Swan, 2 111. 266. Kentucky, — Robinson v. Lillard, Ky. Dec. 347. Maine. — Piper v. Goodwin, 23 Me. 251. Mississippi. — Queen City Mfg. Co. v. Bla- lack, (Miss. 1896) 18 So. 800. Tennessee. — Odum v. J. I. Case Threshing- Mach.'Co., (Tenn. Ch. 1895) 36 S. W. 191. Wisconsin. — Yale v. Flanders, 4 Wis. 96. United States. — Speer v. Kearney County, 88 Fed. 749, 60 U. S. App. 38, 32 C. C. A. 101. See 2 Cent. Dig. tit. " Appeal and Error," § 1081 et seq. Action prematurely brought. — Thus, it has been held that an objection that a suit is pre- maturely brought cannot be first raised on appeal. Alabama. — Blount v. McNeill, 29 Ala. 473. Arkansas. — Johnson v. Meyer, 54 Ark. 442, 16 S. W. 123. Florida.— Logan v. Slade, 28 Fla. 690, 10 So. 25. Iowa. — Brownlee v. Marion County, 53 Iowa 487, 5 N. W. 610. Kentucky. — Smith o. Hall, 19 Ky. L. Rep. 1662, 44 S. W. 125. Louisiana. — Nicholson v. Hendricks, 22 La. Ann. 511; Pecquet v. Pecquet, 17 La. Ann. 204. 'New York. — Bumstead v. Dividend Mut. Ins. Co., 12 N. Y. 81; Jones v. Tonawanda, 35 N. Y. App. Div. 151, 55 N. Y. Suppl. 115; At- kinson v. Singer Mfg. Co., 14 Misc. (N. Y.) 630, 35 N. Y. Suppl. 117, 69 N. Y. St. 491; Senft v. Manhattan R. Co., 59 N. Y. Super. Ct. 571, 14 N. Y. Suppl. 876, 39 N. Y. St. 356. Tennessee. — Green v. Demoss, 10 Humph. (Tenn.) 371. Texas. — Williams v. Smith, (Tex. Civ. App. 1894) 24 S. W. 1115. Contra. — In Mississippi it is held that the objection that an action was prematurely brought goes to the right of action, and may be first raised in the appellate court (Hart v. Chemical Nat. Bank, (Miss. 1900) 27 So. 926; Terry v. Curd, etc., Mfg. Co., 66 Miss. 394, 6 So. 229; Winston v. Miller, 12 Sm. & M. (Miss.) 550; Wiggle v. Thomason, 11 Sm. & M. (Miss.) 452) ; except where defendant has consented to judgment against himself (Queen City Mfg. Co. v. Blalaek, (Miss. 1896) 18 So. 800). See 2 Cent. Dig. tit. "Appeal and Error," § 1083. Another action pending. — The pendency of another action, unless pleaded in the lower court, cannot be raised on appeal. Town- send's Succession, 37 La. Ann. 405; State v. Judge, 29 La. Ann. 360; Glover v. St. Louis Mut. Bond Invest. Co., 138 Mo. 408, 40 S. W. 110. See also Abatement and Revival, V, A, 2. 72. California. — Castro v. Gill, 5 Cal. 40. Colorado. — Rio Grande County v. Phye, (Colo. 1899) 59 Pac. 55. Iowa. — Schoening v. Schwenk, (Iowa 1901) 84 N. W. 916. Kentucky. — Behan v. Warfield, 90 Ky. 151, 11 Ky. L. Rep. 960, 13 S. W. 439; Taylor v. Fulks, 16 Ky. L. Rep. 605, 29 S. W. 349. Michigan. — Shattuck v . Hart, 98 Mich. 557, 57 N. W. 818. New Hampshire. — North v. Crowell, 1 1 N. H. 251. New York. — Coffin v. Grand Rapids Hy- draulic Co., 136 N. Y. 655, 32 N. E. 1076, 50 N. Y. St. 15; Varian v. Johnston, 108 N. Y. 645, 15 N. E. 413; Wooster v. Sage, 67 N. Y. 67 ; Coffin v. Grand Rapids Hydraulic Co., 61 N. Y. Super. Ct. 51, 18 N. Y. Suppl. 782, 46 N. Y. St. 851. Texas. — Luke v. El Paso, (Tex. Civ. App. 1900) 60 S. W. 363. Washington. — Fitzgerald v. School Dist. No. 20, 5 Wash. 112, 31 Pac. 427. See 2 Cent. Dig. tit. " Appeal and Error," § 1084. 73. Georgia.— Smith v. Bush, 58 Ga. 121. Iowa. — Egan v. Murray, 80 Iowa 180, 45 N. W. 563. Michigan. — O'Neil v. Detroit, 50 Mich. 133, 15 N. W. 48. Missouri. — Weese v. Brown, 102 Mo. 299, 14 S. W. 945; Folden v. Hendrick, 25 Mo. 411. Vol. II 668 APPEAL AND ERROR The rule has also been applied to the objection that the demand made was insufficient. 74 (ix) Res Judicata. As a general rule a former adjudication of a cause can- not be urged for the first time in the appellate court. 75 And this certainly can- not be done when the facts necessary to sustain an exception of res judicata do- not appear from the record. 76 Where a decree in a former suit has been held to- be res judicata of the controversy, objection to the sufficiency of the former suit as a bar, which objection has not been presented to the trial court, cannot be urged on appeal. 77 Accordingly, the validity or regularity of a former judgment pleaded in bar cannot be questioned for the first time on appeal. 78 (x) Statute of Limitations. The bar of the statute of limitations cannot be urged for the first time in the appellate court ; 79 and it has been held that the New Mexico. — Crabtree v. Segrist, 3 N. M. 278, 6 Pac. 202. New York. — Govin v. De Miranda, 140 N. Y. 474, 35 N. E. 626, 55 N. Y. St. 837; Leaeh v. Vining, 64 Hun (N. Y. ) 632, 18 N. Y. Suppl. 822, 45 N. Y. St. 170; Burnett v. Sny- der, 45 N. Y. Super. Ct. 582; Kauffman v. Klang, 16 Misc. (N. Y.) 379, 38 N. Y. Suppl. 56, 74 N. Y. St. 311; Wisser v. O'Brien, 44 How. Pr. (N. Y.) 209. Pennsylvania. — Pitt Tp. v. Leech, 12 Pa. St. 33. See 2 Cent. Dig. tit. "Appeal and Error," § 1085. 74. Bromley v. Miles, 51 N. Y. App. Div. 95, 64 N. Y. Suppl. 353; Sequin v. Peterson, 45 Vt. 255, 12 Am. Rep. 194. 75. California. — Harper v. Gordon, 128 Cal. 489, 61 Pac. 84. Illinois. — Williams v. Lindblom, 163 111. 346, 45 N. E. 245. Indiana. — Eekert v. Binkley, 134 lnd. 614, 33 N. E. 619, 34 N. E. 441. Iowa. — Seekel v. Norman, 78 Iowa 254, 43 N. W. 190. Kentucky. — Long v. Louisville, etc., R. Co., 21 Ky. L. Rep. 1151, 54 S. W. 178 [denying re- hearing, 21 Ky. L. Rep. 463, 51 S. W. 807]. Missouri. — Mackler v. Schuster, 68 Mo. App. 670. Tems. — Lindsley v. Sparks, 20 Tex. Civ. App. 56, 48 S. W. 204. Vermont. — Lamoille County Nat. Bank v. Hunt, 72 Vt. 357, 47 Atl. 1078. Washington. — Bast v. Hysom, 6 Wash. 170 32 Pac. 997. See 2 Cent. Dig. tit. "Appeal and Error," § 1039. 76. Goodrich v. Pattingill, 7 La. Ann. 664; Carpenter v. Beatty, 12 Rob. (La.) 540; Zolli- coffer v. Briggs, 3 Rob. (La.) 236. It has, however, been held that an objection, that the appellate court cannot pass upon an exception of res judicata because the trial court did not pass upon it, cannot be sus- tained where it appears that, by agreement, the exceptions were referred to the merits, and the trial judge, being of the opinion that defendant was entitled to judgment on the merits, expressed no opinion as to the excep- tion. Brady v. Parish of Ascension, 26 La. Ann. 320. 77. McLeod v. Lee, 17 Nev. 103, 28 Pac. Vol. II 124; Jones v. Lee, (Tex. Civ. App. 1892) 20> S. W. 863. 78. Reich v. Cochran, 151 N. Y. 122, 45 N. E. 367, 56 Am. St. Rep. 607, 37 L. R. A. 805. 79. Alabama. — Sands v. Hammell, 108 Ala. 624, 18 So. 489; Inge r. Murphy, 10 Ala. 885. California. — Barber v. Mulford, 117 Cal. 356, 49 Pac. 206 ; Zellerbach v. Allenberg, 99 Cal. 57, 33 Pac. 786. Colorado. — Marshall Silver Min. Co. v.. Kirtley, 12 Colo. 410, 21 Pac. 492. Georgia. — Milledgeville Steam Laundry Co. v. Gobert, 89 Ga. 473, 15 S. E. 551. Illinois. — Palmer v. Frank, 169 111. 90, 48 N. E. 426 [affirming 69 111. App. 472] ; Ken- nedy v. Stout, 26 111. App. 133. Ioira. — MeMurray v. McMurray, 107 Iowa. 648, 78 N. W. 691. Louisiana. — Mullan v. His Creditors, 39 La. Ann. 397, 2 So. 45. Mississippi. — Patterson v. Ingraham, 23 Miss. 87. Nebraska. — Bell v. Rice, 50 Nebr. 547, 70 N. W. 25; Halbert v. Rosenbalm, 49 Nebr. 498, 68 N. W. 622. New York. — Osgood v. Toole, 60 N. Y. 475 ,- Salisbury v. Washington County, 30 N. Y. App. Div. 187, 51 N. Y. Suppl. 1070; Faburn. v. Dimon, 20 N. Y. App. Div. 529, 47 N. Y. Suppl. 227; Williams v. Clements, 64 Hun (N. Y.) 636, 19 N. Y. Suppl. 613, 46 N. Y. St. 448 [affirmed in 137 N. Y. 560, 33 N. E. 338, 50 N. Y. St. 932] ; Stewart v. Smith, 14 Abb. Pr. (N. Y.) 75. Tennessee. — German Bank t\ Haller, 103 Tenn. 73, 52 S. W. 288; Robinson v. Brown, 1 Baxt. (Tenn.) 206. Washington. — Herrick v. Niesz, 16 Wash. 74, 47 Pac. 414; Mudgett ». Clay, 5 Wash. 103, 31 Pac. 424. West Virginia. — Woodyard v. Polsley, 14 W. Va. 211. United States. — Bardon v. Land, etc.. Imp. Co., 157 U. S. 327, 15 S. Ct. 650, 39 L. ed. 719. See 2 Cent. Dig. tit. "Appeal and Error," § 1104 et seq. In Louisiana, prior to the adoption of the civil code, prescription could not be pleaded in the supreme court. Boudreau v. Boudreau, 12 Mart. (La.) 667. But by La. Civ. Code, art. 3427, and by La. Code Prac. art. 902, pre- APPEAL AND ERROR 669 defense of limitations, even though it be pleaded, cannot be raised on appeal unless presented in some form on the trial below. 80 But it has also been held that, even though a party who has pleaded the statute of limitations does not raise it in his argument, if the court finds in such party's favor on that issue he has a right to take advantage of it on appeal. 81 b. Questions Arising in Controversies Relating to Public Lands. In proceed- ings relating to public lands it has been held that the objection that the grant was fictitious, 83 or that the receiver took part with the register in the hearing and ■decision in the land-office, 83 will not be considered if made for the first time in the United States supreme court. Any question as to the priority of a location on public lands which was not made in the lower court cannot be raised on appeal. 84 e. Questions as to Nature and Form of Relief. Relief which was not asked for in the court below cannot be obtained on appeal. 85 Nor can it be first set up scription may be pleaded even after appeal. But it has been held that the plea will not be considered unless it is specifically presented by the pleadings. Mullan v. His Creditors, 39 La. Ann. 397, 2 So. 45; Chase v. Davis, 20 La. Ann. 201. And it is too late to plead prescrip- tion in the interval between the day when judgment is rendered and the day when it goes into effect. Stark v. Burke, 9 La. Ann. 344. On the ground that the statute does not apply to such a case, it has been held that ■credits claimed for payments not opposed be- low cannot be objected to, though resisted on the ground that the debts so paid were pre- scribed. Blakey's Succession, 12 Eob. (La.) 155. In Massachusetts it has been held that "where judgment was rendered against bail on scire facias, a defense that the scire facias was not served within the statutory time af- ter judgment against the principal being ap- parent on the record, and of such a character that it could not be affected by any proof to "be offered, the supreme court will consider it, though it was not taken below. Gass v. Bean, 5 Gray (Mass.) 397. In Texas it was held, in the early case of Petty v. Cleveland, 2 Tex. 404, that the de- fense afforded by the statute of limitations could not avail a defendant in the supreme •court unless it was made a ground of defense in the court below. But this case was over- ruled by later cases, and the rule was estab- lished that if plaintiff's pleading shows a cause of action which is barred by the statute of limitations, the bar of the statute may be taken advantage of on error though not made a ground of defense, by demurrer or otherwise, in the court below. Ogden v. Lund, 11 Tex. 688; Pettus v. Perry, 4 Tex. 486; Long v. Anderson, 4 Tex. 422; Swenson r. Walker, 3 Tex. 93; Coles v. Kelsey, 2 Tex. 541, 47 Am. Dec. 661. However, it was declared by the act of Feb. 5, 1852 [2 Sayles Civ. Stat. Tex. art. 3371], that the statute of limitations shall not be made available to any person unless it be especially set forth as a defense in the answer. Alston v. Richardson, 51 Tex. 1; Ogden v. Lund, 11 Tex. 688; Horton v. Craw- ford, 10 Tex. 382; Boyd v. Ghent, (Tex. Civ. App. 1901) 61 S. W. 723; Pickett v. Edwards, (Tex. Civ. App. 1894) 25 S. W. 32. And un- der Tex. Eev. Stat. (1895), art. 1331, as amended, precluding a reversal, in a case sub- mitted on special issues, for a failure to sub- mit an issue, a submission of which was not requested by appellant, a question of limita- tions in such a case will not be considered on appeal where no submission thereof was made or requested. Armstrong v. Elliott, 20 Tex. Civ. App. 41, 48 S. W. 605, 49 S. W. 635. 80. McDonald v. Bear River, etc., Water, etc., Co., 13 Cal. 220; Osgood v. Toole, 60 N. Y. 475. But in Gautier v. Franklin, 1 Tex. 732, it was held that when defendant's plea of the statute of limitations is not withdrawn or renounced, but a judgment for plaintiff is nevertheless rendered, the reviewing court may correct the error although the trial court apparently overlooked the plea. .81. Vassault v. Seitz, 31 Cal. 225. So, too, it has been held that the question of limitations may be raised for the first time on appeal from a judgment on an agreed statement of facts presenting the question whether plaintiffs were entitled to any relief thereon. Brown v. Pilcher, 60 Kan. 860, 58 Pac. 560. 82. IT. S. v. Larkin, 18 How. (TJ. S.) 557, 15 L. ed. 485. 83. Carr v. Fife, 156 TJ. S. 494, 15 S. Ct. 427, 39 L. ed. 508. 84. Dowdle v. Cornue, 9 S. D. 126, 68 N. W. 194; and see 2 Cent. Dig. tit. "Appeal and Error," § 1041. 85. Iowa. — Miner v. Rhynders, 111 Iowa 725, 82 N. W. 909. Kansas. — Craven v. Bradley, 51 Kan. 336, 32 Pac. 1112; Douglass v. Hannon, 45 Kan. 732, 26 Pac. 401; Truesdell r. Peck, 2 Kan. App. 533, 43 Pac. 990. Minnesota. — James v. St. Paul, 72 Minn. 138, 75 N. W. 5. Nebraska.— McClave v. McClave, 60 Nebr. 464, 83 N. W. 668. North Carolina. — Mayo v. Farrar, 112 N. C. 66, 16 S. E. 910; Kennedy v. Johnson, 69 N. C. 249. North Dakota. — Ravicz v. Nickells, 9 N. D. 536, 84 N. W. 353. Texas.— Tucker v. Brackett, 28 Tex. 336. United States. — Leathe v. Thomas, 97 Fed. 136, 38 C. C. A. 75. Vol. II 670 APPEAL AND ERROR in the appellate court that plaintiff was not entitled to the relief given him because there was no prayer for such relief. 86 d. Questions of Right to Interest. A claim of right to interest must be made in the court below, or it cannot be allowed in the appellate court. 87 e. Questions of Title or Ownership. In the application of the general rule, in cases involving the title and ownership of property, the courts nave refused to consider the question when it is raised for the first time in the appellate court. 88 f . Rule as to Adherence to Theory Pursued Below — (i) In General. One of the most important results of the rule that questions which are not raised in the court below cannot be reviewed in the appellate court is that a party cannot, when a cause is brought up for appellate review, assume an attitude inconsistent with that taken by him at the trial, 89 but that such party is restricted to the theory on which the cause was prosecuted or defended in the court below. 90 Thus, where both parties act upon a particular theory of the cause See 2 Cent. Dig. tit. "Appeal and Error," § 1070 et seq.; and infra, V, A, 3, f, (in), (v). 86. Iowa Lumber Co. v. Foster, 49 Iowa 25, 31 Am. Rep. 140. A claim, that vendors are not entitled to a personal decree for deficiency because their counsel, on the hearing of the suit to fore- close the rights of the purchaser under the contract of sale, stated that they did not eare to ask a personal decree, cannot be made on appeal from such a personal decree, such claim not having been raised in the lower court by answer to, or on the hearing of, the petition. Belding v. Meloche, 113 Mich. 223, 71 N. W. 592. An objection that, in a suit to contest a will, the court, after sustaining the will, should have retained the case in order to decree the partition of land of the testator undisposed of by the will, is unavailing in the appellate court where no request was made, by motion or otherwise, that the case be so retained. Hollenbeck v. Cook, 180 111. 65, 54 N. E. 154. As to appeals in probate proceedings, gen- erally, see Executors and Administratobs ; Wills. If co-defendants are entitled to an adjust- ment of liabilities between them, the atten- tion of the court below must be called to such right of adjustment or it cannot be made by the appellate court. Hamilton v. Williams, 18 Ky. L. Rep. 919, 38 S. W. 851 ; Garvey v. Jarvis, 54 Barb. (X. Y. ) 179; Bruce v. Kelly, 39 N. Y. Super. Ct. 27. Where a defendant in a hypothecary action calls in warranty his vendor, he must see that the jury passes upon the calling in warranty, and cannot raise for the first time on appeal the objection that this was not done. Core v. Corse, 10 La. Ann. 53. 87. Haley v. Prudential Ins. Co., 189 111. 317, 59 N. E. 545 [affirming 91 III. App. 363] ; Cheney v. Ricks, 87 111. App. 388 [af- firmed in 187 111. 171, 58 X. E. 234] ; Reed v. Western Union Tel. Co., 135 Mo. 661, 37 S. W. 904, 58 Am. St. Rep. 609, 34 L. R. A. 492; Chamberlin v. Gleason, 163 X. Y. 214, 57 N. E. 487 [affirming 20 N. Y. App. Div. 624, 46 N. Y. Suppl. 1090]. 88. This rule has been applied in actions to Vol. II enforce contracts concerning land (Wilson v. Riddick, 100 Iowa 697, 69 N. W. 1039 ; Gau- ghen v. Kerr, 99 Iowa 214, 68 N. W. 694; Walker v. Owen, 79 Mo. 563; Jewett v. Black, 60 Nebr. 173, 82 X. W. 375; Snevily v. Egle, 1 Watts & S. (Fa.)' 480; Gordon v. Saunders, 2 McCord Eq. (S. C.) 151; Broekenbrough v. Blythe, 3 Leigh (Va.) 619) ; where the ques- tion was one arising out of the possession of property for three years under an unrecorded deed (Inge v. Murphy, 10 Ala. 885) ; where the question was one of animus revertendi, arising upon the relinquishment of the pos- session of land by the presumptive owner (McCall v. Pryor, 17 Ala. 533) ; where the question was one of community property (Church of Christ v. Beach, 7 Wash. 65, 33 Pac. 1053) ; where the question was whether a person obtaining property by false pre- tenses was guilty of a felony so that he could not impart, to an innocent purchaser, a, title against the former owner (Abbott v. Mar- shall, 48 Me. 44) ; where the question was whether certain acts constitute an assertion of ownership (Bell !'. Anderson, 74 Wis. 638, 43 N. W. 666) ; and where the question was whether plaintiff's title under a foreign bank- rupt act was one which the court should re- spect (Mosselman v. Caen, 34 Barb. (X. Y.) 66, 21 How. Pr. (X, Y.) 248). See 2 Cent. Dig. tit. "Appeal and Error," §§ 1040, 1087, 1110. So an objection that a deed was not proved and recorded within the time prescribed by law cannot be made in the appellate court if not raised in the primary court. Griffin v. Doe, 12 Ala. 783. 89. Nicholson v. Dyer, 45 Mich. 610, 8 X. W. 515; Harper v. Morse, 114 Mo. 317, 21 S. W. 517; Moses r. Hatch, 163 X. Y. 554, 57 N. E. 1118; McGrath r. Mangels. 2 Misc. (N. Y.) 60, 20 X. Y. Suppl. 869, 49 X Y. St. 711; Pay v. Muhlker, 1 Misc. (X. Y.) 321, 20 X. Y. Suppl. 671, 48 N. Y. St. 699; Coppin v. Hermann, 7 Ohio X. P. 6, 528, 9 Ohio Dec. 584. As to changing or adding grounds of ob- jection see infra, V, B, 1, u. 90. Arkansas. — Southern Ins. Co. V. Hast- ings, 64 Ark. 233, 41 S. W. 1093. APPEAL AND ERROR 671 of action, they will not be permitted to depart therefrom when the case is brought up for appellate review. 91 (n) As to the Law Which Governs. When a case is tried by both par- ties upon the theory that the law of the forum governs, a party cannot, on appeal, take the position that the laws of another state should have been applied. 92 (in) As to the Nature and Form of Action. A party is bound, in the appellate court, as to the nature and form of the action, by the theory on which it was tried. 98 Thus, where a cause has been tried upon the theory that it is an action in tort, and not in contract, that theory will govern the cause Colorado. — Denver, etc., R. Co. v. Pulaski Irrigating Ditch Co., 11 Colo. App. 41, 52 Pac. 224. Illinois. — Cleveland, etc., R. Co. v. Ste- phens, 74 111. App. 586. Indiana. — Crabb V. Orth, 133 Ind. 11, 32 N. E. 711; Tibbet v. Zurbuch, 22 Ind. App. 354, 52 N. E. 815. Indian Territory. — Swofford Bros. Dry- Goods Co. v. Smith-MeCord Dry-Goods Co., 1 Indian Terr. 314, 37 B. W. 103. Iowa. — -Miner v. Rhynders, 111 Iowa 725, 82 N. W. 909. Kansas. — Heaton v. Norton County State Bank, 5 Kan. App. 498, 47 Pae. 576. Minnesota. — Green v. St. Paul, etc., R. Co., 55 Minn. 192, 56 N. W. 752. Missouri. — Horgan v. Brady, 155 Mo. 659, 56 S. W. 294; Long v. Long, 141 Mo. 352, 44 S. W. 341; Huff v. Thurman, 78 Mo. App. 635 ; Guntley v. Staed, 77 Mo. App. 155. Montana. — Durfee v. Harper, 22 Mont. 354, 56 Pae. 582. Nebraska. — Norton v. Nebraska L. & T. Co., 40 Nebr. 394, 58 N. W. 953; Smith v. Spaulding, 40 Nebr. 339, 58 N. W. 952. New Jersey. — Larison v. Polhemus, 39 N. J. Eq. 303. New York. — Geneva, etc., R. Co. v. New York Cent., etc., R. Co., 163 N. Y. 228, 57 N. E. 498; Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923, 76 Am. St. Rep. 274, 47 L. R. A. 715 [affirming 36 N. Y. App. Div. 639, 56 N. Y. Suppl. 1117] ; Snider v. Snider, 160 N. Y. 151, 54 N. E. 676 [affirming 11 N. Y. App. Div. 171, 42 N. Y. Suppl. 613] ; Consolidated lee Co. v. New York, 53 N. Y. App. Div. 260, 65 N. Y. Suppl. 912; Ward v. Hasbrouck, 52 N. Y. App. Div. 627, 65 N. Y. Suppl. 200; New York v. Union R. Co., 31 Misc. (N. Y.) 451, 64 N. Y. Suppl. 483. North Carolina. — Graves v. Barrett, 126 N. C. 267, 35 S. E. 539. Oregon. — Swank v. Swank, 37 Oreg. 439, 61 Pae. 846. Pennsylvania. — Walls V. Campbell, 125 Pa. St. 346, 23 Wkly. Notes Cas. (Pa.) 506, 17 Atl. 422 ; Turner v. Whitaker, 9 Pa. Super. Ct. 83, 43 Wkly. Notes Cas. (Pa.) 375. South Dakota. — Graham v. Selbie, 10 S. D. 546, 74 N. W. 439; Parrish v. Mahany, 10 S. D. 276, 73 N. W. 97, 65 Am. St. Rep. 715, 12 S. D. 278, 81 N. W. 295, 76 Am. St. Rep. 604. Utah — Nebeker v. Harvey, 21 Utah 363, 60 Pac. 1029. See 2 Cent. Dig. tit. "Appeal and Error," § 1053 et seq. Thus where the record states that defendant elected to stand upon one of two inconsistent defenses, but it appears that the evidence and instructions went to the other defense, the case will be treated on appeal as if the latter issue only was tried. Smith v. Culligan, 74 Mo. 387. And where a cause is tried on the theory that the note sued on was lost, the objection that there was no proof of such loss cannot be raised for the first time on appeal. Goldstein v. Winkelman, 28 Mo. App. 432. So, where defendant pleaded an unauthorized alteration of the note sued on, and the trial was had on that theory alone, plaintiff can- not, on appeal, complain of failure to instruct as to the effect of a subsequent ratification of the alleged alteration. Capital Bank v. Arm- strong, 62 Mo. 59. And where defendant tries his case on a theory that the contract sued on superseded another executed on the same day, he cannot, on appeal, contend that the two contracts should have been construed together. Oberbeek v. Sportsman's Park, etc., Assoc, 17 Mo. App. 310. 91. Indiana. — Pillars v. McConnell, 141 Ind. 670, 40 N. E. 689; Branson v. Studa- baker, 133 Ind. 147, 33 N. E. 98; Robbins v. Swain, 7 Ind. App. 486, 34 N. E. 670. Iowa. — Dormoy v. Knower, 55 Iowa 722, 8 N. W. 670; Laverty v. Woodward, 16 Iowa 1. Kansas. — Leavenworth, etc., R. Co. v. Cur- tan, 51 Kan. 432, 33 Pac. 297. Minnesota. — Davis v. Jaeoby, 54 Minn. 144, 55 N. W. 908. Mississippi. — Coulter v. Robertson, 14 Sm. & M. (Miss.) 18. Missouri. — Carson v. Smith, 133 Mo. 606, 34 S. W. 855; Seckinger v. Philibert, etc., Mfg. Co., 129 Mo. 590, 31 S. W. 957 ; Tomlin- son v. Ellison, 104 Mo. 105, 16 S. W. 201. New York. — Corley v. McElmeel, 149 N. Y. 228, 43 N. E. 628 ; Templeton v. Wile, 3 N. Y. Suppl. 9, 18 N. Y. St. 1012 [affirmed in 3 N. Y. Suppl. 931]. North Carolina. — Cozart v. West Oxford Land Co., 113 N. C. 294, 18 S. E. 337. Tennessee. — McMillan v. Watauga Bank, (Tenn. Ch. 1895) 35 S. W. 765. Texas.— Blum v. Whitworth, 66 Tex. 350, 1 S. W. 108; Gulf, etc., R. Co. v. Ramey, (Tex. Civ. App. 1893) 23 S. W. 442. 92. Stockton v. Rogers, 17 Misc. (N. Y.) 138, 39 N. Y. Suppl. 400 [affirming 15 Misc. (N. Y.) 468, 37 N. Y. Suppl. 213, 72 N. Y. St. 793]. 93. Broughel v. Southern New England Tel. Co., 72 Conn. 617, 45 Atl. 435, 49 L. R. A. 404; Peteler Portable R. Mfg. Co. v. North- Vol. II 672 APPEAL AND ERROR in the appellate court. 94 If a cause is tried as an action at law it cannot be con- tended, on appeal, that it is really a suit in equity. 95 (iv) As to the Pleadings Construed Below — (a) In General* If a particular construction has been placed upon the pleadings in the court below, a different construction cannot be urged upon appeal. 97 (b) WithouL-Regard to Their Nature and Eorm. Thus, the construction of pleadings, as to their nature and form, which is placed upon them in the trial court must be adhered to on appeal. Accordingly, where a_ defendant styles his answer a counter-claim, and the trial proceeded on that idea, he will not, on appeal; be permitted to claim that it was a cross-complaint. 98 And where a plead- ing is treated as an answer it cannot be regarded as a counter-claim on appeal. 99 On the other hand, when an answer setting up affirmative matter is treated as a counter-claim in the trial court, it will be so treated on appeal. 1 (c) With Regard to the Issues Presented. While an appellate court will, ordinarily, review only such issues as are tendered by the pleadings, 2 yet where a case has been tried, without objection, as though the pleadings raised a certain issue, the objection that the issue was not raised by the pleadings cannot be made for the first time in the appellate court, 3 especially where the pleadings, by fair western Adamant Mfg. Co., 60 Minn. 127, 61 N. W. 1024; Graves r. Barrett, 126 N. C. 267, 35 S. E. 539; Marshall i: Andrews, 8 N. D. 364, 79 N. W. 851; Newell v. Neal, 50 S. C. 68, 27 S. E. 560; and see 2 Cent. Dig. tit. " Appeal and Error," § 1059. The record showing no objection on the trial to an alleged defect in the pleadings that the action was brought in assumpsit, while the statement filed was a declaration in deceit, such defect will not be considered on appeal, the case having been properly disposed of on its merits. Selig v. Rehfuss, 195 Pa. St. 200, 45 Atl. 919. 94. Diggs v. Way, 22 Ind. App. 017, 51 N. E.-429, 54 N. E. 412; Lockwood v. Quack- enbush, 83 N. Y. 607. It has accordingly been held that, where the gravamen of the complaint was fraud, and the action was tried on that theory without exception, the questions whether it stated facts sufficient to constitute a cause of action on contract, and whether there was evidence to sustain such cause, will not be considered on appeal. Sal- isbury v. Howe, 87 N. Y. 128. And, on the other hand, where a case has been tried in the lower court on the theory that the action was founded on contract, it cannot be treated in the appellate court as founded on negligence. Padley v. Catterlin. 2 Mo. App. Rep. 1258. 95. Kostuba v. Miller, 137 Mo. 161, 38 S. W. 946; Boutin v. Etsell, (Wis. 1901) 85 N. W. 964. And so, on the other hand, where ^a ease is by both parties regarded as an equity ease in the court below, to be tried by the court without a jury, the question as to whether it is in fact a law case will not be considered on appeal. Hardin v. Clark, 32 S. C. 480, 11 S. E. 304. But it has been held that, where complainant's bill is in fact to have a mortgage, which constitutes an apparent lien upon his title, declared satisfied, and the bill contains no allegations inappropriate in such a bill, the appellate court will not dismiss it because complainant erroneously supposed it to be a bill under the statute to quiet title ; but, if the ease made is sustained by the evi- Vol. II dence, the court will grant the appropriate relief. Ormsby v. Barr, 22 Mich. 80. 96. See also infra, XVII, A. 97. Alabama. — -Davis v. Cook, 65 Ala. 617. California. — San Diego Land, etc., Co. v. Neale, 88 Cal. 50, 25 Pac. 977, 11 L. R. A. 604. Indiana. — Wilstach v. Heyd, 122 Ind. 574, 23 N. E. 963. Minnesota. — -Keyes v. Minneapolis, etc., R. Co., 35 Minn. 290, 30 1ST. W. 888. Missouri.— Harwood v. Toms, 130 Mo. 225, 32 S. W. 266; Blackwell v. Smith, 8 Mo. App. 43. New York. — Feneran v. Singer Mfg. Co., 20 N. Y. App. Div. 574, 47 N. Y. Suppl. 284. Texas. — Southern Pac. R. Co. v. Kennedy, 9 Tex. Civ. App. 232, 29 S. W. 394. Where a pleading may be construed as pro- ceeding on two or more theories, the theory adopted by the parties and the trial court will be followed by the appellate court. An- derson Foundry, etc., Works v. Meyers, 15 Ind. App. 385, 44 N. E. 193; Cleveland, etc., R. Co. v. De Bolt, 10 Ind. App. 174, 37 N. E. 737. 98. McAbee v. Randall, 41 Cal. 136. 99. Gaff v. Greer, 88 Ind. 122, 45 Am. Rep. 449. 1. Wilson v. Carpenter, 62 Ind. 495. The objection that a pleading, filed and treated in the court below as a cross-bill, is in substance an original bill cannot be made for the first time in the supreme court. Mc- Credie v. Buxton, 31 Mich. 383. 2. McConey v. Wallace, 22 Mo. App. 377. 3. Alabama. — Nashville, etc., R. Co.t'.Ham- mond, 104 Ala. 191, 15 So. 935; Richmond, etc., R. Co. v. Farmer, 97 Ala. 141, 12 So. 86. California. — Flinn v. Ferry, 127 Cal. 648, 60 Pac. 434; Barbour v. Flick, 126 Cal. 628, 59 Pac. 122; Casey v. Leggett, 125 Cal. 664, 58 Pac. 264. Colorado. — Wood v. Chapman, 24 Colo. 134, 49 Pac. 136; Holman p. Boston Land, etc., Co., 8 Colo. App. 282, 45 Pac. 519. Illinois. — Goldstein v. Revnolds. 190 111. 124. 60 N. E. 65 [reversing 86 111. App. 390]. APPEAL AND ERROR 673 construction, can be held to raise the issue. 4 Nor will the admission of evidence upon such issue be a ground for reversal, although the evidence would not have been admissible had the case been tried on its proper issues. 5 And certainly an objection that an allegation is not sufficiently specific to raise an issue which was tried in the court below cannot be made for the first time in the appellate court. 6 It cannot be contended on appeal that a particular allegation in the pleadings was, in fact, admitted, if the trial proceeded on the theory that it was traversed. 7 On the other hand, it cannot be urged, on appeal, that an admission was given a broader effect than it should have been given, where no such objection was made in the court below. 8 "Where a case is tried without objection, upon the theory that the only issue is as to one question of fact, a party cannot urge, in the appel- late court, that the evidence upon some other question of fact was insufficient to justify the verdict. 9 And when parties submit a cause upon a single hypothesis, and agree that that point shall be the only one for the jury, they cannot insist that the court erred in excluding testimony not pertinent to "the question. 10 Iowa. — Schopp v. Taft, 106 Iowa G12, 76 N. W. 843 ; Humbert v . Larson, 99 Iowa 275, ■68 N. W. 703. Minnesota. — Madson v. Madson, 80 Minn. 501, 83 N. W. 396. Missouri. — Smiley v. St. Louis, etc., R. Co., (Mo. 1901) 61 S. W. 667; Epperson v. Postal Tel. Cable Co., 155 Mo. 346, 50 S. W. 795, 55 S. W. 1050; Barrett v. Baker, 136 Mo. 512, 37 S. W. 130. New York. — German-American Bank v. Daly, 88 Hun (N. Y.) 608, 34 N. Y. Suppl. 986, 69 N. Y. St. 46 ; Cook, etc., Co. v. Haan, 21 Misc. (N. Y.) 346, 47 N. Y. Suppl. 131. North Carolina. — Howard v. Early, 126 N. C. 170, 35 S. E. 258. South Carolina. — Flinn v. Brown, 6 S. C. 209. See 2 Cent. Dig. tit. " Appeal and Error," ■§ 1056 et seq. Although the facts upon which a decree was rendered were put in issue by the pleadings, if the parties agreed upon the facts upon which the decision was made and submitted them to the decision of the court, the objection that they were not put in issue by the pleadings cannot be raised for the first time in the ap- pellate court, to prevent a revision of the decree. Whitworth v. Hart, 22 Ala. 343. 4. Snyder v. Hamm, 6 Kan. App. 240, 49 Pac. 693. 5. Vaughn Mach. Co. v. Quintard, 165 N. Y. 649, 59 N. E. 1132 [affirming 37 N. Y. App. Div. 368, 55 N. Y. Suppl. 1114]; Central Ver- mont R. Co. v. Ruggles, 75 Fed. 953, 33 U. S. App. 567, 21 C. C. a. 575. 6. Accordingly, it has been held that the objection, that an allegation In defendant's answer, that plaintiff's injury " resulted from his own negligence," is too broad to admit proof of contributory negligence, cannot be first raised on appeal. Johnson v. Interna- tional, etc., R. Co., (Tex. Civ. App. 1900) 57 S. W. 869. 7. California. — Weidenmuller v. Stearns Ranchos Co., 128 Cal. 623, 61 Pac. 374; Tul- ley v. Tranor, 53 Cal. 274. Idaho. — Toulouse v. Burkett, 2 Ida. 265, 13 Pac. 172. Iowa. — Culbertson v. Salinger, 111 Iowa -447, 82 N. W. 925. T431 Massachusetts. — Drury v. Newman, 99 Mass. 256. Missouri. — Bowman v. Stiles, 34 Mo. 141. Montana. — Sweeney v. Great Falls, etc., R. Co., 11 Mont. 523, 29 Pac. 15. Nebraska. — Minzer v. Willman Mercantile Co., 59 Nebr. 410, 81 N. W. 307; Missouri Pac. R. Co. v. Palmer, 55 Nebr. 559, 76 N. W. 169 ; Sun Fire Office v. Ayerst, 37 Nebr. 184, 55 N. W. 635. New York. — Williams v. Hayes, 20 N. Y. 58; Munson v. Hagerman, 5 How. Pr. (N. Y.) 223. Pennsylvania. — Crown Slate Co. v. Allen, (Pa. 1901) 48 Atl. 968. Stfuth Carolina. — Dumas v . Abies, 20 S. C. 589. Where the parties and the court below re- garded the answer as putting in issue all the allegations of the pleadings filed by defend- ant, the objection that one count of the peti- tion was filed after the answer will not be con- sidered in the appellate court, such objection not having been raised in the court below. Wire r. Foster, 62 Iowa 114, 17 N. W. 174. 8. The objection, that the effect of an ad- mission in an answer of matter properly pleaded in the complaint for one purpose only was not limited to -uch purpose, cannot be first raised on appeal. Connecticut Hospital v. Brookfield, 69 Conn. 1, 36 Atl. 1017. 9. Engstad v. Syverson, 72 Minn. 188, 75 N. W. 125. 10. Denver, etc., R. Co. v. Pulaski Irriga- ting Ditch Co., 11 Colo. App. 41, 52 Pac. 224. Hence, where, in an action on a note, all evidence on a defense of failure of considera- tion was excluded by the trial court, on plain- tiff's objection and declaration that he relied for recovery on the fact that he was a bona fide purchaser for value before maturity, a contention on appeal that plaintiff was en- titled to recover, because no evidence was in- troduced to support defendant's defense of failure of consideration, cannot be considered, as the court cannot reverse the cause on some point which plaintiff contended in the trial court was not in issue, and which that court, pursuant to the contention, eliminated from the case. Lebeher v. Lambert, (Utah 1900) 03 Pac. 628. Vol. II 674 APPEAL AND ERROR (v) As TO THE Relief Asked. A party cannot, in the appellate court, urge a ground for relief which was not presented to the court below, 11 especially where the new ground is inconsistent with the theory on which he proceeded at the trial. 12 (vi) As to the Nature of Facts at Issue. "Where, at the trial of an action, a party assumes and treats the questions raised as being questions of law, to be decided by the court, and they are passed upon and ruled against him, he cannot, on appeal, insist that the questions decided by the court involved a ques tion of fact. 13 Although one of the counts in a declaration charges negligence, if that charge was not re- ferred to in any of the instructions asked by either party, but the parties evidently tried the case upon the theory that the only issues which the evidence justified them in present- ing to the jury were those arising under the other counts, the defendant, it was held, was warranted in ignoring the charge of negli- gence on appeal. Chicago, etc., R. Co. v. Ma- roney, 170 111. 520, 48 N. E. 953, 62 Am. St. Rep. 396 [affirming 67 111. App. 618]. 11, Arkansas. — American Mortg. Co. v. Milum, 64 Ark. 305, 42 S. W. 417. California. — Matter of Garcelon, 104 Cal. 570, 38 Pac. 414, 43 Am. St. Rep. 134, 32 L. R. A. 595; Gr_en v. Carotta, 72 Cal. 267, 13 Pac. 685. Connecticut. — Hall v. Norwalk F. Ins. Co., 57 Conn. 105, 17 Atl. 356. Georgia.— Nesbit v. Donald, 86 Ga. 26, 12 S. E. 183. Illinois. — Ballou v. Hushing, 46 111. App. 174. Indiana. — Haggerty v. Byrne, 75 Ind. 499; Campbell r. Lindley, 18 Ind. 234. Iowa. — Brightman v. Morgan, 111 Iowa 481, 82 N. W. 954 ; King v. Wells, 106 Iowa 649, 77 N. W. 338 ; Miller v. Bradish, 69 Iowa 278, 28 N. W. 594. Kansas. — Atchison, etc., R. Co. v. Kansas Farmers' Ins. Co., 7 Kan. App. 447, 53 Pac. 607. Louisiana. — Airey v. Okolona Sav. Inst., 33 La. Ann. 1346; Montgomery v. Barrow, 19 La. Ann. 169. Massachusetts. — Storer v. McGaw, 1 1 Al- len (Mass.) 527; Boylen v. Leonard, 2 Allen (Mass.) 407. Michigan. — Dennis v. Dennis, 119 Mich. 380, 78 N. W. 333; Lamb v. Rathburn, 118 Mich. 666, 77 N. W. 268. Minnesota. — Hove v. Bankers' Exch. Bank, 75 Minn. 286, 77 N. W. 967; Moquist v. Chapel, 62 Minn. 258, 64 N. W. 567 ; State v. District Ct., 56 Minn. 56, 57 N. W. 319 ; Powell v. Heisler, 45 Minn. 549, 48 N. W. 411 ; Hum- phrey v. Merriam, 32 Minn. 197, 20 N. W. 138. Missouri.— State v. Chick, 146 Mo. 645, 48 S. W. 829; Hollmann v. Lange, 143 Mo. 100, 44 S. W. 752; Evans v. Kunze, 128 Mo. 670, 31 S. W. 123. Montana. — Hamilton v. Huson, 21 Mont. 9, 53 Pac. 101. tHeio York. — Nelson v. New York, 131 N. Y. 4 29 N. E. 814, 42 N. Y. St. 492 [affirming 53 Hun (N. Y.) 630. 5 N. Y. Suppl. 688, 23 N. Y. St. 518] ; Martin v. Pettit, 117 N. Y. 118, Vol. II 22 N. E. 566, 26 N. Y. St. 919, 5 L. R. A. 794; Myers v. Cronk, 113 N. Y. 608, 21 N. E. 984, 24 N. Y. St. 506; Home Ins. Co. v. Western Transp. Co., 51 N. Y. 93; Ogden v. Peters, 21 N. Y. 23, 78 Am. Dec. 122; Nealon v. Grand Trunk R. Co., 24 N. Y. Wkly. Dig. 523. Pennsylvania. — Seibert's Appeal, 2 Wkly. Notes Cas. (Pa.) 557, 33 Leg. Int. (Pa.) 358. South Carolina. — Ariail v. Ariail, 29 S. C. 84, 7 S. E. 35; McLure v. Melton, 24 S. C. 559, 58 Am. Rep. 272. Utah.— Blish v. McCornick, 15 Utah 188, 49 Pac. 529. Wisconsin. — Hunter v. Chicago, etc., R. Co., 99 Wis. 613, 75 N. W. 977; Murphy v. Martin, 58 Wis. 276, 16 N. W. 603. United States. — Wilson v. Owens, 86 Fed. 571, 57 U. S. App. 500, 30 C. C. A. 257; Home v. George H. Hammond Co., 71 Fed. 314, 33 U. S. App. 362, 18 C. C. A. 54. But it has been held that ground for enjoin- ing an order of seizure, although not set out in the petition, may, when apparent on the rec- ord, be noticed on appeal from a judgment sustaining the injunction, for the reason that to hold that the court cannot, in any case whatever, travel out of the matter set forth in the petition would come in direct conflict with the rule of practice that injunctions, al- though improvidently sued out, should never be dissolved when the facts of the case show that, on a dissolution, the party will immedi- ately be entitled to t^at form of remedy on other grounds. Galbraith v. Snyder, 2 La. Ann. 492; Chambliss v. Atchison, 2 La. Ann. 488. 12. Randolph v. Frick, 57 Mo. App. 400; Stuckslager v. Neel, 123 Pa. St. 53, 16 Atl. 94; Walker v. Newton, 53 Wis. 336, 10 N. W. 436. In an action to recover back moneys alleged to have been paid under a mistake, the claim that the payment was under duress cannot be raised for the first time on appeal. Lamb v. Rathburn, 118 Mich. 666, 77 N. W. 268. Where a complainant has prosecuted an ac- tion to have a trust declared in land, and ob- tained a favorable decree which is reversed on appeal, she cannot, on motion for a rehear- ing, contend that, on the theory of a sale, she is entitled to a decree to enforce a vendor's lien. McDonald v. Hooker, 57 Ark. 632, 22 S. W. 655, 23 S. W. 678. 13. Dutcher v. Porter, 63 Barb. (N. Y.) 15. Thus, when the question of plaintiff's con- tributory negligence has, by the acquiescence of the trial court and the parties, been tried APPEAL AND ERROR 675 (vn) As to tee Necessity of Particular Evidence. When a plaintiff has secured a verdict in the court below upon the theory that certain evidence introduced by him was necessary in order to recover, and the verdict has been set aside because of erroneous rulings when admitting such evidence, or because it was insufficient to support the verdict, plaintiff cannot shift his position on appeal and contend that the evidence was wholly unnecessary. 14 (vm) As to Facts Admitted or Conceded. When a fact is assumed to be true in the trial court it cannot afterward be contested in the appellate court. 15 (ix) As to the Burden of Proof. Where a party has assumed the burden of proving a fact, he will not, on appeal, be heard to say, for the first time, that the burden of proof was on the other party. 16 (x) As to the Damages Recoverable. Where a certain measure of dam- ages has, by the parties at the trial, been accepted as the proper one, it must be adhered to on appeal." (xi) Rule as to New Grounds for Sustaining a Judgment. There is some authority for the view that any reason which is good in itself may be urged in the appellate court for the purpose of sustaining a judgment or order, though such reason was not presented to the court below." But even the courts which sanction this rule have shown a disposition to limit its application. 19 And the and determined as one general question of fact, the defeated party cannot, on appeal, subdivide the general issue into several sub- issues, and be heard to argue that one or more of such special sub-issues, to which the at- tention of the trial court was not called, should have been determined in his favor by the trial court. Pike v. Bosworth, 7 N. Y. St. 665. 14. Earl Fruit Co. v. Thurston Cold- Storage, etc., Co., 60 Minn. 351, 62 N. W. 439. 15. California. — People v. Jones, 20 Cal. 50. Colorado. — Lemmon v. Sibert, (Colo. App. 1900) 61 Pac. 202. Kansas. — School Dist.-No. 23 v. McCoy, 30 Kan. 268, 1 Pac. 97, 46 Am. Pep. 92. Missouri. — Pratt v. Conway, 148 Mo. 291, 49 S. W. 1028, 71 Am. St. Pep. 002; Allen v. St. Louis, etc., R. Co., 137 Mo. 205, 38 S. W. 957. Nebraska. — Gadsden v. Thrush, 56 Nebr. 565, 76 N. W. 1060. Neio York. — Humes v. Proctor, 151 N. Y. 520, 45 N. E. 948; Osterman v. Goldstein, 31 Misc. (N. Y.) 501, 64 N. Y. Suppl. 555; Con- sumers' Brewing Co. v. Lipot, 21 Misc. (N. Y. ) 532, .47 N. Y. Suppl. 718. See Sheridan v. Presas, 23 Misc. (N. Y.) 757, 50 N. Y. Suppl. 667/ Utah.— Blish v. McCornick, 15 Utah 188, 49 Pac. 529. See 2 Cent. Dig. Ht. "Appeal and Error," § 1066. However, when a party <*pects to appeal in case an adverse judgment is rendered against him, it is the safer course to present his evi- dence in such a manner that the record will satisfactorily disclose all of the facts on which he relies in support of his position ; for, while it may be clear to the trial justice that cer- tain facts, although formally in issue under the pleadings, are not in dispute for reasons which do not appear on the record, the ap- pellate court, being guided solely by the record, does not enjoy the same advantage. Sheridan v. Presas, 23 Misc. (N. Y.) 757, 50 N. Y. Suppl. 667. 16. Benjamin v. Shea, 83 Iowa 392, 49 N. W. 989; Denton v. Chicago, etc., R. Co., 52 Iowa 161, 2 N. W. 1093, 35 Am. Rep. 263; and see 2 Cent. Dig. tit. " Appeal and Error," § 1064 et seq. 17. Cleveland, etc., R. Co. v. Stephens, 173 111. 430, 51 N. E. 69; Wiseman v. Culver, 121 Mo. 14, 25 S. W. 540. Thus, it has been held that a plaintiff who grounds an action, against a purchaser for failure to receive and pay for goods bought, on the theory that he is entitled to recover the contract price as damages, is bound by such theory throughout the action. Brown- ing v. Simons, 17 Ind. 1 App. 45, 46 N. E. 86. And where a case has been tried on the theory that vindictive damages might be recovered, an objection that the complaint does not war- rant such damages cannot be made for the first time on appeal. Avakian v. Noble, 121 Cal. 216, 53 Pac. 559. In an action against a railroad company for damages to cattle during transportation, where both parties at the trial have accepted the value of the cattle at their ultimate des- tination as the basis upon which the damages are to be computed, defendant cannot con- tend, on appeal, that the true basis of dam- ages was the value of the cattle as they were delivered at the terminus of its road. New York, etc., R. Co. v. Estill, 147 U. S. 591, 13 S. Ct. 444, 37 L. ed. 292. 18. Clarke v. Huber, 25 Cal. 593. In Newcomb v. Clark, 1 Den. (N. Y.) 226, it was held that, where a plaintiff is non- suited and brings error, any fact appearing upon the ease made by him, and constituting an unanswerable obstacle to his recovery, may be relied upon to sustain the judgment, though it was not mentioned at the trial. 19. In Leigh v. Springfield F. & M. Ins. Co., 37 Mo. App. 542, the court said, in effect, that while it is true, as a general rule, that Vol II 676 APPEAL AND ERROR prevailing doctrine undoubtedly is that a judgment or order which was rendered upon one ground cannot, in the appellate court, be sustained upon another and different ground which was not presented to the court below. 20 g. Questions Considered on Appeal from Intermediate Courts. Where a cause has been brought up for review from an intermediate court of appellate jurisdic- tion to the court of last resort, questions, other than such as go to the jurisdiction of the subject-matter, 21 which were neither made in the court of first instance nor assigned for error in the intermediate court, will not be considered. 22 Nov, with the limitation referred to, will a question which could have been, but was not, raised in the intermediate court be considered by the court of last resort. 23 Thus, any reason may be urged in an appellate court which is good in itself in support of the judgment which is appealed from, yet we think that a judgment ought not to be af- firmed upon a technical and doubtful question of pleading which does not appear to have been distinctly raised at the trial court, when, if it had been so raised, it could easily have been obviated by an amendment. 20. Braidwood v. Weiller, 89 111. 606 ; Math- ews i'. Cedar Rapids, 80 Iowa 459, 45 X. W. 894, 20 Am. St. Rep. 436; San Marcial Land, etc., Co. v. Stapleton, 4 X. 11. 33, 12 Pac. 621 ; Stapenhorst v. Wolff, 65 X. Y. 596; Mer- cer v. Mercer, 73 Hun (X. Y.) 192, 25 X. Y. Suppl. 867, 56 X. Y. St. 117; Seigman v. Keeler, 4 Misc. (X. Y.) 528, 24 X. Y. Suppl. 821, 54 X. Y. St. 125; Beeeher v. Schuback, 4 Misc. (X. Y.) 54, 23 X. Y. Suppl. 604, 53 X. Y. St. 74. In Vail v. Long Island R. Co., 106 X. Y. 283, 12 X. E. 607, 60 Am. Rep. 449, it was said that the judgment of the court below cannot be affirmed upon a ground which is not suggested in the pleading — the parties must stand or fall on the issues in the pleadings. Applications of rule. — Thus, where an ac- tion was tried on the theory that plaintiff was entitled to recover for services rendered in effecting a lease of certain premises, and judgment was rendered in her favor, she can- not, on appeal, uphold such judgment on the theory that she was entitled to recover for services rendered in attempting to effect the lease. Brumfield v. Potter, etc., Mfg. Co., 4 Misc. (X. Y.) 194, 23 X. Y. Suppl. 1025, 53 X. Y. St. 489 [reversing 1 Misc. (X. Y.) 92, 20 N. Y. Suppl. 615, 48 X. Y. St. 516]. So, it has been held that where, in an action upon a bond, the complaint was erroneously dis- missed on the ground that no breach had been proved, the objection that actual damages were not proved cannot be heard for the first time on appeal in support of the judgment of dismissal. Brooklyn v. Brooklyn City R. Co., 8 Abb. Pr. X. S. (X. Y.) 356. Likewise, where a, motion for judgment on a counter- claim was denied generally, no specific objec- tion having been made by plaintiff, the infer- ence is that the decision was based on the ground that the answer discloses no counter- claim, and the ruling cannot, on appeal, be upheld on the ground that the amount of damages in the counter-claim was not proven. Isham ». Davidson, 52 X. Y. 237. A judg- ment of nonsuit cannot, on appeal therefrom, Vol. II be sustained on the ground that plaintiff failed to file a reply to affirmative defenses, when no advantage was claimed on that ground in the trial court, but the specific and only objection made to the introduction of evi- dence was that the issues involved could only be adjudicated by a court of equity. Cogg- shall v. Munger, 54 Mo. App. 420. Where the reasons which control the making of an or- der or ruling are clearly insufficient, it cannot be sustained on the ground that the same order or ruling might have been made in the exercise of the discretion of the court. Keyes v. Clare, 40 Minn. 84, 41 X. W. 453 ; Leonard v. Green, 30 Minn. 496, 16 X. W. 399. An estoppel by a former judgment cannot be urged* for the first time on appeal as ground for sustaining a judgment. Huggins v. Mil- waukee Brewing Co., 10 Wash. 579, 39 Pac. 152. In South Carolina points sustaining a judg- ment, such points not being raised below, will not be considered by the supreme court on ap- peal unless notice has been served that they will be relied on. Hardin v. Clark, 32 S. C. 480, 11 S. E. 304. But since the fact that de- fendant, in an action to recover land, has held adverse possession for the period of limita- tions is a question for the jury, it cannot be urged by defendant, on appeal, as an addi- tional reason to support the judgment of the trial court in his favor, even though due no- tice that he will ask the appellate court to sustain the judgment below upon that ground has been given. Garvin v. Garvin, 34 S. C. 388, 13 S. E. 625. 21. As to the right to object to the juris- diction of the subject-matter in the appellate court see infra, V. B, 1, c, (i). 22. Barker v. Davis, 36 Iowa 692 ; Spring- field, etc., R. Co. v. Western R. Constr. Co., 49 Ohio St. 681, 32 X. E. 961 ; Stone r. Brown, 16 Tex. 425. 23. Alabama. — Richards v. Griffin, 5 Ala. 195. Colorado. — Davis v. Dunlevy, (Colo. 1900) 60 Pac. 570 [affirming 11 Colo. App. 344, 53 Pac. 250]. Illinois.— Case r. Phillips, 182 111. 187, 55 X. E. 66 [affirming 82 111. App. 231] ; Taylor v. Pierce, 174 111. 9, 50 X. E. 1109 [reversing 71 111. App. 525] ; Hegeler r. Peru First Nat. Bank, 129 111. 157, 21 N. E. 812, 16 Am. St. Rep. 257. Indiana. — Patterson v. Scottish American Mortg. Co., 107 Ind. 497, 8 X. E. 554; Miller v. State, 61 Ind. 503. APPEAL AND ERROR 677 it has been held that, unless the objection has been made in the intermediate court, it cannot be objected in the higher court that there is a want of proper parties plaintiff ; u that the note in suit should have been iiled ; * that the complaint is insufficient ; 26 or that the action is not of the proper form. 27 4. Limitations and Exceptions to Rule — a. In General. Since the reason for the rule is to give an opportunity to avoid the effect of an objection, the rule is not applicable wher6 that could not have been done, even though the question had been seasonably raised in the court below. 28 Of this character are defects apparent of record, questions relating to the jurisdiction of the court over the subject-matter, sufficiency of a complaint or declaration to state a cause of action, and a want of necessary parties. 29 b. Questions of Public Policy. In addition it has been held that when an appeal involves a grave question of public policy, which question is covered by an exception to the report of the referee, it will be considered by the appellate court even though not raised by the pleadings or in the court below, for the rea- son that the people are indirectly parties and their interests should be looked after even when the party who might have objected is silent. 30 And it has been held that if a contract, for the enforcement of which suit is brought, is one which, for reasons of public policy, is void, the defense is not waived by a failure to properly plead it in the court below. 31 B. Methods of Presentation and Reservation — 1. Objections — a. Neces- sity in General — (i) Statement of Pule. Within the rule that questions not presented in the trial court in some appropriate manner will not be considered on appeal or error, it is a rule of nearly universal application that objections must be made in the trial court in order to reserve questions for review. 33 Kansas. — Brenner v. Weaver, 1 Kan. 488, 83 Am. Dec. 444. Kentucky. — Frazier v. Clark, 88 Ky. 260, 10 Ky. L. Rep. 786, 10 S. W. 806, 11 S. W. 83; Kirk v. Taylor, 8 B. Mon. (Ky.) 262. Michigan. — Pardee v. Smith, 27 Mich. 33. Nebraska. — Weeks v. Wheeler, 41 Nebr. 200, 59 N. W. 554. Ohio. — Pollock v. Cohen, 32 Ohio St. 514. Tennessee. — Pile v. McCoy, 99 Tenn. 367, 41 S. W. 1052. Texas. — Clemons v. demons, '92 Tex. 66, 45 S. W. 996. West Virginia. — Kesler v. Lapham, 46 W. Va. 293, 33 S. E. 289. United States. — Keyser v. Hitz, 133 U. S. 138, 10 S. Ct. 290, 33 L. ed. 531. See 2 Cent. Dig. tit. "Appeal and Error," § 1133 et seq. 24. Roseboom v. Whittaker, 132 111. 81, 23 N, E. 339. 25. Tucker v. Gardiner, 63 Ind. 299. 26. Wesley v. Milford, 41 Ind. 413. 27. Packer v. Cockayne, 3 Greene (Iowa) 111. Where testimony was objected to in the pro- bate court, but, on appeal to the circuit court, no error was assigned to its admission, and the circuit judge made no ruling on the sub- ject, the supreme court, it was held, would not consider the objection. Ex p. Turner, 24 S. C. 21]. 28. Slater v. Rawson, 1 Mete. (Mass.) 450; Central Nat. Bank v. Seligman, 64 Hun (N. Y.) 615, 19 N. Y. Suppl. 362, 47 N. Y. St. 17 [reversed for other reasons in 138 N. Y. 435, 34 N. E. 196, 53 N. Y. St. 14] ; Brook- man v. Hamill, 54 Barb. (N. Y.) 209; Kow- ing v. Manly, 2 Abb. Pr. N. S. (N. Y.) 377; Beekman v. Frost, 18 Johns. (N. Y.) 544, 9 Am. Dec. 246. In Palmer t'. Lorillard, 16 Johns. (N. Y.) 348, it was said that the rule is intended only to apply to objections which the party may be deemed to have waived by his silence, and which, when waived, still leave the merits of the ease to rest with the judgment. 29. See infra, V, B, 1, a, (n) ; V, B, 1, c; V, B, 1, d, (I), (c). 30. Massachusetts Nat. Bank v. Shinn, 163 N. Y. 360, 57 N. E. 611 [affirming 18 N. Y. App. Div. 276, 46 N. Y. Suppl. 329]. 31. Oscanyan v. Winchester Repeating Arms Co., 103 U. S. 261, 26 L. ed. 539; Hall v. Coppell, 7 Wall. (U. S.) 542, 19 L. ed. 244. In Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241, it was held that the objection that the contract sued on is void under the statute against trusts will be considered on appeal from an order over- ruling a general demurrer, even if such objec- tion was not specially raised below. Reason for this rule. — Nevertheless, this limitation has, in a recent decision, been put upon the doctrine that a, court will reverse a judgment involving the enforcement of a contract contravening public policy, in the absence of an objection on that ground in the trial court, only when the illegality appears as a matter of law upon the face of the plead- ings, the face of the contract, or from the ad- mitted facts. Carter-Crume Co. v. Peurrung, 86 Fed. 439, 58 U. S. App. 388, 30 C. C. A. 174. 32. Alabama. — Birminsham Loan, etc., Co. v. Anniston First Nat. Bank, 100 Ala. Vol. II 678 APPEAL AND ERROR (n) Exceptions to Rule. An exception to the general rule — that an appellate court will not consider objections first raised on appeal — exists in the 249, 13 So. 945, 46 Am. St. Rep. 45; Freeman v. Swan, 22 Ala. 106. Arkansas. — Hershy v. Clarksvllle Institute, 15 Ark. 128. California. — Alameda Macadamizing Co. v. Williams, 70 Cal. 534, 12 Pae. 530; Mott v. Smith, 16 Cal. 533. Colorado. — U. S. Security, etc., Co. v. Wolfe, (Colo. 1900) 60 Pac. 637; Jennings v. Colorado Springs First Nat. Bank, 13 Colo. 417, 22 Pac. 777, 16 Am. St. Rep. 210. Connecticut. — Cooley v. Gillan, 54 Conn. 80, 6 Atl. 180. Florida. — Robinson r. Springfield Co., 21 Fla. 203 ; Southern L. Ins., etc., Co. i\ Cole, 4 Fla. 359. Georgia. — Parr v. Robinson, 88 Ga. 590, 15 S. E. 329; Aycock v. Austin, 87 Ga. 566, 13 S. E. 582. Illinois. — J. Walter Thompson Co. v. White- hed, 185 111. 454, 56 N. E. 1106, 76 Am. St. Rep. 51 ; Watson v. Le Grand Roller Skating Rink Co., 177 111. 203, 52 N. E. 317. Indiana. — Lemax v. Strange, 14 Ind. 21; Davis v. Smith, 13 Ind. 564. Indian Territory. — ■ Anderson v. Thomas, (Indian Terr. 1898) 47 S. W. 301. Ioica. — Clough v. Ide, 107 Iowa 669, 78 N. W. 697; Starry v. Starry, 21 Iowa 254. Kansas. — State v. Baldwin, 36 Kan. 1, 12 Pac. 318; Brown v. Flower, 9 Kan. App. 536, 58 Pac. 1015. Kentucky. — Barnes v. Lee, 1 Bibb (Ky.) 526 ; Helton v. Com., 16 Ky. L. Rep. 464, 29 S. W. 331. Louisiana. — State p. Burthe, 39 La. Ann. 341, 1 So. 656; McAlpin v. Jones, 10 La. Ann. 552. Maine. — Dickey v. Maine Tel. Co., 46 Me. 483 ; Woodman v. Skeetup, 35 Me. 464. Maryland. — Jackson v. Salisbury, 66 Md. 459, 7 Atl. 563 ; State v. Williams, 5 Md. 82. Massachusetts. — Draper v. Saxton, 118 Mass. 427; Bickford v. Gibbs, 8 Cush. (Mass.) 154. Michigan. — Beck v. Finn, 122 Mich. 21, 80 N. W. 785; Broughton v. Jones, 120 Mich. 462, 79 N. W. 691. Minnesota. — White v. Western Assur. Co., 52 Minn. 352, 54 N. W. 195; Babcock v. San- born, 3 Minn. 141. Mississippi. — Barrow v. Burbridge, 41 Miss. 622; Wooldridge v. Wilkins, 3 How. (Miss.) 360. Missouri. — Hayden v. Lauffenburger, 157 Mo. 88, 57 S. W. 721 ; Claflin v. Sylvester, 99 Mo. 276, 12 S. W. 508. Montana. — Philipsburg v. Weinstein, 21 Mont. 146, 53 Pac. 272. Nebraska. — Hyde v. Hyde, 60 Nebr. 502, 83 N. W. 673; Griggs v. Le Poidevin, 11 Nebr. 385, 9 N. W. 557. Nevada. — Longabaugh v. Virginia City, etc., R. Co., 9 Nev. 271; Clarke v. Lyon County, 7 Nev. 75. New Hampshire. — State v. Stevens, 36 N. H. 59. Vol. II New Jersey. — Consolidated Traction Co. v. Behr, 59 N. J. L. 477, 37 Atl. 142; Trent Tile Co. v. Ft. Dearborn Nat. Bank, 54 N. J. L. 599, 25 Atl. 411. New Mexico. — Williams v. Thomas, 3 N. M. 324, 9 Pac. 356 ; Crabtree v. Segrist, 3 N. M. 278, 6 Pac. 202. New York. — Heimburg v. Manhattan R. Co., 162 N. Y. 352, 56 N. E. 899; McCann v. Albany, 158 N. Y. 634, 53 N. E. 673 [affirm- ing 11 N. Y. App. Div. 378, 42 N. Y. Suppl. 94]. North Carolina. — Wellons v. Jordan, 83 N. C. 371; Williamson v. Lock's Creek Canal Co., 78 N. C. 156. Ohio. — Geauga Iron Co. v. Street, 19 Ohio 300. Oklahoma. — Healy r. Loofbourrow, 2 Okla. 458, 37 Pac. 823. Oregon. — Cook i>. Portland, 35 Oreg. 383, 58 Pac. 353; Shirley v. Burch, 16 Oreg. 83, 18 Pac. 351, 8 Am. St. Rep. 273. Pennsylvania. — Brown v. Scott, 51 Pa. St. 357; Simmonds' Estate, 19 Pa. St. 439. South Carolina. — Fleming v. Fleming, 33 S. C. 505, 12 S. E. 257, 26 Am. St. Rep. 694; Wilson v. Kelly, 19 S. C. 160. South Dakota. — Gaines v. White, 2 S. D. 410, 50 N. W. 901; Hall v. Harris, 2 S. D. 331, 50 N. W. 98. Tennessee. — ■ Campbell v. Illinois Cent. R. Co., 16 Lea (Tenn.) 270; Rea v. State, 8 Lea (Tenn.) 356. Texas.— Williams v. Leon, etc., Land Co., (Tex. Civ. App. 1900) 55 S. W. 374; O'Con- nor v. Koch, 9 Tex. Civ. App. 586, 29 S. W. 400. Utah. — People v. Peacock, 5 Utah 237, 14 Pac. 332. Vermont. — Hathaway v. National L. Ins. Co., 48 Vt. 335 ; Sargeant v. Butts, 21 Vt. 99. Virginia. — Union Bank v. Richmond, 94 Va. 316, 26 S. E. 821 ; Bransford v. Karn, 87 Va. 242, 12 S. E. 404. Washington. — Blewett v. Bash, 22 Wash. 536, 61 Pac. 770 ; Bethel v. Robinson, 4 Wash. 446, 30 Pac. 734. West Virginia. — Snodgrass v. Copenhaver, 34 W. Va. 171, 12 S. E. 695. See also Rose v. Brown, 11 W. Va. 122. Wisconsin. — Jones v. Evans, 28 Wis. 168; Bogert v. Phelps, 14 Wis. 88. Wyoming. — Sherlock v. Leighton, (Wyo. 1901) 63 Pac. 934. United States. — Flournoy v. Lastranes, 131 U. S. clxi, appendix, 25 L. ed. 406; King v. McLean Asylum, 64 Fed. 331, 21 U. S. App. 481, 12 C. C. A. 145. See 2 Cent. Dig. tit. "Appeal and Error," § 1141 et seq. See also supra, V, A, 1 ; and infra, V, B, 1, 2, 3„4; infra, XIII; XVII. _ As to effect of appearance as waiver of ob- jections see Appearances. As to the effect of a failure to raise objec- tions in particular actions and proceedings see the particular titles, such as Abatement APPEAL AND ERROR 679 case of errors apparent on the face of the record ; these may be considered by the court though not objected to below. 38 t>. Relating to Form of Aetion or Nature of Proceedings. Where no ques- tion is raised as to the form of the action or the nature of the proceedings in the court below to obtain relief, the defendant will be regarded as having waived the objection and will not be permitted to raise it for the first time in the reviewing court. 34 Thus, it cannot be objected for the first time on appeal that trespass and Revival; Costs; Courts; Damages; Dismissal and Nonsuit; Executors and Administrators ; Infants ; Injunctions ; Insane Persons; Judges; Judgments; Ju- ries ; New Trial ; Removal of Causes ; Tax- ation; Trial; Venue; Wills. That an attorney had no authority to bring an action cannot be objected to for the first time on appeal (Big Grove v. Fox, 89 111. App. 84), or to sign and file pleadings (Mcllhenny v. Binz, 80 Tex. 1, 13 S. W. 655, 26 Am. St. Rep. 705), or to appear in the cause (Moore v. Easley, 18 Ala. 619; Cockran v. Leister, 2 Root (Conn.) 348; Sanderson v. La Salle, 117 111. 171, 7 N. E. 114; Talbot v. McGee, 4 T. B. Mon. (Ky.) 375; Abernathy v. Lati- more, 19 Ohio 286), or to consent to a judg- ment without service of summons (Ryors v. King, 48 Ind. 237), or to consent to the sub- stitution of a party defendant (McGarry v. New York County, 1 Sweeny (N. Y.) 217), or to enter into an agreement enlarging an arbitration (Bingham v. Guthrie, 19 Pa. St. 418). 33. California. — Fuller v. Ferguson, 26 Cal. 546. Connecticut. — Riggs v. Zaleski, 44 Conn. 120. Dakota. — Dole v. Burleigh, 1 Dak. 227, 46 N. W. 692. Georgia. — MaeKenzie v. Jackson, 82 Ga. 80, 8 S. E. 77. Illinois. — People v. Dragstran, 100 111. 286. Kentucky. — Pauer v. Simon, 6 Bush ( Ky. ) 514. Louisiana. — Zollicoffer v. Briggs, 3 Rob. (La.) 236; Orso v. Orso, 11 La. 61. Maryland. — Mundell v. Hugh, 2 Gill & J. (Md.) 193, decided prior to the passage of the Maryland act of 1825, c. 117. Minnesota. — -Nelson v. Central Land Co., 35 Minn. 408, 29 N. W. 121; Jordan r. Humphrey, 31 Minn. 495, 18 N. W. 450. Missouri.— State v. Hoyt, 123 Mo. 348, 27 S. W. 382 ; Jones v. Tuller, 38 Mo. 363. North Carolina. — Burton V. Wilmington, etc., R. Co., 84 N. C. 192. Pennsylvania. — Gregg Tp. v. Jamison, 55 Pa. St. 468; Maher v. Ashmead, 30 Pa. St. 344, 72 Am. Dec. 708. Texas. — Hollingsworth v. Holshousen, 17 Tex. 41; Harmon v. Callahan, (Tex. Civ. App. 1896) 35 S. W. 705. Compare Rags- dale p. Robinson, 48 Tex. 379, in which it was held that objections, to an instrument offered in evidence, not made in the court below, will not be considered on appeal, even though the original paper is sent up and the objections are apparent on its face. United States. — Bennett v. Butterworth, 11 How. (U. S.) 669, 13 L. ed. 859; Garland v. Davis, 4 How. (U. S.) 131, 11 L. ed. 907; Kentucky L., etc., Ins. Co. v. Hamilton, 63 Fed. 93, 22 U. S. App. 386, 548, 11 C. C. A. 42. See 2 Cent. Dig. tit. "Appeal and Error," § 1145 et scq. These and other exceptions are more par- ticularly considered hereinafter. See infra, V, B, 1, c, d, e, g. The sufficiency of the pleadings to warrant a judgment may be passed on in the appellate court, though the question was not raised in the lower court. Kentucky L., etc., Ins. Co. v. Hamilton, 63 Fed. 93, 22 U. S. App. 386, 548, 11 C. C. A. 42. See also to like effect Maher v. Ashmead, 30 Pa. St. 344, 72 Am. Dec. 708; Harmon v. Callahan, (Tex. Civ. App. 1890) 35 S. W. 705. Decision not si ported by findings. — In Nelson v. Central Land Co., 35 Minn. 408, 29 N. W. 121, it was held that the question whether the decision of the trial court was supported by its findings might be raised for the first time on appeal. Failure to make findings on material issues. — Dole v. Burleigh, 1 Dak. 227, 46 N. W. 692, was a suit on a note, and defendant pleaded want of consideration and a counter- claim. The record showed a trial by the court' and a finding of judgment for defend- ant on the counter-claim, but it was silent as to the plea of want of eorfsideration. It was held that the omission of » finding on that issue was error requiring a reversal, though the objection was not made in the trial court. 34. Connecticut. — Russell v. Stocking, 8 Conn. 236. Delaware. — Paynter v. Taylor, 5 Harr. (Del.) 392. Illinois. — Sparling v. Marks, 86 111. 125 ; Rockford, etc., R. Co. v. Beckemeier, 72 111. 267 ; Dunne v. School Trustees, 39 111. 578. Indiana. — Seudder v. Jones, 134 Ind. 547, 32 N. E. 221. Iowa. — Garland v. Wholebau, 20 Iowa 271. Louisiana. — Dan jean v. Blacketer, 13 La. Ann. 595; Conery v. Heno, 9 La. Ann. 587. Maine. — Pope v. Machias Water Power, etc., Co., 52 Me. 535; Emmons v. Lord, 18 Me. 351. Massachusetts. — Hodgkins v. Price, 137 Mass. 13; Brown v. Waterman, 10 Cush. (Mass.) 117. Michigan. — Creager v. School Dist. No. 9, 62 Mich. 101, 28 N. W. 794. Missouri. — Whetstone v. Shaw, 70 Mo. 575. Nebraska. — Richardson v. Smith, 34 Nebr. 595, 52 N. W. 279 ; Downie v. Ladd, 22 Nebr. 531, 35 N. W. 388. Vol. II 680 APPEAL AND ERROR quare clausum J "regit was wrongly brought instead of case ; ffi that assumpsit was wrongly brought instead of mandamus ; M that affirmative relief should have been sought by cross-bill instead of by answer; 37 that decrees were rendered upon peti- tion only, when they should have been rendered upon a supplemental bill or cross- bill or a bill in that nature ; M that a supplemental bill does not show a cause of action cognizable by a bill of that character ; 39 that the case made by a bill of interpleader is one which is not a proper subject for such a bill ; *° that a bill instead of a petition should have been filed ; 41 or that the relief sought might have been had by motion instead of by action. 42 e. Relating to Jurisdiction 43 — (i) Of Subject -Matter — (a) In General. Consent of parties cannot give a court jurisdiction over the subject-matter of an action ; the question of jurisdiction of the subject-matter may be raised for the first time in the appellate court, or the court may, on its own motion, take notice of such want of jurisdiction. 44 Nevada. — Dougherty v. Wells, 7 Nev. 368. New Jersey. — Redstrake v. Cumberland Mut. F. Ins. Co., 44 N. J. L. 294. New York. — Gillies v. Manhattan Beach Imp. Co., 147 N. Y. 420, 42 N. E. 196, 70 N. Y. St. 8; People r. McLean, 80 N. Y. 254; Asher v. Deyoe, 77 Hun (N. Y.) 531, 28 N. Y. Suppl. 890, 60 N. Y. St. 268. North Carolina. — Lackey v. Pearson, 101 N. C. 651, 8 S. E. 121. Pennsylvania. — Bennet r. Bullock, 35 Pa. St. 364; Rank v. Rank, 5 Pa. St. 211. South Carolina. — McCaslan v. Nance, 46 S. C. 568, 24 S. E. 812; Ex p. Wells, 43 S. C. 477, 21 S. E. 354. Tennessee. — Caruthers v. Caruthers, 2 Lea (Tenn.) 264. Vermont. — Newell v. Humphrey, 37 Vt. 265. Virginia. — Whitehead v. Bradley, 87 Va. 676, 13 S. E. 195. Washington. — Sweeney r. Pacific Coast Ele- vator Co., 14 Wash. 562, 45 Pac. 151. West Virginia. — Haymond v. Camden, 22 W. Va. 180. Wisconsin. — Manegold v. Grange, 70 Wis. 575, 36 N. W. 263. United States. — Marine Bank v. Pulton County Bank, 2 Wall. (TJ. S.) 252, 17 L. ed. 785; Kelsey v. Hobby, 16 Pet. (TJ. S.) 269, 10 L. ed. 961. See 2 Cent. Dig. tit. "Appeal and Error," § 1161 et seq. Where no objection is raised to the consoli- dation of actions in the trial court, an objec- tion cannot be made on appeal. McDowell v. Mitcham. 37 Ala. 417; Raulerson v. Rockner, 17 Fla. 809; Turley v. Barnes, 131 Mo. 548, 33 S. W. 172. 35. Beirly v. Strohecker, 2 Wkly. Notes Cas. (Fa.) 37, 32 Leg. Int. (Pa.) 354. 36. Creager v. School Dist. No. 9, 62 Mich 101, 28 N. W. 794. 37. Garner v. Providence Second Nat Bank, 67 Fed. 833, 33 TJ. S. App. 91, 16 C. C. A. 86 ; Moran v. Hagerman, 64 Fed. 499 29 TJ. S. App. 71, 12 C. C. A. 239. 38. Coburn v. Cedar Valley Land, etc Co 138 TJ. S. 196, 11 S. Ct. 258, 34 L. ed. 876. " 39. Van Wert v. Boyes, 140 111. 89, 29 N. E. 710 [reversing 38 111. App. 426]. 40. Sammis v. L'Engle, 19 Fla. 800. Vol. II 41. Bigham's Appeal, 123 Pa. St. 262, 23 Wkly. Notes Cas. (Pa.) 79, 16 Atl. 613, 10 Am. St. Rep. 522. 42. Folmsbee v. Amsterdam, 66 Hun (N. Y.) 214, 21 N. Y. Suppl. 42, 49 N. Y. St. 51; Lackey v. Pearson, 101 N. C. 651, 8 S. E. 121. 43. Where a court has general jurisdiction of a class of cases, an objection that it has not jurisdiction of a particular case belong- ing to that class must be made in the court below. Thus, where an action is brought in a court having jurisdiction over actions of that class, but the subject-matter is situated within the jurisdiction of another court, an objection to the jurisdiction of the court in which the action is brought cannot be raised for the first time on appeal. See, generally, Venue. 44. Alabama. — Whorton v. Moragne, 62 Ala. 201; Wyatt v. Judge, 7 Port. (Ala.) 37. Compare Vaughan v. Seed, 7 Ala. 740. California. — People t'. Oakland Water Front Co., 118 Cal. 234, 50 Pac. 305; Mas- tick v. Superior Ct., 94 Cal. 347, 29 Pac. 869. Colorado. — McKinnon v. Hall, 10 Colo. App. 291, 50 Pac. 1052. Connecticut. — Wildman v. Rider, 23 Conn. 172. Dakota. — Murry r. Burris, 6 Dak. 170, 42 N. W. 25. Florida. — Livingston r. Webster, 26 Fla. 325, 8 So. 442. Georgia. — Dickinson r. Mann, 74 Ga. 217; Bostwick v. Perkins, 4 Ga. 47. Illinois. — Way v. Way, 64 111. 406; Sol- diers' Orphans' Home v. Lyon, 42 111. App. 615. Indiana. — Forsythe v. Hammond, 142 Ind. 505, 40 N. E. 267, 41 N. E. 950, 30 L. R. A. 576; Debs v. Dalton, 7 Ind. App. 84, 34 N. E. 236. Iowa. — Hodges v. Tama County, 91 Iowa 578, 60 N. W. 185; Cerro Gordo County v. Wright County, 59 Iowa 485, 13 N. W. 645. Kansas. — Foreman v. Carter, 9 Kan. 674; St. Louis, etc., R. Co. v. Brown, (Kan. App. 1900) 61 Pac. 457. Kentucky.— Wickliffe r. Bailey, 5 B. Mon. (Ky.) 253; Lindsey v. McClelland, 1 Bibb (Ky.) 262. Louisiana.— State v. Judges, 48 La. Ann. 672, 19 So. 617; Edwards v. Edwards, 21 La. APPEAL AND ERROR 681 (b) As Dependent Upon Amount Involved. Hence, the objection may be raised for the first time on appeal that the lower court was without jurisdiction because the amount involved was insufficient. 45 (c) For Failure to State Jurisdictional Facts. If the existence of jurisdic- tional facts is admitted, 46 or if they appear by any part of the record, 47 the objec- tion that they do not appear from the complaint or declaration cannot be first raised on appeal. So, if sufficient facts are alleged to bring the case within the general equitable jurisdiction of the court, an objection cannot be first raised on appeal that it was not alleged that complainant had not a complete remedy at law, 48 Ann. 610; Smith v. Barkemeyer, McGloin (La.) 139. Maryland. — Fairfax Forest Min., etc., Co. v. Chambers, 75 Md. 604, 23 Ml. 1024. Massachusetts. — Riley v. Lowell, 117 Mass. 76. Mississippi. — Green v. Creighton, 10 Sm. & M. (Miss.) 159, 48 Am. Dec. 742. Missouri. — Davis v. Jacksonville Southeast- ern Line, 126 Mo. 69, 28 S. W. 965; Beck, etc., Lithographing Co. v. Obert, 54 Mo. App. 240. New Jersey. — Dodd v. Una, 40 N. J. Eq. 672, 5 Atl. 155; Gififord v. Thorn, 7 N. J. Eq. 90. New York. — Fiester v. Shepard, 92 N. Y. 251; Levy v. Swick Piano Co., 17 Misc. (N. Y.) 145, 39 N. Y. Suppl. 409. North Carolina. — Whitehurst v. Pettipher, 105 N. C. 40, 11 S. E. 369; Green v. Dawson, 92 N. C. 61. Ohio. — The Steamboat General Buell v. Long, 18 Ohio St. 521; Gilliland v. Sellers, 2 Ohio St. 223. Pennsylvania. — Fowler v. Eddy, 110 Pa. St. 117, 1 Atl. 789; Coleman's Appeal, 75 Pa. St. • 441. Rhode Island. — In re College St., 11 B. I. 472. South Carolina. — Gibbes v. Morrison, 39 S. C. 369, 17 S. E. 803; Hardin v. Trimmier, 30 S. C. 391, 9 S. E. 342; Poole v. Brown, 12 S. C. 556. South Dakota. — Nelson v. Ladd, 4 S. D. 1, 34 N. W. 809. Texas. — Swigley v. Dickson, 2 Tex. 192 ; Capps v. Leaehman, (Tex. Civ. App. 1896) 35 S. W. 397. Vermont. — Re Parsons, 64 Vt. 193, 23 Atl. 519; Franks v. Loekey, 45 Vt. 395. Virginia.— Witz v. Mullin, 90 Va. 805, 20 S. E. 783 ; Buffalo v. Pocahontas, 85 Va. 222, 7 S. E. 238. Washington. — Brown v. Eauch, 1 Wash. 497, 20 Pae. 785. West Virginia. — Hall v. Wadsworth, 30 W. Va. 55, 3 S. E. 29. Wisconsin. — Piano Mfg. Co. v. Easey, 69 Wis. 246, 34 N. W. 85; Edler v. Hasehe, 67 Wis. 053, 31 N. W. 57. United States. — Morris v. Gilmer, 129 U. S. 315, 8 S. Ct. 289, 32 L. ed. 690; Metcalf v. Watertown, 128 U. S. 586, 9 S. Ct. 173, 32 L. ed. 543. England. — Cannan v. Eeynolds, 5 E. & B. 301, 85 E. C. L. 301. But see Cooley v. Smith, 17 Iowa 99 ; Camp- bell v. Illinois Cent. E. Co., 16 Lea (Tenn.) 270. See also 2 Cent. Dig. tit. " Appeal and Error," § 1166 et seq. By Md. Acts (1841), u. 163, the supremecourt is prohibited from allowing any objection to be urged to the jurisdiction of the court below when no such objection was there taken, al- though the objection is that the trial court had no jurisdiction of the subject-matter at issue. Farmers, etc., Bank v. Wayman, 5 Gill (Md.) 336. 45. Smaw v. Cohen, 95 N. C. 85, and see 2 Cent. Dig. tit. " Appeal and Error," § 1169. Nevertheless it must very clearly appear to the reviewing court that the necessary amount is not involved before that court will take cognizance of an objection based on that ground. People's Telephone, etc., Co. v. East Tennessee Telephone Co., 103 Fed. 212, 43 C. C. A. 185. Thus, where the trial court has jurisdiction of the cause of action stated in one paragraph of the complaint, but not of that stated in another, and renders judgment upon both, such judgment is not void, and it will, in the absence of any proper objection to the jurisdiction in the court below, be upheld on appeal to the supreme court. Louisville, etc., E. Co. v. Fox, 101 Ind. 416. And if the declaration in a suit commenced by attachment is for a sum sufficient to give the lower court jurisdiction, the reviewing court will not con- sider an objection, raised for the first time on appeal, that the amount involved was not suf- ficient to give the court jurisdiction, notwith- standing the fact that the attachment was for an insufficient amount. Eoberts v. Burke, 6 Ala. 348. 46. Schaghticoke v. Fitchburg E. Co., 53 N. Y. App. Div. 16, 65 N. Y. Suppl. 498. New York — District and municipal courts of New York city.— The N. Y. Consol. Act, c. 410, applicable to the district courts of the city of New York, and which has been con- tinued in force with respect to the municipal court, provides that the court will be deemed to have jurisdiction if the objection that it has not jurisdiction is not taken at the trial. Un- der this section, where no objection for want of jurisdiction is taken at the trial, and the trial is had solely on the merits, it cannot be objected on appeal that the court had no ju- risdiction, because facts showing that the court had jurisdiction were not alleged. Meuthen v. Eyel'is, 33 Misc. (N. Y.) 98, 67 N. Y. Suppl. 246. Sec also Berring v. MeAvoy, 52 N. Y. App. Div. 501, 65 N. Y. Suppl. 467. 47. Clarey v. Marshall, 4 Dana (Ky.) 95. 48. Schilling v. Eominger, 4 Colo. 100. Vol. II 682 APPEAL AND ERROR or that plaintiffs have exhausted their legal tights against defendants. _ On the other hand, it has been held that, where there is not a sufficient allegation of non-residence of defendant to give the court jurisdiction, the question of want of jurisdiction may be raised for the first time on appeal. 50 (d) Want of Jurisdiction Apparent of Record. The want of jurisdiction apparent on the face of the record will he taken notice of by the appellate court, whether set np and relied on as a defense in the court below or not. 51 (n) Of the Pasties. An objection to the jurisdiction of the person must be made in the trial court. Where no objection is made in the lower court it will, upon appeal, be held to have been waived. 52 49. People's Nat. Bank v. Loeffert, 184 Pa. St. 164, 38 Atl. 996. See also Mcintosh v. Augusta Oil Co., 47 W. Va. 832, 35 S. E. 800, in which it was held that if the court had ju- risdiction of cases of the class to which the case at bar belonged, the fact that the affida- vit therein was defective does not make the suit one without jurisdiction, and, where the validity of the affidavit is not questioned in the trial court, no objection for want of juris- diction can be raised on appeal. See 2 Cent. Dig. tit. " Appeal and Error," § 1171. 50. Ormsby v. Lynch, Litt. Sel. Cas. (Ky.) 303. So it has similarly been held, in a suit in which federal jurisdiction depends wholly on diversity of citizenship, and in which the record shows that such diversity has been insufficiently alleged, that the judgment should be reversed in the appellate court for want of jurisdiction, although exception to the ju- • risdietion was not taken in the trial court. St. Louis, etc., E. Co. v. Neweom, 56 Fed. 951, 12 U. S. App. 503, 6 C. C. A. 172. So, where the affidavit to a bill in a divorce case fails to comply with the prescribed statutory form, the trial court, it has been held, acquires no jurisdiction, and the reviewing court will dis- miss the suit upon its own motion, though no question was made in the trial court or the reviewing court as to the sufficiency of the affidavit. Holloman r. Holloman, 127 N. C. 15, 37 S. E. 68; De Armond v. De Armond, 92 Tenn. 40, 20 S. W. 422. But see Holcomb r. Holcomb, 100 Mich. 421, 59 N. W. 170. 51. Arkansas. — Sibley v. Leek, 45 Ark. 346. Iowa. — Groves v. Richmond, 53 Iowa 570, 5 V W. 763. Maryland. — Sehiff v. Solomon, 57 Md. 572. Missouri. — Graham v. Bingo, 67 Mo. 324. North Carolina. — Smaw v. Cohen, 95 N. C. 85. Ohio. — The Steamboat General Buell v. Long, 18 Ohio St. 521. South Carolina. — Varney v. Voseh, 3 Hill (S. C.) 237. Texas. — Heidenheimer v. Marx, 1 Tex. App. Civ. Cas. § 171. Wisconsin. — Pelton v. Blooming Grove, 3 Wis. 310. United States. — Blachly v. Davis, 1 McLean (U. S.) 412, 3 Fed. Cas. No. 1,456. But see, contra, Birney v. Haim, 2 Litt. (Ky.) 262. See 2 Cent. Dig. tit. "Appeal and Error," § 1172. Vol. II 52. Alabama. — Barnett v. Tarrence, 23 Ala. 463; Cullum v. Batre, 2 Ala. 415. California. — Matter of Thompson, 101 Cal. 349, 35 Pac. 991, 36 Pae. 98, 508; Arroyo Ditch, etc., Co. v. Superior Ct., 92 Cal. 47, 28 Pac. 54, 27 Am. St. Rep. 91. Colorado. — Sehoolfield v. Brunton, 20 Colo. 139, 36 Pac. 1103; Lord v. Hendrie, etc., Mfg. Co., 13 Colo. 393, 22 Pae. 782. Florida. — Gordon v. Clarke, 10 Fla. 179; Griffin v. Orman, 9 Fla. 22. Georgia. — Macon, etc., R. Co. v. Gibson, 85 Ga. 1, 11 S. E. 442, 21 Am. St. Rep. 135; Cot- tle v. Harrold, 72 Ga. 830 [distinguishing Sharman v. Thomaston, 67 Ga. 246]. Illinois.— Reynolds v. Foster, 89 111. 257; Wallace v. Cox, 71 111. 548. Indiana. — Perkins v. Hayward, 132 Ind. 95, 31 N. E. 670; McCoy v. Able, 131 Ind. 417, 30 N. E. 528, 31 N. E. 453. Iowa. — Matter of Capper, 85 Iowa 82, 52 N. W. 6 ; Bridgman v. Wilcut, 4 Greene ( Iowa) 563. Kansas. — Wells v. Patton, 50 Kan. 732, 33 Pac. 15; Anderson v. Burchett, 48 Kan. 781, 30 Pae. 174. Kentucky. — Baker v. Kinnaird, 94 Ky. 5, 14 Ky. L. Rep. 695, 21 S. W. 237. Louisiana. — Reynolds v. Rowley, 3 Rob. (La.) 201, 38 Am. Dec. 233. Compare State v. Judges, 47 La. Ann. 1293, 17 So. 800. Maryland. — Fairfax Forest Min., etc., Co. v. Chambers, 75 Md. 604, 23 Atl. 1024; Ashton v. Ashton, 35 Md. 496. Massachusetts. — Prince v. Gundaway, 157~ Mass. 417, 32 N. E. 653; Davis v. McEnaney, 150 Mass. 451, 23 N. E. 221. ■Michigan. — Hopkins v. Green, 93 Mich. 394, 53 N. W. 537. Minnesota. — Masterson v. Le Claire, 4 Minn. 163. Mississippi.— Ramsey v. Barbaro, 12 Sm. & M. (Miss.) 293. Missouri. — Davis v. Jacksonville Southeast- ern Line. 126 Mo. 69, 28 S. W. 965 j Wolf v. Harrington, 38 Mo. App. 276. Montana.— Ga.ee v. Maryatt, 9 Mont. 265, 23 Pac. 337. Nebraska. — Leake r. Gallogly, 34 Nebr. 857, 52 N. W. 824; Bucklin o. Strickler, 32 Nebr. 602, 49 N. W. 371. New Jersey.— North Hudson County R. Co. v. Flanagan, 57 N. J. L. 696, 32 Atl. 216; Delaware Bay, etc., R. Co. v. Markley, 45 N. J. Eq. 139, 16 Atl. 436. New York. — Burdick v. Freeman, 120 N. Y. 420, 24 N. E. 949, 31 N. Y. St. 427; Matter APPEAL AND ERROR 683 (in) That Equitable Action Should Have Been Brought. The objec- tion that a cause is of equitable, and not of legal, cognizance cannot be raised for the first time on appeal. 63 If a party, when sued at law, conceives that the action, or any material issue in it, is of equitable cognizance, he must interpose the objec- tion at the threshold of the case, and will not be heard to make it for the first time in the appellate court. 64 (iv) That Remedy at Law Is Adequate. So, where a party submits with- out objection to the jurisdiction of a court of equity, he cannot raise the objection on appeal that there was an adequate remedy at law. 56 This doctrine is, of course, of Feust, 55 Hun (N. Y.) 607, 8 N. Y. Suppl. 420, 28 N. Y. St. 721 [affirmed in 121 N. Y. 299, 24 N. E. 479, 31 N. Y. St. 33]. North Carolina. — Baruch t\ Long, 117 N. C. 509, 23 S. E. 447; Devereux v. Devereux, 81 N. C. 12. Ohio. — Fee v. Big Sand Iron Co., 13 Ohio St. 563; Marsden v. Soper, 11 Ohio St. 503. Tennessee. — Eller v. Richardson, 89 Tenn. 575, 15 S. W. 650. Texas. — Williams v. Verne, 68 Tex. 414, 4 S. W. 548 ; Perry v. McKinzie, 4 Tex. 154. Virginia. — Hunter v. Humphreys, 14 Gratt. (Va.) 287. Wisconsin. — Wielcham v. South Shore Lum- ber Co., 89 Wis. 23, 61 N. W. 287; German Mut. Farmer F. Ins. Co. v. Decker, 74 Wis. 556, 43 N. W. 500. United States. — Bradstreet v. Thomas, 12 Pet. (U. S.) 59, 9 L. ed. 999; Western Union Beef Co. v. Thurman, 70 Fed. 960, 30 U. S. App. 510, 17 C. C. A. 542. See 2 Cent. Dig. tit. " Appeal and Error," § 1184 et seq. 53. Illinois. — Yeager v. Manning, 183 111. 275, 55 N. E. 691 ; Vermont v. Miller, 161 111. 210, 43 N. E. 975. Iowa. — Matthews v. J. H. Luers Drug Co., 110 Iowa 231, 81 N. W. 464; Bibbins v. Clark, 90 Iowa 230, 57 N. W. 884, 59 N. W. 290, 29 L. B. A. 278. Missouri. — Estes v. Fry, 94 Mo. 266, 6 S. W. 660; Farmers Bank v. Gallaher, 43 Mo. App. 4S2. Ne,w York. — Stephens v. Meriden Britannia Co., 160 N. Y. 178, 54 N". E. 781, 73 Am. St. Rep. 678 [reversing 13 N. Y. App. Div. 268, 43 N. Y. Suppl. 226]; Worthington v. London Guarantee, etc., Co., 47 N. Y. App. Div. 609, 62 N. Y. Suppl. 591. Pennsylvania. — North Shore R. Co. v. Penn- sylvania Co., 193 Pa. St. 641, 44 Atl. 1083; Williams v. Concord Cong. Church, 193 Pa. St. 120, 44 Atl. 272. Texas. — Zapp v. Davidson, 21 Tex. Civ. App. 566, 54 S. W. 366. Virginia. — Robinson v. Moses, (Va. 1899) 34 S. E. 48. West Virginia. — Jarrell v. French, 43 W. Va. 456, 27 S. E. 263. Wisconsin. — Burlington v. Bardon, 80 Wis. 635, 50 N. W. 776. United States. — International Trust Co. v. T. B. Townsend Brick, etc., Co., 95 Fed. 850, 37 C. C. A. 396 ; Union Pac. R. Co. v. Harris, 63 Fed. 800, 27 U. S. App. 450, 12 C. C. A. 598. See 2 Cent. Dig. tit. "Appeal and Error," § 1179 et seq. Objection by plaintiff. — Where a plaintiff sues in a court of equity he cannot subse- quently object for the first time on appeal that the cause was not of equitable cognizance. Ellis v. Allen, 99 Wis. 598, 74 N. W. 537, 75 N. W. 949. That trial should not have been by jury, is an objection which cannot be raised for the first time on appeal. Neff v. Reed, 98 Ind. 341 ; Taggart v. Tevanny, 1 Ind. App. 339, 27 N. E. 511; Philbrook v. Burgess, 52 Me. 271; Estes v. Fry, 94 Mo. 266, 6 S. W. 660; King v. Van Vleek, 109 N. Y. 363, 16 N. E. 547, 15 N. Y. St. 521 ; Megrue v . United L. Ins. Assoc, 71 Hun (N. Y.) 174, 24 N. Y. Suppl. 618, 54 N. Y. St. 310; McCormick v. Ketchum, 48 Wis. 643, 4 N. W. 798. This applies to such ob- jections as that the cause should not have been tried by a jury because an equitable de- fense was pleaded. Megrue v. United L. Ins. Assoc, 71 Hun (N. Y.) 174, 24 N. Y. Suppl. 618, 54 N. Y. St. 310. And where no objec- tion has been made to the reference to the jury of all the issues in a chancery cause and none of the exceptions raise this question, the objection cannot be raised on appeal. Frank v. Humphreys, 24 S. C. 325. 54. Union Pac. R. Co. v. Harris, 63 Fed. 800, 27 U. S. App. 450, 12 C. C. A. 598. 55. Arizona. — Daggs v. Bolton, (Ariz. 1809) 57 Pac. 611. Arkansas. — Daniels v. Street, 15 Ark. 307; Sexton v. Pike, 13 Ark. 193. California. — Simons v. Bedell, 122 Cal. 341, 55 Pac. 3, 68 Am. St. Rep. 35; Matter of Kasson, 119 Cal. 489, 51 Pac. 706. Colorado. — Derry v. Ross, 5 Colo. 295; Strousse v. Clear Creek County Bank, 9 Colo. App. 478, 49 Pac. 260. Florida. — International Imp. Fund v. Glea- son, 39 Fla. 771, 22 So. 539; Freeman v. Tim- anus, 12 Fla. 393 ; Griffin v. Orman, 9 Fla. 22. Georgia. — Meeks v. Guckenheimer, 102 Ga. 710, 29 S. E. 486. Illinois. — Parsons v. Millar, 189 111. 107, 59 N. E. 606; Hazle v. Bondy, 173 111. 302, 50 N. E. 671 ; Kelly v. Gallbraith, 87 111. App. 63 [affirmed in 186 111. 593, 58 N. E. 431] ; Sol- diers' Orphans' Home v. Lyon, 42 111. App. 615. Indiana. — Lowery v. State L. Ins. Co., 153 Ind. 100, 54 N. E. 442. Indian Territory. — Shapleigh Hardware Co. v. Brittain, (Indian Terr. 1899) 48 S. W. 1069. Vol. II 684 APPEAL AND ERROR applicable only in cases where the jurisdiction of the court of equity and the court of law are concurrent. If the cause is one not properly cognizable by a court of equity under any circumstances, the objection may be raised at any time, as want of jurisdiction of the subject-matter is always fatal at any stage of the proceedings. 56 (v) That Hearing Was by Wrong Division of Trial Court. "Where a case is allotted to one division of a court consisting of several divisions, and a judge in another division takes jurisdiction, it is too late, on appeal, to urge the want of jurisdiction if no objection has been made below. 57 (vi) With Respect of Time of Hearing. If no objection is made to the jurisdiction of the court to try a cause at an adjourned day of a special term, the objection cannot be raised on appeal. 58 d. Relating to Parties 59 — (i) Capacity or Right to Sue — (a) Statement Iowa. — Cooper v. Cedar Rapids, ( Iowa 1900) 83 N. W. 1050; Brown v. Chicago, etc., R. Co., (Iowa 1900) 82 N. W. 1003. Kansas. — List v. Joekheck, 59 Kan. 143, 52 Pae. 420; Barton v. Pond, 8 Kan. App. 859, 55 Pae. 519. Kentucky. — Salyer v. Napier, 21 Ky. L. Rep. 172, 51 S. W. 10. Massachusetts. — Whiting v. Burkhardt, (Mass. 1901) 60 N. E. 1; McRae v. Locke, 114 Mass. 96. Michigan. — Atty.-Gen. v. Moliter, 26 Mich. 444. Mississippi. — Dufour v. Chapotel, 75 Miss. 656, 23 So. 387 ; Black v. Washington, 65 Miss. 60, 3 So. 140. Missouri. — White v. Missouri, etc., R. Co., 72 Mo. App. 400; Farmers Bank v. Galla- her, 43 Mo. App. 482. Nebraska. — Stahlhut v. Bauer, 51 Xebr. 64, 70 N. W. 496 ; Sherwin v. Gaghagen, 39 Nebr. 238, 57 N. W. 1005. New Hampshire. — Cushing v. Miller, 62 N. H. 517. New York. — Powell v. Waldron, 89 N. Y. 328, 42 Am. Rep. 301; Clarke v. Sawyer, 2 N. Y. 498; Barker v. Archer, 49 N. Y. App. Div. 80, 63 N. Y. Suppl. 298. Ohio. — Wellston v. Morgan, 59 Ohio St. 147, 52 N. E. 127; Culver v. Rodgers, 33 Ohio St. 537. Pennsylvania. — Williams r. Concord Cong. Church, 193 Pa. St. 120, 44 Atl. 272; Edgett v. Douglass, 144 Pa. St. 95, 28 Wkly. Notes Cas. (Pa.) 469, 22 Atl. 868. South Carolina. — Bomar v. Means, 47 S C 190, 25 S. E. 60; McDonald i\ Crockett 2 McCord Eq. (S. C.) 130. Tennessee. — McGuire v. Caruthers, 5 Humphr. (Tenn.) 413. Virginia. — Cox v. Cox, 95 Va. 173, 27 S. E. 834; Stonebunger v. Roller, (Va. 1896) 25 S. E. 1012; Wiltz v. Mullin, 90 Va. 805, 20 S. E. 783; Green v. Massie, 21 Gratt. (Va ) 356. Wisconsin. — Bent v. Barnes, 90 Wis. 631 64 N. W. 428; Buffington v. Bardon, 80 Wis' 635, 50 N. W. 776. United States. — Burbank v. Bigelow, 154 U. S. 558, 14 S. Ct. 1163, 19 L. ed. 51; New York, etc., Land Co. v. Gulf, etc., R. Co. 100 Fed. 830, 41 C. C. A. 87; Schoolfield v. Rhodes, Vol. II 82 Fed. 153, 49 U. S. App. 486, 27 C. C. A. 95; St. Louis, etc., R. Co. v. Phillips, 66 Fed. 35, 27 U. S. App. 643, 13 C. C. A. 315. But see and compare Conklin v. Plant, 34 111. App. 264; Spelman v. Gill, 75 Iowa 717, 38 N. W. 168 ; Lone Jack Min. Co. v. Meggin- son, 82 Fed. 89, 48 TJ. S. App. 452, 27 C. C. A. 63; Reynolds v. Watkins, 60 Fed. 824, 22 U. S. App. 83, 9 C. C. A. 273; Union Pae. R. Co. v. Harris, 63 Fed. 800, 27 TJ. S. App. 450, 12 C. C. A. 598. 56. Colorado. — Derry v. Ross, 5 Colo. 295. Florida. — Griffin v. Orman, 9 Fla. 22. Illinois. — Stout v. Cook, 41 111. 447. New York. — Delafield v. Illinois, 2 Hill (N. Y.) 159. Pennsylvania. — Edgett v. Douglass, 144 Fa. St. 95, 22 Atl. 868 ; Pittsburgh, etc., Drove Yard Co.'s Appeal, 123 Pa. St. 250, 16 Atl. 625. South Carolina. — McDonald v. Crockett, 2 McCord Eq. (S. C.) 130. Tennessee. — McGuire v. Caruthers, 5 Humphr. (Tenn.) 413. Virginia. — Buffalo v. Pocahontas, 85 Va. 222, 7 S. E. 238; Coleman v. Anderson, 29 Gratt. (Va.) 425; Green v. Massie, 21 Gratt. (Va.) 356. United States. — Allen v. Pullman's Palace Car Co., 139 U. S. 658, 11 S. Ct. 682, 35 L. ed. 303; New York Guaranty, etc., Co. v. Mem- phis Water Co., 107 TJ. S. 205, 2 S. Ct. 279, 27 L. ed. 484 ; Lewis v. Cocks, 23 Wall. (U. S.) 466, 23 L. ed. 70; Oelriehs v. Williams 15 Wall. (TJ. S.) 211, 21 L. ed. 43; Parker v. Winnipiseogee Lake Cotton, etc., Co., 2 Black (TJ. S.) 545, 17 L. ed. 333. 57. Labouisse v. Orleans Cotton Rope, etc., Co., 43 La. Ann. 582, 9 So. 492. See also James v. Meyer, 43 La. Ann. 38, 8 So. 575; Pironi v. Riley, 39 La. Ann. 302, 1 So. 675; Tracy v. McKinney, 82 Mo. App. 506. 58. Short v. Gill, 126 N. C. 803, 36 S. E. 336. See also Crush v. Kirkland, 18 Ind. 190; White v. Coulter, 59 N. Y. 629. 59. See also, generally, Parties. Objections to the time of making one a party to the action must be made in the court below, or they cannot be raised in the appel- late court. Johnston v. Hainesworth, 6 Ala. APPEAL AND ERROR 685 of Rule. An objection to the capacity of plaintiff to sue must be raised in the court below, or it cannot be considered in the appellate court. 00 (b) Applications of Rule — (1) In General. Thus, it has been held that it cannot be objected for the first time in the appellate court that plaintiff is an alien, 61 a foreign receiver, 62 a foreign corporation which has not complied with the statutes relating to foreign corporations and, therefore, is without standing to main- tain an action, 68 a lunatic, 64 an infant, 65 or subject to the disabilities of coverture. 66 (2) Failure to Obtain Leave to Sue. It cannot be objected for the first time in the appellate court that the suit was instituted without obtaining the requisite leave of court, 67 or that the leave obtained was invalid. 63 (3) Improper Party Plaintiff. A formal objection that the suit is brought by the wrong person or official must be made in the court below, or it cannot be urged in the appellate court. 69 (4) Plaintiff's "Want of Interest in Controversy. An objection to the title under which a plaintiff sues will not be considered when raised for the first time in the appellate court. 70 60. Alabama. — Louisville, etc., R. Co. v. Touart, 97 Ala. 514, 11 So. 756. Arkansas. — Robinson v. German Ins. Co., 51 Ark. 441, 11 S. W. 686, 4 L. R. A. 251. California. — Quan Wye v. Chin Lin Hee, 123 Cal. 185, 55 Pac. 783; Matter of Robin- son, 106 Cal. 493, 39 Pae. 862. Illinois. — Kingman v. Reinemer, 166 111. 208, 46 N. E. 786 [affirming 58 111. App. 173] ; Gillham v. State Bank, 3 111. 245, 35 Am. Dee. 105. Indiana. — La Plante v. State, 152 Ind. 80, 52 N. E. 452. Louisiana. — Taylor v. Littell, 21 La. Ann. 665; Dejona v. Steamboat Osceola, 17 La. Ann. 277. Nebraska. — Clark v. Carey, 41 Nebr. 780, 60 N". W. 78. New York. — Hathaway v. Orient Ins. Co., 58 Hun (N. Y.) 602, 11 N. Y. Suppl. 413, 33 N. Y. St. 678. United States. — St. Louis Southwestern R. Co. v. Henson, 58 Fed. 531, 19 U. S. App. 169, 7 C. C. A. 349. See 2 Cent. Dig. tit. "Appeal and Error," § 1184 et seq. 61. O'Reilly v. Campbell, 116 U. S. 418, 6 S. Ct. 421, 29 L. ed. 669. 62. Clark v. Lopp, 80 Mo. App. 542. 63. Holmes v. Standard Oil Co., 133 111. 70, 55 N. E. 647 [affirming 82 111. App. 476] ; Minneapolis Trust Co. r. Verhulst, 74 111. App. 350 ; City Trust, etc., Co. v. Wilson Mfg. Co., 58 N. Y. App. Div. 271, 68 N. Y. Suppl. 1004. 64. Martin v. Dufalla, 50 111. App. 371. 65. Chicago v. Hogan, 80 111. App. 344. The objection that plaintiff, although of age, sued by next friend is an objection to the form of the process, and not to the cause of action, and cannot be taken advantage of for the first time on error. Wilms v. White, 26 Md. 380, 90 Am. Dec. 113. 66. Schwarze v. Mahoney, 97 Cal. 131, 31 Pac. 908; Taylor r. Brown, 32 Fla. 334, 13 So. 957; Lyman v. Albee, 7 Vt. 508. Thus, where a wife alleges in her petition that she is authorized by her husband to bring suit, and no exception is taken in the lower court, the question of her authority will not be questioned on appeal. Durham v. Daugherty, 30 La. Ann. 1255. 67. Alabama. — Smith v. Inge, 80 Ala. 283. Iowa. — Elder v. Littler, 15 Iowa 65. New York.— Dunham v. Fitch, 48 N. Y. App. Div. 321, 62 N. Y. Suppl. 905; Knapp v. Valentine, 24 N. Y. Civ. Proc. 331, 33 N. Y. Suppl. 712, 67 N. Y. St. 582. Oregon. — Multnomah County -v. Kelly, 37 Oreg. 1, 60 Pac. 202. Wisconsin. — Johannes v. Youngs, 48 Wis. 101, 4 N. W. 32. 68. Pierpoint v. McGuire, 13 Misc. (N. Y.) 70, 34 N. Y. Suppl. 150, 68 N. Y. St. 197. Revocation of authority to sue. — And, even if a county judge could, after the suit was commenced, revoke authority granted to sue on an administrator's bond, the objection that he had done so comes too late on appeal. Jo- hannes v. Youngs, 48 Wis. 101, 4 N. W. 32. 69. Illinois. — Knox County v. Davis, 63 111. 405; Oliver v. Cochran, 19 111. App. 236. Kentucky. — Davidson r. Morrison, 9 Ky. L. Rep. 629, 5 S. W. 871. Massachusetts. — Wood v. Dean, 165 Mass. 559, 43 N. E. 510; Hodgkins v. Price, 137 Mass. 13. Michigan. — People v. Smith, 42 Mich. 138, 3 N. W.' 302. Mississippi. — Fly v. King, 71 Miss. 537, 14 So. 465. Missouri. — Stumpe v. Ringshausen, 9 Mo. App. 599 ; Wolff v. Schaeffer, 6 Mo. App. 589. New York. — Torrey v. Willard, 55 Hun (N. Y.) 78, 8 N. Y. Suppl. 392, 28 N. Y. St. 641. Oregon. — Bellinger v. Thompson, 26 Oreg. 320, 37 Pac. 714, 40 Pac. 229. Pennsylvania. — Wisener v. Myers, 3 Fa. Dist. 687, 25 Pittsb. Leg. J. N. S. (Pa.) 166. Washington. — Jenkins v. Columbia Land, etc.. Co., 13 Wash. 502, 43 Pac. 328. Wisconsin. — State v. Smith, 11 Wis. 65. United States. — Fortier v. New Orleans Nat. Bank, 112 U. S. 439, 5 S. Ct. 234, 28 L. ed. 764. 70. Iowa. — Ham v. Wisconsin, etc., R. Co., 61 Iowa 716, 17 N. W. 157. Vol. II 686 APPEAL AND ERROR (5) Plaintiff not Eeal Party in Interest. So, too, the objection that plaintiff is not the real party in interest, and, hence, has no right to sue, comes too late when made for the first time in the appellate court. 71 (6) Plaintiff's Want of Representative Capacity. Where plaintiff sues in a representative capacity, and the right to sue in such capacity is not put in issue in the court below, it cannot be questioned in the appellate court.™ (7). Plaintiff Suing in Double Capacity. The right of a plaintiff to sue both in a personal and a representative capacity cannot be first questioned on appeal. 73 (8) Plaintiff Suing in Wrong Capacity. In a suit for partition of an estate left by plaintiff's former husband, no objection can be made, on appeal, to the capacity in which plaintiff sues, where defendants proceed in the investigation of their rights without reference to the true capacity in which plaintiff ought to have alleged her claim. 74 And it has been held that persons made defendants to a fore- closure suit, which persons did not appear in the court below, cannot raise the objection in the appellate court that the action was brought by plaintiff in his individual capacity when he should have brought it as trustee. 75 (9) Incapacity of Foreign Executor to Sue. In a suit by a foreign execu- tor or administrator the objection that he has no capacity to sue is unavailable if urged for the first time in the appellate court. 76 (10) Copartnership of Plaintiff and Defendant. The objection that plain- tiff is a co-partner with the defendant, and therefore cannot maintain the suit, is waived unless made in the trial court, and cannot be urged for the first time in the appellate court. 77 (c) Exception to Rule Where Want of Authority to Sue Appears of Record. Louisiana. — Adams v. Coons, 37 La. Ann. 305. Maine. — Sargent v. Maehias, 65 Me. 591. Michigan. — Davison v. Davison, 99 Mich. 625, 58 N. W. 637. flew York.— Delafield v. Illinois, 26 Wend. (N. Y.) 192. Xorth Carolina. — Wellons !'. Jordan, 83 N. C. 371. Texas. — Reinhardt c. Pleasants, 36 Tex. 684. Applications of this rule. — Accordingly, where the trial of an action on a note pro- ceeds on the assumption that plaintiff was the owner and holder, his title cannot be ques- tioned in the appellate court (Decker v. House, 30 Kan. 614, 1 Pac. 584), even though it was put in issue by the pleadings (Moors v. Sanford, 2 Kan. App. 243, 41 Pac. 1064). And, in an action on a note, the objection that the legal title is not in plaintiff must be made at the trial, where it can be remedied, and not for the first time in the appellate court. Bowles v. Wright, 34 Miss. 409. 71. Irish v. Sharp, 89 111. 261; Smith v. Moore. 4 111. 462; Bowser r. Mattler, 137 Ind. 649, 35 N. E. 701, 36 N. E. 714; Van- derpool v. Brake, 28 Ind. 130: Stimpson v. Gilchrist, 1 Me. 202 ; Mechanics' Bank v. Gil- pin, 105 Mo. 17, 16 S. W. 524; Giraldin v. Howard, 103 Mo. 40, 15 S. W. 383. 72. Alabama. — Alabama Gold L. Ins. Co. r. Garner, 77 Ala. 210. Illinois. — Hughes v. Richter, 60 111. App. 616. Indiana. — Mahon r. Mahon, 19 Ind. 324. Missouri. — Reynolds' Appeal, 70 Mo. App. 576. Vol. II Tennessee. — Glass v. Stovall, 10 Humphr. (Tenn.) 452. Texas. — Rankin r. Busby, ( Tex. Civ. App. 1894) 25 S. W. 678. West Virginia. — List v. Pumphrey, 3 W. Va. 672. Illustrations. — Thus, the right of plaintiffs to represent a corporation, which right was not contested below, cannot be examined on appeal. Baillie v. Western Assur. Co., 49 La. Ann. 658, 21 So. 736; Player v. Tarkington, 4 La. Ann. 396. The defendant, in an action by a receiver, cannot object for the first time in the appellate court that the receiver had been discharged. Driver v. Lanier, 66 Ark. 126, 49 S. W. 816. 73. Stilwell r. Carpenter, 62 N. Y. 639, 2 Abb. N. Cas. (N. Y.) 238. 74. Bryan v. Moore, 11 Mart. (La.) 26, 13 Am. Dec. 347. 75. Mead p. Bagnall, 15 Wis. 156. 76. May r. Burk, 80 Mo. 675; Blackman v. Green, 17 Tex. 322. Thus if cannot be objected for the first time in the appellate court that the foreign executor or administrator has not filed his letters in the jurisdiction in which the suit is brought (Wayland v. Porterfield, 1 Mete. (Ky.) 638) ; that his appointment has not been authenticated in the manner required by law (Northwestern Mut. L. Ins. Co. v. Low- ery, 14 Ky. L. Rep. 600, 20 S. W. 607) ; or that he has not given the bond required by statute (Northwestern Mut. L. Ins. Co. v. Lowery, 14 Ky. L. Rep. 600. 20 S. W. 607 ) . 77. Selby v. Hutchinson, 9 111. 319; Cand- ler v. Rossiter, 10 Wend. (N. Y.) 487; Smith. v. Allen, 18 Johns. (N. Y.) 245 APPEAL AND ERROR 687 It has been held that where the record shows that there is no authority in plaintiff to maintain the suit, the objection will be fatal in the appellate court, although it was not made in the court below. 78 (n) Defect of Parties— (a) In General. The general rule is that an objec- tion to the want of proper parties, or to other defects as to parties, comes too late when raised for the first time on appeal. 79 (b) Want of Necessary Parties. Where, however, the omitted party is not only a proper but a necessary one, so that a final decree cannot be rendered without affecting his or her interests, the objection may be taken on appeal or writ of error. 80 78. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 1188; and Crosby v. Huston, 1 Tex. 203. In Thomas v. Franklin, 42 Nebr. 310, 60 N. W. 568, it was held that, in reviewing a special statutory proceeding, the court will look into the record to determine whether the person prosecuting , the suit is author- ized by statute so to do, though such author- ity was not questioned below. 79. Alabama. — Alexander v. Steele, 84 Ala. 332, 4 So. 281; Sanders v. Godley, 23 Ala. 473. Colorado. — Hagerman v. Bates, 24 Colo. 71, 49 Pac. 139 ; Melsheimer v. Hommel, 15 Colo. 475, 24 Pac. 1079. Georgia. — Howard v. Gray, 65 Ga. 182. Illinois. — Mantonya v. Reilly, 184 111. 183, 56 N. E. 425 [affirming 83 111. App. 275]; Atkinson v. Foster, 134 111. 472, 25 N. E. 528 ; Geist v. Rothschild, 90 111. App. 324. Indiana. — Hays v. Walker, 90 Ind. 105; Easter v. Severin, 78 Ind. 540. See also Phelps i>. Smith, 116 Ind. 387, 17 N. E. 602, 19 N. E. 156. Iowa. — Iowa Stone Co. v. Crissman, (Iowa 1900) 83 N. W. 794. Kansas. — Coop v. Condon, 6 Kan. App. 574, 51 Pac. 587. Kentucky. — Keith v. Wilson, 3 Mete. (Ky.) 201; Bailey v. Herron, 20 Ky. L. Rep. 1957, 50 S. W. 834. Massachusetts. — Evans v. Wall, 159 Mass. 164, 34 N. E. 183, 38 Am. St. Rep. 406. Michigan. — Clark v. O'Rourke, 111 Mich. 108, 69 N. W. 147, 66 Am. St. Rep. 389; But- terfield v. Gilchrist, 53 Mich. 22, 18 N. W. 542. Mississippi. — Planters' Oil Mill, etc., Co. v. Falls, (Miss. 1901) 29 So. 786; Walker v. Hall, 66 Miss. 390, 6 So. 318. Missouri. — Sensenderfer v. Kemp, 83 Mo. 581 ; Ingerham v. Weatherman, 79 Mo. App. 480. Nebraska. — Ayres v. Duggan, 57 Nebr. 750, 78 N. W. 296. New Jersey. — See Green v. Heritage, 63 N. J. L. 455, 43 Atl. 698. New York.— Hotopp v. Huber, 160 N. Y. 524, 55 N. E. 206 [affirming 16 App. Div. 327, 44 N. Y. Suppl. 617]; Rose v. Durant, 44 App. Div. 381, 61 N. Y. Suppl. 15; Phillips v. Metropolitan El. R. Co., 12 N. Y. App. Div. 283, 42 N. Y. Suppl. 33 ; Sheldon v. Wood, 2 Bosw. (N. Y.) 267; Kubin v. Miller, 61 N. Y. Suppl. 1121. Ohio. — Howard v. Levering, 8 Ohio Cir. Ct. 614. Oregon. — State v. Estes, 34 Oreg. 19, 51 Pac. 77, 52 Pac. 571, 55 Pac. 25. Texas. — Mateer v. Cockrill, 18 Tex. Civ. App. 391, 45 S. W. 751; Southern Bldg., etc., Assoc, v. Skinner, (Tex. Civ. App. 1897) 42 S. W. 320; Spicer v. Taylor, (Tex. Civ. App. 1893) 21 S. W. 314. Virqinia. — Chappell v. Robertson, 2 Rob. (Va.) 590. Washington. — Jenkins v. Columbia Land, etc., Co., 13 Wash. 502, 43 Pac. 328. Wisconsin. — La Crosse v. Melrose, 22 Wis. 459., United States. — Gibbs v. Diekma, 131 U. S. clxxxvi, appendix, 26 L. ed. 176; Wheeler v. Sedgwick, 94 U. S. 1, 24 L. ed. 31; People's Telephone, etc., Co. v. East Tennessee Tele- phone Co., 103 Fed. 212, 43 C. C. A. 185. See 2 Cent. Dig. tit. "Appeal and Error," § 1186. Thus, where a motion for the assessment of damages on an injunction bond was made by one only of the real parties in interest, and defendants did not, on the trial of the mo- tion, object, either by answer or demurrer, to the defect of parties plaintiff apparent on the face of the motion, they cannot make that ob- jection for the first time in the appellate court, but must be considered as having waived the same. Helmkampf v. Wood, 84 Mo. App. 261. 80. Alabama. — McCully v. Chapman, 58 Ala. 325; Gould v. Hayes, 19 Ala. 438. Florida. — Robinson v. Howe, 35 Fla. 73, 17 So. 368. Illinois.— Dubs v. Egli, 167 111. 514, 47 N. E. 766; Gerard v. Bates, 124 111. 150, 16 N. E. 258, 7 Am. St. Rep. 350. New Jersey. — McLaughlin v. Van Kueren, 21 N. J. Eq. 379; Berryman v. Graham, 21 N. J. Eq. 370. South Carolina. — But see Shell v. Boyd, 32 S. C. 359, 11 S. E. 205. Texas. — Monday v. Vance, 11 Tex. Civ. App. 374, 32 S. W. 559 ; Hanner v. Summer- hill, 6 Tex. Civ. App. 764, 26 S. W. 906. Virginia. — Thornton v. Gaar, 87 Va. 315, 12 S. E. 753, 15 Va. L. J. 102; Welsh v. Solen- berger, 85 Va. 441, 8 S. E. 91; Hinton v. Bland, 81 Va. 588. See 2 Cent. Dig. tit. "Appeal and Error," § 1187. Consent decree. — In Herndon v. Crawford, 41 Tex. 267, it was held that, where parties consented to a decree in the district court, they could not, for the first time in the su- preme court, take advantage of a want of necessary parties to the cause. Vol. II APPEAL AND ERROR (in) Misjoinder. The objection that there is a misjoinder of parties, either plaintiff or defendant, cannot be made for the first time in the appellate court. 81 (iv) Misnomer. The misnomer of a party to a cause cannot be objected to for the first time in the appellate court. 82 e. Relating to Process — (i) Absence of Service. It has been held that absence of service of process may be objected to for the first time on appeal. 83 (n) Defects in Process or Service!* However, objections based on de- fects of process — summons, citation, or notice — cannot be first raised on appeal. 85 Where the record discloses the fact that there are other parties whose rights will be materially affected by a decree in the cause it seems that the appellate court may, of its own motion, refuse to proceed further in the cause, although no objection is made on ac- count of want of parties. Beasley i?. Shively, 20 Oreg. 508, 26 Pac. 846. To the same ef- fect see Gerard v. Bates, 124 111. 150, 16 N. E. 258, 7 Am. St. Rep. 350. 81. Alabama. — Cazalas v. Rodayt, 35 Ala. 256; Harris v. Plant, 31 Ala. 639. Arkansas. — Collins r. Lightle, 50 Ark. 97, 6 S. W. 596; Long p. De Bevois, 31 Ark. 480. Colorado. — Moore v. Vickers, 3 Colo. App. 443, 34 Pac. 257; Atchison, etc.. R. Co. v. D.nver, 2 Colo. App. 436, 31 Pac. 240. Illinois. — Podolski r. Stone, 186 111. 540, 58 N. E. 340; Blankenbeker v. Ennis, 78 111. App. 457; Spraker v. Ennis, 78 111. App. 446; Nelson v. Smith, 54 111. App. 345. Indiana. — Gatling v. Newell, 9 Ind. 572. Iowa. — Easton v. Somerville, 111 Iowa 164, 82 N. W. 475; Beaeham n. Gurney, 91 Iowa 621, 60 N. W. 187. Minnesota. — Breault r. Merrill, etc., Lum- ber Co., 72 Minn. 143, 75 N. W. 122. Mississippi. — Pugh v. Boyd, 38 Miss. 326. Missouri. — Rothschild v. Lynch, 76 Mo. App. 339; Johnson v. Simmons, 61 Mo. App. 395. Nebraska. — Culbertson Irrigating, etc., Co. v. Wildman, 45 Nebr. 663, 63 N. W. 947. New York.— Allen r. Buffalo, 38 N. Y. 280; Tibbits v. Percy, 24 Barb. ( N. Y. ) 39 ; Bates v. James, 3 Duer (N. Y. ) 45. Texas. — Allen v. Read, 66 Tex. 13, 17 S. W. 115: Green v. Scottish- American Mortg. Co., 18 Tex. Civ. App. 286, 44 S. W. 319. Washington. — Le May r. Baxter, 11 Wash. 649, 40 Pac. 122; Phelps v. The Steamship City of Panama, 1 Wash. Terr. 518. United Stores.— Hayes v. Pratt, 147 TJ. S. 557, 13 S. Ct. 503, 37 L. ed. 279; Griffin r. Reynolds, 17 How. (U. S.) 609, 15 L. ed. 229. See 2 Cent. Dig. tit. "Appeal and Error," § 1185. 82. Thus, the objection that plaintiff cor- poration did not sue in the proper corporate name, if such objection be made for the first time on appeal, will not be considered. Rich- wine v. Noblesville Presb. Church, 135 Ind. 80, 34 N E. 737. So, in an action to foreclose a mortgage, one of the parties defendant was described by his full name in the pleadings, but in the report of sale and order of con- firmation by his initials only. It was claimed, on appeal, that the report and order were in- Vol. II valid because the party defendant was not stated therein: but it was held that, the point not having been raised in the court be- low, it would not be considered on appeal. Piper r. Sawyer, (Minn. 1901) 85 N. W. 206. 83. Shannon v. Goffe, 15 La. Ann. 86; State v. Whittet, 61 Wis. 351, 21 N. W. 245 ; and see 2 Cent. Dig. tit. "Appeal and Er- ror," § 1190 ct seq. 84. As to amendment of process or waiver of defects therein see Appearances; Proc- ess. 85. A labama. — Bancroft v. Stanton, 7 Ala. 351 ; Sawyer P. Price, 6 Ala. 285. Colorado. — Hook v. Fenner, 18 Colo. 283, 32 Pac. 614, 36 Am. St. Rep. 277. Florida.— Keil v. West, 21 Fla. 508. Georgia. — Raney v. MeRae, 14 Ga. 589, 60 Am. Dec. 660. Illinois. — Cruikshank v. Brown, 10 111. 75. Indiana. — -Hawkins v. McDougal, 128 Ind. 539, 25 N. E. 820. Iowa.— Gray v. Wolf, 77 Iowa 630, 42 N. W. 504; Dougherty v. MeManus, 36 Iowa 657. Maine. — Piper v. Goodwin, 23 Me. 251. Massachusetts. — Burlen r. Shannon, 115 Mass. 438. Michigan. — Adair i\ Cummin, 48 Mich. 375, 12 N. W. 495. Mississippi. — Wiggle v. Owen, 45 Miss. 691. New York. — Campbell r. Wright, 21 How. Pr. (N. Y.) 9. Tennessee. — Odell v. Koppee, 5 Heisk. (Tenn.) 88. Texas. — Cave v. Houston, 65 Tex. 619; Marshall v. Marshall, (Tex. Civ. App. 1895) 30 S. W. 578. See 2 Cent. Dig. tit. "Appeal and Error," § 1190 et seq. Applications of this rule. — Tims, it cannot be objected for the first time on appeal that there was ■■< variance between the process and the pleadings (Ferguson i'. George, 42 Ala. 135; Roberts r. Johnson, 2 Stew. (Ala.) 13: Davis v. American, etc., Christian Union, 100 111. 313: Holley v. Knapp, 45 111. App. 372; Palmer v. McGinnis, Hard. (Ky.) 505; Ken- nedy v. Terrill, Hard. (Ky.) 490; Haskins t\ Citizens Bank, 12 Nebr. 39. 10 N. W. 466) ; that the citation was without a seal (Wiggle «'. Owen, 45 Miss. 691) ; that there is a cler- ical error in the date of the process (Allen v. Traylor, 31 Tex. 124) ; or that the summons was without a stamp (Roberts v. Formhalls, 46 111.66). In Texas it has been held that if the process APPEAL AND ERROR 689 It is also well settled that objections based on defects in service 86 or return of process cannot be raised for the first time on appeal. 87 f . Relating to Pleadings m — (i) Absence of Pleadings. It has been held that after judgment by confession no advantage can be taken on appeal because of the want of a declaration, 89 and that when one of several plaintiffs has come into a case after issue joined, the objection that he tenders no pleading must be made in the trial court. 90 So it cannot first be objected on appeal that no reply or replication was filed. 91 (n) Sufficiency and Form of Pleadings'®— (a) In General. Objections which go merely to the form of the pleadings are waived unless raised in the court below. 93 It cannot be objected for the hrst time on appeal that the cause is absolutely void the objection may be raised first on appeal. Hale v. McComas, 59 Tex. 484; Crain v. Griffis, 14 Tex. 358. There are also some Texas decisions which do not seem to agree with the Texas decisions cited in support of the text. It has been held that the absence of the file number (Durham v. Betterton, 79 Tex. 223, 14 S. W. 1060), of the date of filing petition (Railroad Co. v. Erving, 2 Tex. App. Civ. Cas. § 122 ; Kirk v. Hampton, 2 Tex. App. Civ. Cas. § 719), of the date of issuance (Railroad Co. r. Pape, 1 Tex. App. Civ. Cas. § 243 ) , of the names of all the parties to the suit (Owsley v. Paris Exch. Bank, 1 Tex. Unrep. Cas. 93), or of the chris- tian names of defendants (Carlton r. Miller, 2 Tex. Civ. App. 619, 21 S. W. 697) , is ground for reversal, though defendant made no ob- jection in the court below. 86. Alabama. — Herbert v. Varner, 42 Ala. 182; Moore v. Piquett, 19 Ala. 236. Florida.— Keil r. West, 21 Fla. 508. Illinois. — Wayman v. Crozier, 35 111. 156; Swingley v. Haynes, 22 111. 214. Iowa. — Davis v. Burt, 7 Iowa 56. Mississippi. — Thornton v. Fitzhugh, 10 Sm. & M. (Miss.) 438. New York. — Miller v. Jones, 67 Hun (N. Y.) 281, 22 N. Y. Suppl. 86, 51 N. Y. St. 361 ; Mvers v. Overton, 4 E. D. Smith (N. Y.) 428. South Carolina.- — ■ Beattie v. Latimer, 42 S. C. 313, 20 S. E. 53. Texas. — Hale v. McComas, 59 Tex. 484. Virginia. — Gunn v. Turner, 21 Gratt. (Va.) 382. West Virginia. — Scott v. Ludington, 14 W. Va. 387. Defects in service by publication cannot be objected to for the first time on appeal. Woods v. Mosier, 22 Mo. 335. 87. Martin v. Godwin, 34 Ark. 682; Keil v. West, 21 Fla. 508; Davis v. Burt, 7 Iowa 56; Shenandoah Valley R. Co. v. Griffith, 76 Va. 913. 88. See 2 Cent. Dig. tit. "Appeal and Er- ror," §| 1209, 1221 et seq. 89. Payne v. Lewis, 1 Bibb (Ky.) 164; Pickett v. Claiborne, 4 Call (Va.) 99. 90. Lallman v. Hovey, 92 Hun (N. Y.) 419, 36 N. Y. Suppl. 662, 71 N. Y. St. 576. The want of a declaration in a writ cannot first be taken advantage of on appeal after a trial on the merits in the inferior court. Lane v. Roberts, 3 Gray (Mass.) 514. [44] 91. Robinson Reduction Co. v. Johnson, 10 Colo. App. 135, 50 Pac. 215; Lyford v. Mar- tin, 79 Minn. 243, 82 N. W. 479; Merchants Nat. Bank v. Barlow, 79 Minn. 234, 82 N. W. 364; Howe v. Pacific Mut. L. Ins. Co., 75 Mo. App. 63; Hudson v. Voigt, 15 Ohio Cir. Ct. 391. 92. See also, generally, Equity; Plead- ing. 93. Alabama. — Stewart v. Goode, 29 Ala. 476. Arizona. — Dalton v. Rentaria, (Ariz. 1887) 15 Pac. 37. California. — White v. San Rafael, etc., R. Co., 50 Cal. 417; Sutter v. Cox, 6 Cal. 415. Colorado. — Kimball v. Lyon, 19 Colo. 266, 35 Pac. 44; Gallup v. Wortmann, 11 Colo. App. 308, 53 Pac. 247. Connecticut. — Miller v. Cross, (Conn. 1901) 48 Atl. 213. Illinois. — -Northwestern Brewing Co. v. Manion, 47 111. App. 627. Indiana. — Simons v. Busby, 119 Ind. 13, 21 N. E. 451 ; Aiken v. Bruen, 21 Ind. 137. Iowa. — Beaeham v. Gurney, 91 Iowa 621, 60 N. W. 187. Kentucky. — Preston v. Brown, (Ky. 1901) 62 S. W. 265; Louisville, etc., R. Co. v. Pay- ton, 20 Ky. L. Rep. 75, 45 S. W. 83. Maryland. — Hardey v. Coe, 5 Gill (Md.) 189. Massachusetts. — Com. v. Flannigan, 137 Mass. 560; Com. v. Donahoe, 130 Mass. 280. Michigan. — County Treasurer v. Bunbury, 45 Mich. 79, 7 N. W. 704. Mississippi. — Brown v. Ashford, 56 Miss. 677; Hargroves v. Thompson, 31 Miss. 211. Missouri. — Kennayde v. Pacific R. Co., 45 Mo. 255 ; Henson v. St. Louis, etc., R. Co., 34 Mo. App. 636. Montana. — Burke v. Interstate Sav., etc., Assoc, (Mont. 1901) 64 Pac. 879. Nebraska. — Clay v. Greenwood, 35 Nebr. 736, 53 N. W. 659; Chicago, etc., R. Co. v. Lundstrom, 16 Nebr. 254, 20 N. W. 198, 49 Am. Rep. 718. New York. — Barnes v. Perine, 12 N. Y. 18. North Carolina. — Bennett v. Western Union Tel. Co., 128 N. C. 103, 38 S. E. 294. Ohio. — Horning v. Poyer, 18 Ohio Cir. Ct. 732, 6 Ohio Cir. Dec. 370. Oklahoma. — Twine v. Kilgore, 3 Okla. 640, 39 Pac. 388. South Carolina. — Price v. Krasnoff, ( S. C. 1901) 38 S. E. 413. m exas. — O'Connor V. Towns, 1 Tex. 107; Vol. II 690 APPEAL AND ERROR of action 94 or defense 95 is defectively stated, or that the complaint or declaration is indefinite or uncertain ; 96 that it contains redundant matter ; m that there are verbal inaccuracies 98 or clerical errors therein ; " tLat a copy of the instrument sued on was not hied therewith ; 1 that the complaint contains no statutory prayer ; 2 that the relief granted is not authorized by the prayer ; 3 that there is a misjoinder of causes of action ; 4 that the pleading is bad for duplicity; 6 or that separate causes of action, properly triable together, are not separately stated and numbered in the petition. 6 Gulf, etc., R. Co. v. Wilbanks, 7 Tex. Civ. App. 489, 27 S. W. 302. Washington. — Howard v. Hibbs, 22 Wash. 513, 61 Pao. 159. United States. — Ankeny v. Clark, 148 U. S. 345, 13 S. Ct. 617, 37 L. ed. 475; McMaster v. New York L. Ins. Co., 99 Fed. 856, 40 C. C. A. 119. See 2 Cent. Dig. tit. "Appeal and Error," § 1224 et seq. 94. Connecticut. — Broekett v. Fair Haven, etc., R. Co., (Conn. 1900) 47 Atl. 763. Indiana. — Mieks v. Stevenson, 22 Ind. App. ' 475, 51 ST. E. 492; Heyde v. Suit, 22 Ind. App. 83, 52 N. E. 456; Indiana Ins. Co. V. Pringle, 21 Ind. App. 559, 52 N. E. 821. Massachusetts. — O'Brien v. Nute-Hallett Co., 177 Mass. 422, 59 N. E. 65. Minnesota. — Dorr v. McDonald, 43 Minn. 458, 45 N. W. 864. Missouri. — Estes v. Desnoyers Shoe Co., 155 Mo. 577, 56 S. W. 316. Montana. — Montana Nat. Bank v. Mer- chants Nat. Bank, 19 Mont. 586, 49 Fac. 149, 61 Am. St. Rep. 532. New York.— Schoepflin v. Coffey, 162 N. Y. 12, 56 N. E. 502. North Carolina. — Hanover Nat. Bank v. Cocke, 127 N. C. 467, 37 S. E. 507. Oregon. — Weaver v. Southern Oregon Co., 31 Oreg. 14, 48 Pae. 167; Askren v. Squire, 29 Oreg. 228, 45 Pae. 779. Virginia. — Matney v. Ratliff, 96 Va. 231, 31 S. E. 512. 95. Diefendorff v. Hopkins, 95 Cal. 343, 28 Pae. 265, 30 Pae. 549 ; Havden v. Missouri, etc., R. Co., 124 Mo. 566, 28 S. W. 74 : Haynes r. Trenton, 123 Mo. 326, 27 S. W. 622 ; Orr v. Haskell. 2 Mont. 225; Neis v. Franzen, 18 Wis. 537. 96. California. — Carpenter v. Furrey, 128 Cal. 665, 61 Pae. 369. Connecticut. — Broekett v. Fair Haven, etc., R. Co., (Conn. 1900) 47 Atl. 763. Illinois. — Smith v. Henline, 174 111. 184, 51 N. E. 227. Indiana. — Sheeks v. State, 156 Ind. 508, 60 N. E. 142; German F. Ins. Co. v. Seibert, 24 Ind. App. 279, 56 N. E. 686. Missouri. — Green v. Supreme Lodge Nat. Reserve Assoc., 79 Mo. App. 179. Where no objection is made on account of the insufficiency of description of the property in litigation, there can be no objection on ap- peal on the ground of insufficiency of descrip- tion. Kocher v. Palmetier, (Iowa 1900) 83 N. W. 816 ; Graves v. Barrett, 126 N. C. 267, 35 S. E. 539; Moor v. Moor, (Tex. Civ. App. 1900) 57 S. W. 992. 97. Bright v. Ecker, 9 S. D. 192, 68 N. W. 326. Vol. II 98. Houston, etc., R. Co. v. Rowell, (Tex. Civ. App. 1898) 45 S. W. 763. 99. Gable v. Seiben, 137 Ind. 155, 36 N. E. 844; Rogers v. Golson, (Tex. Civ. App. 1895) 31 S. W. 200. 1. Chumasero v. Gilbert, 26 111. 39; Mc- Gonnigle v. McGonnigle, 5 Pa. Super. Ct. 168. See also Wescott v. Menard, Dall. (Tex.) 503. But see Old v. Mohler, 122 Ind. 594, 23 N. E. 967, in which it was held that, under a statute providing that when any pleading is founded on a written instrument, such in- strument, or a copy of it, must be filed with the pleading, a complaint for breach of cove- nant in a deed, where neither the deed nor a copy of it is filed, is insufficient to sustain a judgment by default, even when questioned for the first time on appeal. 2. Smith v. Soper, 12 Colo. App. 264, 55 Pae. 195. 3. Colorado. — Ensley v. Page, 13 Colo. App. 452, 59 Pae. 225. Ioioa. — Williams v. Wilcox, 66 Iowa 65, 23 N. W. 266; Boude v. Methodist Episcopal Church, 47 Iowa 705. Pennsylvania. — DorfT v. Sehmunk, 197 Fa. St. 298, 47 Atl. 113. Texas. — International, etc., R. Co. v. Cook, (Tex. Civ. App. 1895) 33 S. W. 888. United States. — ■ Morrow Shoe Mfg. Co. v. New England Shoe Co., 57 Fed. 685, 18 U. S. App. 256, 6 C. C. A. 508, 24 L. R. A. 417. 4. Alabama. — Richmond, etc., R. Co. v. Jones, 102 Ala. 212, 14 So. 786; Walker v. Mobile Mar. Dock, etc., Ins. Co., 31 Ala. 529. Indiana. — Mark v. North, 155 Ind. 575, 57 N. E. 902: Rankin v. Collins, 50 Ind. 158; Rutherford v. Moore, 24 Ind. 311 ; Pittsburgh, etc., R. Co. v. Carlson, 24 Ind. App. 559, 56 N. E. 251. Iowa. — Hines v. Horner, 86 Iowa 594, 53 N. W. 317; Baugh v. Barrett, 69 Iowa 495, 29 N. W. 425. Kentucky. — Hardigen v. Simpkins, 19 Ky. L. Rep. 1376, 43 S. W. 410. Minnesota. — St. Paul v. Kuby, 8 Minn. 154. Missouri. — Kansas City Hotel Co. v. Sige- ment, 53 Mo. 176; Brent v. Shelley, 5 Mo. App. 580 ; Schuricht v. Broadwell, 4 Mo. App. 160. Nebraska. — North Bend First Nat. Bank v. Miltonberger, 33 Nebr. 847, 51 N. W. 232. Contra. — Boerum v. Taylor, 19 Conn. 122; Dalson v. Bradberry, 50 111. 82. 5. Northwestern Brewing Co. v. Manion, 47 111. App. 627 ; Brown v. Ashford, 56 Miss. 677 ; Howard v. Clark, 43 Mo. 34 ' 6. Kennedy v. Dodge, 19 Ohio Cir. Ct. 425, 10 Ohio Cir. Dec. 360. APPEAL AND ERROR 691 (b) Failure to State a Cause of Action or a Defense. While it is the rule in a few jurisdictions that the objection that the complaint does not state facts suffi- cient to constitute a cause of action is waived by a failure to raise that objection below in some appropriate manner, 7 it is well settled in most jurisdictions that an objection of this character may be urged for the first time on appeal. 8 Neverthe- less the reviewing court does not look upon such an objection with favor, and the complaint will be construed liberally and supported by every legal intendment, 9 and, if it states facts sufficient to render the judgment thereon a complete bar to another suit for the same cause of action, it will withstand the attack. 10 It has 7. Iowa. — Osborne v. Metcalf, (Iowa 1900) 84 N. W. 685; Iowa Stone Co. v. Crissman, (Iowa 1900) 83 N. W. 794; Hendershott v. Hollister, 46 Iowa 710. Kansas. — McBride v. Hartwell, 2 Kan. 410. Louisiana. — See Yorke v. Scott, 23 La. Ann. 54. New York.— Knapp v. Simon, 96 N. Y. 284; Hofheimer v. Campbell, 59 N. Y. 269; Aber- nethy v. Church of Puritans Soc, 3 Daly (N. Y.) 1; Hinds v. Kellogg, 13 N. Y. Suppl. 922, 37 N. Y. St. 356 [affirmed in 133 N. Y. 536, 30 N. E. 1148, 44 N. Y. St. 929]. South Carolina. — Green v. Green, 50 S. C. 514, 27 S. E. 952, 62 Am. St. Rep. 846 ; Miller v. George, 30 S. C. 526, 9 S. E. 659. Wisconsin. — Midlothian Iron Min. Co. v. Dahlby, 108 Wis. 195, 84 N. W. 152 ; Momsen e. Atkins, 105 Wis. 557, 81 N. W. 647. 8. Alabama. — Louisville, etc., R. Co. v. Williams, 113 Ala. 402, 21 So. 938; Marion v. Regenstein, 98 Ala. 475, 13 So. 384. California. — Haskell v. Moore, 29 Cal. 437 ; Russell v. Byron, 2 Cal. 86. Colorado. — Hoy v. Leonard, 13 Colo. App. 449, 59 Pac. 229; Nylan v. Renhard, 10 Colo. App. 46, 49 Pac. 266 ; Creswell v. Woodside, 3 Colo. App. 514, 46 Pac. 842. Florida. — Eddins v. Tweddle, 35 Fla. 107, 17 So. 66; Pittman v. Myrick, 16 Fla. 692. Idaho. — Gorman v. Boise County Com'rs, 1 Ida. 655. Illinois. — Bowman v. People, 114 111. 474, 2 N. E. 484; Chicago, etc., R. Co. v. Eselin, 86 111. App. 94. Indiana. — Bertha v. Sparks, 19 Ind. App. 431, 49 N. E. 831; Metropolitan L. Ins. Co. v. McCormick, 19 Ind. App. 49, 49 N. E. 44, 65 Am. St. Rep. 392; Western Assur. Co. v. Koontz, 17 Ind. App. 54, 46 N. E. 95; Cincin- nati, etc., R. Co. v. Stanley, 4 Ind. App. 364, 30 N. E. 1103. Kentucky. — Walters v. Chinn, 1 Mete. (Ky.) 499; Fible v. Caplinger, 13 B. Mon. (Ky.) 464. Massachusetts. — Perry v. Goodwin, 6 Mass. 498. Missouri. — Childs v. Kansas City, etc., R. Co., (Mo. 1891) 17 S. W. 954; Smith v. Bur- rus, 106 Mo. 94, 16 S. W. 881, 27 Am. St. Rep. 329, 13 L. R. A. 59. Montana. — Morse v. Swan, 2 Mont. 306; Territory v. Virginia Road Co., 2 Mont. 96. Nebraska. — Kemper, etc., Dry Goods Co. v. Renshaw, 58 Nebr. 513, 78 N. W. 1071; Hudel- son v. Tobias First Nat. Bank, 51 Nebr. 557, 71 N. W. 304. North Carolina. — Manning v. Roanoke, etc., R. Co., 122 N. C. 824, 28 S. E. 963; Ladd v. Ladd, 121 N. C. 118, 28 S. E. 190. Ohio. — Toomey v. Avery Stamping Co., 20 Ohio Cir. Ct. 183. Oregon. — Ball v. Doud, 26 Oreg. 14, 37 Pac. 70; Bowen v. Emmerson, 3 Oreg. 452. South Dakota. — Johnson v. Burnside, 3 S. D. 230, 52 N. W. 1057; Porter v. Booth, 1 S. D. 558, 47 N. W. 960. Tennessee. — Turnley v. Clarksville, etc., R. Co., 2 Coldw. (Tenn.) 327; Shelton v. Bruce, 9 Yerg. (Tenn.) 24. Utah. — Holt v. Pearson, 12 Utah 63, 41 Pac. 560. United States. — Slacum v. Pomery, 6 Cranch (U. S.) 221, 3 L. ed. 205. See 2 Cent. Dig. tit. "Appeal and Error," § 1223 et seq. Limitations of rule — Objections to one of several paragraphs. — The practice that per- mits an objection to a complaint for the first time on appeal, on the ground that such com- plaint does not state a cause of action, has no application in the case of an objection to one of several paragraphs of a complaint. Ash- ton v. Shepherd, 120 Ind. 69, 22 N. E. 98; Branch v. Faust, 115 Ind. 464, 17 N. E. 898; Carr v. State, 81 Ind. 342. 9. Colorado. — Insurance Co. of North Amer- ica v. Bonner, 24 Colo. 220, 49 Pac. 366. Indiana. — Du Souchet v. Dutcher, 113 Ind. 249, 15 N. E. 459. Minnesota. — Smith v. Dennett, 15 Minn. 81. Nebraska. — Philadelphia F. Assoc, v. Ruby, 60 Nebr. 216, 82 N. W. 62'9; Omaha Nat. Bank v. Kiper, (Nebr. 1900) 82 N. W. 102. Ohio. — Toomey v. Avery Stamping Co., 20 Ohio Cir. Ct. 183, II Ohio Cir. Dec. 216. Washington. — Bishop v. Averill, 17 Wash. 209, 49 Pac. 237, 50 Pac. 1024. 10. Du Souchet v. Dutcher, 113 Ind. 249, 15 N. E. 459 ; McCreery v. Nordyke, 23 Ind. App 630, 53 N. E. 849, 55 N. E. 967; Cleveland, etc., R. Co. v. Baker, 24 Ind. App. 152, 54 N. E. 814; Crouch v. Chamness, 21 Ind. App. 492, 51 N. E. 941; Pipkin v. National Loan, etc., Assoc, 80 Mo. App. 1. Where the complaint is sufficient, contention that the complaint and reply together admit an alleged defense is not within the rule that objections to the sufficiency of the complaint may be raised for the first time on appeal, without an assignment of error. The right of a plaintiff to the relief which he prays must be measured by the allegations of his com- plaint, and not by what he may aver in his reply. Wyatt v. Henderson, 31 Oreg. 48, 48 Pac. 790. Vol. II 692 APPEAL AND ERROR similarly been held in some jurisdictions, where an objection to a complaint for failure to state a cause of action is waived by failure to present it in the court below, that the objection that the answer fails to state a defense cannot be urged for the first time in the reviewing court ; u and in some jurisdictions, where the sufficiency of the complaint to state a cause of action is not waived by failure to object thereto in the court below, the sufficiency of an answer to state a defense may be urged for the first time on appeal. 12 g. Relating to Provisional Remedies. Objections to proceedings relating to provisional remedies must be made in the trial court. 13 Thus, an objection to the validity of an attachment proceeding is not available if made for the first time on appeal. 14 h. Relating to References. Objection that a cause was irregularly or improp- erly referred cannot be raised for the first time on appeal 15 — as that the cause was referred without the consent of the parties ; 16 that the reference was filed in vacation and not in open court as required by agreement ; 17 or that the person 11. Alleman v. Stepp, 52 Iowa 626, 3 N. W. 636, 35 Am. Rep. 288; Effray v. Masson, 28 Abb. N. Cas. (N. Y.) 207, 18 N. Y. Suppl. 353, 45 N. Y. St. 296. 12. Caldwell v. Ruddy, 2 Ida. 5, 1 Pae. 339; Brugman v. Burr, 30 Nebr. 406, 46 N W. 644. Compare Dunham v. Courtnay, 24 Nebr. 627, 39 N. W. 784 ; and see Moreland v. Thorn, 143 Ind. 211, 42 N. E. 639, in which it is held that the rule applicable to complaints has no ap- plication to answers. 13. Alabama. — Johnston v. Hannah, 66 Ala. 127. Arkansas. — Landfair v. Lowman, 50 Ark. 446, 8 S. W. 188 ; Fletcher v. Menken, 37 Ark. 200. California. — Matter of Mealy, 127 Cal. 103, 59 Pae. 313; Wolters v. Rossi, 126 Cal. 644, 59 lac. 143. Illinois. — Commercial Nat. Bank v. Payne, 161 111. 316, 43 N. E. 1070; Kehm v. Mott, 86 111. App. 549. Iowa. — Blair v. Sioux City, etc., R. Co., (Iowa 1898) 73 N. W. 1053; American Ex- press Co. v. Smith, 57 Iowa 242, 10 N. W. 655. Kansas. — Leser v. Glaser, 32 Kan. 546, 4 Pae. 1026. Kentucky. — Buffington v. Mosby, 17 Ky. L. Rop. 1307, 34 S. W. 704. Louisiana. — Ledoux v. Smith, 4 La. Ann 482. Maryland. — Coward v. Dillinger, 56 Md. 59; Mears v. Adreon, 31 Md. 229. Minnesota. — Brown v. Minneapolis Lumber Co., 25 Minn. 461. Mississippi. — Thompson v. Raymon, 7 How (Miss.) 186. Missouri. — Alexander v. Hayden, 2 Mo. 211. Ne,w York. — Weehawken Wharf Co. v. Knickerbocker Coal Co., 22 Misc. (N. Y.) 559 49 N. Y. Suppl. 1001 ; Engelage v. Raymond' IS N. Y. Suppl. 364, 45 N. Y. St. 291. Tennessee. — Gordonsville Milling Co. v. Jones, (Tenn. Ch. 1900) 57 S. W. 630; Rogers v. Rogers, (Tenn. Ch. 1896) 42 S. W. 70. Texas. — Seinsheimer v. Flanagan, 17 Tex Civ. App. 427, 44 S. W. 30; Merielles v. State Bank, 5 Tex. Civ. App. 483, 24 S. W. 564. Virginia. — Sims v. Tyrer, 96 Va. 5, 26 S. E. Vol. II 508; McAllister v. Guggenheimer, 91 Va. 317, 21 S. E. 475. Wisconsin. — Oppermann v. Waterman, 94 Wis. 583, 69 N. W. 569. Wyoming. — Roy v. Union Mercantile Co., 3 Wyo. 417, 26 Pae. 996. See 2 Cent. Dig. tit. "Appeal and Error," § 1216 et seq. 14. Fears r. Thompson, 82 Ala. 294, 2 So. 719; McAbee v. Parker, 78 Ala. 573; and see 2 Cent. Dig. tit. " Appeal and Error," § 1216 et seq. Judgment by default. — But where a. judg- ment in an attachment suit is by default, ob- jection to the sufficiency of the affidavit upon which the proceedings are based, going, as it does, to the jurisdiction of the lower court, may be made upon appeal. Reitz v. People, 77 111. 518; Adams v. Merritt, 10 111. App. 275. Compare Decatur, etc., Imp. Co. v. Crass, 97 Ma.. 524, 12 So. 41. Objection to the sufficiency of an attach- ment bond comes too late if made in the first instance on appeal. Alabama. — Fleming v. Burge, 6 Ala. 373; Conklin v. Harris, 5 Ala. 213. Arkansas. — Fletcher v. Menken, 37 Ark. 206. Illinois. — Lawver v. Langhans, 85 111. 138; Morris v. School Trustees, 15 111. 266. Iowa. — Bretney v. Jones, 1 Greene (Iowa) 366. Kansas.— Myers v. Cole, 32 Kan. 138, 4 Pae. 169. New York.— Northrup v. Garrett, 17 Hun See, generally, Attachment; and 2 Cent. Dig. tit. "Appeal and Error, § 1218. 15. Goodwin v. Hedriek, 24 Ind. 121; Bar- tholomew v. Lehigh County, 148 Pa. St. 82 30 Wkly. Notes Cas. (Pa.) 150, 23 Atl. 1122; Manning v. Leighton, 66 Vt. 56, 28 Atl. 630; Young v. Schenck, 22 Wis. 556. As to objections relating to reports of au- ditors, masters, or referees, see infra, V, B, 1, m. 16. Joshua Hendy Maeh. Works v. Pacific Cable Constr. Co., 99 Cal. 421, 33 Pae. 1084; Dundee Mortg., etc., Invest. Co. v. Hughes, 124 U. S. 157, 8 S. Ct. 377, 31 L. ed. 357. 17. Ross v. Helton, 4 Ind. 273. APPEAL AND ERROR 693 to whom the cause was referred was without power to act as such. 18 Nor can it be objected for the first time on appeal that the referee had not taken the oath prescribed ; M that the trial by reference was held outside of the jurisdiction of the supreme court; 20 that an account should have been referred to a master instead of being stated by the court ; 21 that the record of the cause tried by the referee does not show an order of reference ; 2a or that an order of reference was improperly set aside. 23 i. Relating to Evidence and Witnesses 24 — (i) In General. All objections to the admission or exclusion of evidence, its competency, relevancy or sufficiency, and as to the competency of witnesses and their examination, must be made in the trial court. They cannot be raised for the first time on appeal. 25 (n) Admission of Evidence. As just stated, objections to the admission of 18. Robertson v. Consolidated Boat Store Co., 5 Ohio N. P. 257 ; Scott v. Seott, 196 Pa. St. 132, 46 Atl. 379. 19. Kerr v. Dudley, 26 Colo. 457, 58 Pac. 610. 20. Blevins v. Morledge, 5 Okla. 141, 47 Pac. 1068. 21. Whittemore v. Fisher, 132 111. 243, 24 N. E. 636. See also Dorr v. Dewing, 36 W. Va. 466, 15 S. E. 93. 22. Spencer v. Levering, 8 Minn. 461. 23. Casky v. January, Hard. (Ky.) 539; and see 2 Cent. Dig. tit. " Appeal and Error," § 1248 et seq.; infra, V, B, 1, m; and, gener- ally, References. 24. See also, generally, Depositions; Equity; Pleading; References; Trial; Witnesses. 25. Alabama. — Watson v. Simmons, 91 Ala. 567, 8 So. 347; Rice v. Tobias, 89 Ala. 214, 7 So. 765. Arkansas. — Heaslet v. Spratlin, 54 Ark. 185, 15 S. W. 461. California. — Bennett v. Green, 74 Cal. 425, 16 Pac. 231; Scott v. Sierra Lumber Co., 67 Cal. 71, 7 Pac. 131. Colorado. — Northern Colorado Irrigation Co. v. Richards, 22 Colo. 450, 45 Pac. 423; Strassheim v. Cole, 14 Colo. App. 164, 59 Pac. 479. Connecticut. — Leonard v. Charter Oak L. Ins. Co., 65 Conn. 529, 33 Atl. 511. Florida. — McSwain v. Howell, 29 Ela. 248, 10 So. 588. Georgia. — Arline v. Miller, 22 Ga. 330. Idaho. — Darby v. Heagerty, 2 Ida. 260, 13 Pac. 85. Illinois. — Montgomery v. Black, 124 111. 57, 15 N. E. 48 ; Miller v. Potter, 59 111. App. 125. Indiana. — Howlett v. Scott, 100 Ind. 485; Adams v. Bullock, (Ind. App. 1901) 59 N. E. 1081. Iowa. — Hough v. Gearen, 110 Iowa 240, 81 N. W. 463 ; Sawin v. Union Bldg., etc., Assoc, 95 Iowa 477, 64 N. W. 401. Kansas. — Brumbaugh v. Schmidt, 9 Kan. Kentucky. — Cahill v. Bigger, 8 B. Mon. (Ky.) 211; Luker v. Com., 9 Ky. L. Rep. 385, 5 S. W. 354. Louisiana. — Heiss v. Corcoran, 15 La. Ann. 694; Wilcox v. His Creditors, 11 Rob. (La.) 346. Maine. — Witherell v. Maine Ins. Co., 49 Me. 200; Gardner v. Gooch, 48 Me. 487. Maryland. — Long v. Long, 9 Md. 348 ; Luck- ett v. White, 10 Gill & J. (Md.) 480. Massachusetts. — Hall v. Lowell, 10 Cush. (Mass.) 260. Michigan. — Barbier v. Young, 115 Mich. 100, 72 N. W. 1096 ; Phippen v. Morehouse, 50 Mich. 537, 15 N. W. 895. Minnesota. — - Redmond v. St. Paul, etc., R. Co., 39 Minn. 248, 40 N. W. 64; Osborne v. Williams, 37 Minn. 507, 35 N. W. 371. Mississippi. — McComb v. Turner, 14 Sm. & M. (Miss.) 119; Chew v. Read, 11 Sm. & M. (Miss.) 182. Missouri. — State v. Lett, 85 Mo. 52. Montana. — Merchant's Nat. Bank v. Green- hood, 16 Mont. 395, 41 Pac. 250, 851; Brand v. Servoss, 11 Mont. 86, 27 Pac. 407. Nebraska. — Fuller v. Cunningham, 48 Nebr. 857, 67 N. W. 879; Wohlenberg v. Melehert, 35 Nebr. 803, 53 N. W. 982. New Hampshire. — Boyce v. Cheshire R. Co., 43 N. H. 627. New Jersey. — Coxe v. Field, 13 N. J. L. 215. Nenv York. — Matter of Yates, 99 N. Y. 94, 1 N. E. 248; Hawley v. Gloversville, 4 N. Y. App. Div. 343, 38 N. Y. Suppl. 647, 74 N. Y. St. 513. North Carolina. — Scott v. Green, 89 N. C. 278. Ohio. — Baird v. Clark, 12 Ohio St. 87; Eilers v. National L. Ins. Co., 2 Cine. L. Bui. 333. Oregon. — Aldrich v. Columbia Southern R. Co., (Oreg. 1901) 64 Pac. 455. South Carolina. — Bowen v. Atlantic, etc., R. Co., 17 S. C. 574; Powers v. McEachern, 7 S. C. 290. Tennessee. — Gunn v. Mason, 2 Sneed (Tenn.) 637; Betts v. Demumbrune, Cooke (Tenn.) 39. Texas. — Mullins v. Thompson, 51 Tex. 7; Gill v. Bickel, 10 Tex. Civ. App. 67, 30 S. W. 919. Virginia. — Smith v. Burton, 94 Va. 158, 26 S. E. 412. Washington. — Sears v. Seattle Consol. St. R. Co., 6 Wash. 227, 33 Pac. 389, 1081. Wisconsin. — Mowry v. Mosher, 16 Wis. 46; Dernier v. Durand, 15 Wis. 580. United States. — Gorham Mfg. Co. v. Em- ery-Bird-Thayer Dry-Goods Co., 104 Fed. 243, 43 C. C. A. 511 [affirming 92 Fed. 774]. And see 2 Cent. Dig. tit. "Appeal and Er- ror," § 1258. As to necessity of ruling on objections to evidence, see infra, V, B, 1, v, (in). Vol. II 694 APPEAL AND ERROR evidence can in no case be raised for the first time on appeal, and the rule is applicable no matter what may be the grounds which render the evidence inadmissible. 26 The rule has been applied to the improper admission of hearsay 26. Alabama. — Southern R. Co. v. Wild- man, 119 Ala. 565, 24 So. 764; Dean v. With- erington, 116 Ala. 573, 22 So. 869. Arkansas. — Frauenthal v. Bridgeman, 50 Ark. 348, 7 S. W. 388; James v. Biseoe, 10 Ark. 184. California. — Barrell v. Lake View Land Co., 122 Cal. 129, 54 Pae. 594; Yaeger v. Southern California R. Co., (Cal. 1897) 51 Pae. 190. Colorado. — Teller v. Ferguson, 24 Colo. 432, 51 Pae. 429; Employers' Liability Assur. Co. v. Morris, (Colo. App. 1900) 60 Pae. 21. Connecticut. — Nichols v. Hayes, 13 Conn. 155. Compare Stein v. Coleman, (Conn. 1901) 48 Atl. 206. Florida. — McSwain v. Howell, 29 Fla. 248, 10 So. 588; Jacksonville, etc., P. Co. v. Pe- ninsular Laud, etc., Co., 27 Fla. 1, 157, 9 So. 661, 17 L. R. A. 33, 65. Georgia. — Daniel v. Hannah, 106 Ga. 91, 31 S. E. 734; Rushing v. Willingham, 105 Ga. 166, 31 S. E. 154. Illinois.— Wallen v. Moore, 187 111. 388, 58 N. E. 1095 [affirming 88 111. App. 287] ; Chicago v. Hogan, 80 111. App. 344. Indiana. — Burnett v. Milnes, 148 Ind. 230, 46 N. E. 464; Adams v. Bullock, (Ind. App. 1901) 59 N. E. 1081. Iowa. — Bird v. Jacobus, (Iowa 1901) 84 N. W. 1062; Enix v. Iowa Cent. R. Co., Ill Iowa 748, 83 N. W. 805. Kansas. — State v. Freeman, (Kan. App. 1900) 62 Pae. 717; Burkhalter v. Nuzum, 9 Kan. App. 885, 61 Pae. 310. Kentucky. — Morris v. Pullen, (Ky. 1901) 62 S. W. 492; Frazier v. Malcolm, (Ky. 1901) 62 S. W. 13. Louisiana. — Perry v. Rue, 31 La. Ann. 287 ; Lavergne v. Elkins, 17 La. 220. Maine. — Hewett v. Buck, 17 Me. 147, 35 Am. Dec. 243. Maryland. — Sentman v. Gamble, 69 Md. 293, 13 Atl. 58, 14 Atl. 673; At/well v. Grant, 11 Md. 101. Massachusetts. — McCann v. Metropolitan L. Ins. Co., 177 Mass. 280, 58 N. E. 1026; Cooke v. Plaisted, 176 Mass. 374, 57 N. E. 687. Michigan. — Cleland v. Clark, 123 Mich. 179, 81 N. W. 1086; Morse v. Blanehard, 117 Mich. 37, 75 N. W. 93. Minnesota. — Barnett v. St. Anthony Falls Water-Power Co., 33 Minn. 265, 22 N. W. 535 ; Tierney v. Minneapolis, etc., R. Co., 33 Minn. 311, 23 N. W. 229, 53 Am. Rep. 35. Mississippi. — Cazeneuve v. Martinez, (Miss. 1900) 28 So. 788; Pearson v. Kendrick, 75 Miss. 416, 23 So. 290. Missouri. — Westminster College v. Piersol, (Mo. 1901) 61 S. W. 811; State v. Silver- stein, 77 Mo. App. 304. Montana. — Wastl v. Montana Union R. Co., 24 Mont. 159, 61 Pae. 9; Story v. Black, 5 Mont. 26, 1 Pae. 1, 51 Am. Rep. 37. Nebraska. — Fulton v. Ryan, 60 Nebr. 9, Vol. II 82 N. W. 105 ; Palmer v. Ulysses First Bank, 59 Nebr. 412, 81 N. W. 303. Nevada: — Palmer v. Culverwell, 24 Nev. 114, 50 Pae. 1 ; Watt v. Nevada Cent. R. Co., 23 Nev. 154, 44 Pae. 423, 46 Pae. 52, 726, 62 Am. St. Rep. 772. New Hampshire. — Roberts v. Rice, 69 N. H. 472, 45 Atl. 237. New Jersey. — Hatfield v. Central R. Co., 33 N. J. L. 251; Dare v. Moore, 1 N. J. L. 111. New York. — People v. Holmes, 166 N. Y. 540, 60 N. E. 249; Masor v. Blumstein, 30 Misc. (N. Y.) 787, 63 N. Y. Suppl. 91. But see Grunberg v. Grant, 3 Misc. (N. Y.) 230, 22 N. Y. Suppl. 747, 51 N. Y. St. 866 ; Bene- ville v. Whalen, 14 Daly (N. Y.) 508, 2 N. Y. Suppl. 20, 16 N. Y. St. 672; Wehle v. Havi- land, 42 How. Pr. (N. Y.) 399. North Carolina. — Gudger v. Penland, 118 N. C. 832, 23 S. E. 921 ; Sugg v. Watson, 101 N. C. 188, 7 S. E. 709. Ohio. — Circleville v. Sohn, 20 Ohio Cir. Ct. 368, 11 Ohio Cir. Dec. 193. Oregon. — Currey v. Butcher, 37 Oreg. 380, 61 Pae. 631. South Carolina. — Hicks P. Southern R. Co., (S. C. 1901) 38 S. E. 725; Garrett v. Wein- berg, 59 S. C. 162, 37 S. E. 51. South Dakota. — McLaughlin v. Wheeler, 1 S. D. 497, 47 N. W. 816; Warder, etc., Co. v. Ingli, 1 S. D. 155, 46 N. W. 181. Tennessee. — Citizens' St. R. Co. v. Dan, 102 Tenn. 320, 52 S. W. 177; McElroy v. Barkley, (Tenn. Ch. 1899) 58 S. W. 406. Texas. — Wright v. Wright, 6 Tex. 3; Gal- veston, etc., R. Co. v. Jackson, (Tex. Civ. App. 1899) 53 S. W. 81. Utah. — Lebcher v. Lambert, (Utah 1900) 63 Pae. 628. Vermont. — Stearns v. Howe, 12 Vt. 577. Virginia. — Meyer v. Falk, (Va. 1901) 38 S. E. 178 : Shacklett v. Roller, 97 Va. 639, 34 S. E. 492. Washington. — Uren v. Golden Tunnel Min. Co., (Wash. 1901) 64 Pae. 174; Blewett v. Bash, 22 Wash. 536. 61 Pae. 770. Wisconsin. — Masterson v. Chicago, etc., R. Co., 102 Wis. 571, 78 N. W. 757; Brown v. Johnson, 101 Wis. 661, 77 N. W. 900. See also 2 Cent. Dig. tit. "Appeal and Er- ror," §§ 1258, 1280. Admission " subject to all legal exceptions." — An objection not taken below to evidence is not open, even where the evidence is sub- mitted to the court " subject to all legal ex- ceptions," and cannot be assigned as error on appeal. Covillaud v. Tanner, 7 Cal. 38. But see Whitman v. Granite Church, 24 Me. 236. Evidence admissible for certain purposes, but not for others. — A paper admissible for one purpose may go to the jury, and the ob- jection that it is not admissible for any other purpose must be made, and instructions to that effect to the jury asked for at the time, or no error can be assigned as to its admis- APPEAL AND ERROR 695 evidence, 27 the admission of evidence as to offers of compromise, 28 the admission of parol evidence, 29 the admission of documents, 30 the admission of accounts and. sion or effect. Scruggs v. Bibb, 33 Ala. 481 ; Firemen's Ins. Co. v. Crandall, 33 Ala. 9. See also Watrous v. Cunningham, 71 Cal. 30, 11 Fac. 811; Lyungstrandh v. William Haaker Co., 16 Misc. (N. Y.) 387, 38 N. Y. Suppl. 129, 73 N. Y. St. 808. In the case of trials de novo on appeal, ob- jections may be made to the admission of in- competent evidence, although such objections were not made in the lower court. Baker v. Brown, 18 111. 91. Mere exception without objection is not suf- ficient. — Indiana. — Mooney v. Kinsey, 90 Ind. 33. Kentucky. — Mercer v. King, 13 Ky. L. Rep. 429. New York. — Third Ave. R. Co. v. Ebling, 100 N. Y. 98, 2 N. E. 878; Cheesebrough v. Taylor, 12 Abb. Pr. (N. Y.) 227. South Carolina. — Stark v. Watson, 24 S. C. 215. United States. — Teal v. Bilby, 123 U. S. 572, 8 S. Ct. 239, 31 L. ed. 263. See 2 Cent. Dig. tit. "Appeal and Error,'' « 1259. Presumption in absence of objection. — Where the record does not show that the court was asked to rule on the admissibility of evidence, it will be presumed on appeal that the decision of the court below was correct. Kent v. Gray, 26 Ark. 142. Review on appeal from default judgment. — In Hannas v. Hannas, 110 111. 53, it was held that objection to the admission of evidence cannot be made for the first time on appeal, even by one against whom the judgment was taken by default. Where an action is tried by the court with- out a jury, and all the evidence is submitted subject to objection, objection in regard to the introduction of evidence cannot be first raised on appeal. Whitehead v. Hall, 148 111. 253, 35 N. E. 871. 27. Key v. Knott, 9 Gill & J. (Md.) 342; Hadden v. Shortridge, 27 Mich. 212; Fischer e. Neil, 6 Fed. 89; and see 2 Cent. Dig. tit. "Appeal and Error," § 1260. 28. Cudd v. Jones, 63 Hun (N. Y.) 142, 17 N. Y. Suppl. 582, 44 N. Y. St. 131; Bascom v. Danville Stove, etc., Co., 182 Pa. St. 427, 41 Wkly. Notes Cas. (Pa.) 131, 38 Atl. 510; Cooper v. Denver, etc., R. Co., 11 Utah 46, 39 Pac. 478; and see 2 Cent. Dig. tit. "Appeal and Error," § 1261. 29. Alabama. — Hamilton v. Griffin, 123 Ala. 600, 26 So. 243; Moody v. McCown, 39 Ala. 586. California. — Le Mesnager v. Hamilton, 101 Cal. 532, 35 Pac. 1054, 40 Am. St. Rep. 81; Sweetland v. Shattuck, 66 Cal. 31, 4 Pac. 885. Indiana. — Poole v. McGahan, 124 Ind. 583, 24 N. E. 723 ; Louisville, etc., R. Co. v. Hen- dricks, 13 Ind. App. 10, 40 N. E. 82, 41 N. E. 14. Iowa. — Saunders v. Mullen, 66 Iowa 728, 24 N. W. 529. Louisiana. — Babineau v. Cormier, 1 Mart. N. S. (La.) 456. Maine. — Chamberlain v. Black, 64 Me. 40. Missouri. — MeFadden v. Missouri Pac. R. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721 ; Judd v. Wabash, etc., R. Co., 23 Mo. App. 56. Nebraska. — McCormick v. Laughran, 16 Nebr. 87, 20 N. W. 107. Nevada. — Vietti' v. Nesbitt, 22 Nev. 390, 41 Pac. 151. New York. — Reinmiller v. Skidmore, 7 Lans. (N. Y.) 161. South Dakota. — Zipo v. Colchester Rub- ber Co., 12 S. D. 218, 80 N. W. 367 ; Locke v. Hubbard, 9 S. D. 364, 69 N. W. 588. Texos.^Levy v. Maddox, 81 Tex. 210, 16 S. W. 877; Cook v. Halsell, 65 Tex. 1. Virginia. — Eaves v. Vial, 98 Va. 134, 34 S. E. 978. See 2 Cent. Dig. tit. "Appeal and Error," § 1263. 30. California. — Davis v. Lamb, (Cal. 1893) 35 Pac. 306. Illinois. — Carbine v. Pringle, 90 111. 302; Hansen v. Hale, 44 111. App. 474. Indiana. — Doan v. Dow, 8 Ind. App. 324, 35 N. E. 709. Iowa. — Bays v. Herring, 51 Iowa 286, 1 N. W. 558. Kentucky. — Northwestern Mut. L. Ins. Co. v. Lowery, 14 Ky. L. Rep. 600, 20 S. W. 607 ; Powell v. Calvert, 5 Ky. L. Rep. 769. Louisiana. — Tucker v. Lefebre, 5 La. Ann. 122. Maine. — Longfellow v. Longfellow, 54 Me. 240. Michigan. — Farrell v. School Dist. No. 2, 98 Mich. 43, 56 N. W. 1053; Durfee v. Ab- bott, 61 Mich. 471, 28 N. W. 521. Mississippi. — Stiles v. Inman, 55 Miss. 469; Monk v. Home, 38 Miss. 100, 75 Am. Dec. 94. Missouri. — McCartney v. Shepard, 21 Mo. 573, 64 Am. Dec. 250. New Hampshire. — Baker v. Davis, 19 N. H. 325. New York. — Power v. Athens, 99 N. Y. 592, 2 N. E. 609; Bloomingdale v. Adler, 7 Misc. (N. Y.) 182, 27 N. Y. Suppl. 321, 57 N. Y. St. 524. Ohio.— Bethel v. Woodworth, 11 Ohio St. 393. Pennsylvania. — Bergner v. Palethorp, 2 Wkly. Notes Cas. (Pa.) 297. Texas.— Hubert v. Bartlett, 9 Tex. 97. Virginia. — Anderson v. Johnson, 32 Graft. (Va.) 558; Johnson v. Brown, 3 Call (Va.) 259. United States. — Houghton v. Jones, 1 Wall. (U. S.) 702, 17 L. ed. 503; U. S. v. Auguis- ola, 1 Wall. (U. S.) 352, 17 L. ed. 613; U. S. v. Delespine, 15 Pet. (U. S.) 319, 10 L. ed. 753; Hoppenstedt v. Fuller, 71 Fed. 99, 36 U. S. App. 271, 17 C. C. A. 623; Hunt v. U. S., 61 Fed. 795, 19 U. S. App. 683, 10 C. C. A. 74. See 2 Cent. Dig. tit. "Appeal and Error," § 1265 et seq. Vol. II 696 APPEAL AND ERROR account-books, 31 the admission of deeds, 32 the admission of judgments, 33 the admis- sion of ordinances, 34 the admission of letters, 35 the admission of secondary evi- dence, 86 the want of a seal, 37 the want of proof of execution of instruments, 38 31. Arkansas. — St. Louis, etc., R. Co. v. Murphy, 60 Ark. 333, 30 S. W. 419, 46 Am. St. Rep. 202. Illinois. — Smith v. Forth, 24 111. App. 198. Iowa. — Poole v. Hintrager, 60 Iowa 180, 14 N. W. 223. New Jersey. — Tindall v. Mclntyre, 24 N. J. L. 147. New York. — Bartow v. Sidway, 72 Hun (N. Y.) 435, 25 N. Y. Suppl. 179, 55 N. Y. St. 268. See 2 Cent. Dig. tit. "Appeal and Error," § 1267. 32. A labama — Griffin v. Doe, 12 Ala. 783. Illinois. — Jackson v. Warren, 32 111. 331 ; Moore v. Vanormer, 60 111. App. 25. Kentucky.- — Harris v. Granger, 4 B. Mon. (Ky. ) 369; Thurston v. Masterson, 9 Dana (Ky.) 228. Maine. — Webster v. Calden, 55 Me. 165. Mari/land. — Carroll v. Norwood, 4 Harr. & M. (Md.) 287. Mississippi. — New Orleans, etc., R. Co. v. Moye, 39 Miss. 374 ; McCraven v. McGuire, 23 Miss. 100. Missouri. — Western v. Flanagan, 120 Mo. 61. 25 S. W. 531. Nevada.- — Streeter v. Johnson, 23 Nev. 194, 44 Pac. 819 : Langworthy v. Coleman, 18 Nev. 440, 5 Pac. 65. New York. — Meakings v. Cromwell, 5 N. Y. 136. Pennsylvania. — Uplinger v. Bryan, 12 Pa. St. 219;'Wilmarth v. Mountford, 8 Serg. & R. (Pa.) 124. Texas. — McNeally v. Stroud, 22 Tex. 229; Miller v. Wybrants,' 2 Tex. Unrep. Cas. 409. See 2 Cent. Dig. tit. "Appeal and Error," § 1266. 33. Illinois. — Cottingham v. Springer, 88 111. 90; People v. Gray, 72 111. 343. Indiana. — Hunsinger v. Hofer, 110 Ind. 390, 11 N. E. 463. Mississippi. — House v. Fultz, 10 Sm. & M. (Miss.) 39. New York. — Wells v. Davis, 105 N. Y. 670, 12 N. E. 42; Sehrader v. Musical Mut. Pro- tective Union, 55 Hun (N. Y.) 608, 8 N. Y. Suppl. 706, 29 N. Y. St. 371. South Carolina. — Lawrence v. Grambling, 13 S. C. 120. Texas.—- Still v. Focke, 66 Tex. 715, 2 S. W. 59. Washington. — Vincent v. Snoqualmie Mill Co., 7 Wash. 566, 35 Pac. 396. See 2 Cent. Dig. tit. "Appeal and Error," § 1265. 34. Flora v. Lee, 5 111. App. 629; Mc- Cloughry v. Finney, 37 La. Ann. 27 ; Morris v. Greenwood, 73 Miss. 430, 19 So. 105; Dunk- man v. Wabash, etc., R. Co., 16 Mo. App. 547; and see 2 Cent. Dig. tit. "Appeal and Error," § 1269. 35. Key v. Knott, 9 Gill & J. (Md.) 342; Watson v. Walker, 23 N. H. 471; General Electric Co. v. Blaeksburg Land, etc., Co., 46 Vol. II S. C. 75, 24 S. E. 43 ; and see 2 Cent. Dig. tit. "Appeal and Error," § 1268. 36. Alabama. — Beattie v. Abercrombie, 18 Ala. 9. Arkansas. — Allen v. Ozark Land Co., 55 Ark. 549, 18 S. W. 1042. California. — Frink v. Alsip, 49 Cal. 103. Colorado. — Coleman v. Davis, 13 Colo. 98, 21 Pac. 1018. Illinois. — Condon v. Brockway, 157 111. 90, 41 N. E. 634 ; Cleveland, etc., R. Co. v. Strong, 56 111. App. 604. Indiana. — Mcllvain v. State, 80 Ind. 69. Iowa. — Scott v. Chicago, etc., R. Co., 78 Iowa 199, 42 N. W. 645 ; Burlington, etc., R. Co. v. Sherwood, 62 Iowa 309, 17 N. W. 564. Kentucky. — Williamson v. Johnston, 4 T. B. Mon.'(Ky.) 253. Louisiana. — State v. Breed, 10 La. Ann. 491. Maine. — Woodward v. Shaw, 18 Me. 304. Michigan. — Hart v. Port Huron Tp., 46 Mich. 428, 9 N. W. 481. Missouri. — Rothwell v. Jamison, 147 Mo. 601, 49 S. W. 503; Brown v. Oldham, 123 Mo. 621, 27 S. W. 409. Neio Hampshire. — Carter v. Beals, 44 N. H. 408. Nero York.— Howell v. Adams. 68 N. Y. 314 ; Ochs v. Frey, 47 N. Y. App. Div. 390, 62 N. Y. Suppl. 67 ; Voshef skev v. Hillside Coal, etc., Co.. 21 N. Y. App. Div. 168, 47 N. Y. Suppl. 386. South Carolina. — Long v. McKissick, 50 S. C. 218. 27 S. E. 636. South Dakota. — Zipp r. Colchester Rubber Co.. 12 S. D. 218, 80 N. W. 367. Texas. — Long v. Garnett, 59 Tex. 229; Barnes v. Downes, 2 Tex. App. Civ. Cas. § 527. Virginia. — Western Union Tel. Co. v. Pow- ell, 94 Va. 268, 26 S. E. 828 ; Shue v. Turk, 15 Gratt. (Va.) 256. West Virginia. — White v. Core, 20 W. Va. 272 ; Baltimore, etc., R. Co. v. Skeels, 3 W. Va. 556. Wisconsin. — Klcety v. Delles, 45 Wis. 484. United States. — Beebe v. U. S., 161 U. S. 104, 16 S. Ct. 532, 40 L. ed. 633. See 2 Cent. Dig. tit. "Appeal and Error," § 1262. 37.- Baker v. Baker, 159 111. 394, 42 N. E. B67; Chouquette v. Barada, 28 Mo. 491; Gil- lett v. Campbell, 1 Den. (N. Y.) 520: Rob- inson i'. Dewhurst, 68 Fed. 336, 25 U. S. App. 345, 15 C. C. A. 466; and see 2 Cent. Dig. tit. "Appeal and Error," § 1271. 38. California. — Shain v. Sullivan, 106 Cal. 208, 39 Pac. 606. Georgia. — Poulet v. Johnson, 25 Ga. 403. Iowa. — Mumma v. McKee, 10 Iowa -107. Kentucky. — Underwood v. Ogden, 6 B. Mon. (Ky.) 606. Louisiana. — Cawthorn v. McDonald, 1 Rob. (La.) 55. New York. — Ranney v. Gwynne, 3 E. D. Smith (N. Y.) 59. APPEAL AND ERROR 697 and to the reception of opinion evidence and the allowance of hypothetical questions."" (in) Exclusion of Evidence— (a) Necessity of Offer. To reserve any question on the ruling of the trial court in excluding testimony, there must be a pertinent question propounded, and, upon objection being made, a statement to the court of the testimony which it is expected will be elicited by the question, and an exception taken to the ruling thereon. 40 (b) Improperly Restricting Use of Evidence. Where no objection is made at the trial to a direction of the court limiting the testimony to certain questions, the defeated party cannot, on appeal, contend that he was injured thereby. 41 (iv) Manner and Order of Receiving Evidence. Objections as to the mode or order in which evidence is received by the trial court must be made in that court, 43 and objection cannot be made in the appellate court to the considera- Texas. — MeCamant v. Roberts, 80 Tex. 316, 15 S. W. 580, 1054. Virginia. — George Campbell Co. v. Angus, 91 Va. 438, 22 S. E. 167. See 2 Cent. Dig. tit. "Appeal and Error," § 1270. 39. Indiana. — Midland R. Co. v. Dickason, 130 Ind. 164, 29 N. E. 775. Iowa. — Quackenbush v. Chicago, etc., R. Co., 73 Iowa 458, 35 N. W. 523. Kansas. — Holman v. Raynesford, 3 Kan. App. 676, 44 Pae. 910. Nebraska. — Omaha Belt R. Co. v. McDer- mott, 25 Nebr. 714, 41 N. W. 648; Repub- lican Valley R. Co. v. Hayes, 13 Nebr. 489, 14 N. W. 521. New York. — Dunsbach v. Hollister, 132 N. Y. 602, 30 N. E. 1152, 44 N. Y. St. 934; Sands v. Sparling, 82 Hun (N. Y.) 401, 31 N. Y. Suppl. 251, 63 N. Y. St. 558; Phillips v. Covell, 79 Hun (N. Y.) 210, 29 N. Y. Suppl. 613, 61 N. Y. St. 156 ; Gibbons v. Phoenix, 61 Hun (N. Y.) 619, 15 N. Y. Suppl. 410, 39 N. Y. St. 658 ; Pollock v. Brennan, 39 N. Y. Super. Ct. 477; Kilpatrick v. Dean, 3 N. Y. Suppl. 60, 19 N. Y. St. 837. See 2 Cent. Dig. tit. "Appeal and Error," § 1272. 40. California. — Sonoma County v. Hall, 129 Cal. 659, 62 Pae. 213; Hand v. Scodeletti, 128 Cal. 674, 61 Pae. 373. Connecticut. — Gustafson v. Rustemeyer, 70 Conn. 125, 39 Atl. 104, 66 Am. St. Rep. 92, 39 L. R. A. 644. Illinois.— Stewart v. Kirk, 69 111. 509; Maxwell v. Habel, 92 111. App. 510. Indiana. — Kern v. Bridwell, 119 Ind. 226, 21 N. E. 664, 12 Am. St. Rep. 409 ; Vurpillat v. Zehner, 2 Ind. App. 397, 28 N. E. 556. Massachusetts. — Wheeler v. Rice, 8 Cush. (Mass.) 205. Minnesota. — Zimmerman v. Lamb, 7 Minn. 421. Missouri. — Fearey v. O'Neill, 149 Mo. "467, 50 S. W. 918, 73 Am. St. Rep. 440. Nebraska. — Wittenberg v. Mollyneaux, 60 Nebr. 583, 83 N. W. 842; McLain v. Maricle, 60 Nebr. 359, 83 N. W. 829. New Mexico. — Maxwell Land Grant Co. v. Dawson, 7 N. M. 133, 34 Pae. 191. New York. — Dimon v. Keery, 54 N. Y. App. Div. 318, 66 N. Y. Suppl. 817; Millard v. Holland Trust Co., 90 Hun (N. Y.) 607, 35 N. Y. Suppl. 948, 70 N. Y. St. 584. North Dakota. — Brundage v. Mellon, 5 N. D. 72, 63 N. W. 209; Halley v. Folsom, 1 N. D. 325, 48 N. W. 219. South Carolina. — State v. Weaver, 58 S. C. 106, 36 S. E. 499. South Dakota. — Tootle v. Petrie, 8 S. D. 19, 65 N. W. 43. And see Meadows v. Oster- kamp, 13 S. D. 571, 83 N. W. 624. Tennessee. — Pickett v. Boyd, 11 Lea (Tenn.) 498; Jones v. State, 11 Lea (Tenn.) 468. Texas. — Galveston, etc., R. Co. v. Dehn- isch, (Tex. Civ. App. 1900) 57 S. W. 64. Vermont.— Cutler v. Skeels, 69 Vt. 154, 37 Atl. 228; Houston v. Brush, 66 Vt. 331, 29 Atl. 380. United States. — Ladd v. Missouri Coal, etc., Co., 66 Fed. 880, 32 U. S. App. 93, 14 C. C. A. 246. See 2 Cent. Dig. tit. "Appeal and Error." § 1282. Presumption in favor of ruling. — In Haas v. C. B. Cones, etc., Mfg. Co., 25 Ind. App. 469, 58 N. E. 499, it was held that a ruling ex- cluding testimony will stand on appeal if sustainable on any theory, whether or not the objection was advanced at the trial. Where a party withdrew his objection to the exclusion of certain evidence, such exclusion cannot be urged as error. Watts v. South Bound R. Co., (S. C. 1901) 38 S. E. 240. Where the judgment was not given on the issues of fact the correctness of a decision be- low in rejecting a deposition will not be ex- amined. Duplessis v. Kennedy, 6 La. 231. Where the question is in itself proper and pertinent the facts expected to be proved by the witness need not be stated in order to make the ruling rejecting the evidence avail- able on appeal. Bauernschmidt v. Maryland Trust Co., 89 Md. 507, 43 Atl. 790. 41. Covell v. Chadwiek, 153 Mass. 263, 26 N. E. 856, 25 Am. St. Rep. 625; Rutherford v. Talent, 6 Mont. 132, 9 Pae. 821 ; MeCamant v. Roberts, (Tex. Civ. App. 1894) 25 S. W. 731 ; and see 2 Cent. Dig. tit. "Appeal and Error," § 1283. 42. Brand v. Merritt, 15 Colo. 286, 25 Pae. 175; Martin v. Hazzard Powder Co., 2 Colo. 596 ; Howell v. Edmonds, 47 111. 79 ; Cassidy v. Fontham, 14 N. Y. Suppl. 151, 38 N. Y. St. Vol. II APPEAL AND ERROR tion by the trial court of evidence not formally introduced, where no objection was made to the consideration of such evidence on the trial. 43 (v) Competency of Witness. The question of the competency of witnesses to testify comes too late when raised for the first time in the appellate court. 44 (vi) Examination of Witness. An objection to the form of an interroga- tory to a witness, not taken below, will not be noticed on appeal. 45 Where the answer of a witness to a question is not objected to on the trial, it cannot after- ward be contended on appeal that such answer was incompetent. 46 The improper cross-examination of a witness, or the admission, on cross-examination, of evidence which has no relation to the examination in chief, is not reversible error where no objection is made or exception taken in the lower court. 47 (vn) Weiqst and Sufficiency of Evidence — (a) In General. The ques- tion of the sufficiency of evidence must be raised by objection in the court below, and will not be considered if raised for the first time on appeal. 48 177 ; and see 2 Cent. Dig. tit. "Appeal and Er- ror," § 1284 et seq. 43. Murray v. Hobson, 10 Colo. 66, 13 Pae. 921; Stephens v. Pence, 56 Iowa 257, 9 N. W. 215; Webb v. Archibald, (Mo. 1894) 28 S. W. 80 ; Shields v. Hanbury, 128 U. S. 584, 9 S. Ct. 176, 32 L. ed. 565 ; and see 2 Cent. Dig. tit. "Appeal and Error," § 1285. 44. California. — Higgins v. San Diego, 126 Cal. 303, 58 Pae, 700, 59 Pac. 209. Illinois. — Beasley v. Beasley, 180 111. 163, 54 N. E. 187 ; Dewees v. Osborne, 178 111. 39, 52 N. E. 942 [affirming 78 111. App. 314]. Louisiana. — Lavergne v. Elkins, 17 La. 220. Missouri. — Adair v. Mette, 156 Mo. 496, 57 S. W. 551 ; Long v. Martin, 152 Mo. 668, 54 S. W. 473; Sprague v. Sea, 152 Mo. 327, 53 S. W. 1074. New York.— Dunican v. Union R. Co., 56 N. Y. App. Div. 181, 67 N. Y. Suppl. 649. Oregon. — Aldrich v. Columbia Southern R. Co., (Oreg. 1901) 64 Pae. 455. United States. — Sigafus v. Porter, 84 Fed. 430, 51 U. S. App. 693, 28 C. C. A. 443. Objections to the competency of an expert witness must be made at the trial. Dunican v. Union R. Co., 56 N. Y. App. Div. 181, 67 N. Y. Suppl. 649 ; Aldrich v. Columbia South- ern R. Co., (Oreg. 1901) 64 Pac. 455. See 2 Cent. Dig. tit. "Appeal and Error." § 1283 et seq. 45. Indiana. — Pence v. Makepeace, 65 Ind. 345. Iowa. — Luke v. Bniner, 15 Iowa 3; Sam- uels v. Griffith, 13 Iowa 103. Massachusetts. — Smith v. Jagoe, 172 Mass. 538, 52 N. E. 1088; Bennett v. Clemence, 6 Allen (Mass.) 10. Michigan. — Potter v. Detroit, etc., R. Co., 122 Mich. 179, 81 N. W. 80, 82 N. W. 245; Ives v. Williams, 50 Mich. 100, 15 N. W. 33. New York. — Pollock v. Hoag, 4 E. D. Smith (N. Y.) 473; Pearson v. Fiske, 7 Abb. Pr. (3ST. Y.) 419. Pennsylvania. — Kemmerer v. Edelman, 23 Pa. St. 143; Corkery v. O'Neill, 9 Pa. Super. Ct. 335, 43 Wkly. Notes Cas. (Pa.) 420. Wisconsin. — Hanson n. Milwaukee Mechan- ics' Mut. Ins. Co., 45 Wis. 321. See 2 Cent. Dig. tit. "Appeal and Error," § 1286. Vol. II 46. Tysen v. Fritz, 44 N. Y. App. Div. 562, 60 N. Y. Suppl. 923; Shepard v. New York El. R. Co., 60 Hun (N. Y.) 584, 15 N. Y. Suppl. 175, 39 N. Y. St. 430. 47. Sexson v. Hoover, 1 Ind. App. 65, 27 N. E. 105; Higgenbotham v. Fair, 36 Kan. 742, 14 Pac. 267; Jennings v. Prentice, 39 Mich. 421 ; Burley v. German- American Bank, 111 U. S. 216, 4 S. Ct. 341, 28 L. ed. 406; and see 2 Cent. Dig. tit. "Appeal and Error," § 1288. Where a witness is recalled after the sub- mission of the case, objection thereto must be made in the lower court, and cannot be raised for the first time on appeal. Hawthorne v. Bowman, 3 Sneed (Tenn.) 523. See also 2 Cent. Dig. tit. "Appeal and Error," § 1289. 48. Alabama. — Rhodes v. Sherrod, 9 Ala. 63; Duffee v. Buchanan, 8 Ala. 27. California. — Goodale v. West, 5 Cal. 339. Florida. — Logan v. Slade, 28 Fla. 699, 10 So. 25; Sanderson v. Sanderson, 17 Fla. 820. Illinois. — Sugar Creek Min. Co. v. Peter- son, 177 111. 324, 52 N. E. 475; Illinois Cent. R. Co. v. Reardon, 157 111. 372, 41 N. E. 871; Parmelee v. Ennis, 54 111. App. 376. Iowa. — Sisson v. Kaper, 105 Iowa 599, 75 N. W. 490. Kentucky. — Strode v. Ross, 3 A. K. Marsh. (Ky.) 358. Massachusetts. — Clapp v. Massachusetts Ben. Assoc, 146 Mass. 519, 16 N. E. 433. Michigan. — Niagara F. Ins. Co. v. De Graff, 12 Mich. 124. Minnesota. — Lund v. Anderson, 42 Minn. 201, 44 N. W. 6; Barker v. Todd, 37 Minn. 370, 34 N. W. 895. Mississippi. — Parr v. Gibbons, 27 Miss. 375. Missouri. — Spear v. Scott, 14 Mo. 516; Cockran v. Britton, 14 Mo. 446. New Jersey. — Cole v. Oliver, 44 N. J. L. 212. New Mexico. — Crabtree V. Segrist, 3 N. M. 278, 6 Pac. 202. New York. — Clarke v. Westeott, 158 N. Y. 736, 53 N. E. 1124 [affirming 2 N. Y. App. Div. 503, 37 N. Y. Suppl. 1111, 74 N. Y. St. 406]; Knell v. Stephan, 144 N. Y. 657, 39 N. E. 857 [affirming 65 Hun (N. Y.) 624, 20 N. Y. Suppl. 393, 48 N. Y. St. 190] ; Newell v. Woolfolk, 91 Hun (N. Y.) 211, 36 N. Y. APPEAL AND ERROR 699 (b) Insufficiency as to Material Fact. An objection that the evidence offered to prove a material fact was insufficient cannot be first made on appeal, but must be made in the trial court. 49 And if there is a failure to make all the proof Suppl. 327, 71 N. Y. St. 129; Crouch v. Moll, 53 Hun (N. Y.) 603, 8 N. Y. Suppl. 183, 28 N. Y. St. 48; Pollock v. Breiman, 29 N. Y. Super. Ct. 477; Bennett v. Levi, 19 N Y Suppl. 226, 46 N. Y. St. 754. South Dakota. — Parrish v. Mahony, 12 S. D. 278, 81 N. W. 295, 76 Am. St. Rep. 604. Texas. — Shornick v. Bennett, 77 Tex. 244, 13 S. W. 982. Washington. — Tacoma Grocery Co. v. Bar- low, 12 Wash. 21, 40 Pae. 380. Wisconsin. — Kidd v. Fleek, 47 Wis. 443, 2 N. W. 1121. United States. — Guarantee Co. of North America v. Mechanic Sav. Bank, 80 Fed. 766, 47 U. S. App. 91, 26 C. C. A. 146; Chisholm v. Radford Brick Co., 65 Fed. 1, 24 U. S. App, 523, 12 C. C. A. 490. See 2 Cent. Dig. tit. "Appeal and Error." § 1290 et seq. Non-production of instrument. — In Delany v. Reade, 4 Iowa 292, it was held that the ob- jection that a judgment was rendered on a verbal contract which related to a promissory note which was not produced, could not be raised for the first time on appeal. In an ac- tion for the price of bonds, an objection that the bonds were not produced on the trial can- not be first raised on appeal. Stokes v. Mackay, 147 N. Y. 223, 41 N. E. 496, 69 Am. St. Rep. 515 [affirming 82 Hun (N. Y.) 449, 81 N. Y. Suppl. 706, 64 N. Y. St. 403]. The objection that facts were proved by one witness when the law requires proof by two witnesses cannot be made for the first time in the appellate court. Cucullu v. Emmerling, 22 How. (U. S.) 83, 16 L. ed. 300. The question of law as to whether the evi- dence tends to support the verdict cannot be raised for the first time on appeal. Ohio, etc., R. Co. v. Wangelin, 152 111. 138, 38 N. E. 760. Want of evidence. — Where defendant, in an action for conversion, does not object at the trial that there is no evidence of conversion he cannot raise this objection on appeal. Lee v. Schmidt, 6 Abb. Pr. (N. Y.) 183, 1 Hilt. (N. Y.) 537. Objection made in appellate court sustained. — Where plaintiff failed to offer evidence to establish a fact necessary to his recovery, but which fact was not brought to the notice of the lower court, the judgment for plaintiff will be reversed at his cost, and, upon objection made in the appellate court, the case remanded for a new trial. Humphreys v. Switzer, II La. Ann. 320. Where there was an entire ab- sence of proof of a, company's incorporation, and no allegation thereof in the pleadings, the fact that the objection was not taken at the trial does not preclude its being raised on appeal, though the action was tried upon the theory that the company was incorporated. Fish v. De Wolf, 4 Bosw. (N. Y.) 573. 49. Alabama. — Barnett v. Riser, 63 Ala. 347. California. — Mamlock v. White, 20 Cal. 598. Illinois. — Lord v. Board of Trade, 163 111. 45, 45 N. E. 205; Jones v. McGuirk, 51 111. 382, 99 Am. Dec. 556 ; Baltimore, etc., R. Co. v. Higgins, 69 111. App. 412. Indiana. — Warren County v. Osborn, 4 Ind. App. 590, 31 N. E. 541. Iowa. — Gallagher v. Bell, 82 Iowa 722, 47 N. W. 897. Kansas. — Missouri Pae. R. Co. v. Cooper, 57 Kan. 185, 45 Pae. 587. Maine. — Porter v. Sherburne, 21 Me. 258. Massachusetts. — Wentworth v. Leonard, 4 Cush. (Mass.) 414. Missouri. — Ringo -. St. Louis, etc., R. Co., 91 Mo. 667, 4 S. W. 396. Nevada. — Carpenter v. Johnson, 1 Nev. 331. New Jersey. — McDonald v. Hutton, 8 N. J. Eq. 473. New York. — Flandrow v. Hammond, 148 N. Y. 129, 42 N. E. 511; Bliss v. Sickles, 142 N. Y. 647, 36 N. E. 1064, 59 N. Y. St. 168; Hynes v. McDermott, 82 N. Y. 41, 37 Am. Rep. 538; Sullivan v. Metropolitan St. R. Co., f>3 N. Y. App. Div. 89, 65 N. Y. Suppl. 842: Daley v. Brown, 45 N. Y. App. Div. 428, 60 N. Y. Suppl. 840; Kafka v. Levensohn, IS Misc. (N. Y.) 202, 41 N. Y. Suppl. 368, 75 N. Y. St. 777. Ohio. — White v. Richmond, 16 Ohio 5. Texas. — Lufkin v. Galveston, 73 Tex. 340, 11 S. W. 340; Eastham v. Sims, 11 Tex. Civ. App. 133, 32 S. W. 359. Virginia. — Brewer v. Hastie, 3 Call (Va.) 22. Wisconsin. — Mace v. Roberts, 97 Wis. 199, 72 N. W. 866; Sanger v. Guenther, 73 Wis. 354, 41 N. W. 436. See 2 Cent. Dig. tit. "Appeal and Error," § 1290 et seq. Proof of title. — Illinois. — South Park Com'rs v. Todd, 112 111. 379. Iowa. — Davis v. Nolan, 49 Iowa 683. New Hampshire,. — Haydoek v. Salvage, 07 N. H. 598, 38 Atl. 207. New York. — New York Cent., etc., R. Co. v, Rochester, 127 N. Y. 591, 28 N. E. 416, 40 N. Y. St. 193; Sanders v. Riedinger, 30 N. Y. App. Div. 277, 51 N. Y. Suppl. 937. Texas. — Holstein v. Adams, 72 Tex. 485, 10 S. W. 560. Virginia. — Wynn v. Harman, 5 Gratt. (Va.) 157. Proof of value. — New Haven, etc., Co. v. Campbell, 128 Mass. 104, 35 Am. Rep. 360; Hand v. National Live-Stock Ins. Co., 57 Minn. 519, 59 N. W. 538; Stoothoff v. Long Island R. Co., 32 Hun (N. Y.) 437; Phillips v. Citizens Gas-Light Co., 67 Hun (N. Y.) 649, 21 N. Y. Suppl. 1109, 51 N. Y. St. 553. Proof of execution or delivery of instrument. — Massachusetts. — Dolan v. Alley, 153 Mass. 380, 26 N. E. 989. Michigan. — Ready v. Kearsley, 14 Mich. 215. Vol. II 700 APPEAL AND ERROR which is required, it seems that the defect should be pointed out in the trial court so that it may be supplied, an objection coming too late if first made in the appellate court. 50 And it has been held that such objection cannot be taken after the rendition of the verdict. 51 j. Relating to Giving of Refusing Instructions. Questions as to the correct- ness of instructions given will not be considered on appeal unless properly pre- sented and passed upon by the court below ; 52 and objections, based on a failure or refusal to give instructions, are likewise waived by failure to take the appro- priate steps in the trial court. 53 Accordingly, the following objections cannot be Neio York. — Farmers' L. & T. Co. v. Curtis, 7 N. Y. 466; Zink v. Bohn, 3 N. Y. Suppl. 4, 19 N. Y. St. 479. Pennsylvania. — Messmore v. Morrison, 172 Pa. St. 300, 37 Wkly. Notes Cas. (Pa.) 431, 34 Atl. 45. Virginia. — MeFalls v. Essex County, 79 Va. 137; Anderson v. De Soer, 6 Gratt. (Va.) 363. 50. Cooper e. Bean, 5 Lans. (N. Y.) 318. To the same effect see Newman v. Bennett, 23 111. 427 ; Brown v. Cayuga, etc., Co., 12 N. Y. 486; Cheney v. Beals, 47 Barb. (N. Y.) 523. 51. Catlin v. Springfield F. Ins. Co., I Sumn. (U. S.) 434, 5 Fed. Cas. No. 2,522. Compare Darlington v. Fredenhagen, 18 111. App. 273. 52. Alabama. — Dominick v. Randolph, 124 Ala. 557, 27 So. 481 ; Anderson v. Timberlake, 114 Ala. 377, 22 So. 431, 62 Am. St. Rep. 105. Arkansas. — Johnson v. West, 41 Ark. 535; St. Louis, etc., R. Co. v. Vincent, 36 Ark. 451. California. — Clark v. His Creditors, 57 Cal. 639 ; Chester v. Bower, 55 Cal. 46. Colorado. — Pike v. Sutton, 21 Colo. 84, 39 Pae. 1084; Kelly v. Doyle, 12 Colo. App. 38, 54 Pac. 394. District of Columbia. — Baltimore, etc., R. Co. v. Golway, 6 App. Cas. (D. C.) 143. Florida. — Williams v. State, 32 Fla. 251, 13 So. 429 ; Coker v. Hayes, 16 Fla. 368. Illinois. — Highley v. Metzger, 187 111. 237, 58 N. E. 407; Steidley v. Burton, 61 111. App. 117. Indiana. — Lowell v. Cathright, 97 Ind. 313; Comparet v. Hedges, 6 Blaekf. (Ind.) 416. Iowa. — Casey v. Ballou Banking Co., 98 Iowa 107, 67 N. W. 98; Norris v. Kipp, 74 Iowa 444, 38 N. W. 152. Kansas. — Wilson v. Jones, 48 Kan. 767, 30 Pac. 117; Kansas Pac. R. Co. v. Little, 19 Kan. 267. Kentucky. — Garrard v. White, 12 Ky. L. Rep. 656, 14 S. W. 966; Burks v. McFela 4 Ky. L. Rep. 833. Maryland.—, Washington County Water Co v. Garver, 91 Md. 398, 46 Atl. 979; Worcester County v. Ryckman, 91 Md. 36, 46 Atl. 317; Jacob Tome Institute v. Crothers, 87 Md. 569 40 Atl. 261. Massachusetts. — Rockport v. Rockport Gran- ite Co., 177 Mass. 246, 58 N. E. 1017; Gay v. Boston, etc., R. Co., 141 Mass. 407, 6 N. E. 236. Michigan. — Gladstone Exch. Bank v. Keat- ing, 94 Mich. 429, 53 N. W. 1110; Thorn v. Maurer, 85 Mich. 569, 48 N. W. 640. Minnesota. — Knauft v. St. Paul, etc., R. Co., 22 Minn. 173; Siebert v. Leonard, 21 Minn. 442. Vol. II Mississippi. — Smokey v. Johnson, (Miss. 1888) 4 So. 788; Fisher v. Fisher, 43 Miss. 212. Missouri. — Taylor v. Pullen, 152 Mo. 434, 53 S. W. 1086; Price v. Hallett, 138 Mo. 561, 38 S. W. 451. Nebraska. — Elkhorn Valley Bank v. Marley, (Nebr. 1901) 85 N. W. 84"6; Missouri Pac. R. Co. 17. Tipton, 60 Nebr. 502, 84 N. W. 416. ■ Nevada. — McGurn v. Mclnnis, 24 Nev. 370, 55 Pac. 304, 56 Pae. 94. Ne/w Hampshire. — Pitman v. Mauran, 69 N. H. 230, 40 Atl. 392. New York. — Zingrebe v. Union R. Co., 44 N. Y. App. Div. 577, 60 N. Y. Suppl. 913; Simmons v. Ocean Causeway, 21 N. Y. Apu. Div. 30, 47 N. Y. Suppl. 360. North Carolina. — Cunningham v. Cunning- ham, 121 N. C. 413, 28 S. E. 525; Cathey v. Shoemaker, 119 N. C. 424, 26 S. E. 44. Ohio. — Pittsburg, etc., R. Co. v. Porter, 32 Ohio St. 328; Dollman v. Haefner, 12 Ohio Cir. Ct. 721. Oregon. — -Jennings v. Garner, 30 Oreg. 344, 48 Pac. 177. South Carolina. — Bowen v. Southern R. Co., 58 S. C. 222, 36 S. E. 590; Fleming v. Fleming, 33 S. C. 505, 12 S. E. 257, 26 Am. St. Rep. 694. South Dakota. — Dell Rapids Mercantile Co. v. Dell Rapids, 11 S. D. 116, 75 N. W. 898, 74 Am. St. Rep. 783. Tennessee. — Knoxville v. Bell, 12 Lea (Tenn.) 157. Texas. — O'Brien v. Seale, 16 Tex. Civ. App. 260, 41 S. W. 150; Yoakum v. Mettasch, (Tex. Civ. App. 1894) 26 S. W. 129. Utah. — Thirkfield v. Mountain View Ceme- tery Assoc, 12 Utah 76, 41 Pae. 564. Virginia. — Clarke v. Sleet, (Va. 1901) 38 S. E. 183. Wisconsin. — Brunette v. Gagen, 106 Wis. 618, 82 N. W. 564; Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171. United States. — Doe v. Watson, 8 How. (U. S.) 263, 12 L. ed. 1072; Texas, etc., R. Co. v. Ludlam, 52 Fed. 94, 2 U. S. App. 342, 2 C. C. A. 633. See 2 Cent. Dig. tit. "Appeal and Error," § 1309 et seq.; and, generally, Trial. 53. See, generally, Trial. The rule stated in the text is not abrogated or modified by statutory provisions that if both parties to the suit, or their attorneys, shall enter, on the stenographer's notes, a written agreement that the same is correct, such transcribed note shall become » part of the record in the case without the approval or signature of the trial judge. Alexander v. Flood, 77 Miss. 925, 28 So. 787. APPEAL AND ERROR 701 raised for the first time on appeal : that the instructions given are not authorized by the pleadings M or by the evidence; 55 that the instructions are not sufficiently full ; 56 that the evidence 57 or issues were misstated therein ; 58 that the instructions were not sufficiently specific, 59 improperly assume facts, 60 or were on the weight of the evidence ; 61 that the instructions were oral when required to be in writing, 62 were not signed, 68 were not marked " given " or " refused," M contain mistakes in names, 85 or f ail to limit the consideration of evidence to the very purpose for which it was admissible. 66 k. Relating to Submission or Refusal to Submit Issues to Jury. An omission or failure to submit an issue or question of fact to the jury cannot be complained of for the first time on appeal — the party aggrieved must request the trial court to submit such issue or question of fact to the jury. 67 Especially is this true In Montana " an instruction containing a correct rule of law when considered in the ab- stract, but faulty when applied to a particular case, is ground for a reversal, even though counsel for appellant raises no objection — : even though he, at the trial, is content with the same. We believe that Montana is one of only two jurisdictions in which such a rule prevails; ... If the instruction is plainly erroneous, the neglect of counsel to call the attention of the trial judge to it should con- stitute a waiver; on the other hand, if the error is so veiled as to escape the inspection of counsel learned in law, it may well be doubted that such error could injure his cause with the jury." Sheehy v. Flaherty, 8 Mont. 365, 370, 20 Pae. 687. 54. Empson Packing Co. v. Vaughn, (Colo. 1899) 59 Pac. 749. 55. Worcester County v. Byckman, 91 Md. 36, 46 Atl. 317; Regester v. Medcalf, 71 Md. 528, 18 Atl. 966; Stoner v. Devilbiss, 70 Md. 144, 16 Atl. 440; Straus v. Young, 36 Md. 246; Turner v. Goldsboro Lumber Co., 119 N. C. 387, 26 S. E. 23. 56. Iowa. — Conway v. Jordan, 110 Iowa 462, 81 N. W. 703. Kansas. — State v. Asbell, (Kan. App. 1900) 59 Pac. 727; John V. Farwell Co. v. Thomp- son, 8 Kan. App. 614, 56 Pac. 151. Massachusetts. — Whitney Electrical Instru- ment Co. v. Anderson, 172 Mass. 1, 51 N. E. 182. South Carolina. — Bowen v. Southern R. Co., 58 S. C. 222, 36 S. E. 590. Tennessee. — Chicago Guaranty Fund L. Soe. v. Ford, 104 Tenn. 533, 58 S. W. 239. Texas. — Hargrave v. Western Union Tel. Co., (Tex. Civ. App. 1901) 60 S. W. 687. United States. — Cass County v. Gibson, 107 Fed. 363. 57. Maine. — Bradstreet v. Rich, 74 Me. 303; Grows v. Maine Cent. R. Co., 69 Me. 412. Michigan. — Wolf v. Holton, 110 Mich. 166, 67 N. W. 1082 ; Farmers' Mut. F. Ins. Co. v. Gargett, 42 Mich. 289, 3 N. W. 954; Beeves V. Kelly, 30 Mich. 132. Minnesota. — O'Connor v. Chicago, etc., E. Co., 27 Minn. 166, 6 N. W. 481, 38 Am. Eep. 288. New Hampshire. — Cutler v. Welsh, 43 N. H. 497. Rhode Island. — Case v. Dodge, 18 B. I. 661, 29 Atl. 785. South Carolina. — Davis v. Elmore, 40 S. C. 533, 19 S. E. 204; Bumph v. Hiott, 35 S. C. 444, 15 S. E. 235. Wisconsin. — Braunsdorf v. Fellner, 76 Wis. 1, 45 N. W. 97. 58. Garrett v. Weinberg, 59 S. C. 162, 37 S. E. 51; Bowen v. Southern B. Co., 58" S. C. 222, 36 S. E. 590; Johnson v. International, etc., E. Co., (Tex. Civ. App. 1900) 57 S. W. 869. 59. Garrett v. Weinberg, 59 S. C. 162, 37 S. E. 61 ; Dell Eapids Mercantile Co. v. Dell Eapids, 11 S. D. 116, 75 N. W. 898, 74 Am. St. Eep. 783; Halsell v. Neal, 23 Tex. Civ. App. 26, 56 S. W. 137; Dow v. Dempsey, 21 Wash. 86, 57 Pac. 355; Enoch v. Spokane Falls, etc., B. Co., 6 Wash. 393, 36 Pac. 966. 60. Padgett v. Sweeting, 65 Md. 404, 4 Atl. 887; Rasin v. Conley, 58 Md. 59; Laughlin v. Hammond, 51 Hun (N. Y.) 642, 4 N. Y. Suppl. 582 ; Stedman v. Western Transp. Co., 48 Barb. (N. Y.) 97; Carnes v. Piatt, 6 Bob. (N. Y.) 270; Gibbs v. Consolidated Gas Co., 130 U. S. 396, 9 S. Ct. 553, 32 L. ed. 979. 61. Chambers v. Meaut, 66 Miss. 625, 6 So. 465; Atchison, etc., B. Co. r. Worley, (Tex. Civ. App. 1894) 25 S. W. 478. 62. Bowling v. Floyd, 5 Kan. App. 879, 48 Pac. 875. 63. Bowling v. Floyd, 5 Kan. App. 879, 48 Pac. 875. 64. Harrigan v. Turner, 65 111. App. 469. 65. Westbury v. Simmons, 57 S. C. 467, 35 S. E. 764. 66. Hasbrouck v. Western Union Tel. Co., 107 Iowa 160, 77 N. W. 1034, 70 Am. St. Rep. 181. 67. California. — Moore v. Copp, 119 Cal. 429, 51 Pac. 630. Colorado. — Bailey v. Carnduff, 14 Colo. App. 392, 59 Pae. 407. Illinois. — JefFery v. Bobbins, 73 111. App. 353 New York.— Sweetland v. Buell, 164 N. Y. 541, 58 N". E. 663, 79 Am. St. Rep. 676 [af- firming 89 Hun (N. Y.) 543, 35 N. Y. Suppl. 346, 69 N. Y. St. 733] ; Barnes v. Perine, 12 N. Y. 18. North Carolina. — Walker v. 'Scott, 106 N. C. 56, 11 S. E. 364; McDonald v. Carson, 95 N. C. 377. Pennsylvania. — Bobbins v. Farwell, 193 Pa. St. 37, 44 Atl. 260. Texas. — Phoenix Ins. Co. v. Moore, (Tex. Vol. II 702 APPEAL AND ERROR where the parties treat all the questions involved as purely legal, 68 where a case is submitted by agreement on certain specified issues, 69 or where the party complain- ing asks the court at the close of the case to direct a verdict in. his favor. 70 So, on the other hand, an objection to the submission of an issue or question of fact, when first made on appeal, comes too late, 71 nor can it be objected for the first time on appeal that the court erroneously submitted a question of law to the jury. 73 1. Relating to Verdicts and Findings. Objections to the form of the verdict cannot be first raised on appeal ; 73 and the following objections are waived when not raised in the appropriate manner in the trial court: that the verdict is uncertain ; 74 that it lacked the signature of the foreman of the jury ; 75 that it is general where there are several counts or causes of action ; 76 that the verdict was rendered by only eleven jurors; 77 that the verdict is for a gross sum, without specifying the separate items in controversy; 78 that the verdict is against part of several defendants, sued jointly, without any finding as to the others ; 79 that the verdict is joint where it should have been several ; 80 that the verdict in an action for conversion is for the return of the property, without assessing the value of Civ. App. 1898) 46 S. W. 1131; Bailey v. Miekle, (Tex. Civ. App. 1898) 45 S. W. 949. Wisconsin. — Limited Invest. Assoc, v. Glen- dale Invest. Assoc, 99 Wis. 54, 74 N. W. 633; State v. Lever, 62 Wis. 387, 22 N. W. 576. United States. — Hammond v. Crawford, 66 Fed. 425, 35 U. S. App. 1, 14 C. C. A. 109. See 2 Cent. Dig. tit. " Appeal and Error/' § 1304 et seq. 68. Barnes' v. Perine, 12 N. Y. 18. 69. Moore v. Copp, 119 Cal. 429, 51 Pac. 630; Breneman v. Mayer, (Tex. Civ. App. 1900) 58 S. W. 725. 70. Edgar v. Clason, 31 Misc. (N. Y.) 763, 64 N. Y. Suppl. 359. 71. California. — Lestrade v. Barth, 19 Cal. 660. Florida. — Emerson v. Ross, 17 Fla. 122. Iowa. — Vandall v. Vandall, 13 Iowa 247. Kentucky. — Sallee v. Eades, 21 Ky. L. Rep. 109, 50 S. W. 1102. Minnesota. — Davis v. JSmith, 7 Minn. 414. New Hampshire. — Dunbar v. Locke, 62 N. H. 442. New York. — Warner v. Press Pub. Co., 15 Daly (N. Y.) 545, 8 N. Y. Suppl. 341, 29 N. Y. St. 310 : Schaff v. Miles, 10 Misc. (N. Y.) 395, 31 N. Y. Suppl. 134, 63 N. Y. St. 526. North Carolina. — Holden v. Strickland, 116 N. C. 185, 21 S. E. 684. 72. Baxter v. Graham, 5 Watts (Pa.) 418; Syme v. Butler, 1 Call (Va.) 105. 73. Arkansas. — Johnson v. Barbour, 28 Ark. 188. California. — Johnson v. Visher, 96 Cal. 310, 31 Pac. 106; Hicks v. Coleman, 25 Cal. 122, 85 Am. Dec. 103. District of Columbia. — Washington Gas Light Co. v. Lansden, 9 App. Cas. (D. C.) 508. Illinois. — Moss v. Oakland, 88 111. 109; Illinois Cent. E. Co. v. People, 49 111. App. 538. Indiana. — Cook v. McNaughton, 128 Ind. 410, 24 N. E. 361, 28 N. E. 74; Waymire v. Lank, 121 Ind. 1, 22 N. E. 735. Maryland. — Barker v. Ayers, 5 Md. 202. Vol. II Michigan. — Casserly v. Casserly, 123 Mieh. 44, 81 N. W. 930. Minnesota. — Manny v. Griswold, 21 Minn. 506. Nebraska. — Cervena v. Thurston, 59 Nebr. 343, 80 N. W. 1048; Parish v. McNeal, 36 Nebr. 727, 55 N. W. 222. New York. — Tripp v. Smith, 50 N. Y. App. Div. 499, 64 N. Y. Suppl. 94. Oklahoma. — Brook v. Bayless, 6 Okla. 568, 52 Pac. 738. South Dakota. — Piano Mfg. Co. v. Person, 12 S. D. 448, 81 N. W. 897. Texas. — Flanagan v. Pearson, 61 Tex. 302. Washington. — McClellan v. Gaston, 18 Wash. 472, 51 Pac. 1062; Rawson v. Ells- worth, 13 Wash. 667, 43 Pac. 934. Wisconsin. — Hrouska v. Janke, 66 Wis. 252, 28 N. W. 166. United States. — Laber v. Cooper, 7 Wall. (U. S.) 565, 19 L. ed. 151; Philip Schneider Brewing Co. v. American Ice-Maeh. Co., 77 Fed. 138, 40 U. S. App. 382, 23 C. C. A. 89. See 2 Cent. Dig. tit. "Appeal and Error," § 1315 et seq. 74. Ryan v. Fitzgerald, 87 Cal. 345, 25 Pac. 546; Sharp v. Flinn, 27 Ind. 98. 75. Louisville, etc., R. Co. v. Kemper, 153 Ind. 618, 53 N. E. 931 ; Wolcott v. Yeager, 11 Ind. 84; Berry v. Pusey, 80 Ky. 166; Duncan v. Oliphant, 59 Mo. App. ]. 76. Henry v. Lowe, 73 Mo. 96; Sweet v. Maupin, 65 Mo. 65; Bigelow v. North Mis- souri R. Co., 48 Mo. 510; Stone v. Wen- dover, 2 Mo. App. 247; National Security Bank v. Butler, 129 U. S. 223, 9 S. Ct. 281, 32 L. ed. 682. 77. Goldstein v. Smith, 85 111. App. 588; Flanagan v. Pearson, 61 Tex. 302. 78. Casserly v. Casserly, 123 Mich. 44, 81 N. W. 93; Hewitt v. Morlev, 111 Mich. 187, 69 N. W. 245 : Tripp v. Smith, 50 N, Y. App. Div. 499, 64 N. T. Suppl. 94; Jones v. Roach, 21 Tex. Civ. App. 301, 51 S. W. 549. 79. Washington Gas Light Co. v. Lansden, 9 App. Cas. (D. C.) 508. 80. Hicks v. Coleman, 25 Cal. 122, 85 Am. Dec. 103. APPEAL AND ERROR 703 such property; 81 or that the jury passed upon only one of two issues submitted. 82 So, the question of the propriety of amending a verdict cannot first be raised on appeal. 83 Similarly, it cannot be objected for the first time on appeal that the finding of the trial court is incomplete; 84 that it is inconsistent with the plead- ings ; ^ that the findings are hot stated separately from the conclusions of law ; 86 that the findings of fact are not entered on' the record ; 87 that the findings amount to conclusions of law ; M that the court failed to make special findings of fact, none having been asked ; 89 that the court had no authority to make special findings ; 90 that the court refused to modify the special findings, no motion having been made therefor ; 91 or that the findings are not supported by the evidence. 92 m. Relating to Reports of Auditors, Masters, or Referees. Objections to the report of a referee, auditor, or master, when made for the first time on appeal, will not be considered. 93 Thus, it cannot be objected that the report was not sufficiently specific ; u that it did not include all the issues ; " that the evidence before the commissioner was not returned with the report ; 96 that special findings were not made ; m that the report did not include the master's opinion which was directed to be given by the order of reference ; 98 that the report is not sustained by the evidence ; " or that the report is against the weight of the evidence. 1 n. Relating to Judgments — (i) In G-snmbal. An appellate court will not review alleged errors in a judgment, which errors are not fundamental or 81. Mitchell v. Mitchell, 51 Hun (N. Y.) 644, 4 N. Y. Suppl. 72, 22 N. Y. St. 70. 82. Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561. 83. Chittenden v. Evans, 48 111. 52. 84. Ashmead v. Reynolds, 134 Ind. 139, 33 N. E. 763, 39 Am. St. Rep. 238; Arnold v. Hodge, 20 Tex. Civ. App. 211, 49 S. W. 714. 85. California. — Schroeder v. Pissis, 128 Cal. 209, 60 Pae. 758. Kansas. — Rucker v. Donovan, 13 Kan. 251, 19 Am. Rep. 84. Missouri. — Bell v. McCoy, 136 Mo. 552, 38 S. W. 329. Montana. — Southnayd v. Southnayd, 4 Mont. 100, 5 Pae. 318. New York. — Goodrich v. Thompson, 44 N. Y. 324. Wisconsin. — Cordes v. Coates, 78 Wis. 641, 47 N. W. 949. United States. — New Orleans, etc., R. Co. v. Lindsay, 4 Wall. (U. S.) 650, 18 L. ed 328 86. Ash v. Scott, 76 Iowa 27, 39 N. W. 924; Aeh v. Carter, 21 Wash. 140, 57 Pae. 344. 87. Kruck v. Prine, 22 Iowa 570. 88. Langworthy v. Coleman, 18 Nev. 440, 5 Pae. 65. 89. Sheibley v. Dixon County, (Nebr. 1901) 85 N. W. 399. See also Georgia Home Ins. Co. v. O'Neal, 14 Tex. Civ. App. 516, 38 S. W. 62. 90. Swift v. Harley, 20 Ind. App. 614, 49 N. E. 1069. 91. Windfall Natural Gas, etc., Co. v. Ter- williger, 152 Ind. 364, 53 N. E. 284. 92. Armstrong v. Elliott, 20 Tex. Civ. App. 41, 48 S. W. 605, 49 S. W. 635. P<*. California. — Porter v. Barling, 2 Cal. 72. Illinois.— Gehrke v. Gehrke, 190 111. 166, 60 N. E. 59; Butler V. Cornell, 148 111. 276, 35 K, &?«. Iowa. — Feister v. Kent, 92 Iowa 1, 60 N. W. 493. Kentucky. — Hopkins v. Sodouskie, 1 Bibb (Ky.) 148; Patrick v. McClure, 1 Bibb (Ky.) 52. Maine. — Hall v. Decker, 51 Me. 31. Missouri. — Hornblower v. Crandall, 78 Mo. 581. New Hampshire. — Ireland v. Drown, 61 N. H. 638. New Mexico. — Albuquerque First Nat. Bank v. McClellan, 9 N. M. 636, 58 Pae. 247. Pennsylvania. — Scott V. Scott, 196 Pa. St. 132, 46 Atl. 379. South Dakota. — Merchants Nat. Bank v. McKinney, 4 S. D. 226, 55 N. W. 929. Texas. — Smith v. Smith, 10 Tex. Civ. App. 485, 32 S. W. 28. Vermont. — Manning v. Leighton, 66 Vt. 56, 28 Atl. 630. Virginia. — Cralle v. Cralle, 84 Va. 198, 6 S. E. 12; Beckham v. Duncan, (Va. 1888) 5 S. E. 690. West Virginia. — Sandy v. Randall, 20 W. Va. 244; Ellison v. Peck, 2 W. Va. 487. Wisconsin. — Milwaukee County v. Ehlers, 45 Wis. 281. United States. — McMicken v. Perin, 18 How. (TJ. S.) 507, 15 L. ed. 504. See 2 Cent. Dig. tit. "Appeal and Error," § 1325 et seq. ; and References. 94. Englebreeht v. Rickert, 14 Minn. 140. 95. Ingraham v. Gilbert, 20 Barb. (N. Y.) 151 96. Felton v. Felton, 47 W. Va. 27, 34 S. E. 753. 97. Nutt v. Gaddis, (Kan. App. 1900) 59 Pae. 727. 98. Wells, etc., Express Co. v. Walker, 9 N. M. 456, 54 Pae. 875. 99. Borchus v. Sayler, 90 Ind. 439; Feister V. Kent, 92 Iowa 1, 60 N. W. 493; Joyner v. Stancill, 108 N. C. 153, 12 S. E. 912. 1. Hornblower v. Crandall, 78 Mo. 581. Vol. II 704 APPEAL AND ERROR apparent of record, unless appellant or plaintiff in error, by presenting proper objections, gave the trial court an opportunity to correct the errors. 3 In other ■words, objections to errors and irregularities in the judgment, as to matters of form and procedure, must be taken in the lower court by some appropriate method, to authorize a review thereof on error or appeal. 3 On the other hand, an objection which goes to the foundation of the judgment, 4 such as a lack of necessary parties, 5 or a material defect in the process 6 or pleadings, 7 may be made for the first time in the appellate court. (n) Error in Rendition of Personal Judgment. In the absence of an objection below, an appellate court will not reverse a judgment or decree for an error, which is one of form only, in rendering an unauthorized personal judgment against a defendant in an action to enforce a lien 8 or foreclose a mortgage/ On the other hand, the judgment will be reversed, even though no objection was taken below, when the error goes to the foundation of the judgment, as where 2. Colorado. — Drake v. Root, 2 Colo. 685; Cripple Creek Syndicate Min., etc., Co. v. Snyder, 5 Colo. App. 414, 38 Pac. 1096. Indiana. — Hormann v. Hartmetz, 128 Ind. 353, 27 N. E. 731; Thames L. & T. Co. v. Be- ville, 100 Ind. 309. Iowa. — Stewart v. Stewart, 96 Iowa 620, 65 N. W. 976 ; Hanks v. North, 58 Iowa 396, 10 N. W. 785. Louisiana. — Swift v. Armstrong, 18 La. Ann. 189; Spiller v. Their Creditors, 16 La. Ann. 292. Oregon.— Shirley v. Burch, 16 Oreg. 83, 18 Pac. 351, 8 Am. St. Rep. 273. Pennsylvania. — Superior Nat. Bank v. Sta- delman, 153 Pa. St. 634, 32 Wkly. Notes Cas. (Pa.) 143, 26 Atl. 201. See 2 Cent. Dig. tit. "Appeal and Error," § 1338 et seq.; and, generally, Equity; Judg- ments; New Tbial. 3. Decree by two judges in relation to same matter. — It is too late, on appeal, to raise ob- jections to a decree because the judge of one of the divisions of a district court rendered a decree touching a part of the property, and another judge of another division also made a, decree in relation to the same matter. John- son v. Barkley, 47 La. Ann. 98, 16 So., 659. Entry of judgment on erroneous award. — An objection to the entry of a judgment un- der an award made under a submission by order of the court, which could be obviated by further evidence, comes too late when made for the first time on appeal. McMillan v. James, 105 111. 194. Erroneous judgment by default. — An objec- tion that the note sued on was not produced in evidence at the time judgment by default was rendered in the lower court cannot be made for the first time in the court of ap- peals. Prestage v. Loving, 1 Tex. App. Civ. Cas. § 707. Improper refusal of judgment. — An objec- tion that judgment was improperly refused, no reply having been filed, must be taken in the court below. Castleberg v. Wheeler, 68 Md. 266, 12 Atl. 3. Improper refusal of nonsuit. — An objection that the lower court refused a nonsuit for want of proof of a demand, cannot be taken for the first time on appeal. Baker v. Joseph, 16 Cal. 173. Vol. II Issuance of writ of assistance. — Where ob- jection was not made at the time of the issu-~ anee of a writ of assistance to defects in the judgment on which the writ was based, they cannot be considered on appeal. Gordon v. Clark, 22 Cal. 533. Judgment by default against one joint tres- passer. — An objection to a judgment by de- fault against one defendant, sued jointly with others for trespass, cannot be made for the first time on appeal. Johnson v. Vutriek, 14 Ind. 216. Judgment on unconfirmed referee's report. — A judgment entered on a referee's report can- not be objected to for the first time on appeal on the ground that it was not preceded by an order confirming the report. Little v. Little, 2 N. D. 175, 49 N. W. 736. The fact that judgment was prematurely rendered, immediately on the making and fil- ing of the findings of fact, is not ground for complaint on appeal where there was no ob- jection below, and no motion was made to set the judgment aside on that ground, and it appears that appellant has lost none of his rights thereby. Main v. Johnson, 7 Wash. 321, 35 Pac. 67. Upon an appeal from an order denying a mo- tion to vacate a previous order, the appellate court should not consider the objection that the order to show cause on such motion did not specify the irregularities or grounds upon which it was sought to set the original order aside, unless it appears that such objection was made in the trial court. Miller v. Kent, 59 How. Pr. (N. Y.) 321. 4. Friedman v. Payne, (Tex. Civ. App. 1896) 35 S. W. 47. 5. Bissell v. Lavaca, 6 Tex. 54. 6. Douthit v. State, 30 Miss. 133. 7. Edgar v. Greer, 7 Iowa 136; Fritz v. Hathaway, 135 Pa. St. 274, 26 Wkly. Notes Cas. (Pa.) 273, 19 Atl. 1011. Compare Allen v. Studebaker Brothers Mfg. Co., 152 Ind. 406, 53 N. E. 422. 8. Shrum v. Salem, 13 Ind. App. 115, 39 N. E. 1050 ; and see 2 Cent. Dig. tit. "Appeal and Error," § 1344 et seq. 9. Thompson v. Davis, 29 Ind. 264; Buell v. Shuman, 28 Ind. 464; Bullock v. Hayter, 24 Tex. 9. APPEAL AND ERROR 705 the trial court was without jurisdiction to render a personal judgment against defendant. 10 (in) Failure to Formally Default Defendant Not Appearing. Where the failure to enter a default against a defendant not appearing does not affect the substantial merits of a cause, a defect in the judgment in that respect will not be considered by a court of review when it was not presented to the lower court by proper objection. 11 (iv) Form of Judgment. "Where the proceedings in the trial court author- ized the rendition of a judgment or decree against the party complaining, it will not be reversed, upon appeal or error, because of a mere error or irregularity in its form, to which no objection was made below. 12 Thus, such a judgment, not 10. In an action to enforce a mechanic's lien, a personal judgment inadvertently ren- dered against the contractor, who was served by publication, will be corrected in the appel- late court even though the error was not called to the attention of the trial court. Schulenburg v. Werner, 6 Mo. App. 292. 11. Hedrick v. Hall, 155 Ind. 371, 58 N. E. 257 ; Bender v. State, 26 Ind. 285 ; Denny v. Moore, 13 Ind. 418; State v. Nolan, 99 Mo. 569, 12 S. W. 1047 ; and see 2 Cent. Dig. tit. "Appeal and Error," § 1341. 12. Illinois.— Wallace v. Gatchell, 106 111. 315. Indiana. — Stalcup v. Dixon, 136 Ind. 9, 35 N. E. 987; Cockrum v. West, 122 Ind. 372, 23 N. E. 140. Iowa. — Treiber v. Shafer, 18 Iowa 29. Nevada. — State v. Consolidated Virginia Min. Co., 13 Nev. 194. New York.— Buck v. Remsen, 34 N. Y. 383 ; Baldwin v. MeArthur, 17 Barb. (N. Y.) 414. Pennsylvania. — Weaver's Estate, 25 Pa. St. 434. South Carolina. — Brown v. Foster, 41 S. C. 118, 19 S. E. 299. Wisconsin. — Sayre v. Langton, 7 Wis. 214, See 2 Cent. Dig. tit. "Appeal and Error," § 1342. Action against principal and sureties. — Upon an appeal from a judgment for defend- ant in an action on a bond it cannot be ob- jected for the first time that judgment should have been rendered against the principal, even if it should have gone in favor of the sureties. Chester v. Leonard, 68 Conn. 495, 37 Atl. 397. Error in form of judgment against execu- tor. — The objection that a judgment against an executor is not in proper form, and should have been de bonis testatoris, is not one that can be made for the first time upon appeal. De Lavallette v. Wendt, 75 N. Y. 579, 31 Am. Rep. 494. Error in granting relief not prayed. — An appellate court will not disturb a judgment in quo warranto proceedings against a. public officer, whereby the relator was given the of- fice, although the action was brought merely to oust respondent, when no objection was made below to its form and extent. Wood v. State, 130 Ind. 364, 30 N. E. 309. Where a sale of land was canceled for fraud and the decree required it to be reconveyed to the ven- dor's administrator, it was objected on appeal, in the interests of other defendants, that this was unwarranted. It was held, that the ob- [45] jection should have been raised on the settle- ment of the decree. Wright v. Wright, 37 Mich. 55. Extinguishment of principal debt by counter-claim. — Where a chancellor, in mak- ing his decree in favor of a complainant, de- creed that the amount due on a note owing from complainant to defendant should extin- guish pro tan to the sum decreed to be paid by defendant to complainant, the decree should not be disturbed for this cause where no ob- jection was raised when it was entered. Dav- enport v. Bartlett, 9 Ala. 179. Failure to impose condition incident to re- lief. — A tax-title was set aside without or- dering the tax repaid to defendant. The plaintiff in his bill offered to pay, but the point was not made at the hearing. It was held that, because of this omission, the appel- late court should not disturb the decree. Dob- bins v. Peoria First Nat. Bank, 112 111. 553. Failure to allow benefit of valuation laws. — Where defendant appears, in an action on a note which contains no waiver of benefit of the valuation laws, he cannot raise the ques- tion for the first time on appeal of the failure of the lower court to specify his right to such benefit in the judgment. Johnson v. Prine, 55 Ind. 351; O'Brien v. Peterman, 34 Ind. 556. Failure to dispose fully of motion for nonsuit. — Where defendant moved for a non- suit on each of six causes of action, but as- signed several grounds for the motion which were applicable to the first three only, and the record shows that the parties and the court thenceforth ignored the last three causes, it is too late for defendant to make the objection for the first time on appeal that the judgment does not dispose of these last three causes. Plumer »>. Marathon County, 46 Wis. 163, 50 N. W. 416. Failure to render deficiency judgment. — In an action by remainder-man to have taxes paid by him declared a lien on the estate of the life-tenant, the plaintiff cannot, upon ap- peal, complain of the failure of the court to render a deficiency judgment after decreeing the sale of the land, unless such judgment was asked and refused. Brownlee v. David- son, 28 Nebr. 785, 45 N. W. 51. Failure to require resort to personalty. — The omission of a decree foreclosing a vendor's lien to require that the vendee's personal prop- erty should be first resorted to is not available on appeal where no objection or exception was made below. Stelzer i;. La Rose, 79 Ind. 435. Vol. II 706 APPEAL AND ERROR so objected to, will not be reversed because it is several instead of joint ; 13 is against some of defendants only, when it should have been against all ; 14 is not in the alternative, in an action of replevin 15 or detinue ; 16 or is based upon an erro- neous assessment of damages. 17 (v) Irregularities in Entry of Judgment. "Where a judgment has been properly rendered, a mere irregularity or informality in its entry cannot be taken advantage of on appeal unless, by the interposition of a proper objection, the trial court was given an opportunity to correct the error. 18 A mistake of this sort is usually the error of the clerk, not of the court, and for that reason is not avail- able in an appellate court until it has been expressly adopted or approved by the trial court, after being brought to its attention by an objection. 19 (vi) Variance Between Pleadings and Judgment. It being necessary that the judgment should be founded upon and conform to the pleadings, a vari- ance between them is a fatal objection to the judgment, and may be raised for the first time in an appellate court. 20 An objection to a judgment that it directed a sale of real estate without inquiry as to a sufficiency of personalty will not be noticed on appeal when the objection was not made be- low. Alshuler v. Yandes, 17 Ind. 291. Failure to take judgment on count not pleaded to. — Where the declaration contained two counts, the defendant pleaded to one, plaintiff demurred, defendant joined, the court sustained the demurrer and gave a judg- ment for plaintiff, and defendant appealed, it was held that it was too late for defendant to object in the appellate court that plaintiff omitted to take judgment by nil dicit on the other count, the objection not having been made in the court below. Mager v. Hutchin- son, 7 111. 266. Greater judgment than damages laid in declaration. — An objection cannot be made for the first time on appeal that a judgment for a debt, allowing the interest due as dam- ages, exceeds the damages laid in the declara- tion. Grand Lodge, etc. v. Bagley, 164 111. 340, 45 N. E. 538 [affirming 60 111. App. 589]. 13. Morton v. State, 18 Ind. 198. Or joint, instead of several. Braitwaite v. Aikin, 1 N. D. 455, 48 N. W. 354. 14. Walker v. Mobile Mar. Dock, etc., Ins. Co., 31 Ala. 529; Leonard v. Fulwiler, 60 Ind. 273; Leonard v. Blair, 59 Ind. 510. 15. Woodbury v. Tuttle, 26 111. App. 211; Baker v. Horsey, 21 Ind. 246. Excessive money judgment in replevin. A reversal of a money judgment on a replevin bond cannot be had because it fails to show that defendant elected to take such judgment, and that the judgment was slightly in excess of the value of the property, when such errors were not called to the attention of the trial court. Crill v. Jeffrey, 95 Iowa 634, 64 N. W 62E. 16. Robinson v. Keith, 25 Iowa 321; Bar- low v. Brock, 25 Iowa 308. 17. Denny v. Graeter, 20 Ind. 20; Black v. Jackson, 17 Ind. 13. 18. Michigan. — Kellogg v. Putnam, 11 Mich. 344. Minnesota. — Lundberg v. Single Men's En- dowment Assoc, 41 Minn. 508, 43 N 394. Missouri. — Hanly v. Holmes, 1 Mo 84 Vol. II W. New York.— Hinds v. Kellogg, 13 N. Y. Suppl. 922, 37 N. Y. St. 356. South Carolina. — Crane v. Lipscomb, 24 S. C. 430. See 2 Cent. Dig. tit. "Appeal and Error,'' § 1330 et seq. As, for instance: Variance between judgment entered and that ordered. — Harper v. Carroll, 66 Minn. 487, 69 N. W. 610, 1069; Levine v. Lancashire Ins. Co., 66 Minn. 138, 68 N. W. 855. Entry without order of the court. — Scott v. Minneapolis, etc., R. Co., 42 Minn. 179, 43 N. W. 966; Oldenberg v. Devine, 40 Minn. 409, 42 N. W. 88. Entry of judgment in vacation. — Carmieh- ael v. Vandebur, 50 Iowa 651. Premature entry. — Payne v. Trigg, 19 Ky. L. Rep. 801, 41 S. W. 4; Newell v. West, 149 Mass. 520, 21 N. E. 954. Entry too late. — Bueker v. Miller, 50 Minn. 360, 52 N". W. 958. Erroneous entry of judgment by default. — Wyland v. Frost, 75 Iowa 209, 39 N. W. 241; Durell v. Abbott, 6 Wyo. 265, 44 Pac. 647. Compare McPherson v. Bristol, 122 Mich. 354, 81 N. W. 254, which holds that where judgment should have been entered against two joint defendants; but, without objection below, was entered against one only, an appel- late court will treat it as having been entered against both, the trial court having authority to amend the judgment. Waiver of irregularity by appeal. — An ir- regularity in the entry of a judgment is waived by an appeal upon the merits. Hinds v. Kellogg, 13 N. Y. Suppl. 922, 37 X. Y. St. 356. To the same effect see Hanly v. Holmes, 1 Mo. 84. „ l^ Pavne v - Tli Sg. 19 Ky- L. Rep. 801, 41 fc>. W. 4; Harper v. Carroll, 66 Minn. 487, 69 N. W. 610, 1069; Levine v. Lancashire Ins. Co., 66 Minn. 138, 68 N. W. 855 ; Scott v. Min- neapolis, etc., R. Co., 42 Minn. 179, 43 N. W. 966; Lundberg v. Single Men's Endowment Assoc, 41 Minn. 508, 43 N. W. 394; Oldenberg v. Devine, 40 Minn. 409, 42 N. W. 88; Crane v. Lipscomb, 24 S. C. 430. ^ 20. Alabama. — Spence v. Savery, 25 Ala. APPEAL AND ERROR 707 (vn) Variance Between Verdict and Judgment. The objection that a judgment does not conform to, and is not supported by, the verdict, is a funda- mental one, apparent of record, and may be made for the first time upon appeal or writ of error. 31 o. Relating to Motions fop New Trial. The following objections in relation to motions for new trial are waived if raised for the first time on appeal : 22 that the motion was not properly before the court 23 or was not made in time j 24 that the notice of motion was insufficient ; K that there was no notice of the motion ; 26 that the motion was not signed by counsel; 27 that the assignment of errors on the motion is incorrect; 28 that attorneys other than those of record appeared in behalf of the motion ; 29 or that no formal motion was filed — notice of the motion and order overruling it appearing of record. 80 p. Relating to Proceedings to Vacate Judgment. In relation to proceedings to vacate a judgment it cannot be objected for the first time on appeal that the application was by motion instead of by petition, 31 or that a motion was made without h'rst having a case settled. 32 .Kansas. — Soper v. Gabe, 55 Kan. 646, 41 Pac. 969. Missouri. — Hempstead v. Stone, 2 Mo. 65. Montana. — Foster v. Wilson, 5 Mont. 53, 2 Pae. 310; Parker v. Bond, 5 Mont. 1, 1 Pac. 209 ; Gilette v. Hibbard, 3 Mont. 412. Texas. — Friedman v. Payne, (Tex. Civ. App. 1896) 35 S. W. 47. Wyoming. — MeNamara v. O'Brien, 2 Wyo. 447. See 2 Cent. Dig. tit. "Appeal and Error,'' i 1347. The decision in the case of Hempstead v. Stone, 2 Mo. 65, was put on the ground that the departure of the judgment from the plead- ings would be regarded by the supreme court as an express decision, and would be reviewed accordingly. Compare Gatling v. Robbins, 8 Ind. 184, where it was held that a slight variance in the name of defendant will be presumed to have been caused by a clerical error. Compare, also, Bassett v. Woodward, 13 Kan. 341, which holds that where the allega- tions in the petition and the findings of fact sustain the judgment, a variance between the prayer for relief in the petition and the judg- ment will not, when first noticed in the su- preme court, ordinarily justify a reversal, particularly when the variance is immaterial. Contra, Russell v. Hubbard, 76 Ga. 618, 622, the decision being based upon the express ground that the supreme court of Georgia is " an appellate court, and has no original jurisdiction," and that " its authority extends only to the correction of errors in the decis- ions, etc., of courts to which writs of error lie." To the same effect see Holdom v. Lockwood, 59 111. App. 359, wherein it is said that the appellate court is a court of review; and that generally only such matters as had been pointed out in the court below, and considered there, were proper subjects for review by the appellate court. 21. Holt v. Van Eps, 1 Dak. 206, 46 N. W. 689; West v. Miles, 9 Mo. 167; Bennett v. Butterworth, 11 How. (U. S.) 669, 13 L. ed. 859. Contra, Johnson v. Barbour, 28 Ark. 188; Watts v. Green, 30 Ind. 98. See also Hauser v. Roth, 37 Ind. 89, which holds that, if the court renders judgment on the report of a master which does not, in fact, warrant the judgment, the error is waived if no objection is made by exception taken in the trial court. See 2 Cent. Dig. tit. " Appeal and Error," § 1340. 22. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 1333 et seq.; and, generally, New Tkial. 23. Dickinson v. Mann, 69 Ga. 729. 24. Hegard v. California Ins. Co., 72 Cal. 535, 14 Pae. 180, 359; Briehman v. Ross, 67 Cal. 601, 8 Pac. 316; Smith v. Adair, 61 Ga. 281; Habbe v. Viele, 148 Ind. 116, 45 N. E. 783, 47 N. E. 1; State v. Anderson, (Iowa 1899) 80 N. W. 430; State v. Stevenson, 104 Iowa 50, 73 N. W. 360. 25. California.— Brady v. O'Brien, 23 Cal. 244. Georgia. — Cleveland v. Chambliss, 64 Ga. 352. Iowa. — Darrance v. Preston, 18 Iowa 396. Minnesota. — Chesley v. Mississippi, etc., River Boom Co., 39 Minn. 83, 38 N. W. 769. Texas. — Bradshaw v. Davis, 12 Tex. 336. 26. Gage v. Downey, (Cal. 1888) 19 Pac. 113; Beck v. Thompson, 22 Nev. 109, 36 Pac. 562; Fletcher v. Nelson, 6 N. D. 94, 69 N. W. 53. 27. Pape v. Lathrop, 18 Ind. App. 633, 46 N. E. 154; Crust v. Evans, 37 Kan. 263, 15 Pac. 214. 28. Rhemke v. Clinton, 2 Utah 438. 29. Searles v. Christensen, 5 S. D. 650, 60 N. W. 29. 30. Needham v. Salt Lake City, 7 Utah 319, 26 Pac. 920. 31. Callanan v. Mtna. Nat. Bank, 84 Iowa 8, 50 N. W. 69; Storm Lake v. Iowa Falls, etc., R. Co., 62 Iowa 218, 17 N. W. 489. 32. Jones v. Evans, 28 Wis. 168. If a motion to vacate a judgment by con- fession is overruled, defendant waives all ob- jections to the overruling of the motion by pleading and going to trial on the merits. Anderson Transfer Co. v. Fuller, 73 111. App. 48. If the notice of a motion to set aside a Vol. II 708 APPEAL AND ERROR q. Relating to Amount of Recovery. Where no objection is taken to a ver- dict or judgment on the ground that the amount thereby allowed is excessive 38 or inadequate, 34 the objection will not be noticed on appeal. In the application of this general principle it is held that the following objections are waived when not raised in the court below : that the recovery is in excess of the amount claimed in the pleadings ; x that there was error in allowing or not allowing interest, or in the calculation of the amount of interest allowed ; m that there was error in allow- judgment by default shows that the motion was made on the affidavits and pleadings, and it appears by affidavit that the judgment was a surprise to defendant and that the applica- tion to set aside was based on mistake and excusable neglect, the motion itself not ap- pearing in the record and no objection as to its being defective having been made in the court below, the motion will be held sufficient. Utah Commercial, etc., Bank v. Trumbo, 17 Utah 198, 53 Pae. 1033. 33. Alabama. — Smith v. Dick, 95 Ala. 311, 10 So. 845 ; Powell v. Glenn, 21 Ala. 458. Arkansas. — Johnson v. Barbour, 28 Ark. 188. California. — Whiting v. Clark, 17 Cal. 407. Colorado. — Mason v. Sieglitz, 22 Colo. 320, 44 Pae. 588. Georgia.— Witkowski v. Stubbs, 91 Ga. 440, 17 S. E. 609. Illinois. — Shaffner v. Appleman, 170 111. 281, 48 N. E. 978; Masterson v. Furman, 82 111. App. 386. Indiana. — New York, etc., R. Co. v. Ham- let Hay Co., 149 Ind. 344, 47 N E. 1060, 49 N. E. 269; Henderson v. Henderson, 110 Ind. 316, 11 N. E. 432. Iowa. — Tarpy v. Blume, 101 Iowa 469, 70 N. W. 620; Waterhouse v. Black, 87 Iowa 317, 54 N. W. 342. Kentucky. — Clarke v. Finnell, 16 B. Mon. (Ky.) 329; Bell v. Mansfield, 12 Ky. L. Rep. 89, 13 S. W. 838. Louisiana. — Gamble v. MeClintoek, 9 La. Ann. 159. Maryland. — Baltimore, etc., R. Co. v. State, 60 Md. 449. Massachusetts. — Tyng v. Thayer, 8 Allen (Mass.) 391. Michigan. — Brushaber v. Stegemann, 22 Mich. 266. Minnesota. — Bank of Commerce v. Smith, 57 Minn. 374, 59 N. W. 311; Spencer v. St. Paul, etc., R. Co., 22 Minn. 29. Mississippi. — Phipps v. Nye, 34 Miss. 330. Missouri. — - St. Joseph Union Depot Co. v. Chicago, etc., R. Co., 131 Mo. 291, 31 S. W. 908 ; Catron's Estate, 82 Mo. App. 416. Nebraska. — Omaha First Nat. Bank v. Bartlett, 8 Nebr. 329, 1 N. W. 145. Nevada. — Ehrhardt v. Curry, 7 Nev. 221. New York.— Nilsson v. De Haven, 47 N. Y. App. Div. 537, 62 N. Y. Suppl. 506 ; Saltsman v. New York, etc., R. Co., 65 Hun (N. Y.) 448, 20 N. Y. Suppl. 361, 48 N. Y. St. 55. North Dakota. — Q. W. Lovering-Browne Co. v. Buffalo Bank, 7 N. D. 569, 75 N. W. 923. Pennsylvania. — Patton v. Philadelphia, 189 Pa. St. 602, 42 Atl. 296 ; Readdy v. Shamokin, 137 Pa. St. 92, 20 Atl. 424. Vol. II South Carolina. — Ragsdale v. Southern R. Co., (S. C. 1901) 38 S. E. 609; Crane v. Lips- comb, 24 S. C. 430. Tennessee. — Kirk v. York, 1 Coldw. (Tenn.) 446. Texas. — Petri v. Fond du Lac First Nat. Bank, 83 Tex. 424, 18 S. W. 752, 29 Am. St. Rep. 657 ; Mills v. Hackett, 65 Tex. 580. Virginia. — Richmond, etc., R. Co. v. George, 88 Va. 223, 13 S. E. 429; Wray v. Davenport, 79 Va. 19. Washington. — Bethel v. Robinson, 4 Wash. 446, 30 Pae. 734. Wisconsin. — Reed v. Catlin, 49 Wis. 686, 6 N. W. 326. United States. — J. S. Keator Lumber Co. v. Thompson, 144 U. S. 434, 12 S. Ct. 669, 36 L. ed. 495. See 2 Cent. Dig. tit. "Appeal and Error," § 1353 et seq. 34. Johnson v. His Creditors, 16 La. Ann. 177; Elkins v. Elkins, 11 La. 224; Garner's Appeal, 1 Walk. (Pa.) 438; Houston, etc., R. Co. v. McFadden, (Tex. Civ. App. 1897) 40 S. W. 216; Befay v. Wheeler, 84 Wis. 135, 53 N. W. 1121. 35. Alabama. — Smith v. Dick, 95 Ala. 311, 10 So. 845 ; Government St. R. Co. v. Hanlon, 53 Ala. 70. Illinois. — Fidelity, etc., Co. v. Weise, 80 111. App. 499 ; Wells v. Mathews, 70 111. App. 504; Wheatley v. Chicago Trust, etc., Bant, 64 111. App. 612. Iowa. — Brownlee v. Marion County, 53 Iowa 487, 5 N. W.' 610; Finch v. Billings, 22 Iowa 228. Kentucky. — Clarke v. Finnell, 16 B. Mon. (Ky.) 329. Compare Preston v. Roberts, 12 Bush (Ky.) 570. Massachusetts. — Tyng v. Thayer, 8 Allen (Mass.) 391. Michigan. — Smith v. Huntley, 48 Mich. 352, 12 N. W. 200. Minnesota. — Bank of Commerce v. Smith, 57 Minn. 374, 59 N. W. 311. Missouri. — Compare Carr v. Edwards, 1 Mo. 137. Nevada. — Ehrhardt v. Curry, 7 Nev. 221. New York. — Clason v. Baldwin, 68 Hun (N. Y.) 404, 23 N. Y. Suppl. 50, 52 N. Y. St. 748; Houghton v. Starr, 4 Wend. (N. Y.) 175. Pennsylvania. — Readdy v. Shamokin, 137 Pa. St. 92, 20 Atl. 424. Texas. — Washington L. Ins. Co. v. Good- ing, 19 Tex. Civ. App. 490, 49 S. W. 123. Wisconsin. — Morris v. Peck, 73 Wis. 482, 41 N. W. 623. 36. California. — Whiting v. Clark, 17 Cal. 407 ; Morgan v. Hugg, 5 Cal. 409. APPEAL AND ERROR 709 ing attorney's fees ; OT or that, through clerical error, there was a failure to allow credits in giving judgment. 38 No mere mistake in computation will be noticed on appeal when not brought to the attention of the court below by some appropriate method. 39 r. Relating to Executions. Objections based on the sufficiency or regularity of executions cannot be raised for the first time on appeal, 40 as thai the execution does not follow the judgment ; 41 that the judgment on which the execution issued was dormant ; & that the execution does not contain the date of the judgment ; ^ that the application for leave to issue execution was not made on affidavit as required by statute ; u that there were no judgments on which the executions issued; 45 that the execution was issued five years from the entry of judgment; 46 that the clerk issuing the execution had no authority so to do ; m that during a motion for new trial execution was allowed to issue for a part of the 6um where part was admitted to be due ; m or that the appointment of a substitute sheriff to make a levy was irregular. 49 So, irregularities in executing a writ of habere facias possessionem will not be regarded in the appellate court until adjudicated in the court below, 50 and the fact that a notice to quash an execution and a sale there- Colorado. — Carson v. Arvantes, Colo. (1899) 59 Pac. 737. Georgia. — Aycock v. Austin, 87 Ga. 566, 13 S. E. 582 ; Brower v. East Home Town Co., 84 Ga. 219, 10 S. E. 629. Illinois. — District Grand Lodge No. 4, etc. v. Menken, 67 111. App. 576; Weaver v. Snow, 60 111. App. 624. Iowa. — Keller v. Jaekson, 58 Iowa 629, 12 N. W. 618. Kentucky. — Clarke v. Finnell, 16 B. Mon. (Ky.) 329; Armendt v. Perkins, 17 Ky. L. Rep. 1327, 32 S. W. 270. Louisiana. — Rhodes' Succession, 39 La. Ann. 473, 2 So. 36; Elkins v. Elkins, 11 La. 224. Massachusetts. — Franklin Sav. Inst. v. Reed, 125 Mass. 365. Missouri. — Conway v. St. Louis, 9 Mo. App. 488. Montana. — McFarland v. Cutter, 1 Mont. 383. Nevada. — McCausland v. Lamb, 7 Nev. 238. Wisconsin. — Mahon v. Kennedy, 87 Wis. 50, 57 N. W. 1108. United States. — Journeycake v. Cherokee Nation, 30 Ct. CI. 172. 37. J. Obermann Brewing Co. v. Ohlerking, 33 111. App. 26; Haldeman v. Massachusetts Mut. L. Ins. Co., 21 111. App. 146; Smith v. Brownson, 53 Tex. 271; Mason v. McLean, 6 Wash. 31, 32 Pac. 1006; Wheeler v. Ralph, 4 Wash. 617, 30 Pac. 709 ; Reed v. Catlin, 49 Wis. 686, 6 N. W. 326. 38. Long v. Gaines, 4 Bush (Ky.) 353; Doods v. Combs, 3 Mete. (Ky.) 28, 77 Am. Dec. 150; Bell v. Mansfield, 12 Ky. L. Rep. 89, 13 S. W. 838. What is not a clerical error. — Failure of the court to give defendant the credit to which the pleadings entitled him was not a clerical misprision, as it does not appear at once upon a mere inspection of the record as a matter upon which there could be any dis- pute; hence the failure to give the credit is reviewable on appeal without a previous mo- tion for its correction below. King v. Walker, 15 Ky. L. Rep. 605. 39. Iowa. — Reed v. Lane, 96 Iowa 454, 65 N. W. 380; Doud v. Blood, 89 Iowa 237, 56 N. W. 452; Keller v. Jaekson, 58 Iowa 629, 12 N. W. 618. Kentucky. — Wilson v. Barnes, 13 B. Mon. (Ky.) 330. Louisiana. — Gamble v. McClintock, 9 La. Ann. 159. Mississippi. — Walker v. Jones, 44 Miss. 623. New York. — Monnet v. Heller, 57 N. Y. Super. Ct. 576, 5 N. Y. Suppl. 913, 25 N. Y. St. 609; Rogers v. Hosack, 18 Wend. (N. Y.) 319. Trial before referee. — An objection to the allowance of damages and the computation of damages by the referee will not be considered on appeal. Lazarus v. Metropolitan El. R. Co., 69 Hun (N. Y.) 190, 23 N. Y. Suppl. 515, 53 N. Y. St. 31. 40. Illinois. — Parr v. Van Horn, 38 111. 226 ; McCartney v. Loomis, 61 111. App. 364. Kentucky. — Payne v. Mattox, 1 Bibb (Ky.) 164; Smith v. Carr, Hard. (Ky.) 305. Missouri. — Posey v. Buckner, 3 Mo. 604. New York. — People v. Marston, 18 Abb. Pr. (N. Y.) 257. North Carolina. — Currie v. Clark, 101 N. C. 321, 7 S. E. 776. Virginia. — Leftwitch v. Stovall, 1 Wash. (Va.) 303. See 2 Cent. Dig. tit. "Appeal and Error," § 1369 et seq.; and, generally, Executions ,- Judicial Sales. 41. Sappington v. Lenz, 53 Mo. App. 44. 42. Currie v. Clark, 101 N. C. 321, 7 S. E. 776. 43. Mooney v. Moriarty, 36 111. App. 175. 44. Matter of Holmes, 59 Hun (N. Y.) 369, 13 N. Y. Suppl. 100, 36 N. Y. St. 535. 45. Evans v. Wilder, 5 Mo. 313. See also Becker v. Goldschild, 9 Pa. Super. Ct. 50. 46. Union Bank v. Sargeant, 53 Barb. (N. Y.) 422, 35 How. Pr. (N. Y.) 87. 47. Noyes v. Manning, 162 Mass. 14, 37 N. E. 768. 48. Planters' Bank v. Union Bank, 16 Wall. (U. S.) 483, 21 L. ed. 473. 49. Turner v. Billagram, 2 Cal. 520. 50. Kouns v. Lawall, 2 Bibb (Ky.) 236. Vol. II 710 APPEAL AND ERROR under did not specify the error cannot be assigned for error in the reviewing court. 51 s. Relating to Time of Hearing. Objections as to the time of the hearing or trial, when made for the first time on appeal, will not be considered 52 — such, for instance, as that the issues were not fully made up ; ^ that the time for the hear- ing was not properly fixed ; M that the cause was heard immediately upon over- ruling a demurrer j 55 or that the cause was tried, not at a term of court, but before a judge out of court. 56 t. Relating to Revival of Action. In respect to the revival of actions it has been held that it cannot be objected for the first time on appeal that a suit was revived in the name of the administrator, without proving that he was adminis- trator; 57 that an action was revived against executors instead of devisees; 58 that the revival of a suit was by ah improper method ; 59 that there was no formal revival of the suit ; w that an application for revival should have been made by motion, supported by affidavit, instead of by petition ; 61 or that one of the defend- ants in the original action was not joined in the application. 62 So, where one of two joint executors dies pending a suit brought by them, and his death is sug- gested, but the case is not revived against his representatives, and a final hearing is had in the court below, it is too late to object in the appellate court that the suit was not so revived. 63 u. Changing or Adding Grounds of Objection. Only objections or grounds of objection urged in the trial court will be considered on appeal. The party will not be permitted to change them or to add others. 64 This doctrine has been 51. January v. Bradford, 4 Bibb (Kj.) 566. 52. Alabama. — Bancroft v. Stanton, 7 Ala. 351. Florida. — Livingston v. Webster, 26 Fla. 325, 8 So. 442. Illinois. — Bahe v. Jones, 132 111. 134, 23 N. E. 338. Kansas. — Sawyer v. Forbes, 36 Kan. 612, 14 Pae. 148. Kentucky. — Moss v. Rowland, 3 Bush (Ky.) 505. Michigan. — Crippen v. Jacobson, 56 Mich. 386, 23 N. W. 56. Minnesota.— Fallgatter r. Lammers, 71 Minn. 238, 73 X. W. 860. Nebraska. — Lincoln v. Staley, 32 Nebr. 63, 48 N. W. 887. New York. — Fisher v. Hepburn, 48 N. Y. 41; Matter of Broadway, etc., R. Co., 73 Hun (N. Y.) 7, 25 N. Y. Suppl. 1080, 57 N. Y. St. 108. North Carolina. — Anthony v. Estes, 99 N. C. 598, 6 S. E. 705. Pennsylvania. — Feather's Appeal, 1 Penr. & W. (Pa.) 322. Texas. — Texas, etc., R. Co. v. Garcia, 62 Tex. 285. United States. — J. S. Keator Lumber Co. v. Thompson, 144 U. S. 432, 12 S. Ct. 669, 36 L. ed. 495. 53. J. S. Keator Lumber Co. v. Thompson, 144 U. S. 434, 12 S. Ct. 669, 36 L. ed. 495. 54. Fallgatter v. Lammers, 71 Minn. 238, 73 N. W. 860. 55. Bahe v. Jones, 132 111. 134, 23 N. E. 338. 56. Fisher v. Hepburn, 48 N. Y. 41. 57. Patterson v. Burnett, 6 Ala. 844 ; Cope- wood v. Taylor, 7 Port. (Ala.) 33. 58. Klenke v. Koeltze, 75 Mo. 239. Vol. II 59. Slaughters v. Farland, 31 Gratt. (Va.) 134. 60. MacGregor v. Gardner, 14 Iowa 326; Read v. Sexton, 20 Kan. 195; Whiting v. Crandall, 78 Mo. 593. 61. Broadwater v. Foxworthy, 57 Nebr. 406, 77 N. W. 1103. 62. Broadwater v. Foxworthy, 57 Nebr. 406, 77 N. W. 1103. 63. Kee v. Kee, 2 Gratt. (Va.) 116. 64. A labama. — Thompson v. Hartline, 84 Ala. 65, 4 So. 18; Massey v. Smith, 73 Ala. 173. California. — Toby v. Oregon Pae. R. Co., 98 Cal. 490, 33 Pae. 550. Colorado. — Quimby v. Boyd, 8 Colo. 194, 6 Pae. 462. Connecticut. — Plumb v. Curtis, 66 Conn. 154, 33 Atl. 998. Georgia. — Giles v. Vandiver, 91 Ga. 192, 17 S. E. 115. Illinois. — McCarthy v. Neu, 91 111. 127; Hamilton v. Stafford, 78 111. App. 54. Indiana. — Standard Oil Co. v. Bowker, 141 Ind. 12, 40 N. E. 128 : Louisville, etc., R. Co. v. Rush, 127 Ind. 545, 26 N. E. 1010; Leach v. Dickerson, 14 Ind. App. 375, 42 N. E. 1031. Kansas. — Parsons Water Co. v. Hill, 46 Kan. 145, 26 Pae. 412. Louisiana. — Allopathic State Board of Medi- cal Examiners v. Fowler, 50 La. Ann. 1358, 24 So. 809. Michiqan. — Ives v. Leonard, 50 Mich. 296, 15 N. W. 463 ; Achey v. Hull, 7 Mich. 423. Minnesota. — Triggs v. Jones, 46 Minn. 277, 48 N. W. 1113; Bond v. Corbett, 2 Minn. 248. Mississippi. — Alexander v. Polk, 39 Miss. 737 : Prewett v. Coopwood, 30 Miss. 369. Missouri.— Winton, etc., State Bank v. Har- ris, 54 Mo. App. 156. APPEAL AND ERROR 711 specifically applied in very many instances, such as rulings admitting or reject- ing evidence, 65 rulings on motion for nonsuit, 66 to direct a verdict, 67 or for a continuance. 68 v. Necessity of Ruling on Objections — (i) In General. Under ordinary circumstances, merely to object is not enough. To make a question available as error, a direct decision must be obtained. Unless there is a ruling by the court, there can be no predicate for an assignment of error. 69 Nevada. — Gooch v. Sullivan, 13 Nev. 78. New Jersey. — Vantilburgh v. Shann, 24 N. J. L. 740; Polis v. Tice, 28 N. J. Eq. 432. New York. — Evans v. Keystone Gas Co., 148 N. Y. 112, 42 N. E. 513, 51 Am. St. Rep. 681, 30 L. R. A. 651 ; Phillips v. Metropolitan EI. R. Co., 12 N. Y. App. Div. 283, 42 N. Y. Suppl. 33. North Carolina. — Kidder v. Mcllhenny, 81 N. C. 123; Rollins v. Henry, 78 N. C. 342. Oregon. — Ladd v. Sears, 9 Oreg. 244. Pennsylvania. — Mills v. Buchanan, 14 Pa. St. 59. South Carolina. — Shull v. Caughman, 54 S. C. 203, 32 S. E. 301. South Dakota. — Gaines v. White, 2 S. D. 410, 50 N. W. 901 ; State v. Leehman, 2 S. D. 171, 49 N. W. 3. Tennessee. — Daniels v. Pratt, 6 Lea (Tenn.) 443. Texas. — Ann Berta Lodge No. 42, etc. v. Leverton, 42 Tex. 18. Virginia. — Warren v. Warren, 93 Va. 73, 24 S. E. 913. Washington. — Gustin v. Jose, 11 Wash. 348, 39 Pae. 687. West Virginia. — Long v. Perine, 41 W. Va. 314, 23 S. E. 611. United States. — Belk v. Meagher, 104 U. S. 279, 26 L. ed. 735; Hinde v. Longworth, 11 Wheat. (U. S.) 199, 6 L. ed. 454. See 2 Cent. Dig. tit. "Appeal and Error," § 1426 et seq. ; and infra, XVII. 65. Alabama. — Glawson v. Wiley, 35 Ala. 328 ; Walker v. Blassingame, 17 Ala. 810. Connecticut. — Lyon v. Ely, 24 Conn. 507. Georgia. — Giles v. Vandiver, 91 Ga. 192, 17 S. E. 115. Illinois. — Johnson v. Adleman, 35 111. 265 ; Pries v. Fagan, 23 111. App. 613. Indiana. — Chandler v. Beal, 132 Ind. 596, 32 N. E. 597; Huntington v. Breen, 77 Ind. 29. Iowa. — Hanks v. Van Garder, 59 Iowa 179, 13 N. W. 103; Boardman v. Beckwith, 18 Iowa 292. Louisiana. — Ball v. Ball, 15 La. 173. Massachusetts. — Howard v. Hayward, 10 Mete. (Mass.) 408. Michigan. — Young v. Stephens, 9 Mieh. 500. Minnesota. — Towle v. Sherer, 70 Minn. 312, 73 N. W. 180; Levine v. Lancashire Ins. Co., 66 Minn. 138, 68 N. W. 855. Mississippi. — Love v. Stone, 56 Miss. 449; Monk v. Home, 38 Miss. 100, 75 Am. Dec. 94. Missouri. — Watson v. Race, 46 Mo. App. 546. Nevada.-*- Gooch v. Sullivan, 13 Nev. 78. New Jersey. — Delaware, etc., R. Co. v. Dailey, 37 N. J. L. 526. New York. — Devereux v. Sun Fire Office, 51 Hun (N. Y.) 147, 4 N. Y. Suppl. 655, 20 N. Y. St. 584; Burns v. Schenectady, 24 Hun (N. Y.) 10; Parsons v. Disbrow, 1 E. D. Smith (N. Y.) 547. Oregon. — Ladd v. Sears, 9 Oreg. 244. Pennsylvania. — Fidler v. Hershey, 90 Pa. St. 363; Berks, etc., Turnpike Road Co. v. Myers, 6 Serg. & R. (Pa.) 12. Tennessee. — Monteeth v. Caldwell, 7 Humphr. (Tenn.) 13. Texas. — Watson v. Blymer Mfg. Co., 66 Tex. 558, 2 S. W. 353; Sharp v. Schmidt, 62 Tex. 263. Vermont. — Richardson v. Sanborn, 33 Vt. 75. Washington. — -Gustin v. Jose, 11 Wash. 348, 39 Pae. 687. Wisconsin. — McDermott v. Jackson, 97 Wis. 64, 72 N. W. 375; Coggswell v. Davis, 65 Wis. 191, 26 N. W. 557. United States. — German Ins. Co. v. Fred- erick, 58 Fed. 144, 19 U. S. App. 24, 7 C. C. A. 122. See 2 Cent. Dig. tit. "Appeal and Error," § 1430 et seq. Instances. — Where an objection is made to evidence as leading, it cannot be urged on appeal that it was irrelevant (McDermott v. Jackson, 97 Wis. 64, 72 N. W. 375); and, where a party objected to the admission of books of account on the ground that they were not properly authenticated under the statute, he cannot urge on appeal that the statute was inapplicable and that they should have been authenticated according to the com- mon-law rule (Levine v. Lancashire Ins. Co., 66 Minn. 138, 68 N. W. 855) ; and in eject- ment, where a release and quitclaim deed re- lied on by one of the parties to show title was objected to in the court below solely on the ground that it was not authenticated, the court of appeals will not hear an objection that it was ineffectual because at the time of its execution the grantor was not in posses- sion ( Sessions v. Reynolds, 7 Sm. & M. (Miss.) 130). 66. Raimond v. Eldridge, 43 Cal. 506 ; Ma- teer v. Brown, 1 Cal. 231; Quimby v. Boyd, 8 Colo. 194, 6 Pae. 462; Pratt v. Dwelling House Mut. F. Ins. Co., 130 N. Y. 206, 29 N. E. 117, 41 N. Y. St. 303. See 2 Cent. Dig. tit. "Appeal and Error," § 1428. 67. Decorah First Nat. Bank v. Laughlin, 4 N. D. 391, 61 N. W. 473. 68. Gaines v. White, 1 S. D. 434, 47 N. W. 524. 69. Colorado. — Kenney v. Jefferson County Bank, 12 Colo. App. 24, 54 Pae. 404, where a ruling was reserved. Vol. II 712 APPEAL AND ERROR (n) Rulings on Demurrers. After demurrer, if the parties proceed to trial on the merits without insisting on a disposition of the demurrer, it will be pre- sumed to have been waived, and it cannot be objected in the appellate court that it was not formally disposed of. 70 And this rule applies whether the demurrer be general or special. 71 (m) Rulings on Evidence. Error alleged in the admission or rejection ot evidence cannot be considered by the reviewing court if it does not appear from the record that there was a ruling relating thereto. 72 If evidence is received sub- Iowa. — Des Moines v. Layman, 21 Iowa 153 (an objection to the service of a notice) ; Houston v. Walcott, 1 Iowa 86. Minnesota. — Finley v. Quirk, 9 Minn. 194, 86 Am. Dec. 93. Missouri. — Beine v. Beine, 24 Mo. App. 675 (an objection to the introduction of testi- mony) ; Davis v. Seripps, 2 Mo. 187. Nebraska. — Chicago, etc., R. Co. v. Lund- strom, 16 Nebr. 254, 20 N. W. 198, 49 Am. Rep. 718. New York. — Union Bank v. Sargeant, 53 Barb. (N. Y.) 422, 35 How. Pr. (N. Y.) 87. North Carolina. — Tyson v. Tyson, 100 N. C. 360, 6 S. E. 707; Scroggs v. Stevenson, 100 \ N. C. 354, 6 S. E. Ill, where it was said that a ruling was necessary to confer appellate jurisdiction. Pennsylvania. — Duvall v. Darby, 38 Pa. St. 56 ; Dobson v. Philadelphia, 7 Pa. Dist. 321. Tennessee. — Youngstown Bridge Co. v. Barnes, 98 Tenn. 401, 39 S. W. 714. Vermont. — Sherwin v. Sanders, 59 Vt. 499, 9 Atl. 239, 59 Am. Eep. 750. See 2 Cent. Dig. tit. "Appeal and Error," § 1417 et seq. If irregularities or errors occur subsequent to judgment, they cannot be considered in the appellate court till they have been made the subject of an adjudication in the court below. Davis v. Thomas, 5 Tex. 389; Fra- zier v. Campbell, 5 Tex. 275. Silence may have the effect of a ruling. — It has, however, been held that the silence of the court, when objection is made to fla- grantly improper practices, may be consid- ered as an actual permission and allowance of what was objected to. Injurious irregu- larities of the trial cannot be protected against review in the appellate court by the judge's refusal to make express rulings on objections properly made against them. " Were it otherwise it would be in his power to stifle the right to a revision in many cases." Corning v. Woodin, 46 Mich. 44, 46, 8 N. W. 572. In Yingling v. Hesson, 16 Md. 112, four issues were tendered in the orphan's court, and the court sent three to the jury, but took no notice of the fourth. This was held to be in effect a refusal, and the objec- tion was considered. Rulings on pleas in abatement. — It is the duty of a party relying on a plea in abate- ment to call the attention of the court to it and require its ruling thereon. If he fails to do so at the proper time, and the case is pro- ceeded with on its merits, the plea is to be deemed waived and cannot be considered on appeal. Wallace v. Furber, 62 Ind. 126; Grand Lodge, etc. v. Stumpf, (Tex. Civ. App. Vol. II 1900) 58 S. W. 840 (where the plea was filed out of its order) ; Beale v. Ryan, 40 Tex. 399 ; and see 2 Cent. Dig. tit. "Appeal and Error," § 1419 ; Abatement and Revival, V. 70. Alabama. — Steed v. Knowles, 97 Ala. 573, 12 So. 75; Marcy v. Howard, 91 Ala. 133, 8 So. 566. California. — De Leon v. Higuera, 15 Cal. 483. Illinois. — Belleville Nail Mill Co. V. Chiles, 78 111. 14 (where the parties went to trial by consent) ; Davis v. Ransom, 26 111. 100. Louisiana. — Kuhn v. Embry, 35 La. Ann. 488 ; Hickman v. Dawson, 33 La. Ann. 438. Rhode Island. — Burdick v. Kenyon, 20 R. I. 498, 40 Atl. 99. Tennessee. — Coffman v. Williams, 4 Heisk. (Tenn.) 233. Texas. — State v. Thompson, 18 Tex. 526 (where the record showed that the case was submitted " to the court upon the record and evidence") ; Western Union Tel. Co. v. Strat- ton, (Tex. Civ. App. 1894) 28 S. W. 700; Chambers v. Ker, 6 Tex. Civ. App. 373, 24 S. W. 1118. See 2 Cent. Dig. tit. "Appeal and Error," § 1420. Exceptions to the rule that matters not passed upon will be considered waived are said to be where the foundation of the action itself appears to have failed, or where the ob- jection first taken in the appellate court goes to the merits or to the foundation of the ac- tion, and could not have been obviated had it been made in the court below, and not to those matters merely which the party could be deemed by his silence to have waived. Ladd i: Ladd, 121 N. C. 118, 28 S. E. 190; Rowlett v. Fulton, 5 Tex. 458; Petty v. Cleveland, 2 Tex. 404. 71. Knoxville, etc., R. Co. v. Mason, 16 Ky. L. Rep. 9, 26 S. W. 534, was an action to fore- close a lien for work done, etc., and the peti- tion, if defective, was only so to the extent that a special demurrer would lie to make the averment as to performance and acceptance more specific. But the court below took no action on the demurrer, and on issue taken the proof showed performance and acceptance, and the appellate court refused to notice the objection. 72. Alabama. — Taliaferro v. Lee, 97 Ala. 92, 13 So. 125. California. — Bryce v. Joynt, 63 Cal. 375, 49 Am. Rep. 94. Iowa. — Depee v. Grand Lodge, etc., 106 Iowa 747, 76 N. W. 798 ; Philbrick v. Univer- sity Place, 106 Iowa 352, 76 N. W. 742. Kentucky. — Lewis v. Wright, 3 Bush (Ky.) ,311; Patrick v. Day, 8 Ky. L. Rep. 349, 1 S. W. 477. APPEAL AND ERROR 713 ject to objection, and a subsequent ruling is not sought by motion or otherwise, the reviewing court will not consider the admission of such evidence, because there is no definite or final decision as to its admissibility. 73 (iv) Rulings on Motions. A motion which, so far as appears from the record, was never decided below, presents no question for decision in the appellate court. 74 (v) Rulings Relating to Remarks of Counsel. If counsel, in the exer- cise of his rights, objects to misconduct of opposing counsel, or to improper remarks made by the opposing counsel in his argument, and requests a ruling of Tennessee. — Sahlien v. Lonoke Bank, 90 Tenn. 221, 16 S. W. 373, a deposition on which exceptions were indorsed. Texas. — Mann v. Falcon, 25 Tex. 271. See 2 Cent. Dig. tit. "Appeal and Error," § 1421. Rulings of referee. — The supreme court will not review the rulings of a referee in accepting or rejecting evidence where it does not appear from the record that they were considered by the lower court. Clark's Code Civ. Proc. N. C. (1900) , p. 564; Drummond v. Huyssen, 46 Wis. 188, 50 N. W. 590. 73. Arkansas. — St. Louis, etc., R. Co. v. Brown, 62 Ark. 254, 35 S. W. 225. Iowa. — Grape v. Wiederholdt, (Iowa 1899) 80 N. W. 516; Gable v. Hainer, 83 Iowa 457, 49 N. W. 1024. Maryland. — Grand Fountain United Order of True Reformers v. Murray, 88 Md. 422, 41 Atl. 896 ; Flaeh v. Gottschalk Co., 88 Md. 368, 41 Atl. 908, 71 Am. St. Rep. 418, 42 L. R. A. 745. Minnesota. — Bitzer v. Bobo, 39 Minn. 18, 38 N. W. 609. Missouri. — Sieferer v. St. Louis, 141 Mo. 586, 43 S. W. 163. Tennessee. — Bruce v. Beall, 99 Tenn. 303, 41 S. W. 445. In Brooks v. Christopher, 5 Duer (N. Y.) 216, evidence had been received by a referee on condition that if certain other evidence making it material was not put in by defend- ant, it should be struck out, and the condition not being fulfilled, it was struck out. It was held that if the party acquiescing in the pro- visional admission desired to have the ruling reviewed, he should, when the case was closed, have obtained a specific ruling rejecting the evidence. A motion in the nature of a demurrer to evidence, of which no disposition was made in the trial court, will not be acted upon by the reviewing eourt. White v. Bird, 45 Kan. 759, 26 Pac. 463. See 2 Cent. Dig. tit. "Appeal and Error," § 1425. Objections to mere offers of testimony. — As a general rule exceptions taken to mere offers of testimony will not be reviewed. Pucci v. Barney, 2 Misc. (N. Y.) 354, 21 N. Y. Suppl. 1099, 51 N. Y. St. 581 [affirming 1 Misc. (N. Y.) 84, 20 N. Y. Suppl. 375, 48 N. Y. St. 30]. But this rule may fee departed from, as where, from an inspection of the case, it is manifest that the offers were made in good faith, and for the purpose of facilitat- ing the business of the court and with its sanction, no objection being made at the time. Gerard v. Cowperthwait, 143 N. Y. 637, 37 N. E. 827, 60 N. Y. St. 874 [affirming 2 Misc. (N. Y.) '371, 21 N. Y. Suppl. 1092, 50 N. Y. St. 592], where the case was determined upon the exceptions as if they had been to testi- mony actually offered and excluded. See 2 Cent. Dig. tit. "Appeal and Error," § 1423. 74. Illinois. — Plato v. Turrill, 18 111. 273, a motion to strike a declaration from the riles. Indiana. — Brownlee v. Hare, 64 Ind. 311 ; Griffith v. State, 12 Ind. 548, where error was alleged in overruling a motion in arrest of judgment, but the record did not show that any such motion was ever made. Iowa. — Payne v. Dicus, 88 Iowa 423, 55 N. W. 483 (a motion to dismiss the case and strike out testimony) ; Johnson v. Webster, 81 Iowa 581, 47 N. W. 769; Cook v. Smith, 50 Iowa 700 (where it was said that, where no ruling is made upon a motion, the pre- sumption is, it not appearing otherwise, that it was waived) ; Hoops v. Culbertson, 17 Iowa 305. Kansas. — Bliss v. Burnes, MeCahon (Kan.) 91. Missouri. — Thomas v. Thomas, 64 Mo. 353 ; Morgan v. Taggart, 1 Mo. 403. Nebraska. — Barr v. Kimball, 43 Nebr. 766.. 62 N. W. 196 (a motion for judgment non obstante veredicto ) ; Dewey v. Lewis, 12 Nebr. 306, 11 N. W. 330 (a motion to set aside a default ) . South Carolina. — Da,vis v. Elmore, 40 S. C. 533, 19 S. E. 204, a motion to reduce the ver- dict on the ground of excessive damages. Texas. — Cole v. Grigsby, (Tex. Civ. App. 1894) 35 S. W. 680; International, etc., R. Co. v. Brett, 61 Tex. 483; Pennell v. Lovett, 15 Tex. 265. See 2 Cent. Dig. tit. " Appeal and Error," § 1418. Motion made after appeal. — After an ap- peal had been taken from a decree of the sur- rogate, settling accounts, a motion was made by appellant to open the decree for taking of further testimony. The surrogate denied the motion, and appellant refused to join in a stipulation providing for a withdrawal of the appeal and the resubmission of the ease to the surrogate. The supreme court declined, un- der the discretionary power given it by N. Y. Code Civ. Proc. § 2481, under which it has the same power as the surrogate, to grant the motion as an original application. Matter of May, 53 Hun (N. Y.) 632, 6 N. Y. Suppl. 357, 24 N. Y. St. 888. Motion to vacate order of no effect with- Vol. IT YU APPEAL AND ERROR the court thereon, there can be no review of the matter in the appellate court unless there is a ruling or a refusal to rule on such request. 75 2. Exceptions — a. Definition and Office. An exception is an objection taken to a decision of the court on a matter of law. 76 The office of an exception is to call the attention of the court to some specific matter as to which error is claimed. 77 b. Necessity in General. It is a general rule of law, applicable to all actions or proceedings, that rulings or decisions made therein which affect substantial rights, and on which error is predicated, will not be revised unless an appropriate exception to the alleged error was reserved, 78 and especially so if an exception is a out ruling. — Portions of a complaint which are stricken out are not restored by a motion to vacate the order, and hence, on appeal from an order sustaining a demurrer to the com- plaint, it not appearing that such motion was ever acted upon, the reviewing court will con- sider the orde striking out as still in force. Washington County v. Semler, 41 Wis. 374. 75. Colorado. — Ames v. Patridge, 13 Colo. App. 407, 58 Pac. 341. Illinois. — North Chicago St. It. Co. v. Shreve, 171 111. 438, 49 N. E. 534 [affirming 70 111. App. 666]; North Chicago St. P. Co. v. Gillow, 166 111. 444, 46 N. E. 1082; Illi- nois Cent. R. Co. v. Cole, 165 111. 334, 46 N. E. 275; Pennsylvania Co. v. Greso, 79 111. App. 127; Chicago Trust, etc., Bank -v. Landfield, 73 111. App. 173. Indiana. — Houk v. Branson, 17 Ind. App. 119, 45 N. E. 78; Welsh -v. Brown, 8 Ind. App. 421, 35 N. E. 921. Nebraska. — Chicago, etc., R. Co. v. Kellogg, 55 Nebr. 748, 76 N. W. 462 ; Golder v. Lund, 50 Nebr. 867, 70 N. W. 379. Wisconsin. — Mulcairns v. Janesville, 67 Wis. 24,' 29 N. W. 565. See 2 Cent. Dig. tit. "Appeal and Error,' 7 § 1424. 76. Train v. Gridley, 36 Ind. 241. Cal. Code Civ. Proc § 647, defines an ex- ception as an objection upon a matter of law to a decision, made either before or after judg- ment by a court, tribunal, judge, or other ju- dicial officer in an action or proceeding. Nevada practice act defines an exception as " an objection taken at the trial to a de- cision upon a matter of law, whether such trial be by jury, court, or referees, and whether the decision be made during the for- mation of a jury, or in the admission of evi- dence, or in the charge to a, jury, or at any other time from the calling of the action for trial to the rendering of the verdict or decis- ion." State v. Central Pac. R. Co., 17 Nev 259, 270, 30 Pac. 887. As to the sufficiency and effect of exceptions see, generally, Trial. 77. Brown v. Haynes, 59 N. C. 49. 78. Alabama. — Binford v. Dement, 72 Ala. 491 ; Gordon v. McLeod, 20 Ala. 242. Arizona. — See Sandford v. Moeller, 1 Ariz 362, 25 Pac. 534. Arkansas. — Dunnington v. Prick Co 60 •Ark. 250, 30 S. W. 212; Prairie County v Bancroft, 26 Ark. 526. California. — Lee v. Murphy, 119 Cal. 364, 51 Pac. 549, 955 ; Russell v. Dennison, 45 Cal 337. •• Vol. II Colorado. — Corbin v. Phillips, 26 Colo. 461, 58 Pac. 590; In re Smiley, 4 Colo. App. 582, 36 Pac. 894. Connecticut. — Post v. Hartford St. R. Co., 72 Conn. 362, 44 Atl. 547. Dakota. — McCormack v. Phillips, 4 Dak. 506, 34 N W. 39. Delaware. — See Lewis v. Hazel, 4 Harr. (Del.) 470. District of Columbia. — Evans v. Schoon- maker, 2 App. Cas. (D. C.) 62. Florida. — Williams v. State, 32 Fla. 251, 13 So. 429 ; Miller v. Kingsbury, 8 Fla. 356. Georgia. — La Grange Bank v. Cotter, 101 Ga. 134, 28 S. E. 644; Van Pelt v. Home Bldg., etc., Assoc, 87 Ga. 370, 13 S. E. 574. Idaho. — Goodman v. Minear Min., etc., Co., 1 Ida. 131; Lamkin v. Sterling, 1 Ida. 120. Illinois. — Marshal v. John Grosse Clothing Co., 184 111. 421, 56 N. E. 807. 75 Am. St. Rep. 181; Sherrod v. Ozment, 81 111. App. 116. Indiana. — Hedrick v. Whitehorn, 145 Tnd. 642, 43 N. E. 942; Markle v. Hunt, 12 Ind. App. 353, 40 N. E. 280. Indian Territory. — Eddings v. Boner, 1 Ind. Terr. 173, 38 S. W. 1110. Iowa. — Smith v. Smith, 99 Iowa 747, 68 N. W. 721; Casey v. Ballou Banking Co., 98 Iowa 107, 67 N. W. 98. Kansas. — Clarkson v. Hibler, 39 Kan. 125, 17 Pac. 784; St. Louis, etc., R. Co. v. Irwin^ 37 Kan. 701, 16 Pac. 146, 1 Am. St. Rep. 266. Kentucky. — Tandy v. Oliver, 19 Ky. L. Rerj. 223, 39 S. W. 700; Hedge v. Vallandingham, 10 Ky. L. Rep. 322. Louisiana. — Stewart v. Harper, 16 La. Ann. 181 ; Cooper v. Polk, 2 La. Ann. 158. Maine. — Hill v. Reynolds, 93 Me. 25, 44 Atl. 135, 74 Am. St. Rep. 329; Stephenson v. Thayer, 63 Me. 143. Maryland. — Keefer v. Mattingly, 1 Gill (Md.) 182. Massachusetts. — New York L. Ins. Co. i>. Macomber, 169 Mass. 580, 48 N. E. 776 ; Hatch v. Kenny, 141 Mass. 171, 5 N. E. 527. Michigan. — Selby v. Detroit R. Co., 122 Mich. 311, 81 N. W. 106; Leitelt v. Parker, 48 Mich. 297, 12 N. W. 219. Minnesota. — London, etc., Mortg. Co. v. McMillan, 78 Minn. 53, 80 N. W. 84l"; Law- rence v. Bucklen, 45 Minn. 195, 47 N. W. 655. Mississippi. — Hunt v. Nugent. 10 Sm. & M. (Miss.) 541; Commercial, etc., Bank v. Lum, 7 How. (Miss.) 414. Missouri. — Sarazin v. Union R. Co., 153 Mo. 479, 55 S. W. 92 ; Gutta Percha Rubber APPEAL AND ERROR 715 statutory prerequisite to a right of review. 79 This requirement, when absolute, cannot be dispensed with by stipulation or agreement, 80 by rules, or by the prac- tice of particular courts. 81 But where error appears in the record proper, the Mfg. Co. v. Kansas City Fire Dept. Supply Co., 149 Mo. 538, 50 S. W. 912; Whittaker h. Summerville, 83 Mo. App. 553. Montana. — Currie v. Montana Cent. R. Co., 24 Mont. 123, 60 Pac. 989 ; Froman v. Patter- son, 10 Mont. 107, 24 Pae. 692. Nebraska. — Maul v. Drexel, 55 Nebr. 446, 76 N. W. 163 ; Roode v. Dunbar, 9 Nebr. 95, 2 N. W. 345. Nevada.. — Reese v. Kinkead, 20 Nev. 65, 14 Pae. 871. New Hampshire. — State v. Saidell, ( N. H. 1900) 46 Atl. 1083; Conway v. Jefferson, 46 N. H. 521. New Jersey. — Potts v. Evans, 58 N. J. L. 384, 34 Atl. 4. New Mexico. — Southern California Fruit Exeh. v. Stamm, 9 N. M. 361, 54 Pac. 345; Talbot v. Randall, 3 N. M. 230, 5 Pae. 537. New York.— Jung v. Keuffel, 144 N. Y. 381, 39 N. E. 340, 63 N. Y. St. 690; Wicks v. Thompson, 129 N. Y. 634, 29 N. E. 301, 41 N. Y. St. 510 [affirming 59 Hun (N. Y.) 618, 13 N. Y. Suppl. 651, 38 N. Y. St. 340] ; Van Vleck v. Ballou, 40 N. Y. App. Div. 489, 58 N. Y Suppl. 125; Union Trust Co. v. Levor, 32 Misc. (N. Y.) 703, 65 N. Y. Suppl. 532. North Carolina. — Jones v. Benbow, 122 N. C. 508, 29 S. E. 774; King v. Ellington, 87 N. C. 573. North Dakota. — Colby v. McDermont, 6 N. D. 495, 71 N. W. 772. Ohio. — Templeton v. Kraner, 24 Ohio St. 554. Oklahoma. — Everett v. Akins, 8 Okla. 184, 56 Pac. 1062. Oregon. — Rogue River Min. Co. v. Walker, 1 Oreg. 341. Pennsylvania. — Rynd v. Baker, 193 Pa. St. 486, 44 Atl. 551; Security Sav., etc., Assoc, v. Anderson, 172 Pa. St. 305, 34 Atl. 44. Rhode, Island. — Phillips v. Shackford, 21 R. I. 422, 44 Atl. 306; Stone v. Pendleton, 21 R. I. 332, 43 Atl. 643. South Carolina. — Meinhard v. Strickland, 29 S. C. 491, 7 S. E. 838 ; McLure v. Lancaster, 24 S. C. 273, 58 Am. Rep. 259. South Dakota. — Winn v. Sanborn, 10 S. D. 642, 75 N. W. 201 ; Hilton v. Advance Thresher Co., 8 S. D. 412, 66 N. W. 816. Tennessee. — Boston Mar. Ins. Co. v. Scales, 101 Tenn. 628, 49 S. W. 743 ; Sutton v. Sutton, (Tenn. Ch. 1900) 58 S. W. 891. Texas. — Holmes v. Thomason, (Tex. Civ. App. 1901) 61 S. W. 504; Glenn v. Kimbrough, 70 Tex. 147, 8 S. W. 81. Utah. — Garner v. Van Patten, 20 Utah 342, 58 Pac. 684; Thirkfield v. Mountain View Cemetery Assoc, 12 Utah 76, 41 Pac. 564. Vermont. — State v. Preston, 48 Vt. 12; Wakefield v. Merrick, 38 Vt. 82. Virginia. — National Exch. Bank v. Preston, (Va. 1899) 33 S. E. 546; Wilson v. Wilson, 93 Va. 546, 25 S. E. 596. Washington. — Brown v. Coey, 12 Wash. 659, 41 Pac. 892. West Virginia. — Righter v. Riley, 42 W. Va. 633, 26 S. E. 357. Wisconsin. — Tanner v. Gregory, 71 Wis. 490, 37 N. W. 830. Wyoming. — Syndicate Imp. Co. v. Bradley, 6 Wyo. 171, 43 Pac. 79, 44 Pac. 60. United States. — Lincoln v. Power, 151 U. S. 436, 14 S. Ct. 387, 38 L. ed. 224; Loring v. Frue, 104 U. S. 223, 26 L. ed. 713; Storm v. U. S., 94 U. S. 76, 24 L. ed. 42; Pomerov r. Indiana State Bank, 1 Wall. (U. S.) 592* 17 L. ed. 638 ; Imperial L. Ins. Co. v. Neweomb, 62 Fed. 97, 19 U. S. App. 669, 10 C. C. A. 288*. See 2 Cent. Dig. tit. " Appeal and Error," § 1432 et seq. That the appellee joins in error assigned will not cure the omission to except. Martin v. Foulke, 114 111. 206, 29 N. E. 683. 79. Roehl v. Baasen, 8 Minn. 26. As to applying this rule to equity cases see Melvin v. Aldridge, 81 Md. 650, 32 Atl. 389; Hubbard v. Jarrell, 23 Md. 66 ; O'Neill v. Cole, 4 Md. 107. SO. Indiana. — Lagrange County v. New- man, 35 Ind. 10. Louisiana.— Prevost's Succession, 4 La. Ann. 347; West v. His Creditors, 4 La. Ann. 447. Maryland. — Levy v. Taylor, 24 Md. 282. Massachusetts. — Howes v. Colburn, 165 Mass. 385, 43 N. E. 125. Montana. — Daniels v. Andes Ins. Co., 2 Mont. 500. New York. — Briggs v. Waldron, 83 N. Y. 582 ; Stephens v. Reynolds, 6 N. Y. 454 ; Greer v. Greer, 58 Hun (N. Y.) 251, 20 N. Y. Civ. Proc. 71, 12 N. Y. Suppl. 778, 34 N Y. St. 448. See also New York v. National Broad- way Bank, 56 Hun (N. Y.) 649, 10 N. Y. Suppl. 555, 31 N. Y. St. 803. 81. Appeals in same court. — In some juris- dictions, where an appeal is heard in the ap- pellate branch of the same court, exceptions are unnecessary to authorize a revision of the alleged errors below. Marquis v. Wood, 30 Misc. (N. Y.) 770, 62 N. Y. Suppl. 525; Gruhn v. Gudebrod Brothers Co., 21 Misc. (N. Y.) 528, 47 N. Y. Suppl. 714; Manning v. West, . 19 Misc. (N. Y.) 481, 43 N. Y. Suppl. 1070. And see Morris v. Deane, 94 Va. 572, 27 S. E. 432, holding that an exception need not be taken to a judgment of the circuit court on a writ of error to the county court. But this rule is not applicable to appeals from the appellate branch of an inferior to the appel- late branch of a superior court. Maehauer v. Fogel, 21 Misc. (N Y.) 637, 47 N. Y. Suppl. 1056; Kraus v. J. H. Mohlman Co., 18 Misc. (N. Y.) 430, 42 N. Y. Suppl. 23; Seligman v. Hahn, 7 Misc. (N. Y.) 65, 27 N. Y. Suppl. 405, 57 N. Y. St. 527; Scott v. Yeandle, 43 N. Y. Suppl. 1164 [affirmed in 20 Misc. (N. Y.) 89, 45 N. Y. Suppl. 87]. The power of the court to reverse in such a case will not be exercised, if the error might have been cured at the trial. Currier v. Henderson, 85 Hun (N. Y.) 300, 32 Vol. II 716 APPEAL AND ERROR appellate or reviewing court may correct it notwithstanding that no exception was taken thereto. 82 Thus, where it appears that the trial court was without jurisdiction ; w that judgment was taken by default on a complaint which stated no cause of action ; * that the trial was by an unconstitutional jury, the reviewing court may determine whether or not error was committed at the trial, although no exception was taken ; ffi and sometimes,when from the whole case it is manifest that injustice has been done, this rule applies. 86 "Where a judgment or decision is ren- dered on demurrer, 87 or motion in arrest, 88 or the record shows the jury was improp- erly instructed, 89 no exception is necessary to enable the appellate court to review it. 83. Colorado. — Roberts v. More, 5 Colo. App. 511, 39 Pac. 346. Georgia. — Kirkman v. Gillespie, 112 Ga. 507, 37 S. E. 714. Indiana. — Terrell v. State, 66 Ind. 570. Missouri. — Fields v. Maloney, 78 Mo. 172. North Carolina. — Smith v. Fort, 105 N. 0. 446, 10 S. E. 914; Godwin v. Monds, 101 N. C. 354, 7 S. E. 793 ; Statesville Bank v. Graham, 82 N. C. 489; Meekins v. Tatem, 79 N. C. 546. South Carolina. — Chapman v. Charleston, 28 S. C. 373, 6 S. E. 158, 13 Am. St. Rep. 681. 84. Lamkin v. Sterling, 1 Ida. 120. 85. Cox v. Moss, 53 Mo. 432. 86. California. — Ringgold v. Haven, 1 Cal. 108. Kentucky. — Barger v. Cashman, 4 Bibb (Ky.) 278. Missouri. — Shore v. Coons, 24 Mo. 556. New York. — Gillett v. Kinderhook, 77 Hun (NY.) 604, 28 N. Y. Suppl. 1044, 60 N. Y. St. 485; Kowalewska v. New York, etc., R. Co., 72 Hun (N. Y.) 611, 25 N. Y. Suppl. 184, 55 N. Y. St. 167; Blum v. Munzesheimer, 66 Hun (N. Y.) 633, 21 N. Y. Suppl. 498, 50 N. Y. St. 306 ; Whitman v. Johnson, 10 Mis,?. (N. Y.) 730, 31 N Y. Suppl. 1009, 65 N. Y. St. 103 [.modified in 12 Misc. (NY.) 23, 33 N. Y. Suppl. 60, 66 N. Y. St. 717, 24 N. Y. Civ. Proc. 350, 1 N Y. Annot. Cas. 238] ; Beyer v. Clark, 8 Misc. (N. Y.) 416, 28 N. Y. Suppl. 655, 59 N. Y. St. 568 ; Goodenough v. Puller, 5 N. Y. St. 896; Howell v. Manwaring, 3 N Y. St. 454; Hastings v. McKinley, 3 Code Rep. (NY.) 10. F North Carolina. — Statesville Bank v. Gra- ham, 82 N. C. 489; Meekins v. Tatem, 79 N C. 546. Ohio. — Little Miami R. Co. v. Pitzpatrick, 42 Ohio St. 318. In Louisiana, if there is a statement of facts the cause is examinable though no excep- tions were taken. Bachemain v. His Credit- ors, 2 La. 346. 87. Hamlin v. Reynolds, 22 111. 207; Coff- man v. Wilson, 2 Mete. (Ky.) 542; Lee v Rutledge, 51 Md. 311; Long v. Billings, 7 Wash. 267, 34 Pac. 936. See also Barnes v. Scott, 29 Pla. 285, 11 So. 48. 88. Mix v. Nettleton, 29 HI. 245; Cushwa v Cushwa, 9 Gill (Md.) 242 [followed in Neweommer v. Keedy, 9 Gill (Md.) 263]. 89. Weybright v. Fleming, 40 Ohio St. 52; Mowry v. Kirk, 19 Ohio St. 375; Janney v. Howard, 150 Fa. St. 339, 30 Wkly. Notes Cas. (Pa.) 379, 24 Atl. 740; Wbeeler v. Winn, 53 Pa. St. 122, 91 Am. Dec. 186; Sidney School Furniture Co. v. Warsaw Tp. School Dist., (Fa. 1886) 7 Atl. 65. See infra, V B 2 e (in), (d). '>>>>> N. Y. Suppl. 953, 66 N. Y. St. 383; Kennedy v. Cunningham, 2 Mete. ( Ky. ) 538 ; Christner v. John, 2 Pa. Super. Ct. 78, 39 Wkly. Notes Cas. (Pa.) 44. 82. Alabama. — Jones v. Jones, 42 Ala. 218. Arkansas. — Tunstall v. Means, 5 Ark. 700. Colorado. — Barr v. Foster, 25 Colo. 28, 52 Pac. 1101. Dakota. — Galloway v. McLean, 2 Dak. 372, 9 N. W. 98. Florida.— Barnes v. Scott, 29 Fla. 285, 11 So. 48. Illinois. — Wiggins Ferry Co. v. People, 101 III. 446. Iowa. — Washington County v. Jones, 45 Iowa 260. Kansas. — Matter of Johnston, 54 Kan. 726, 39 Pac. 725; McKinstry v. Carter, 48 Kan. 428, 29 Pac. 597. Kentucky. — Gordon v. Ryan, 1 J. J. Marsh. (Ky.) 55. Louisiana. — Louisiana State Bank v. Cam- mack, 21 La. Ann. 133. Massachusetts. — Rathbone v. Rathbone, 4 Pick. (Mass.) 89. Mississippi. — Falkner v. Thurmond, (Miss. 1898) 23 So. 584. Missouri. — Lilly v. Menke, 126 Mo. 190 28 S. W. 643, 994; South St. Joseph Land Co. v. Bretz, 125 Mo. 418, 28 S. W. 656; Harned v. Shores, 75 Mo. App. 500; Keaton v. Keaton, 74 Mo. App. 174. Nebraska. — O'Donohue v. Hendrix 13 Nebr 255, 13 N. W. 215. New York.— Sanford v. Granger, 12 Barb (N. Y.) 392; Donahue v. New York Cent., etc R. Co., 15 Misc. (NY.) 256, 36 N. Y. Suppl! 441, 71 N. Y. St. 491; Mills v. Thursby 2 Abb. Pr. (N. Y.) 432, 12 How. Pr. (N. Y.) 385. North Carolina.— Griffith v. Richmond 126 N C. 377, 35 S. E. 620; Upper Appomattox Co. v. Buffaloe, 121 N. C. 37, 27 S. E. 999 Oklahoma. — Territory v. Caffrev (Okla 1899) 57 Pac. 204. * Pennsylvania.— Bean's Road, 35 Pa. St 280; Frankstown Tp. Road, 26 Pa. St 472- Rogers v. Playford, 12 Pa. St. 181; Middle- town Road, 15 Pa. Super. Ct. 167, 31 Pittsb Leg. J. N. S. (Pa.) 107. Virginia. — Cullop v. Leonard, 97 Va. 256 33 S. E. 611; Nutt v. Summers, 78 Va. 164. West Virginia. — State v. King, (W Va 1900) 35 S. E. 30. Wisconsin. — Rosenthal v. Vernon 79 Wis 245, 48 N W. 485. United States. — Macker v. Thomas 7 Wheat. (U. S.) 530, 5 L. ed. 515. See 2 Cent. Dig. tit. "Appeal and Error," I 1447 et seq. Vol. II APPEAL AND ERROR 717 e. Rulings Respecting Pleadings — (i) Statement of General Rule. It is a general rule that rulings made in respect to pleadings will in no case be reviewed unless duly excepted to. 90 • J?] Extent and Limits of Rule. In the application of this doctrine it is held that a ruling on a demurrer to a pleading will not, in the absence of an exception thereto, be reviewed, 91 except in cases where the sufficiency of the plead- ing maybe first questioned on appeal. 92 So the general rule applies to rulings on applications to strike out pleadings in whole or in part, 98 or the rulings granting 90. Illinois. — Caveny •». Weiller, 90 111. 158. Kansas. — Lyons v. Bodenhamer, 7 Kan. 455; Osgood v. Haverty, McCahon (Kan.) 182. Louisiana. — Wafford v. Wafford, 10 La. Ann. 636. Mississippi. — Aldridge v. Grider, 13 Sm. & M. (Miss.) 281. Missouri. — Beard V. Parks, 44 Mo. 244. New York. — Driscoll v. Downer, 125 N. Y. 728, 26 N. E. 757 {affirming 55 Hun (N. Y.) 531, 9 N. Y. Suppl. 129, 29 N. Y. St. 609] ; Hamilton v. Dinning, 81 Hun (N. Y.) 52, 30 N. Y. Suppl. 519, 62 N. Y. St. 371 ; Pickard v. Simson, 53 Hun (N. Y.) 631, 6 N. Y. Suppl. 93, 24 N. Y. St. 841 {affirmed in 127 N. Y. 681, 28 N. E. 255, 38 N. Y. St. 1017]. Ohio. — Marks v. Harris, 12 Cine. L. Bui. 184. See 2 Cent. Dig. tit. "Appeal and Error," § 1485 et seq. In Colorado, the interrogatories and an- swers in supplementary proceedings in gar- nishment are regarded as pleadings within a provision that " no exceptions need be taken to opinions or decisions of courts of record sustaining or overruling demurrers or writ- ten motions affecting or based on the plead- ings." Burton v. Snyder, 21 Colo. 292, 294, 40 Pac. 451. 91. Alabama. — Powell v. Asten, 36 Ala. 140. Florida. — Judge v. Moore, 9 Fla. 269. Idaho. — Guthrie v. Fisher, 2 Ida. 101, 6 Pac. 111. Indiana. — Cowan v. Huffman, 130 Ind. 600, 28 NT. E. 619; Fox v. Montieello, 83 Ind. 483; Bond v. Halloway, ( Ind. App. 1897 ) 46 N. E. 358; Haines v. Porch, 9 Ind. App. 413, 36 N. E. 926. Iowa. — - Peterborough Sar. Bank v. Des Moines Sav. Bank, 110 Iowa 519, 81 N. W. 786; Walker v. Sargent 47 Iowa 448. Kansas. — Turner v. State, 45 Kan. 554, 26 Pac. 35 : Lott v. Kansas City, etc., R. Co., 42 Kan. 293, 21 Pac. 1070. Montana. — Territory v. Virginia Road Co., 2 Mont. 96. Nebraska. — Estep v. Schlesinger, 58 Nebr. 62, 78 N. W. 383. South Carolina. — Chapman v. Charleston, 28 S. C. 373, 6 S. E. 158, 13 Am. St. Rep. 681. See 2 Cent. Dig. tit. "Appeal and Error," § 1486 et seq. Applications of rule. — The failure to dis- pose of a demurrer to a reply before trial and judgment (Norton v. Hooten, 17 Ind. 365), or a refusal to permit defendant to answer after overruling his demurrer, must be ex- cepted to (Moore v. Nowell, 94 N. C. 265). Correct judgment on insufficient complaint. — Though no exception was taken to the overruling of a demurrer to an insufficient complaint, the judgment will not be reversed if a good cause of action was proven. St. Paul v. Kuby, 8 Minn. 154. 92. California. — Davis v. Honey Lake Water Co., 98 Cal. 415, 33 Pac. 270. Colorado. — Garfield County v. Leonard, 26 Colo. 145, 57 Pac. 693. Illinois. — Marshall v. Cleveland, etc., R. Co., 80 111. App. 531. Missouri. — Newton v. Newton, (Mo. 1901) 61 S. W. 881 ; MeKenzie v. Donnell, 151 Mo. 431, 52 S. W. 214. Wisconsin.— Dow v. Deissner, 105 Wis. 385, 80 N. W. 940, 81 N. W. 671. See 2 Cent. Dig. tit. "Appeal and Error," § 1487. For cases in which the sufficiency of a pleading may be first questioned on appeal see V, B, 1, f, (n). 93. Alabama. — Blackford v. Killan, 42 Ala. 487 ; Mahoney v. O'Leary, 34 Ala. 97. California. — Young v. Donegan, ( Cal. 1892) 29 Pac. 412. Georgia. — Turner v. Camp, (Ga. 1901) 38 S. E. 743; Columbus R. Co., v. Sizemore, 106 Ga. 307, 31 S. E. 744. Illinois.— Gaynor v. Hibernia Sav. Bank, 166 111. 577, 46 N. E. 1070; American Vault Safe, etc., Co. v. Springer, 73 111. App. 232; Huntington v. Chambers, 15 111. App. 426. Iowa. — Cook v. Steuben County Bank, 1 Greene (Iowa) 447. Missouri. — Martin v. Jones, 72 Mo. 23; Gorwyn v. Anable, 48 Mo. App. 297. Texas. — Equitable Mortg. Co. v. Thorn, (Tex. Civ. App. 1894) 26 S. W. 276. Virqinia. — Bowyer v. Hewitt, 2 Gratt. (Va.) 192; White v. Toncray, 9 Leigh (Va.) 347. West Virginia. — Quesenberry v. People's BIdg., etc., Assoc, 44 W. Va. 512, 30 S. E. 73; Shank v. Ravenswood, 43 W. Va. 242, 27 S. E. 223. See 2 Cent. Dig. tit. "Appeal and Error," § 1489. In California the refusal to strike out a pleading is not within a statutory provision that no exception is necessary to review an order striking out a pleading. Ganceart v. Henry, 98 Cal. 281, 33 Pac. 92. An appealable order, striking out an an- swer which is made a part of the record on appeal from a judgment, may be reviewed Vol. II 718 APPEAL AND ERROR or denying an application to require a pleading to be made more definite and cer- tain. 9 * It also applies to rulings allowing 95 or refusing to allow amendments, 96 or to rulings permitting or refusing to permit the filing of supplemental plead- ings. 97 On the other hand, the question whether the pleadings support and war- rant the judgment is one which arises on the record proper, and may be tested by writ of error or appeal from the judgment without any exception. 98 d. Rulings and Decisions Before Trial. "Where the action of the court may be appealed from, to authorize a review of its ruling or decision before trial and as to matters unconnected therewith — as rulings as to the sufficiency of the service of process, 99 rulings on questions respecting misjoinder of parties or causes even though no exception was taken to it. Harlan v. St. Paul, etc., R. Co., 31 Minn. 427, 18 N. W. 147. 94. Kelly v. West Bend, 101 Iowa 669, 70 N. W. 726. 95. Alabama. — Mock v. Walker, 42 Ala. 668; Jarman v. McMahon, 37 Ala. 431. Georgia. — Pettis v. Campbell, 47 Ga. 596. Indiana. — Alcorn v. Morgan, 77 Ind. 184; Knowles v. Rexroth, 67 Ind. 59. Kentucky. — Jouitt v. Lewis, 4 Litt. ( Ky. ) 160. Maine. — Sutherland v. Kittridge, 19 Me. 424. Missouri. — Chance v. Jennings, 159 Mo. 544, 61 S. W. 177; Aull v. Missouri Pac. R. Co., 73 Mo. App. 369; Long v. Bolen Coal Co., 56 Mo. App. 605. Oregon. — Wallace v. Baisley, 22 Oreg. 572, 30 Pac. 432. Virginia. — Gibson v. Beveridge 90 Va. 696, 19 S. E. 785. See 2 Cent. Dig. tit. "Appeal and Error," § 1490. Changing form of action.— The allowance of an amendment at the trial, changing the cause of action from malicious prosecution to false imprisonment, will be reviewed even though no exception was taken. Cumber v. Schoenfeld, 16 Daly (N. Y.) 454, 12 N. Y. Suppl. 282, 34 N. Y. St. 770. The imposition of terms as a condition of an amendment will be deemed to have been acquiesced in unless excepted to. Griggs v. Howe, 31 Barb. (N. Y.) 100. 96. McNutt v. King, 59 Ala. 597 ; Troup v. Horbach, 57 Nebr. 644, 78 N. W. 286; Tubbs f. Doll, 15 Wis. 640. Necessity of vacating order. — Where an order refusing leave to amend was inserted in an order sustaining demurrers to the com- plaint, and the former order was deemed ex- cepted to by force of a statutory provision, it is not necessary to move to vacate or modify the order entered for the purpose of having the point reviewed. Schaake v. Eagle Automatic Can Co., (Cal. 1901) 63 Pac. 1025. 97. Giddings v. '76 Land, etc., Co., 109 Cal. 116, 41 Pac. 788; Reynolds v. Mandel, 175 111. 615, 51 N. E. 649 [affirming 73 111. App. 379]. 98. Colorado. — Nylan v. Renhard, 10 Colo. App. 46, 49 Pac. 266. Indiana. — Nugent V. Laduke, 87 Ind. 482. North Carolina. — Murray v. Southerland 125 N. C. 175, 34 S. E. 270. Wisconsin. — Dow v. Deissner, 105 Wis. Vol. II 385, 80 N. W. 940, 81 N. W. 671; Donkle v. Milem, 88 Wis. 33, 59 N. W. 586; Edleman v. Kidd. 65 Wis. 18, 26 N. W. 116; Towsley v. Ozaukee County, 60 Wis. 251, 18 N. W. 840; Bowman v. Van Kuren, 29 Wis. 209, 9 Am. Rep. 554. United States. — Vicksburg, etc., R. Co. v. O'Brien, 119 U. S. 99, 7 S. Ct. 118, 172, 30 L. ed. 299. In considering the correctness of conclusions of law, all questions that could be raised on the sufficiency of the pleadings will necessa- rily be considered. Runner v. Scott, 150 Ind. 441, 50 N. E. 479. Rendition of judgment on the pleadings. — In applying the principle stated in the text it is held that where judgment is rendered on the pleadings no exceptions are necessary to preserve for review error in the rendition of such judgment, because the error is ap- parent of record. Nylan v. Renhard, 10 Colo. App. 46, 49 Pac. 266; Johnson v. Manning, 2 Ida. 1073, 29 Pac. 101 ; Murray v. Souther- land, 125 N. C. 175, 34 S. E. 270 ; Upper Ap- pomattox Co. v. Buffaloe, 121 N. C. 37, 27 S. E. 999; Thornton v. Brady, 100 N. C. 38, 5 S. E. 910; Donkle v. Milem, 88 Wis. 33, 59 N. W. 586. Denial of motion for judgment on plead- ings. — The Pennsylvania act of April 18, 1874 [Pamphl. L. 64], provides that in all actions wherein, by act of assembly or rule of court, the plaintiff is entitled to ask for judg- ment for want of a sufficient affidavit of de- fense, and the court shall decide against his right to such judgment, plaintiff may except to such decision and take a writ of error to the supreme court. This statute has been held_ to mean that unless plaintiff show ex- ceptions no writ of error or appeal will lie. Security Sav., etc., Assoc, v. Anderson, 172 Pa. St. 305, 34 Atl. 44; Titusville Bldg., etc., Assoc, v. McCombs, 92 Pa. St. 364 ; Mehring v. Commonwealth Bldg., etc., Assoc, 17 Wklv. Notes Cas. (Pa.) 422; Watson v. Supplee, 14 Wkly. Notes Cas. (Pa.) 452. Under Mont. Rev. Stat. § 280, the overruling of a motion for judgment on the pleadings is deemed to have been excepted to without formal objec- tion. Power t\ Gum, 6 Mont. 5, 9 Pac. 575. 99. Frenzer v. Phillips, 57 Nebr. 229, 77 N. W. 66S. See also Bliss v. Burnes, McCahon (Kan.) 91, wherein the complaining party failed to ask action upon a motion to set aside a summons, so as to enable him to except to the refusal to act, and was held precluded from complaining. APPEAL AND ERROR 719 of action, 1 the substitution of parties, 2 the consolidation of actions, 3 the transfer of a suit from one branch of the court to another, 4 or the advancement of a cause for trial — an appropriate exception must be saved. 5 And so with decisions granting or denying a change of venue 6 or a continuance. 7 e. Matters Arising During Trial — (i) In General. The failure to except to erroneous rulings or decisions made during the trial, or to formal defects, clerical errors, or irregularities which might have been cured had attention been called to them at the time, will constitute a waiver thereof, whether the cause is tried to a jury 8 or by the court without a jury. 9 1. Wright v. Kinney, 123 N. C. 618, 31 S. E. 874. 2. Maul v. Drexel, 55 Nebr. 446, 76 N. W. 163. 3. Bangs v. Dunn, 66 Cal. 72, 4 Pac. 963; Turley v. Barnes, 67 Mo. App. 237. 4. Combs v. Combs, 19 Ky. L. Hep. 439, 41 S. W. 7. 5. Caveny v. Weiller, 90 111. 158 ; and see 2 Cent. Dig. tit. "Appeal and Error," § 1494 et seq. 6. Goodnow v. Plumb, 67 Iowa 661, 25 N. W. 870; Scott v. Neises, 61 Iowa 62, 15 N. W. 663; State v. McKee, 150 Mo. 233, 51 S. W. 421 ; Klotz v. Perteet, 101 Mo. 213, 13 S. W. 955 ; Carpenter v. MoDavitt, 53 Mo. App. 393; Muller v. Bayly, 21 Gratt. (Va.) 521; Church v. Milwaukee, 31 Wis. 512; and see 2 Cent. Dig. tit. "Appeal and Error," § 1495. Under Mills' Anno. Code Colo. (1891), § 387, providing that no exception need be taken to decisions on written motions based on the pleadings, the overruling of a written motion for a change of venue, based on the complaint, need not be excepted to. Campbell v. Equi- table Securities Co., 12 Colo. App. 544, 56 Pae. 88. 7. Murphy v. Simonds, 14 La. Ann. 322; Scott v. Lawson, 10 La. Ann. 547 ; State v. Powers, 136 Mo. 194, 37 S. W. 936; Staples v. Arlington State Bank, 54 Nebr. 760, 74 N. W. 1066; Coad v. Home Cattle Co., 32 Nebr. 761, 49 N. W. 757, 29 Am. St. Hep. 465; Sulphur Springs v. Weeks, (Tex. 1891) 18 S. W. 489 ; Texas, etc., P. Co. v. Mallon, 65 Tex. 115; McGregor v. Skinner, (Tex. Civ. App. 1898) 47 S. W. 398; Peoples v. Terry, (Tex. Civ. App. 1898) 43 S. W. 846; and see 2 Cent. Dig. tit. ''Appeal and Error," § 1496. 8. Alabama. — McLendon v. Bush, (Ala. 1900) 29 So. 56; Cook v. Davis, 12 Ala. 551. Georgia. — Georgia P., etc., Co. v. Fitzger- ald, 111 Ga. 869, 36 S. E. 955. Indiana. — Poock v. Lafayette Bldg. Assoc, 71 Ind. 357. Illinois. — Marshall v. John Grosse Cloth- ing Co., 184 111. 421, 56 N. E. 807, 75 Am. St. Rep. 181 ; Crone v. Garst, 88 111. App. 124. Kansas. — Morrill v. Seip, 26 Kan. 148. Mississippi. — Rabe v. Tyler, 10 Sm. & M. (Miss.) 440, 48 Am. Dec. 763. Missouri. — Sarazin v. Union R. Co., 153 Mo. 479, 55 S. W. 92; Bethune v. Cleveland, etc., R. Co., 149 Mo. 587, 51 S. W. 465; Thompson v. Cohen, (Mo. 1894) 24 S. W. 1023. New Hampshire. — State v. Saidell, (N. H. 1900) 46 Atl. 1083. New York. — Van Vleek v. Ballou, 40 N. Y. App. Div. 489, 58 N. Y. Suppl. 125; Rose v. Andrews, 62 N. Y. Suppl. 1146 [affirmed in 31 Misc. (N. Y.) 762, 64 N Y. Suppl. 359]. Pennsylvania. — Hedge's Appeal, 63 Pa. St. 273; Matter of Pennsylvania Hall, 5 Pa. St. 204. South Carolina. — See Hillhouse v. Jen- nings, (S. C. 1901) 38 S. E. 596. Texas. — Glenn v. Kimbrough, 70 Tex. 147, 8 S. W. 81. 9. Arkansas. — Gardner v. Miller, 21 Ark. 398. Illinois. — Jackson v. Bloom, 66 111. App. 473. Iowa. — Williams v. Judd- Wells Co., 91 Iowa 378, 59 N. W. 271, 51 Am. St. Rep. 350. Maryland. — Jackson v. Salisbury, 66 Md. 459, 7 Atl. 563. Massachusetts. — Bass v. Haverhill Mut. P. Ins. Co., 10 Gray (Mass.) 400. New York. — Waydell v. Adams, 23 N. Y. App. Div. 508, 48 N. Y. Suppl. 635. Wisconsin. — Moss v. Vroman, 5 Wis. 147. United States. — Martinton v. Fairbanks, 112 U. S. 670, 5 S. Ct. 321, 28 L. ed. 862; St. Louis Consol. Coal Co. v. Polar Wave Ice Co., 106 Fed. 798, 45 C. C. A. 638. See 2 Cent. Dig. tit. "Appeal and Error," § 1498 et seq. Availability of exceptions taken on former trial. — ■ Exceptions taken on one trial are not available on an appeal from a determina- tion in a subsequent trial. Harmison v. Clark, 2 111. 131 ; Lacy v. Overton, 2 A. K. Marsh. (Ky.) 440. Mode of reservation. — On trial of the facts by the court, in order to reserve questions of law the court should be requested to decide legal propositions deemed applicable, and an exception taken to the refusal of such request. Griswold v. Sharpe, 2 Cal. 17. When court will disregard failure to except. — While a court of review may take notice of erroneous rulings although no exceptions have been taken, yet it is a power which will not ordinarily be used, and will only be re- sorted to when it is apparent that grave in- justice has been done. McMurray r. Gage, 19 N. Y. App. Div. 505, 46 N. Y. Suppl. 608. On an appeal from an order refusing a man- damus, where the issues of fact were tried by the trial court without a jury, the appel- late court is not confined to a review of the rulings on questions of law and exceptions, since the court must determine whether the writ was properly refused or not from an in- spection of the whole record; and, hence, no advantage can be taken of plaintiff's failure Vol. II 720 APPEAL AND ERROR (n) Csanoeby Rule — (a) In General. The rules of chancery practice do not require that exceptions should be taken to the various rulings and decisions made during the progress of the cause. The entire proceedings are matters of record, and are all subject to review without the taking of technical exceptions. 10 So, in some jurisdictions, where the practice is regulated by statute, exceptions are not required in equity causes triable anew on appeal. 11 But statutes of this character are not applicable to rulings on motions or demurrers, in which cases exceptions must be interposed. 12 (b) Issues Out of Chancery. Error as to the form in which an issue out of chancery is submitted must be excepted to, 13 and on trial of such issues it is neces- sary, in order to authorize a consideration of the propriety of the rulings of the evidence, that exceptions be saved. 14 (in) Application of tbe Rule — (a) In General. The general rule of requiring exceptions to be saved applies to rulings refusing a jury trial, 15 an order permitting two defendants to sever in their defense, 16 irregularities in selecting and swearing the jury, 17 misconduct of the jury, 18 an order requiring, or refusing to except to an adverse charge in his instruc- tions by the trial court. Manger v. Board of State Medical Examiners, 90 Md. 659, 45 Atl. 891. Where a judgment sets forth what facts the court found from the pleadings, and the legal conclusions it arrived at from the facts so found, as these appear on the record proper, such facts and conclusions may be re- viewed by an appellate court, though no ex- ception was saved to any ruling of the court. Browne v. Appleman, 83 Mo. App. 79. 10. 2 Daniels Ch. PI. & Pr. 1459 et seq.; Ex p. Story, 12 Pet. (U. S.) 339, 9 L. ed. 1108, wherein Taney, J., said: "A bill of ex- ceptions is altogether unknown in chancery practice." 11. Miller v. Whelan, 158 111. 544, 42 N". E. 59; Chicago Artesian Well Co. v. Con- necticut Mut. L. Ins. Co., 57 111. 424; Coch- rane v. Breckenridge, 75 Iowa 213, 39 N. W. 274; Dicken v. Morgan, 59 Iowa 157, 13 N. W. 57; Mize v. Jackson, 17 Ky. L. Rep. 750, 32 S. W. 467; Neweomb v. White, 5 N. M. 435, 23 Pac. 671. Contra, Binford v. Dement, 72 Ala. 491. A defective answer, not excepted to, will he examined on appeal. Stuart v. Mechan- ics', etc., Bank, 19 Johns. (N. Y.) 496. But in Alabama it seems that an exception should be taken to an answer which, though respon- sive, is not precise or explicit. Andrews v. Jones, 10 Ala. 400. In Kentucky the court can review a case in equity on exceptions to an order sustaining, a demurrer to an answer, and refusing leave to file an amended answer, although there may be no exception to the order submitting the cause or to the final judgment. Mathews v. Mathews, 16 Ky. L. Rep. 788, 29 S. W. 862. In Maryland, by statute, the appellate court may not, in the absence of proper ex- ceptions, consider matters relating to the competency of witnesses and the taking of proof. Young v. Omohundro, 69 Md. 424, 16 Atl. 120; Cross v. Cohen, 3 Gill (Md.) 257; Harwood v. Jones, 10 Gill & J. (Md.) 404, 32 Am. Dec. 180. Tinder the Maryland act of 1832, § 5, the court may, in the absence of exception to the Vol. II sufficiency of the averments of the bill, con- sider them as constituting a part of the equity of the cause. See Eyler v. Crabbs, 2 Md. 137, 56 Am. Dec. 711 ; Thomas v. Doub, 1 Md. 252. But this section will not preclude consideration of an objection, made for the first time, that the relief should have been sought by petition and not original bill. Bot- eler v. Beall, 7 Gill & J. (Md.) 389. In Washington, contrary to the general rule elsewhere, an objection to testimony raises the question on appeal without exception to the ruling. Scully v. Book, 3 Wash. 182, 28 , Pac. 556. 12. Fink v. Mohn, 85 Iowa 739, 52 N. W. 506; Hodgin v. Toler, 70 Iowa 21, 30 N. W. 1, 59 Am. Rep. 435 ; Patterson v. Jack, 59 Iowa 632, 13 N. W. 724; Powers v. O'Brien County, 54 Iowa 501, 6 N. W. 720; Abbott V. Barton, 47 Nebr. 822, 66 N. W. 838. 13. Hay v. Miller, 48 Nebr. 156, 66 N. W. 1115. 14. Dodge v. Griswold, 12 N. H. 573; Lee v. Boak, 11 Gratt. (Va.) 182; Stadler v. Grieben, 61 Wis. 500, 21 N. W. 629; Mc- Laughlin v. Potomac Bank, 7 How. (U. S.) 220, 12 L. ed. 675; Brockett v. Brockett, 3 How. (U. S.) 691, 11 L. ed. 786. The exceptions must be brought before the court of chancery, and passed upon by it, before they can be considered by the appellate court. McLaughlin v. Potomac Bank, 7 How. (U. S.) 220, 12 L. ed. 675: Brockett v. Brock- ett, 3 How. JU. S.) 691, 11 L. ed. 786. In Virginia an exception to the amount of a commissioner's fees must be taken in the trial court; otherwise, on the filing of a proper affidavit, he will be allowed his fees. Shipman v. Fletcher, 83 Va. 349, 2 S. E. 198. 15. Klotz v. Perteet, 101 Mo. 213, 13 S. W. 955. But see Meech v. Brown, 4 Abb. Pr. (N. Y.) 19, 1 Hilt. (N. Y.) 257, holding that the right to a trial by jury when demanded will not be lost by the failure to except. 16. Commercial, etc., Bank v. Lum, 7 How. (Miss.) 414. 17. Quinn v. Woodhouse, 26 Pa. St. 333. 18. Leeser v. Boekhoff, 38 Mo. App. 445. APPEAL AND ERROR 721 to require, plaintiff to elect upon which count of his complaint he will proceed, 19 a ruling limiting the number of witnesses on a given point, 20 the conduct of, or remarks made by, the presiding judge, 21 objectionable conduct or remarks of counsel during the progress of the trial, or in the course of argument to the court or jury, 22 and rulings as to the right of counsel to argue or address the jury as to particular matters ~ Kulings respecting the right of the jury to view premises must also be excepted to if it is desired to test their accuracy. 24 (b) Competency of Witnesses. The alleged incompetency of a witness will not be considered where no exception on that ground was saved below. 25 But no exception on that ground need be taken to a deposition in a chancery cause. 26 (o) Rulings as to Evidence — (1) In G-enebal. It may be laid down as a general proposition that rulings respecting evidence, unless duly excepted to, will be deemed to have been waived by the complaining party. 27 19. Finley v. Brown, 22 Iowa 538; Ham- mett v. Trueworthy, 51 Mo. App. 281; Tuek- wood v. Hanthorn, 67 Wis. 326, 30 N. W. 705. 20. Skeen v. Mooney, 8 Utah 157, 30 Pac. 363. 21. Hall v. Emporia First Nat. Bank, 133 111. 234, 24 N. E. 546; Mulliner v. Bronson, 114 111. .510, 2 N". E. 671 ; Yunker v. Marshall, 65 111. App. 667 ; Long v. Travellers' Ins. Co., (Iowa 1901) 85 N. W. 24; Osborn v. Eatliff, 53 Iowa 748, 5 N. W. 746 ; Vass v. Waukesha, 90 Wis. 337, 63 N. W. 280; and see 2 Cent. Dig. tit. "Appeal and Error," § 1499. 22. Alabama. — Kansas City, etc., R. Co. v. Webb, 97 Ala. 157, 11 So. 888; Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308, 30 Am. St. Eep. 79. Georgia. — Poullain v. Poullain, 79 Ga. 11, 4 S. E. 81. Illinois.— Grand Lodge, etc. v. Beleham, 145 111. 308, 33 N. E. 886 ; Elgin City E. Co. v. Wilson, 56 111. App. 364 ; West Chicago St. R. Co. v. Levy, 82 111. App. 202 ; Chicago City B. Co. v. Duffin, 24 111. App. 28. Indiana. — Staser v. Hogan, 120 Ind. 207, 21 N. E. 911, 22 N. E. 990; Farman v. Lau- man, 73 Ind. 568; McKinney v. Shaw, etc., Mfg. Co., 51 Ind. 219; Vannatta «. Duffy, 4 Ind. App. 168, 30 N. E. 807. Kansas. — Kansas City v. McDonald, 60 Kan. 481, 57 Pac. 123. Michigan. — Bedford v. Penney, 65 Mich. 667, 32 N. W. 888. Missouri. — Casey v. Gill, 154 Mo. 181, 55 S. W. 219 ; Doyle v. Missouri, etc., Trust Co., 140 Mo. 1, 41 S. W. 255; Sampson v. Atchi- son, etc., B. Co., 57 Mo. App. 308; Kennedy v. Holladay, 25 Mo. App. 503. Montana. — Littrell v. Wilcox, 11 Mont. 77, 27 Pac. 394. Neic York.— Frischman v. Zimmermann, 19 Misc. (N. Y.) 53, 42 N. Y. Suppl. 824. Pennsylvania. — Sheehan v. Rosen, 12 Pa. Super. Ct. 298. Texas. — Western Union Tel. Co. v. Smith, (Tex. Civ. App. 1895) 33 S. W. 742. Wisconsin. — Lane v. Madison, 86 Wis. 453, 57 N. W. 93. See 2 Cent. Dig. tit. "Appeal and Error," § 1500. 23. Brinkley v. Piatt, 40 Md. 529; Wil- kins v. Anderson, 11 Pa. St. 399. 24. Chicago, etc., E. Co. v. Leah, 152 111. [46] 249, 38 N. E. 556; Gilmore v. H. W. Baker Co., 12 Wash. 468, 41 Pac. 124; and see 2 Cent. Dig. tit. "Appeal and Error," § 1501. 25. H. Herman Sawmill Co. v. Bailey, (Ky. 1900) 58 S. W. 449; Case v. Case, 49 Hun (N. Y.) 83, 1 N. Y. Suppl. 714, 17 N..Y. St. 313; Downey v. Hicks, 14 How. (U. S.) 240, 14 L. ed. 404; and see 2 Cent. Dig. tit. "Ap- peal and Error," § 1506. 26. Fant v. Miller, 17 Gratt. (Va.) 187; Vanscoy v. Stinehcomb, 29 W. Va. 263, 11 S. E. 927; Hill v. Proctor, 10 W. Va. 59. 27. Alabama. — Saltmarsh v. Bower, 22 Ala. 221; Eives v. McLosky, 5 Stew. & P. (Ala.) 330. California. — Wise v. Wakefield, 118 Cal. 107, 50 Pac. 310; Dickerson v. Dickerson, 108 Cal. 351, 41 Pac. 475. Colorado. — Cone v. Montgomery, 25 Colo. 277, 53 Pac. 1052 ; Mt. Wilson Gold, etc., Min. Co. v. Burbridge, 11 Colo. App. 487, 53 Pac. 826. Connecticut. — Post v. Hartford St. B. Co., 72 Conn. 362, 44 Atl. 547. District of Columbia. — Wilkins v. Hillman, 8 App. Cas. (D. C.) 469. Georgia.— Cook v. Kilgo, 111 Ga. 817, 35 S. E. 673. Illinois. — Chicago Great Western B. Co. v. Mohan, 187 111. 281, 58 N. E. 395 ; Blooming- ton v. Legg, 151 111. 9, 37 N. E. 696, 42 Am. St. Rep. 216; McGuire v. Gilbert, 80 111. App. 235; Huthmacher v. Lowman, 66 111. App. 448. Indiana. — Bartholomew County r. Boyn- ton, 27 Ind. 19; Union City Electric Light, etc., Co. v. Jacqua, (Ind. App. 1900) 58 N. E. 508. Indian Territory. — Eddings v. Boner, 1 In- dian Terr. 173, 38 S. W. 1110. Iowa. — Parker v. Ottumwa, (Iowa 1901) 85 N. W. 805. Kansas. — Fleming v. Latham, 48 Kan. 773, 30 Pac. 166. Kentucky. — H. Herman Sawmill Co. v. Bailey, (Ky. 1900) 58 S. W. 449; Terrill v. Jennings, 1 Mete. (Ky.) 450. Massachusetts. — Walkup v. Pickering, 176 Mass. 174, 57 N. E. 364. Michigan.— Childs *'. Nordella, 116 Mich. 511, 74 N. W. 713; Banks v. Cramer, 109 Mich. 168, 66 N. W. 946. Minnesota. — Eoehl v. Baasen, 8 Minn. 26. Vol. II 722 APPEAL AND ERROR (2) Admission and Exclusion. A mere objection to a ruling admitting or excluding evidence is not enough to preserve for review alleged error in the rul- ing, but an exception must also be taken. 28 If evidence is erroneously admitted, 29 Missouri. — Trenton v. Devorss, 70 Mo. App. 8. Montana. — Gregg v. Kommers, 22 Mont. 511, 57 Pac. 92. Nebraska. — Bennett v. McDonald, 52 Nebr. 278, 72 N. W. 268; Johnson v. Swayze, 35 Nebr. 117, 52 N. W. 835. New Jersey. — Ward v. Ward, 22 N. J. L. 699. Pennsylvania. — Simpson v. Meyers, 197 Pa. St. 522, 47 Atl. 868; Schondorf v. Griffith, 13 Pa. Super. Ct. 580. Tennessee. — Sutton v. Sutton, (Tenn. Ch. 1900) 58 S. W. 891; Southern Iron Car Line v. East Tennessee, etc., R. Co., (Tenn. Ch. 1897) 42 S. W. 529. Texas. — Orr, etc., Shoe Co. v. Ferrell, 68 Tex. 638, 5 S. W. 490. Washington. — State v. MeCann, 16 Wash. 249. 47 Pac. 443, 49 Pac. 216. Wisconsin. — Moss v'. Vroman, 5 Wis. 147. United States. — Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 S. Ct. 679, 36 L. ed. 485 ; St. Louis Consol. Coal Co. v. Polar Wave Ice Co.. 106 Fed. 798, 45 C. C. A. 638. See 2 Cent. Dig. tit. "Appeal and Error," § 1503 et seq. In Washington, in causes tried by the court without a jury, rulings relating to the ad- mission or rejection of evidence will not, in the absence of exceptions to the findings on the evidence, be reviewed. Lewis v. McDou- gall, 19 Wash. 388', 53 Pac. 664; Schlotfeldt i). Bull, 18 Wash. 64, 50 Pac. 590: Rice v. Stevens. 9 Wash. 298, 37 Pac. 440. But com- pare Schlotfeldt v. Bull, 17 Wash. 6, 7, 48 Pac. 343, in which it was held " that where the appeal is from an error of the court in refusing to admit testimony, and such re- fusal is duly excepted to at the time, it is not incumbent upon the appellant to again ex- cept to the findings of fact." 28. Alabama. — Spear v. Lomax, 42 Ala. 576; State Bank v. McDade, 4 Fort. (Ala.) 252. California. — Austin v. Andrews, 71 Cal. 98, 16 Pac. 546: Turner v. Tuolumne County Water Co., 25 Cal. 397. Florida. — Tischler r. Apple. 30 Fla. 132, 11 So. 273; Coker v. Hayes, 16 Fla. 368. Indiana. — Cox P. Rash, 82 Ind. 519; Mc- Kinney v. Shaw, etc., Mfg. Co., 51 Ind. 219; Wiler v. Manley, 51 Ind. 169. Kansas. — Benepe v. Wash. 38 Kan. 407 16 Pac. 950. Kentucky. — Russell r. Marks. 3 Mete. (Ky.) 37: Carrol v. Mays, 8 Dana (Ky.) 178. Louisiana. — Gueringer v. His Creditors, 33 La. Ann. 1279; Burke v. Edey, 21 La Ann 749. Missouri. — Griffith v. Hanks, 91 Mo. 109, 4 S. W. 508; Koegel v. Givens, 79 Mo. 77;' Springfield v. Ford, 40 Mo. App. 586; Fair- gieve v. Moberly, 29 Mo. App. 141. New York.— Hullev v. Wynne, 16 Mise (N. Y.) 580, 38 X. Y. Suppl. 700, 74 N Y St' 160. Vol. II Pennsylvania. — Yeager v. Fuss, 9 Wkly. Notes Cas. (Pa.) 557. South Carolina. — Burri v. Whitner, 3 S. C. 510. Washington. — Scully v. Book, 3 Wash. 182, 28 Pac. 556. West Virginia. — Poling v. Ohio River R. Co., 38 W. Va. 645, 18 S. E. 782, 24 L. R. A. 215; State v. Harr, 38 W. Va. 58, 17 S. E. 794. United States. — Laber v. Cooper, 7 Wall. (U. S.) 565, 19 L. ed. 151; Poole v. Fleeger, 11 Pet. (U. S.) 185, 9 L. ed. 680. See 2 Cent. Dig. tit. "Appeal and Error," § 1504 et seq. It has been held that the ruling may be revised where the exception is subsequently allowed by the presiding judge. Holbrook v. Dow, 12 Gray (Mass.) 357. 29. Alabama. — Louisville, etc., R. Co. v. Binion, 107 Ala. 645, 18 So. 75; Inge v. Boardman, 2 Ala. 331. California. — Woods v. Jensen, 130 Cal. 200, 62 Pac. 473; MeVey v. Beam, (Cal. 1894) 38 Pac. 515. Connecticut. — Post v. Hartford St. R. Co., 72 Conn. 362, 44 Atl. 547. Georgia. — Hill v. Van Duzer, 111 Ga. 867, 36 S. E. 966. Illinois. — Bloomington v. Legg, 151 111. 9, 37 N. E. 696, 42 Am. St. Rep. 216 [affirming 48 111. App. 459] ; Deane v. Denver, etc., R. Co., 77 111. App. 242. Indiana. — Rotan v. Stoeber, 81 Ind. 145; Hunt v. Jones, 1 Ind. App. 545, 28 N. E. 98. Iowa. — Parker v. Ottumwa, (Iowa 1901) 85 N W. 805; Price v. Burlington, etc., R. Co., 42 Iowa 16. Kansas. — Shirk v. Sheridan, (Kan. App. 1900) 62 Pac. 436; Samuels v. Burnham, (Kan. App. 1900) 61 Pac. 755. Kentucky. — Shippen v. Curry, 3 Mete. (Ky.) 184; White v. Neville, 9 Ky. L. Rep. 56. Louisiana. — Somerville v. Young, 3 La. Ann. 290. Maryland. — McCullough p. Biedler, 66 Md. 283, 7 Atl. 454; Mahoney v. Mackubin, 54 Md. 268. Massachusetts. — Walkup v. Pickering 176 Mass. 174, 57 N. E. 364; Damon v. Carrol, 163 Mass. 404, 40 N. E. 185. Michigan. — Noble v. St. Joseph, etc., St. R. Co., 98 Mich. 249, 57 N. W. 126. Mississippi. — Anderson v. Williams, 24 Miss. 684; McRaven v. McGuire, 9 Sm. & M. (Miss.) 34. Missouri. — Dammann v. St. Louis, 152 Mo. 186, 53 S. W. 932; Murphy v. Black, 78 Mo. App. 316. Montana. — Gregg v. Kommers, 22 Mont. 511, 57 Pac. 92; Stafford v. Hornbuckle, 3 Mont. 485. New Jersey.— Coil v. Wallace, 24 N. J. L. 291 ; Ward v. Ward, 22 N. J. L. 699. New York. — Hard v. Ashlev, 117 N. Y. 606, 23 N E. 177, 28 N. Y. St. 601; Smith r. Nas- sau Electric R. Co., 57 N. Y. App. Div. 152, APPEAL AND ERROR 123 excluded, 30 or stricken out, in the absence of a timely exception thereto, the ruling will not be reviewed. 31 (3) Depositions. Error in permitting a deposition, or parts thereof, to be read, 5 ® or in suppressing it, will not be considered unless the action of the court was duly excepted to. 33 67 N. Y. Suppl!' 1044; Schumaker v. Mather, 60 Hun (N. Y.) 576, 14 N. Y. Suppl. 411, 38 N. Y. St. 542 [affirmed in 133 N. Y. 590, 30 N. E. 755, 44 N. Y. St. 754]. North Carolina. — Thompson v. Olney, 96 N. C. 9, 1 S. E. 620. Oregon. — O'Connor v. Van Hoy, 29 Oreg. 505, 45 Pae. 762. Pennsylvania. — Philadelphia Trust, etc., Co. v. Purves. (Pa. 1888) 13 Atl. 936. South Carolina. — Watts v. South Bound R. Co., 60 S. C. 67, 38 S. E. 240. Tennessee. — Stacker v. Louisville, etc., R. Co., (Tenn. 1901) 61 S. W. 766; Graham v. McReynolds, 90 Tenn. 673, 18 S. W. 272. Texas. — Collins v. Panhandle Nat. Bank, 75 Tex. 254, 11 S. W. 1053; Dyer v. Pierce, (Tex. Civ. App. 1901) 60 S. W. 441. Virginia. — Lamberts v. Cooper, 29 Gratt. (Va.) 61. Wisconsin. — Drury v. Mann, 4 Wis. 202. United States. — Toplitz v. Hedden, 146 U. S. 252, 13 S. Ct. 70, 36 L. ed. 961; Felton v. Newport, 92 Fed. 470, 34 C. C. A. 470; Su- preme Council, etc. v. New York Fidelity, etc., Co., 63 Fed. 48, 22 U. S. App. 439, 11 C. C. A. 96; Paxon v. Brown, 61 Fed. 874, 27 U. S. App. 49. 10 C. C. A. 135. In North Carolina "the general rule un- doubtedly is, . . . that this court will not review evidence as to its competency or in- competency where there is no exception." But where evidence is offered that has been made incompetent by statute to prove the fact for which it is offered, the court must reject it on its own motion, and no exception is neces- sary. Presnell v. Garrison, 122 N. C. 595, 597, 29 S. E. 839 [citing State v. Ballard, 79 N. C. 627]. 30. Arizona. — Newark v. Marks, (Ariz. 1890) 28Pac. 960. Arkansas. — Texas, etc., R. Co. v. Kirby, 44 Ark. 103. California. — Lucas v. Richardson, 68 Cal. 618, 10 Pae. 183. Illinois. — Chicago Great Western R. Co. v. Mohan, 187 111. 281, 58 N. E. 395 [affirming 88 111. App. 151]; Mahany v. People, 138 111. 311, 27 N. E. 918; MeGuire v. Gilbert, 80 111. App. 235. Indiana. — McGee v. Robbins, 58 Ind. 463. Iowa. — Souster v. Black, 87 Iowa 519, 54 N. W. 534. Maryland. — Thorne v. Fox, 67 Md. 67, 8 Atl. 667. Missouri. — Carle v. De Sota, 156 Mo. 443, 57 S. W. 113; Pierce v. Michel, 60 Mo. App. 187. New York.— Hull v. Cronk, 55 N. Y. App. Div. 83, 67 N. Y. Suppl. 54 ; Brooks v. Christo- pher, 5Duer (N. Y.) 216. Pennsylvania. — Simpson v. Meyers, 197 Pa. St. 522, 47 Atl. 868; Warfel v. Knott, 128 Pa. St. 528, 24 Wkly. Notes Cas. (Pa.) 513, 18 Atl. 390. Rhode Island. — Collier v. Jenks, 19 R. I. 137, 32 Atl. 208, 61 Am. St. Rep. 741. Tennessee. — State v. Mitchell, 104 Tenn. 336, 58 S. W. 365; Chicago Bldg., etc., Co. v. Barry, (Tenn. Ch. 1898) 52 S. W. 451. Texas. — Durham v. Atwell, ( Tex. Civ. App. 1894) 27 S. W. 316. An exception to the exclusion of evidence, to be available, should state what is ex- pected to be elicited by the questions. Cox v. Rash, 82 Ind. 519; Jordan v. D'Heur, 71 Ind. 199; Huggins v. Hughes, 11 Ind. App. 465, 39 N. E. 298; Kendallville First Nat. Bank v. Stanley, 4 Ind. App. 213, 30 N. E. 799. Futile exception. — If it is urged that an exception to the exclusion of evidence would have been futile because no other evidence could be offered, that fact should be clearly shown and not left to inference. Roehl v. Baasen, 8 Minn. 26. 31. Fleming v. Yost, 137 Ind. 95, 36 N. E. 705; Republican Valley R. Co. v. Boyse, 14 Nebr. 130, 15 N. W. 364; Rowe v. Lent, 62 Hun (N. Y.) 621, 17 N. Y. Suppl. 131, 42 N. Y. St. 483. 32. Illinois. — Gardner V. Haynie, 42 111. 291. Kentucky. — Edmonson v. Kentucky Cent. R. Co. (Ky. 1898) 46 S. W. 679; Rhea v. Yoder, Ky. Dec. 87. Mississippi. — Jones v. Loggins, 37 Miss. 546. New York. — Fiske v. Ernst, 62 N. Y. Suppl. 429. Tennessee. — Perry v. Clift, (Tenn. Ch. 1899) 54 S. W. 121 ; Birdsong v. Birdsong, 2 Head (Tenn.) 289; Looper v. Bell, 1 Head (Tenn.) 373. Texas. — Noell v. Bonner, (Tex. Civ. App. 1892) 21 S. W. 553. Virginia. — Fant v. Miller, 17 Gratt. (Va. ) 187. West Virginia. — Vanscoy v. Stinchcomb, 29 W. Va. 263, 11 S. E. 927 ; Hill v. Proctor, 10 W. Va. 59. United States. — Paxson v. Brown, 61 Fed. 874, 27 U. S. App. 49, 10 C. C. A. 135. See 2 Cent. Dig. tit. "Appeal and Error," § 1508. Thus, it has been held that the fact that an objection to a deposition, instead of being made in writing before the trial, was made orally when the deposition was offered, cannot be urged on appeal unless exception was taken to such objection when made. Garner v. Cut- ler, 28 Tex. 175. 33. Houston v. Bruner, 59 Ind. 25; Hauck v. Grantham, 22 Ind. 53. The suppression of interrogatories must be excepted to. Union City Electric Light, etc., Co. v. Jacqua, (Ind. App. 1900) 58 N. E. 508. Vol. II 724 APPEAL AND ERROR U) Variance. Variance between the pleading and proof will, in the absence of an exception to a ruling on an objection therefor, be disregarded. (n Instructions-^) I* General. The propriety of instructions gen- erally or of instructions which it is claimed erroneously permitted the jury to consider matters not in evidence and base their verdict thereon, cannot be questioned on appeal or error unless exception was duly taken in the trial court to the error complained of. 35 Such instructions will be regarded as 34. TU8011 v. Crosby, 172 Mass. 478, 52 N. E. 744; Taylor v. Penquite, 35 Mo. App. 389; Dano v. Sessions, 65 Vt. 79, 26 Atl. 585. 35. Alabama. — Abbott v. Mobile, 119 Ala. 595, 24 So. 565; Alabama Great Southern R. Co. v. Tapia, 94 Ala. 226, 10 So. 236. Arkansas. — St. Louis, etc., R. Co. v. Vin- cent, 36 Ark. 451. California. — Clark v. His Creditors, 57 Cal. 639. Colorado. — Sams Automatic Car Coupler Co. v. League, 25 Colo. 129, 54 Pac. 642; Bourke v. Van Keuren, 20 Colo. 95, 36 Pac. 882 ; Goldhammer v. Dyer, 7 Colo. App. 29, 42 Pac. 177. Dakota. — Pielke v. Chicago, etc., R. Co., 6 Dak. 444, 43 X. W. 813. District of Columbia. — Fulton v. Fletcher, 12 App. Cas. (D. C.) 1. Florida.— Williams v. State, 32 Fla. 251, 13 So. 429. Illinois.— Willard v. Petitt, 153 111. 663, 39 N. E. 991; Jefferson v. Chapman, 127 111. 438, 20 N. E. 33, 11 Am. St. Rep. 136; Chicago v. Hogan, 80 111. App. 344. Indiana. — Lowell v. Gathright, 97 Ind. 313 ; Port Huron Engine, etc., Co. v. Smith, 21 Ind. App. 233, 52 N. E. 106- Iowa. — Delmonica Hotel Co. v. Smith, (Iowa 1901) 84 N. W. 906; Piano Mfg. Co. v. McCoid, (Iowa 1899) 80 N. W. 659. Kansas. — Wilson v. Jones, 48 Kan. 767, 30 Pac. 117; Barton v. Pond, 8 Kan. App. 859, 55 Pac. 519; Central State Bank v. Glenn, 6 Kan. App. 886, 50 Pac. 961. Kentucky. — Sturm v. Meyer, 12 Ky. L. Rep. 350, 14 S. W. 359; Louisville, etc., R. Co. v. Bowcock, 21 Ky. L. Rep. 896, 53 S. W. 262; Davis v. Bailey, 21 Ky. L. Rep. 839. Louisiana. — Bayon v. Vavasseur, 10 Mart. (La.) 61. Maine. — Hatch v. Dexter First Nat. Bank, 94 Me. 348, 47 Atl. 908. Maryland. — Travelers' Ins. Co. v. Parker, (Md. 1900) 47 Atl. 1042; Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385. Massachusetts. — Hoyt v. Kennedy, 170 Mass. 54, 48 N. E. 1073 ; Rawson v. Plaisted, 151 Mass. 71, 23 N. E. 722. Michigan. — Longyear v. Gregory, 110 Mich. 277, 68 N. W. 116; Bolton v. Riddle, 35 Mich. 13. Minnesota. — Anderson v. St. Croix Lumber Co., 47 Minn. 24, 49 N W. 407 ; Smith v. Pear- son, 44 Minn. 397, 46 N. W. 849. Mississippi. — • Evans v. Clark, (Miss. 1899) 24 So. 532; Smokey v. Johnson, (Miss. 1888) 4 So. 788. Missouri. — Feary v. Metropolitan St. R. Co., (Mo. 1901 ) 62 S. W. 452; Clark v. Hughes, 73 Mo. App. 633. Vol. II M ontana — McKinney v. Powers, 2 Mont. Nebraska. — Elkhorn Valley Lodge No. 57, etc. v. Hudson, 59 Nebr. 672, 81 N. W. 859; Humpert v. McGavock, 59 Nebr. 346, 80 N. W. 1038. Hew Hampshire. — Conway v. Jefferson, 46 N. H. 521. New York. — Farmers' L. & T. Co. v. Siefke, 144 N. Y. 354, 39 N. E. 358, 63 N. Y. St. 662. North Carolina. — Barrett v. McCrummen, 128 N. C. 81, 38 S. E. 286; Redmond v. Mul- lenax, 113 N. C. 505, 18 S. E. 708. North Dakota. — Colby v. McDermont, 6 N. D. 495, 71 N. W. 772. Ohio.— Pittsburg, etc., R. Co. v. Porter, 32 Ohio St. 328. Oklahoma. — Everett v. Akins, 8 Okla. 184, 56 Pac. 1062. Rhode Island. — Stone ». Pendleton, 21 R. I. 332, 43 Atl. 643. South Carolina. — Nohrden v. Northeastern R. Co., 59 S. C. 87, 37 S. E. 228 ; Winsmith v. Walker, 5 S. C. 473. South Dakota. — Winn v. Sanborn, 10 S. D. 642 75 N. W. 201 ; Landauer v. Sioux Falls Imp. Co., 10 S. D. 205, 72 N. W. 467. Tennessee. — Gregory v. Allen, Mart. & Y. (Tenn.) 73. Utah. — Lebcher v. Lambert, (Utah 1900) 63 Pac. 628; Thirkfield v. Mountain View Cemetery Assoc, 12 Utah 76, 41 Pac. 564. Vermont.— Wheatley v. Waldo, 36 Vt. 237. Virginia. — Montague v. Allan, 78 Va. 592, 49 Am. Rep. 384. Washington. — Reiner v. Crawford, (Wash. 1901) 63 Pac. 516; Anderson v. Carothers, 18 Wash. 520, 52 Pac. 229. West Virginia. — Dimmey v. Wheeling, etc., R. Co., 27 W. Va. 32, 55 Am. Rep. 292. Wisconsin. — Brunette v. Gagen, 106 Wis. 618, 82 N. W. 564; Arndt v. Keller, 98 Wis. 274, 71 N. W. 651. United States. — Eddy v. Lafayette, 163 U. S. 456, 16 S. Ct. 1082, 41 L. ed. 225; Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 S. Ct. 679, 36 L. ed. 485; Monarch Cycle Mfg. Co. v. Royer Wheel Co., 105 Fed. 324, 44 C. C. A. 523; Tinsman v. F. R. Patch Mfg. Co., 101 Fed. 373, 41 C. C. A. 388. See 2 Cent. Dig. tit. "Appeal and Error," § 1516 et seq. In Wisconsin it has been laid down that when a motion for a new trial is made at the same term at which the action is tried, and such motion is based in whole or in part upon the ground that the judge erred in his in- structions to the jury, such motion is equiva- lent to an exception to the instruction, and properly brings its correctness before the court for consideration upon an appeal from APPEAL AND ERROR 725 the law of the case in testing the sufficiency of the evidence to support the verdict. 36 (2) Requested Instructions. The same principle is applicable to requested instructions which are given or refused, 87 and to the omission or failure of the court to submit issues to the jury, 88 or the refusal to present special questions. 89 (3) Instructions in Absence of Parties. It has been held that it is no excuse for the want of an exception that neither of the counsel were present when the instructions were given j 40 but the contrary view has also been taken. 41 (4) Taking Case from Jury — Directing Verdict. Alleged error on the part of the trial court in taking a case from the jury, or in directing or refusing to direct a verdict, must be saved by exception, 42 and the omission to do so wil. a judgment rendered upon the verdict after such motion for a new trial is denied. Wells v. Perkins, 43 Wis. 160; Conn v. Stewart, 41 Wis. 527 ; Nisbet v. Gill, 38 Wis. 657. 36. Peet v. Chicago, etc., R. Co., 88 Iowa 520, 55 N. W. 508; Bellows v. Litchfield, 83 Iowa 36, 48 N. W. 1062 ; Bennett v. Wabash, etc., R. Co., 61 Iowa 355, 16 N. W. 210; Sturm v. Meyer, 12 Ky. L. Rep. 350, 14 S. W. 359; Ohio Valley R. Co. v. Alves, 11 Ky. L. Rep. 811; Louisville, etc., R. Co. v. Connelly, 5 Ky. L. Rep. 926; Baugher v. Wilkins, 16 Md. 35, 77 Am. Dec. 279; Smith v. Pearson, 44 Minn. 397, 46 N. W. 849. 37. Arkansas. — Johnson v. West, 41 Ark. 535. California. — Leahy v. Southern Pac. R. Co., 65 Cal. 150, 3 Pac. 622. Colorado. — Layton v. Kirkendall, 20 Colo. 236, 38 Pac. 55. Florida. — Huling v. Florida Sav. Bank, etc., Exch., 19 Fla. 695; Stewart v. Mills, 18 Fla. 57. Illinois. — England v. Vandermark, 147 111. 76, 35 N. E. 465; Phillips v. Abbott, 52 111. App. 328. Indiana. — Stewart v. Murray, 92 Ind. 543, 47 Am. Rep. 167. Iowa. — Keokuk Stove Works v. Hammond, 94 Iowa 694, 63 N. W. 563; Cox v. Allen, 91 Iowa 462, 59 N. W. 335 ; State v. Brewer, 70 Iowa 384, 30 N. W. 646. Kansas. — Werner v. Jewett, 54 Kan. 530, 38 Pac. 793. Kentucky. — Kennedy v. Cunningham, 2 Mete. (Ky.) 538; Ruark v. Mansfield, 5 Ky. L. Rep. 851. Maryland. — Cloud v. Needles, 6 Md. 501. Massachusetts. — Burr v. Joy, 151 Mass. 295, 23 ST. E. 838. Michigan. — Runnells v. Pentwater, 109 Mich. 512, 67 N. W. 558; Thorn v. Maurer, 85 Mich. 569, 48 N. W. 640. Mississippi. — Fisher v. Fisher, 43 Miss. 212. Missouri. — O'Neil v. C. Young, etc., Seed, etc., Co., 58 Mo. App. 628. Nebraska. — Omaha v. McCavock, 47 Nebr. 313, 66 N. W. 415; Sigler v. MeConnell, 45 Nebr. 598, 63 N. W. 870. New York. — Springer v. Westeott, 166 N. Y. 117, 59 N. E. 693 [affirming 19 N. Y. App. Div. 366, 46 K. Y. Suppl. 5891 ; Gracie e. Stevens, 56 N. Y. App. Div. 203, 67 N. Y. Suppl. 688 ; Roberts v. Lloyd, 56 N. Y. Super. Ct. 333, 4 N. Y. Suppl. 446, 21 N. Y. St. 908. Ohio. — Monroevilie v. Root, 54 Ohio St. 523, 44 N. E. 237; Ohio Mut. L. Assoc, v. Draddy, 8 Ohio N. P. 140, 10 Ohio Dec. 591; Loewenstein v. Bennet, 19 Ohio Cir. Cir. Ct. 616, 10 Ohio Cir. Dec. 530. South Carolina. — Greene v. Duncan, 37 S. C. 239, 15 S. E. 956; Sherard v. Rich- mond, etc., R. Co., 35 S. C. 467, 14 S. E. 952. Texas. — Texas Loan Agency v. Fleming, (Tex. Civ. App. 1898) 46 S. W. 63; Jones v. Thurmond, 5 Tex. 318. Utah. — Lebcher v. Lambert, (Utah 1900) 63 Pac. 628. Virginia.' — Trumbo v. City Street-Car Co., 89 Va. 780, 17 S. E. 124. Washington. — Blumberg v. MeNear, 1 Wash. Terr. 141. West Virginia. — Graham v. Carroll, 27 W. Va. 790. Wisconsin. — Thrasher v. Postel, 79 Wis. 503, 48 N. W. 600. United States. — Barrow v. Reab, 9 How. (TJ. S.) 366, 13 L. ed. 177; Monarch Cycle Mfg. Co. v. Royer Wheel Co., 105 Fed. 324, 44 C. C. A. 523. Where appellant excepts to instructions given, but is content to subsequently accept them as the law, he cannot claim error for the refusal of the court to give instructions asked by him. Delmonica Hotel Co. v. Smith, (Iowa 1901) 84 N. W. 906. The propriety of modifying a requested in- struction cannot be questioned without an exception. Greene v. Duncan, 37 S. C. 239, 15 S. E. 956. Where no requests for instructions were submitted below, and no exception taken to the final result, there can be no question raised as to the sufficiency of the facts to support the judgment. Green v. Gill, 47 Mich. 86, 10 N. W. 119. 38. Bowland v. Wilson, 71 Md. 307, 18 Atl. 536. 39. Bath v. Caton, 37 Mich. 199. 40. Stewart v. Wyoming Cattle Ranch Co., 128 U. S. 383, 9 S. Ct. 101, 32 L. ed. 439. 41. Wheeler v. Sweet, 137 N. Y. 435, 33 N. E. 483, 51 N. Y. St. 77; Watertown Bank, etc., Co. v. Mix, 51 N. Y. 558. 42. Illinois. — Stock Quotation Tel. Co. v. Board of Trade, 144 111. 370, 33 N. E. 42; Kennedy v. Illinois Cent. R. Co., 68 111. App. 601. Minnesota. — Weinberg V. Steeves, (Minn. 1901) 84 N. W. 755. Vol. II 726 APPEAL AND ERROR preclude the complaining party from urging such refusal as error, so as to permit the appellate court to review the sufficiency of the evidence, 43 unless it appears that there was no evidence which would justify the submission of any fact to the jury. 44 To raise the question of the propriety of a direction to find a verdict, the complaining party should request the trial court to submit to the jury the facts claimed to be in issue, and, if the request is refused, should except to the refusal. 45 Although no request was made to submit a question to the jury, defend- ant may avail himself of an exception to a refusal to direct in his favor, and a direction in favor of the adverse party. 46 An exception to a direction to find a verdict for defendant brings up, on the appeal, the question whether, on any construction of the facts, the jury would have been warranted in finding for plain- tiff, although the latter did not request the submission of any questions to the jury. 47 When no specific request is made for the submission of any question of fact to the jury, and a verdict is directed by the court, to which direction only a general exception is taken, the point that such question should have been submit- ted to the jury cannot be raised for the first time on appeal, if the evidence was not entirely clear and uncontradicted. 48 (5) Signing, Marking, and Filing. The failure of the trial judge to sign instructions, 49 or any non-compliance with statutory requirements respecting the marking, numbering, or filing of written instructions, is, where no exception was taken, not a ground of reversal. 60 (6) Exceptions to General Rule. In a number of jurisdictions the neces- sity of exceptions has, by express statutory provisions, been either wholly or partly done away with ; 51 in others the general doctrine has, apparently, been Missouri. — Haniford v. Kansas City, 103 Mo. 172, 15 S. W. 753. New York. — Curtis v. Wheeler, etc., Mfg. Co., 141 N. Y. 511, 36 N. E. 596, 57 N. Y. St. 715 [affirming 65 Hun (N. Y.) 619, 19 N. Y. Suppl. 650, 47 N. Y. St. 187] ; Elliott v. Van Sehaick, 26 N. Y. App. Div. 587, 50 N. Y. Suppl. 432; Smith v. Simmons, 66 Hun (N. Y.) 628, 21 N. Y. Suppl. 47, 49 N. Y. St. 302; Sehwarz v. Family Fund Soc, 59 N. Y. Super. Ct. 583, 13 N. Y. Suppl. 888, 38 N. Y. St. 1024. 58 N. Y. Super. Ct. 515, 12 N. Y. Suppl. 717, 35 N. Y. St. 79. North Dakota. — De Lendreeia v. Peek, 1 N. D. 422, 48 N. W. 342. Ohio. — Stegeman v. Humbers, 2 Ohio Cir. Ct. 51. Pennsylvania. — Burke v. Noble, 48 Pa. St. 168. Wisconsin. — Holum v. Chicago, etc., R. Co. 80 Wis. 239, 50 N. W. 99; Kirch v. Davies, 55 Wis. 287, 11 N. W. 689. Contra, Loving v. Warren County, 14 Bush (Ky.) 316; Collins v. Potts, 9 Ky. L. Rep. 536; Morris v. National Protective Soc, 106 Wis. 92, 81 N. W. 1036. Where the evidence was not voluminous, and the judge presumably had his notes be- fore him, it was held not to be incumbent on plaintiff to point out error in an instruction to find for defendant in order to enable plain- tiff to take advantage of the error. Asbury v. Fair, 111 N. C. 251, 16 S. E. 467. 43. Eckensberger v. Amend, 10 Misc. (N. Y.) 145, 30 N. Y. Suppl. 915, 62 N. Y. St. 479 ; Paige v. Chedsey, 4 Misc. (N. Y.) 183, 23 N. Y. Suppl. 879, 53 N. Y. St. 190. 44. Benson v. Gerlach, 4 N. Y. Suppl. 273 20 N. Y. St. 939. Vol. II 45. Stone v. Flower, 47 N. Y. 566; Shel- don v. Bp.umann, 19 N. Y. App. Div. 61, 45 N. Y. Suppl. 1016. 46. Wombough v. Cooper, 4 Thomps. & C. (N. Y.) 586. 47. Stone v. Flower, 47 N. Y. 566; Miner f. New York, 37 N. Y. Super. Ct. 171. 48. Schroff v. Bauer, 42 How. Pr. (N. Y.) 348. Where the questions involved were treated by the court and counsel as questions of law, based on facts assumed to have been proved, and the only exception was to the direction of a verdict on the facts, it was held that it could not be urged that there were questions of fact which should have been submitted to the jury. Elwell v. Dodge, 33 Barb. (N. Y.) 336. 49. Jones v. Greeley, 25 Fla. 629, 6 So. 448; Fruehey v. Eagleson, 15 Ind. App. 88, 43 N. E. 146. 50. Minzer v. Willman Mercantile Co., 59 Nebr. 410, 81 N. W. 307; Herzog v. Camp- bell, 47 Nebr. 370, 66 N. W. 424 ; Chadron v. Glover, 43 Nebr. 732, 62 N. W. 62; Fry v. Tilton, 11 Nebr. 456, 9 N. W. 638. 51. Alabama. — In this state it is expressly provided by statute [Ala. Civ. Code (1896), § 613] that no exception need be taken to the giving or refusing of instructions and that exceptions will be presumed. Whitaker v. State, 106 Ala. 30, 17 So. 458. This statute, however, has no application to charges given by the court on its own motion. Abbott v. Mobile, 119 Ala. 595, 24 So. 565. Montana. — Mont. Code Civ. Proc. (1895), § 1151. See also Gassert v. Bogk, 7 Mont. 585, 19 Pae. 281, 1 L. R. A. 240. North Carolina.— By Clark's Code Civ. APPEAL AND ERROR 727 limited in the absence of any statutory provisions, so that alleged error in this respect may be inquired into, though not excepted to. 52 (e) Nonsuit — Dismissal. Ordinarily, exceptions must be taken to nonsuits, or dismissals; thus, where the plaintiff is nonsuited or the cause dismissed, 68 or the court declines to take off a nonsuit assented to, 54 or a nonsuit is refused, 55 Proe. N. C. (1900), § 412, it is provided: " If there shall be error, either in the refusal of the judge to grant a prayer for instruc- tions, or in granting a prayer, or in his in- structions generally, the same shall be deemed excepted to without the filing of any formal ob- jections." This section does not, it is held, per- mit an exception to be taken for the first Ume in the supreme court, but makes it sufficient if set out in appellant's case on appeal, al- though the proper method of taking advantage of it is to assign error on a motion for a new trial. National Bank v. Sumner, 119 N. C. 591, 26 S. E. 1'29; Marriner v. John T. Roper Lumber Co., 113 N. C. 52, 18 S. E. 94; Lee v. Williams, 111 N. C. 200, 16 S. E. 175 [citing Clark's Code Civ. Proc. N. C. (1900), p. 382]. Pennsylvania. — Under the statute in this state the charge filed by the court, with or ■without request, becomes, by virtue of stat- ute, a part of the record for the purpose of assignment of -errors, and exceptions thereto are not necessary. Pa. Pamphl. L. (1877), p. 38; Brightly's Purd. Dig. Pa. (1894), p. 1624: Grugan v. Philadelphia, 158 Pa. St. 337, 27 Atl. 1000; Janney v. Howard, 150 Pa. St. 339, 24 Atl. 740. But compare Phila- delphia Trust, etc., Co. v. Purves, (Pa. 1888) 13 Atl. 936. Texas.— Sayles' Civ. Stat. Tex. ( 1897 ) , art. 1318; Atchison, etc., R. Co. v. Click, 5 Tex. Civ. App. 224, 23 S. W. 833. The only cases excepted from the operation of the statute are prosecutions for misdemeanors. Otto v. State, (Tex. Crim. 1894) 25 S. W. 285; Gar- rett v. State, (Tex. Crim. 1894) 25 S. W. 285. 52. In New York, if a case is presented by the trial court to the jury upon an erroneous theory, the question may be reviewed in the appellate division of the supreme court even though no exception is taken in the lower court. Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506; Voree v. Oppenheim, 37 N. Y. App. Div. 69, 55 N. Y. Suppl. 596 ; Northrup ». Porter, 17 N. Y. App. Div. 80, 44 N. Y. Suppl. 814; Leach v. Williams, 12 N. Y. App. Div. 173, 42 N. Y. Suppl. 574; Whittaker v. Delaware, etc., Canal Co., 49 Hun (N. Y.) 400, 3 N. Y. Suppl. 576, 22 N. Y. St. 405. In Ohio, if the overruling of a motion for a new trial is assigned for error, and all the evidence offered on the trial, together with the charge of the court, is properly brought ■up by bill of exceptions, a, reviewing court will, in connection with the evidence, look to the charge of the court, whether excepted to or not ; and, if there is reason to believe that the verdict was the result of erroneous in- structions, will reverse the judgment and award a new trial. Baker v. Pendergast, 32 Ohio St. 494, 30 Am. Rep. 620. 53. Alabama. — Wya\t v. Evins, 52 Ala. 285; Vincent v. Rogers, 30 Ala. 471. California. — Nelmes v. Wilson, ( Cal. 1893) 34 Pac. 341 ; Malone v. Beardsley, 92 Cal. 150, 28 Pac. 218; Schroeder v. Schmidt, 74 Cal. 459, 16 Pac. 243. Georgia. — McBride v. Latham, 79 Ga. 661, 4 S. E. 927; Killen v. Compton, 60 Ga. 117. Indiana. — Heddy v. Driver, 6 Ind. 350. Massachusetts. — Spaulding v. Alford, 1 Pick. (Mass.) 33. Minnesota. — Stewart v. Davenport, 23 Minn. 346. Missouri. — Harrison v. Illinois Bank, 9 Mo. 161. New York. — Pendleton v. Weed, 17 N. Y. 72. And see Ross v. Caywood, 58 N. Y. Suppl. 1148 [affirmed in 162 N. Y. 259, 56 N. E. 629]. North Carolina. — Harper v. Dail, 92 N. C. 394. Pennsylvania. — Finch v. Conrade, 154 Pa. St. 326, 32 Wkly. Notes Cas. (Pa.) 196, 26 Atl. 368 ; Pollock v. Harvey, 148 Pa. St. 536, 23 Atl. 1128; Owen's Petition, 140 Pa. St. 565, 21 Atl. 416. See 2 Cent. Dig. tit. "Appeal and Error," § 1582 et seq. In Deane v. Buffalo, 42 N. Y. App. Div. 205, 58 N. Y. Suppl. 810, when plaintiff first rested, the court intimated an intention to nonsuit him and to allow an exception. Thereupon plaintiff submitted further evi- dence, at the close of which he was non- suited, but no exception was taken, and it was held that plaintiff was entitled to have the appellate division treat the case as though an exception had been taken where the ex- ceptions are ordered to be heard by it in the first instance. An exception to a dismissal of the com- plaint at the close of plaintiff's evidence is sufficient to present on appeal a question raised by the pleadings and proof, though not urged in opposition to the motion to dis- miss. Witherow v. Slaybaek, 158 N. Y. 649, 53 N. E. 681, 70 Am. St. Rep. 507 [reversing 11 Misc. (N. Y.) 526, 32 N. Y. Suppl. 746, 64 N. Y. St. 456]. Limitations of rule — Order granted after trial. — To support a motion for a new trial on account of an alleged erroneous dismissal of an action, it is not necessary to except to the order of dismissal in a case in which the order was not granted upon the trial, but af- ter the trial was concluded, and the ease taken under advisement. Volmer v. Stagerman, 25 Minn. 234. 54. Taylor v. Switzer, 110 Mo. 410, 19 S. W. 735. 55. Witkowski v. Hern, 82 Cal. 604, 23 Pac. 132; Oakes v. Thornton, 28 N. H. 44; Eekensberger v. Amend, 10 Misc. (N. Y.) 145, Vol. II 728 APPEAL AND ERROR or the court declines to dismiss a cause. 66 the failure to except to the action of the court will be taken as an acquiescence therein. 57 (f) Verdict. Where the verdict is defective as to form 58 or substance, an exception is necessary to preserve for review error therein. 59 But an exception to the verdict is not necessary to preserve for review errors in the court's rulings. 6 * (g) Findings of Fact. As a general rule, if the findings of fact of the court are in any respect erroneous or defective, they will not be reviewed in the absence of proper exceptions. 61 In the absence of exceptions the reviewing court 30 N. Y. Supppl. 915, 62 N. Y. St. 479; Ka- minitsky v. Northeastern R. Co., 25 S. C. 53; Garrard v. Reynolds, 4 How. (U. S.) 123, 11 L. ed. 903. In Pennsylvania it seems that the action of the court in overruling a motion for a non- suit is not the subject of exception. Dough- erty v. Loebelenz, 9 Pa. Super. Ct. 344, 43 Wkly. Notes Cas. (Fa.) 447. 56. Tuskaloosa Wharf Co. v. Tuskaloosa, 38 Ala. 514, wherein a dismissal was asked for the failure to give security for costs. 57. Train i\ Holland Purchase Ins. Co., 62 N. Y. 598 ; Freund !'. Importers, etc., Nat. Bank, 3 Hun (N. Y.) 689; Backman v. Jenks, 55 Barb. (N. Y.) 468. Whether or not a nonsuit was properly al- lowed is brought up by an exception taken to such allowance, though no express request was made to have the facts upon which the nonsuit was based left to the jury to deter- mine. Sheldon v. Atlantic F. & M. Ins. Co., 26 N. Y. 460, 84 Am. Dec. 213. But see Bid- well v. Lament, 17 How. Pr. (N. Y.) 357, "wherein plaintiff excepted, but made no re- quest that the question of fact be submitted to the jury, and it was held that he had waived the submission of the case to the jury, and that his exception did not avail to save the objection. 58. ' Schleneker v. Risley, 4 111. 483, 38 Am. Dec. 100. So, an objection to a judgment on a verdict in the form suggested by the trial judge at the conclusion of the charge will not be con- sidered on appeal where defendants neither excepted nor objected to the remarks of the judge as to the amount or form of the ver- dict, nor made any suggestions on the sub- ject when the verdict was delivered. Ten Eyck v. Witbeck, 55 N. Y. App. Div. 165, 66 N. Y. Suppl. 921. Necessity of exceptions to rulings preced- ing verdict. — Though no exception was taken to an instruction that three fourths of a jury may return a verdict, where the receiving and entering of such a verdict was objected to, and exception taken to the overruling of the objection, it brings the question of the valid- ity of such a verdict regularly before the court on appeal. Rock Springs First Nat. Bank r. Foster, (Wyo. 1900) 61 Pac. 466. 59. Roach v. Hulings, 16 Pet. (U. S.) 319, 10 L. ed. 979; Campbell v. Strong, Hempst. (U. S.) 265, 4 Fed. Cas. No. 2,367a. See also Kuhlman n. Williams, 1 Okla. 136, 28 Pac. 867 ; and 2 Cent. Dig. tit. "Appeal and Error," § 1533. Questions in special verdict. — Where no exceptions to the phraseology of questions in Vol. II a special verdict are reserved, such exceptions cannot be considered on appeal. Dodge v. O'Dell, 106 Wis. 296, 82 N. W. 135. 60. French v. Hotchkiss, 60 111. App. 580; Thompson v. Seipp, 44 111. App. 515. Where the evidence and the inferences drawn by the jury do not justify a verdict, questions arising on the facts shown may be considered on appeal, though such questions -were not raised by special exceptions. Bige- low p. Bigelow, 93 Me. 439, 45 Atl. 513. And so where the verdict is in conflict with the evidence and instructions. Sullivan v. Otis, 39 Iowa 328. 61. Arkansas.— Woodruff v. McDonald, 33 Ark. 97. California. — Richardson v. Dunne, (Cal. 1893) 31 Pac. 737; Lucas v. San Francisco, 28 Cal. 591. Dakota. — Van Cise v. Merchants' Nat. Bank, 4 Dak. 485, 33 N. W. 897. Illinois. — Martin v. Foulke, 114 111. 206, 29 N. E. 683; David M. Force Mfg. Co. v. Horton, 74 111. 310; Stein v. Rothermel, 79 111. App. 36. Indiana. — Banner Cigar Co. v. Kamm, etc., Brewing Co., 145 Ind. 266, 44 N. E. 455. Iowa. — Aldrich v. Paine, 106 Iowa 461, 75 N. W. 812. Michigan. — Weist v. Morlock, 116 Mich. 606, 74 N. W. 1012; Hubbard v. Garner, 115 Mich. 406, 73 N. W. 390, 69 Am. St. Rep. 580. Minnesota. — Hewitt v. Blumenkranz, 33 Minn. 417, 23 N. W. 858. Missouri. — Leith v. Steamboat Pride of the West, 16 Mo. 181. Montana. — Currie v. Montana Cent. R. Co., 24 Mont. 123, 60 Pac. 989; Haggin v. Saile, 23 Mont. 375, 59 Pac. 154. Nebraska. — Harrington v. Latta, 23 Nehr. 84, 36 N. W. 364. Nevada. — MeClusky v. Gerhauser, 2 Nev. 47, 90 Am. Dee. 512. New Hampshire. — Carter v. Stratford Sav. Bank, (N. H. 1901) 48 Atl. 1083. Oregon. — Verdier v. Bigne, 16 Oreg. 208, 19 Pac. 64. South Carolina. — British American Mortg. Co. v. Bates, 58 S. C. 551, 36 S. E. 917; Max- well v. Bodie, 56 S. C. 402, 34 S. E. 692. Washington. — Cole v. Price, 22 Wash. 18, 60 Pac. 153; Carstens v. Leidigh, etc., Lum- ber Co., 18 Wash. 450, 51 Pac. 1051, 63 Am. St. Rep. 906, 39 L. R. A. 548. Wisconsin.— Merriman v. McCormiek Har- vesting Mach. Co., 101 Wis. 619, 77 N. W. 880; Wentworth v. Racine County, 99 Wis. iv, appendix, 77 N. W. 874. United States. — Kirk v. TJ. S 163 U S 49, 16 S. Ct. 911, 41 L. ed. 66; Humphreys t APPEAL AND ERROR 729 will not consider whether the findings are sufficiently specific or not, 63 or whether the findings are supported by the evidence ; 63 nor will it review the action of the trial court in setting aside a finding and making a special finding. 64 So, a failure to make or file findings of fact will not be considered in the absence of a request therefor, and an exception to the court's refusal or non-compliance with the request. 65 Cincinnati Third Nat. Bank, 75 Fed. 852, 43 U. S. App. 698, 21 C. C. A. 538; Press v. Davis, 54 Fed. 267, 9 U. S. App. 546, 4 C. C. A. 318. See 2 Cent. Dig. tit. "Appeal and Error," § 1536 et seq. In Illinois — Assignment of cross-errors. — A finding to which no exception is taken by appellee cannot be reviewed on appeal on the assignment of cross-errors by the appellee. Chicago, etc., R. Co. v. People, 190 111. 20, 60 N. E. 69. In New York — Review in court of appeals. — Where a finding of fact is wholly unsus- tained by the evidence, it is deemed a ruling on a question of law which, if excepted to, presents a legal question which the court of appeals may pass upon. Daniels v. Smith, 130 N. Y. 696, 29 N. E. 1098, 42 N. Y. St. 644; Halpin v. Phenix Ins. Co.. 118 N. Y. 165, 23 N. E. 482, 28 N. Y. St. 788 ; Naser v. New York City First Nat. Bank, 116 N. Y. 492, 22 N. E. 1077, 27 N. Y. St. 670. If, how- ever, there is any evidence to support the find- ings, no question of law in relation thereto is presented, and the court of appeals cannot consider the findings for any purpose. Cox v. Stokes, 156 N. Y. 491, 51 N. E. 316; White v. Benjamin, 150 N. Y. 258, 44 N. E. 956. In New York — Review by appellate di- vision. — In general. — N. Y. Code Civ. Proc. § 992, provides that exceptions may be taken to the ruling of the court or referee upon a question of law, but not to a ruling upon a question of fact. Under this section findings of fact may, without exceptions, be reviewed by the appellate division. Roberts v. Tobias, 120 N. Y. 1, 23 N. E. 1105, 30 N. Y. St. 189; Porter v. Smith, 107 N. Y. 531, 14 N. E. 446; Barrett v. Kling, 16 N. Y. Suppl. 92, 40 N. Y. St. 823. But it is nevertheless the duty of an appellant desiring a review of questions of fact to see that the case contains a certifi- cate that all the evidence has been included, or all bearing on the question so sought to be reviewed. Porter v. Smith, 107 N. Y. 531, 14 N. E. 446; Graff v. Ross, 47 Hun (N. Y.) 152. If, however, the question in relation to the findings of fact was whether there was any evidence at all to support the findings, a question of law would be presented, to obtain a review of which an exception would be necessary. See supra, this note, as to review in court of appeals. Findings of surrogate. — To authorize a re- view in the appellate division of the findings of fact of a surrogate, an exception to the findings is neither necessary or proper. Bur- ger v. Burger, 111 N. Y. 523, 19 N. E. 99, 21 N. E. 50, 20 N. Y. St. 105; Matter of Srjratt, 4 N. Y. App. Div. 1, 38 N. Y. Suppl. 329, 73 N. Y. St. 790. See also Matter of McAleenan, 53 N. Y. App. Div. 193, 65 N. Y. Suppl. 907, in which it was held that where the surro- gate sustains objections to a referee's report, and bases his decision on the facts found by such referee, it is not necessary, in order to present a question to the appellate court, that appellant should file exceptions, since the facts found by the referee stand in place of a finding of facts by the surrogate, and on ap- peal from the surrogate's decree the correct- ness of the surrogate's conclusions of law is presented for review. Compare Angevine v. Jackson, 103 N. Y. 470, 9 N. E. 56; Matter of Marsh, 45 Hun (N. Y.) 107. In Pennsylvania, if no exception is taken to a determination on a reserved question of fact, the parties will be presumed to have as- sented to it, and will be concluded by its le- gal effect. Fulton v. Peters, 137 Pa. St. 613, 20 Atl. 936; Lower Providence Live-Stoek Ins. Assoc, v. Weikel, (Pa. 1888) 13 Atl. 82; Mohan v. Butler, 112 Pa. St. 590, 4 Atl. 47; Supplee v. Herrman, 16 Pa. Super. Ct. 45; Ginther v. Yorkville, 3 Pa. Super. Ct. 403. In Texas — Limitations of rule. — Excep- tions to conclusions of law and fact are not necessary where a statement of facts and bill of exceptions are brought up in the record. Tudor v. Hodges, 71 Tex. 392, 9 S. W. 443; Wilkins v. Burns, (Tex. Civ. App. 1893) 25 S. W. 431 ; Connellee v. Roberts, 1 Tex. Civ. App. 363, 23 S. W. 187. 62. Smith v. Pendergast, 26 Minn. 318, 3 N. W. 978. 63. Colorado. — Farncomb v. Stern, 18 Colo. 279, 32 Pac. 612; Cox v. Sargent, 10 Colo. App. 1, 50 Pac. 201. Illinois. — Parsons v. Evans, 17 111. 238. Michigan. — Washtenaw County v. Rabbitt, 99 Mich. 60, 57 N. W. 1084. Missouri. — Freeman v. Hemenway, 75 Mo. App. 617. North Carolina. — Cox v. Jones, 110 N. C. 309, 14 S. E. 782. Washington. — Mason v. MaGee, 15 Wash. 272, 46 Pac. 237. Wisconsin. — Saukville v. Grafton, 68 Wis. 192, 31 N. W. 719; King v. Ritchie, 18 Wis. 554. United States. — Haws v. Victoria Copper Min. Co., 160 U. S. 303, 16 S. Ct. 282, 40 L. ed. 436. See 2 Cent. Dig. tit. 'Appeal and Error," § 1543. 64. Banner Cigar Co. v. Kamm, etc., Brew- ing Co., 145 Ind. 266, 44 N. E. 455; and see 2 Cent. Dig. tit. " Appeal and Error," § 1545. 65. California. — Cook v. De la Guerra, 24 Cal. 237. Iowa. — Kruck v. Prine, 22 Iowa 570. Vol. II 730 APPEAL AND ERROR (h) Conclusions of Law. To authorize a review of conclusions of law they must be duly excepted to. 66 To question the correctness of conclusions of law it is not necessary to except to the findings, 67 and, indeed, exceptions to the findings raise no question as to the correctness of conclusions of law. 68 So, excepting to the judgment raises no question as to the conclusions of law. 69 Exceptions are also necessary to authorize a review of the action of the court below in failing or refusing to file conclusions of law, 70 or for failure to file findings of fact or con- clusions of law separately. 71 (i) Excessive Award. The defeated party cannot, if he has failed to reserve any exception by which his claim may be tested, assert on appeal that the sum awarded by the verdict or judgment was excessive, and especially if the amount does not exceed that demanded. 72 Kansas.— Crisfield v. Neal, 36 Kan. 278, 13 Pac. 272. Nevada. — Warren v. Quill, 9 Nev. 259. North Carolina. — Parks v. Davis, 98 N. C. 481, 4 S. E. 202. Oregon. — Umatilla Irrigation Co. v. Barn- hart, 22 Oreg. 389, 30 Pac. 37. Texas. — Taekaberry v. City Nat. Bank, 85 Tex. 488, 22 S. W. 151, 299; American Cent. Ins. Co. v. Green, 16 Tex. Civ. App. 531, 41 S. W. 74; Alamo F. Ins. Co. v. Shaeklett, (Tex. Civ. App. 1894) 26 S. \V. 630; Scurry v. Fromer, (Tex. Civ. App. 1894) 26 S. W. 461. Wisconsin. — Wrigglesworth v. Wriggles- worth, 45 Wis. 255; Sheldon v. Rockwell, 9 Wis. 166, 76 Am. Dec. 265. See 2 Cent. Dig. tit. "Appeal and Error," § 1544. Failure to find — Review in New York court of appeals. — Failure of the court or referee to find a material fact in a decision stating concisely the grounds upon which the issues have been decided instead of stating separately the facts found and the conclusions of law, either of which may be^done under N. Y. Code Civ. Proc. § 1022, is not an error of law, and hence the court of appeals, which can review only questions of law since the provisions of the new constitution went into effect, has no authority to consider a failure to make such finding (National Harrow Co. v. Bement, 163 N. Y. 505, 57 N. E. 764); and even if it could consider the question, a re- quest to find the omitted fact, and exception to the omission or refusal to do so, would be a condition precedent to such consideration (Clark v. National Shoe, etc., Bank 164 N Y 498, 58 N. E. 659; National Harrow Co v Bement, 163 N. Y. 505, 57 N. E. 764). For practice in the court of appeals before the new constitution went into effect see Donovan v Clark, 138 N. Y. 631, 33 N. E. 1066, 52 N. y! St. 358; Daniels v. Smith, 130 N. Y. 696, 29 N. E. 1098, 42 N. Y. St. 644; Travis v. Travis, 122 N. Y. 449, 25 N. E. 020, 34 N Y. St. 42. 66. Arkansas. — Dunnington v. Frick Co 60 Ark. 250, 30 S. W. 212. Indiana. — Nelson v. Cottingham, 152 Ind 135, 52 N. E. 702; Nading v. Elliott, 137 Ind 261, 36 N. E. 695. Kentucky. — Day v. Adams, 20 Ky. L. Rep. 1827, 50 S. W. 2; Forbes i>. Kentucky Mut. Security Fund Co., 14 Ky. L. Rep. 811 ; Ameri- can Mut. Aid Soc. v. Bronger, 12 Ky. L. Ren. 971, 15 S. W. 1118. Vol. II Michigan. — Weist v. Morlock, 116 Mich. 606, 74 N. W. 1012; Feller v. Green, 26 Mich. 70; Peabody v. McAvoy, 23 Mich. 526; McMil- lan v. Gilt Edge Cheese Factory, 23 Mich. 544. New York. — Hatch v. Fogerty, 7 Rob. (N. Y.) 488; Hedges v. Polhemus, 14 Misc. (N. Y.) 309, 35 N. Y. Suppl. 709, 70 N. Y. St. 444; Robertson v. Stillings, 18 Alb. L. J. 476. North Carolina. — Smith v. Kron, 109 N. C. 103, 13 S. E. 839. Washington. — Irwin v. Olympia Water Works, 12 Wash. 112, 40 Pac. 637. Wisconsin. — But see Towsley v. Ozaukee County, 60 Wis. 251, 18 N. W. 840; King v. Ritchie, 18 Wis. 554, in which it is held that no exception is necessary to authorize the re- viewing court to determine whether the con- clusion of law is correct on the facts found. United States. — Humphreys v. Cincinnati Third Nat. Bank, 75 Fed. 852, 43 U. S. App. 098, 21 C. C. A. 538. See 2 Cent. Dig. tit. "Appeal and Error," § 1536 et seq. Unless exceptions are taken to the con- clusions of law or fact the only question de- terminable is whether the pleadings support the judgment. King v. Walker, 15 Ky. L. Rep. 605 ; Bridgeford v. Woodbury, 13 Ky. L. Rep. 636; Continental Ins. Co. v. Milliken, 64 Tex. 46; Biggerstaff v. Murphy, (Tex. Civ. App. 1893) 21 S. W. 773; McKee v. Price, 3 Tex. App. Civ. Cas. § 336. See also Weist v. Mor- lock, 116 Mich. 606, 74 N. W. 1012. Where judgment is rendered on an agreed state of facts, exception must be taken to the conclusions of law upon such agreed state of facts. Pennsylvania Co. v. Niblack, 99 Ind. 149; Hall v. Pennsylvania Co., 90 Ind. 459; Lofton v. Moore, 83 Ind. 112. 67. Solomon v. Reese, 34 Cal. 28 ; Shaw v. Nachtwey, 43 Iowa 653; Brown v. Kern, 21 Wash. 211, 57 Pac. 798. 68. Lynch v. Jennings, 43 Ind. 276. 69. Midland R. Co. v. Dickason, 130Ind.l64, 29 N. E. 7 75 ; Forbes v. Kentucky Mut. Security Fund Co., 14 Ky. L. Rep. 811 ; Smith v. Fowler, 5 Ky. L. Rep. 925. 70. Hess v. Dean, 66 Tex. 663, 2 S. W. 727 ; Glass v. Wiles, (Tex. 1890) 14 S. W. 225. 71. Ash v. Scott, 76 Iowa 27, 39 N. W. 924; Wrigglesworth v. Wrigglesworth, 45 Wis. 255. 72. Norris v. Wrenschall, 34 Md. 492 ; Haw- ver v. Bell, 141 N. Y. 140, 36 N. E. 6, 56 N. Y. APPEAL AND ERROR 731 (j) Judgment. It is the general rule that a judgment based on a verdict need not be excepted to, to enable the appellate court to consider its propriety. 73 In some jurisdictions, however, by statute or rules of practice, in trials by the court without a jury, to challenge the conclusion of the court upon the facts, or to ascer- tain the propriety of the final judgment or decree, due exception must be taken thereto.™ But such a requirement will not preclude the consideration of assign- St. 674; Moore V. Higgins, 53 Hun (N. Y.) 629, 5 N. Y. Suppl. 895, 24 N. Y. St. 378; Carey v. Flack, 20 Misc. (N. Y.) 295, 45 N. Y. Suppl. 759; Briscoe v. Litt, 19 Misc. (N. Y.) 5, 42 N. Y. Suppl. 908; North v. Bunn, (N. C. 1901) 38 S. E. 814; James River, etc., Co. v. Adams, 17 Gratt. (Va.) 427. Limitations of rule. — Where there is a palpable mistake in allowing a sum which is admittedly not due (Jones v. Gilman, 14 Wis. 450 ) , or where an appeal is taken from an or- der denying a new trial as well as from the judgment (Bruce v. Fiss, etc., Horse Co., 47 N. Y. App. Div. 273, 62 N. Y. Suppl. 96), it seems that no exception is necessary in order to relieve appellant from an excessive liabil- ity. 73. It will be enough if exceptions were taken below to rulings or decisions upon which the validity of the judgment depends. California. — Thompson v. Hancock, 51 Cal. 110. Colorado. — Bradbury v. Alden, 13 Colo. App. 208, 57 Pac. 490. Georgia. — Haskins v. State Bank, 100 Ga. 216, 27 S. E. 985 ; Parker v. Waycross, etc., R. Co., 81 Ga. 387, 8 S. E. 871. But see, contra, Achey v. Dodson, 105 Ga. 514. 31 S. E. 190; Baker v. Moor, 84 Ga. 186, 10 S. E. 737; Kil- len v. Compton, 60 Ga. 116. Indiana. — Linsman v. Huggins, 44 Ind. 474. Iowa.— Clement v. Drybread, 108 Iowa 701, 78 N. W. 235; Haefer v. Mullison, 90 Iowa 372, 57 N. W. 893, 48 Am. St. Rep. 451; What Cheer v. Hines, 86 Iowa 231, 53 N. W. 126; Gulliher v. Chicago, etc., R. Co., 59 Iowa 416, 13 N. W. 429; Aldrich «. Price, 57 Iowa 151, 9 N. W. 376, 10 N. W. 339. But see Ferguson v. Lucas County, 44 Iowa 701; Moore v. Daniels, 20 Iowa 596. Kansas. — Wyandotte County v. Arnold, 49 Kan. 279, 30 Pac. 486; Brown v. Tuppeny, 24 Kan. 29; Koehler v. Ball, 2 Kan. 160, 83 Am. Dec. 451. Kentucky. — Craycraft v. Duncan, 6 Ky. L. Rep. 651. Nebraska. — State v. Bartley, 56 Nebr. 810, 77 N. W. 438; Erck v. Omaha Nat. Bank, 43 Nebr. 613, 62 N. W. 67. New York. — Dainese v. Allen, 36 N. Y. Super. Ct. 98, 14 Abb. Pr. N. S. (N. Y.) 363. North Carolina. — An appeal is per se an exception to a judgment. Reade v. Street, 122 N. C. 301, 30 S. E. 124. Ohio. — Justice v. Lowe, 26 Ohio St. 372; Commercial Bank v. Buckingham, 12 Ohio St. 402. Oklahoma. — But see Kuhlman v. Williams, 1 Okla. 136, 28 Pac. 867. Texas. — Gillespie v. Crawford, (Tex. Civ. App. 1897) 42 S. W. 621. West Virginia. — Kyle v. Conrad, 25 W. Va. 760. See 2 Cent. Dig. tit. "Appeal and Error,'' § 1572 et seq. A judgment on a joint and several note against one defendant, without disposing of the cause as to the others, will not be disturbed when not excepted to below. Duncan v. Scott County, 64 Miss. 38, 8 So. 204. i Sayles' Civ. Stat. Tex. art. 1333, requir- ing an exception to the judgment " to be noted on the record in the judgment entry," is com- plied with by having the exception noted in the order overruling a motion for a new trial. Biggerstaff v. Murphy, 3 Tex. Civ. App. 363, 22 S. W. 768. Judgments by default. — The general doc- trine has also been held applicable to judg- ments taken by default. Laughlin v. Main, 63 Iowa 580, 19 N. W. 673; Robyn v. Chronicle Pub. Co., 127 Mo. 385, 30 S. W. 130; Tucker v. Inter-States L. Assoc, 112 N. C. 796, 17 S. E. 532. Contra, Brooks v. Breeding, 32 Tex. 752. See also 2 Cent. Dig. tit. " Appeal and Error," § 1578. 74. Alabama. — Alabama Fruit Growing, etc., Assoc, v. Garner, 119 Ala. 70, 24 So. 850 [following Hood v. Pioneer Min., etc., Co., 95 Ala. 461, 11 So. 10]. Colorado. — Norris v. Colorado Turkey Hone- stone Co., 22 Colo. 162, 43 Pac. 1024 ; Nelson v. Jenkins, 9 Colo. App. 420, 38 Pac. 826; Pedrick v. Anderson, 10 Colo. App. 541, 51 Pac. 1012. Georgia. — See Davidson v. Rogers, 80 Ga. 287, 7 S. E. 264; Littleton v. Spell, 77 Ga. 227, 2 S. E. 935. Illinois. — Bailey v. Smith, 168 111. 84, 48 N. E. 75; Harrison v. Boetter, 88 111. App. 549; Gilbert v. Sprague, 88 111. App. 508; Wehrheim v. Thiel Detective Co., 87 111. App. 565. Indiana — Seitz v. Schmidt, Wilson ( Ind. ) 437. Pennsylvania. — Hummel's Appeal, ( Pa. 1886) 5 Atl. 669. South Carolina. — Wilson v. Kelly, 19 S. C. 160. But where the case is submitted to the court below on an agreed statement of facts, so that nothing is left for decision but ques- tions of law, no exception to the decision of the trial court is necessary. George v. Tufts, 5 Colo. 162 ; Whitehead v. Jessup, 7 Colo. App. 460, 43 Pac. 1042. See Thatcher v. Ireland, 77 Ind. 486, holding that, where a case has been presented to the trial court upon an agreed statement of facts, an exception to its decision upon such facts must be taken in order to be able to present any question thereon to the appellate court. Vol. II 732 APPEAL AND ERROR ments of error based on the record proper, or on exceptions, duly reserved, to rul- ings made during the progress of the trial. 75 f . Rulings or Decisions After Trial or Judgment — (i) In General. To obtain a review of rulings or decisions made after trial or judgment, exceptions thereto are generally necessary. 76 The rule has been applied to rulings and decisions on motions to open a default and set aside the judgment entered thereon, 17 on motions for a venire de tiovoJ 8 on motions to set aside or quash an execution or sale thereunder, 79 to rulings or orders in proceedings supplementary to execution, 8 * and to rulings on motion to dismiss an appeal. 81 It has also been held that the propriety of an allowance of costs will not be considered unless exceptions are duly taken. 82 (u) Applications for New Trial. A decision granting or overruling a motion or application for a new trial will not be reviewed where no exception was taken thereto. 83 The effect of the omission to except to the refusal of a new 75. Farnccmb v. Stern, 18 Colo. 279, 32 Pac. 612; Nelson v. La Junta First Nat. Bank, 8 Colo. App. 531, 46 Pac. 879; Colorado Springs Co. v. Hopkins, 5 Colo. 206; Patton v. Coen, etc., Carriage Mfg. Co., 3 Colo. 265. 76. See 2 Cent. Dig. tit. " Appeal and Er- ror," § 1609 et seq.; and infra, notes 77-82. 77. Goodman v. Minear Min., etc., Co., 1 Ida. 131. Under the Illinois practice a ruling on a motion to vacate a judgment and verdict is re- viewable even though not excepted to. Pat- ting v. Spring Valley Coal Co., 98 Fed. 811, 39 C. C. A. 308. 78. Zimmerman v. Gaumer, 152 Ind. 552, 53 N. E. 829. 79. Smith v. Curtis, 7 Cal. 584; St. Louis v. Brooks, 107 Mo. 380, 18 S. W. 22; Ameri- can Wine Co. v. Scholer, 13 Mo. App. 345; Vernon v. Montgomery, (Tex. Civ. App. 1895) 33 S. W. 606. In Nebraska the failure to except to the ac- tion of the court in overruling exceptions, and confirming a sheriff's sale, will not pre- clude a review, the order being final. Jones v. Null, 9 Nebr. 254, 2 N. W. 350. 80. Welch v. Pittsburgh, etc., R. Co., 11 Ohio St. 569; Welsh v. Monks, 12 Mo. App. 579. 81. Hines v. Board of Education, (W. Va. 1901) 38 S. E. 550. 82. Darst v. Collier, 86 111. 96; Sisson v. Pearson, 44 111. App. 81 ; State v. Brewer, 70 Iowa 384, 30 N. W. 646; Soup v. Smith, 26 Iowa 472; Allbright v. Corley, 54 Tex. 372 Cord v. Southwell, 15 Wis. 211. 83. Arizona. — Koons v. Phoenix Min. Co. (Ariz. 1890) 32 Pac. 266; Sutherland v. Put- nam, (Ariz. 1890) 24 Pac. 320. Arkansas. — Hicks v. Wilson, 24 Ark. 628 Moss ». Smith, 19 Ark. 683. Georgia. — Augusta R. Co. v. Andrews, 89 Ga. 653, 16 S. E. 203. Illinois. — Stern v. People, 96 111. 475; Il- linois Cent. P. Co. v. O'Keefe, 49 111. App. 320; Brooks v. People, 11 111. App. 422. Indiana. — Fletcher v. Waring, 137 Ind. 159, 36 N. E. 896; Cox v. Dill, 85 Ind. 334. Compare Haney v. Farnsworth, 149 Ind. 453, 49 N. E. 383, construing Ind. Rev. Stat. (1894), § 642. Iowa. — Lewis v. Lewis, 75 Iowa 669, 37 N. W. 166. Vol. II Kansas. — Great Spirit Springs Co. v. Chi- cago Lumber Co., 47 Kan. 672, 28 Pac. 714; Atchison v. Byrnes, 22 Kan. 65 ; Longfellow v. Smith, (Kan. App. 1900) 61 Pac. 875. Kentucky. — Gordon 17. Ryan, 1 J. J. Marsh. (Ky.) 55. Michigan. — Knop 17. National F. Ins. Co., 101 Mich. 359, 59 N. W. 653. Mississippi. — Campbell v. Pittman, (Miss. 1888) 3 So. 455; Fisher V. Fisher, 43 Miss. 212. Missouri. — Wentzville Tobacco Co. v. Wal- ker, 123 Mo. 662, 27 S. W. 639; Danforth v. Lindell R. Co., 123 Mo. 196, 27 S. W. 715; Pieper v. Neumeister, 63 Mo. App. 362; State v. Straszer, 8 Mo. App. 572. Nebraska. — Tuomey v. Willman, 43 Nebr. 28, 61 N. W. 126; Murray v. School Dist. No. 3, 11 Nebr. 436, 4 N. W. 316. Ohio. — Brown v. Ohio, etc., Coal Co., 48 Ohio St. 542, 28 N. E. 669. Oklahoma. — Vaughn Lumber Co. v. Mis- souri Min., etc., Co., 3 Okla. 174, 41 Pac. 81. Virginia. — Paul v. Paul, 2 Hen. & M. (Va.) 525. West Virginia. — Snodgrass v. Copenhaver, 34 W. Va. 171, 12 S. E. 695 ; State v. Rollins, 31 W. Va. 363, 6 S. E. 923. See 2 Cent. Dig. tit. "Appeal and Error," § 1759 et seq. Limitation of rule — Errors apparent of rec- ord- — Notwithstanding no exception is saved to the action of the court in overruling a mo- tion for new trial, the reviewing court may nevertheless examine such errors as are ap- parent from the record. Carpenter v. St. Louis, etc., R. Co., 80 Mo. 446; Jackson 17. St. Louis, etc., R. Co., 80 Mo. 147; Dodd «7. Wilson, 26 Mo. App. 462. In Nevada, under a statutory provision de- fining an exception to be an objection taken, at the trial to a decision upon a matter of law, at any time " from the calling of the ac- tion for trial to the rendering of the verdict or decision," an order overruling a motion for a new trial need not be excepted to. State 17. Central Pac. R. Co., 17 Nev. 259, 270, 30 Pac. 887. In Wisconsin, to authorize a review of an order overruling a motion for new trial no exception to the order is necessary. Wis. Rev. Stat. § 3070; Doyle v. Gill, 59 Wis. 518, 18 N. W. 517. APPEAL AND ERROR 733 trial will preclude an examination of the evidence to ascertain if it supports the finding, 84 and, in some jurisdictions, the presentation for review of any error or ruling at the trial. 85 g. Provisional Remedies. The general rule governs the review of decisions affecting substantial rights made in proceedings ancillary to the principal action and wherein provisional remedies are sought. Of such a character are orders appointing receivers, 86 refusing a discovery, 87 setting aside an order of reference, 88 dissolving, or refusing to dissolve, an injunction 89 or an attachment. 90 But in the latter case it has been held that it need not appear that such an order was excepted to, 91 where it is appealable and constitutes a part of the record, 92 or where an exception was taken to a final order sustaining the attachment. 93 h. Speeial Proceedings. Exceptions have been held necessary to obtain a review of orders or rulings in special proceedings, as quo warranto, 94 mandamus, 95 and partition proceedings, 96 and also proceedings for the removal of an adminis- trator. 97 i. Trials or Proceedings Before Referees, Masters, or Like Officers — (i) Rul- ings. If trials or other proceedings before referees, masters, or like officers are required to be conducted as are trials or proceedings in court, as a rule exceptions must be taken to the rulings of such officers in like manner as if the parties were in court, 98 and such exceptions must be preserved by certification, embodiment in 84. Hitt v. Sharer, 34 111. 9; Tuomey v. Willman, 43 Nebr. 28, 61 N. W. 126; Na- tional Ben. Assoc, v. Harding, 7 Ohio Cir. Ct. 438. Under a statute authorizing the review of any intermediate order or determination of the trial court, involving the merits and necessarily affecting the judgment, appear- ing upon the record, whether the same were excepted to or not, the court may review the sufficiency of the evidence to sustain the ver- dict, though no exception to the order over- ruling a motion for a new trial was inter- posed. Tourville v. Nemadji Boom Co., 70 Wis. 81, 35 N. W. 330. 85. Great Spirit Springs Co. v. Chicago Lumber Co., 47 Kan. 672, 28 Pac. 714; Atchison v. Byrnes, 22 Kan. 65 ; Danforth v. Lindell B. Co., 123 Mo. 196, 27 S. W. 715; Vaughn Lumber Co. v. Missouri Min., etc., Co., 3 Okla. 174, 41 Pac. 81; State v. Eollins, 31 W. Va. 363, 6 S. E. 923. In North Carolina it has been held that, while it is the better practice to move for a new trial, assigning errors, it is not essential. It is sufficient if the exceptions were taken in apt time and are set out in the case on ap- peal. Bernhardt v. Brown, 118 N. C. 702, 24 S. E. 527, 715. 36 L. B. A. 402; Blackburn v. St. Paul F., etc., Ins. Co., 116 N. C. 821, 21 S. E. 922. 86. Chicago, etc., B. Co. v. McBeth, 149 Ind. 78. 47 N. E. 678 ; Gray v. Oughton, 146 Ind. 285, 45 N. E. 191. 87. Peterson v. Gresham, 25 Ark. 380. 88. Casky v. January, Hard. (Ky.) 539; Trigg v. Shields, Hard. (Ky.) 168. 89. Slagle v. Bodmer, 58 Ind. 465. 90. Groth v. Kersting, 4 Colo. App. 395, 36 Pae. 156. 91. Teweles v. Lins, 98 Wis. 453, 74 N. W. 122. 92. Ely v. Titus, 14 Minn. 125. 93. Lynn v. Stark, 6 Ky. L. Bep. 586. 94. In an information in the nature of quo warranto to try title to an office, the ac- tion of the court in submitting certain ques- tions of law and fact to the jury, and in not giving any formal decision on the issues not so submitted, is not reviewable on appeal when no exceptions to such action have been taken. People v. Cooper, 139 111. 461, 29 N. E. 872. 95. Lamkin v. Sterling, 1 Ida. 120, wherein the error complained of was the refusal to quash the writ. 96. Stith v. Carter, (Ky. 1901) 60 S. W. 725, the appointment of commissioners. 97. An administrator will, on appeal, in the absence of any exceptions to the same, be deemed to have acquiesced in a summary or- der removing him, issued by a court having jurisdiction, and directing that he forthwith account for and pay over the assets of the estate. Ex p. Simpson, 55 Ind. 415. The irregular removal of a testamentary trustee may be reviewed without exception. Matter of Scott, 49 N. Y. App. Div. 130, 62 N. Y. Suppl. 1059. 98. Alabama. — Kinsey v. Kinsey, 37 Ala. 393 ; Pearson v. Darrington, 32 Ala. 227. California. — Tyson v. Wells, 2 Cal. 122. Illinois. — Hibernian Banking Assoc, v. Law, 88 111. App. 18 ; Cook v. Meyers, 54 111. App. 590. Indiana.— Lee v. State, 88 Ind. 256. Massachusetts. — Copeland v. Crane, 9 Pick. (Mass.) 73. Michigan. — Abbott v. Mathews, 26 Mich. 176. Mississippi. — Davis v. Foley, Walk. (Miss.) 43. Nebraska. — Light v. Kennard, 11 Nebr. 129, 7 N. W. 539. New York.— Ingersoll v. Bostwick, 22 N. Y. 425; Brewer v. Isish, 12 How. Pr. (N. Y.) 481. Vol. II 734 APPEAL AND ERROR the report, or in such other manner as may be required by the local practice ;" otherwise, the only question which may be considered is whether the facts found are sufficient to support the conclusions. 1 In some jurisdictions it is necessary that objections to testimony, rulings, or other proceedings before the referee or corresponding officer be reviewed or brought to the attention of the court to which the report is made or the evidence returned or introduced, and proper exceptions saved therein, so that the question raised before the officer may be passed upon on appeal. 2 In some cases the report must be excepted to in order to authorize consideration of objections to the rulings of such officer. 8 (n) Findings and Conclusions. In the absence of appropriate exceptions to findings of fact or conclusions of law of a referee, master, or like officer, 4 or North Carolina. — Greensboro v. Seott, 84 N. C. 184. North Dakota. — Illstad v. Anderson, 2 N. D. 167, 49 N. W. 659. Pennsylvania. — Butterfield v. Lathrop, 71 Pa. St. 225. See 2 Cent. Dig. tit. "Appeal and Error," § 1552 et seq. Rulings denying a motion to dismiss an ac- tion, reserved by consent until the considera- tion of the case on the merits, to be reviewed, must be excepted to. Rhoades v. Siman, 24 Minn. 192. 99. Tyson v. Wells, 2 Cal. 122 ; Rhoades v. Siman, 24 Minn. 192; Davis v. Foley, Walk. (Miss.) 43. 1. Teller v. Bishop, 8 Minn. 226. 2. Alabama. — Gunn v. Brantley, 21 Ala. 633. Michigan. — Abbott v. Mathews, 26 Mich. 176. Minnesota. — Gill v. Russell, 23 Minn. 362. Where evidence is received, subject to objec- tion, by a referee, to be afterward ruled upon, an exception must be taken to his action, or it will not be reviewed on appeal. Kumler v. Ferguson, 22 Minn. 117. New York. — Boughton v. Flint, 74 N. Y. 476. North Dakota. — Illstad v. Anderson, 2 N. D. 167, 49 N. W. 659. Pennsylvania. — Potter v. Langstrath, 151 Pa. St. 216, 25 Atl. 76. South Carolina. — Verner v. Perry, 45 S. C. 262, 22 S. E. 888 ; Wagener v. Mars, 27 S. C. 97, 2 S. E. 844. Vermont. — Baxter v. Blodgett, 63 Vt. 629, 22 Atl. 625; Stevens v. Fullington, 59 Vt. 671, 10 Atl. 829. Unless the objection and excep- tion is renewed, the action of the officer can be reviewed only by an appeal to the discre- tion of the court, and then only where the evidence is of such a decisive character that the court can see that there is danger that injustice has been done. Graham v. Stiles, 38 Vt. 578. In Johnson v. Dexter, 37 Vt. 641, the appellate court considered the admission of evidence of an incompetent witness by an auditor, the record showing that it was the only point about which any question was raised in the court below, the adverse coun- sel not denying that the point was raised and decided, and although the exception was only to the rendition of judgment upon the au- ditor's report. Wisconsin. — Momsen v. Atkins, 105 Wis. 557, 81 N. W. 647; Hinz v. Van Dusen, 95 Vol. II Wis. 503, 70 N. W. 657. An objection to evi- dence in a trial before a referee may be taken advantage of in the circuit court on a motion, by the other side, to modify the report on a point involving the admissibility of such evi- dence; and, where the party objecting ex- cepts to a finding of the court based upon it, this saves the objection on appeal. Wilcox v. Bates, 45 Wis. 138. See 2 Cent. Dig. tit. "Appeal and Error," § 1552 et seq. 3. Alabama. — Reynolds v. Pharr, 9 Ala. 560. Massachusetts. — Leathe v. Bullard, 8 Gray (Mass.) 545. Michigan. — Martin v. McReynolds, 6 Mich. 70. Missouri. — Johnston v. Wingfield, 35 Mo. App. 437. New York. — Ashley v. Marshall, 29 N. Y. 494 ; Boughton v. Flint, 74 N. Y. 476. Pennsylvania. — Swoope v. Wakefield, 10 Pa. Super. Ct. 342, 44 Wkly. Notes Cas. (Pa.) 209. Verm,ont. — Bourne v. Bourne, 69 Vt. 251, 37 Atl. 1049; Scofield v. Stoddard, 58 Vt. 290, 5 Atl. 314; Bruce v. Continental L. Ins. Co., 58 Vt. 253, 2 Atl. 710. An exception to the referee's admission of evidence, unless brought before the trial court by exception to, or mo- tion to recommit, the report, saves no ques- tion for review. Manning v. Leighton, 66 Vt. 56, 28 Atl. 630; Baxter v. Blodgett, 63 Vt. 629, 22 Atl. 625 ; Hard v. Burton, 62 Vt. 314, 20 Atl. 269. Wisconsin. — McDonnell v. Schricker, 44 Wis. 327 ; Riley v. Mitchell, 37 Wis. 612. See 2 Cent. Dig. tit. "Appeal and Error," § 1552 et seq. 4. Kansas. — Hill v. Fisher, 6 Kan. App. 375, 50 Pac. 1099. Massachusetts. — French v. Peters, 177 Mass. 568, 59 N. E. 449 ; Roosa v. Davis, 175 Mass. 117, 55 N. E. 809. Missouri. — Thacker v. Tracy, 8 Mo. App. 315. North Carolina. — Abernathy v. Withers, 99 ST. C. 520, 6 S. E. 376; Weathersbee v. Far- rar, 98 N". C. 255, 3 S. E. 482 ; Strauss v. Fred- erick, 98 N. C. 60, 3 S. E. 825. Oregon. — State v. Grover, 10 Oreg. 66. Wisconsin. — Dinsmore v. Smith, 17 Wis. 20. See 2 Cent. Dig. tit. "Appeal and Error," § 1552 et seq. For practice in New York courts in regard to exceptions to referee's findings and con- APPEAL AND ERROR Y35 to the sufficiency of the evidence to sustain such findings or conclusions, 5 their propriety cannot be considered on appeal. (in) Report or Decision. The report or decision of a referee, master, commissioner, or like officer, to which no objection has been theretofore made and which does not disclose error on its face, cannot be excepted to, in whole or in part, for the first time in the appellate court. 6 The same rule is applicable to a second report, made after the original report has been sent back or recommitted elusions see supra, V, B, 2, e, (in), (g), (H). Exceptions to conclusions of law are in- sufficient to enable the court to question the correctness of the findings of facts upon which the conclusions are based. Kurtz v. Carr, 105 Ind. 574, 5 N. E. 692; Hunt v. Blanton, 89 Ind. 38; Dodge v. Kennedy, 93 Mich. 547, 53 N. W. 795; Brant v. Salisbury, 23 Wis. 515. 5. Alabama. — National Commercial Bank v. McDonnell, 92 Ala. 387, 9 So. 149 ; Nunn v. Nunn, 66 Ala. 35. Colorado. — Poire v. Rocky Mountain Transp. Co., 7 Colo. 588, 4 Pac. 1179. Illinois. — Cheltenham Imp. Co. v. White- head, 128 111. 279, 21 N. E. 569; McCasland v. Allen, 60 111. App. 285; Kaegebein v. Higgie, 51 111. App. 538. Mississippi. — Murff v. Peterson, 57 Miss. 146. Nebraska. — Whalen v. Brennan, 34 Nebr. 129, 51 N. W. 759. Pennsylvania. — Torrey v. Scranton, 133 Pa. St. 173, 19 Atl. 351; Dickey's Appeal, 115 Pa. St. 73, 7 Atl. 577. South Carolina. — Though a referee may not decide matters of fact from his own personal recollection, yet, if the only objection is to the effect of the evidence, and the judge be- low concurs with the referee, it must appear that the overbearing weight of the evidence is against their conclusion. Bradley v. Rodel- sperger, 6 S. C. 290. 6. Alabama. — Bellinger v. Lehman, 103 Ala. 385, 15 So. 600. Illinois. — Dolese v. McDougall, 182 111. 486, 55 N. E. 547; Snell v. De Land, 136 111. 533, 27 N. E. 183; Sharp v. Hull, 81 111. App. 400 ; Burke v. Tutt, 59 111. App. 678. Indiana. — Kern v. Maginniss, 55 Ind. 459. Iowa. — Bauder v. Hinekley, 60 Iowa 185, 14 N. W. 228; Blake v. Dorgan, 1 Greene (Iowa) 547. Kentucky.— Farmer v. Samuel, 4 Litt. (Ky.) 187, 14 Am. Dee. 106; Hart v. Baylor, Hard. (Ky.) 597. Maine. — Thompson v. Mason, 92 Me. 98, 42 Atl. 314. Maryland. — Darby v. Rouse, 75 Md. 26, 22 Atl. 1110; Perkins v. Emory, 55 Md. 27. Massachusetts. — Elitner v. Butler, 165 Mass. 119, 42 N. E. 503; Carew v. Stubbs, 161 Mass. 294, 37 N. E. 171. Michigan. — Eaton v. Truesdail, 40 Mich. 1; Amboy, etc., R. Co. v. Byerly, 13 Mich. 439. Mississippi. — Ricks v. Hilliard, 45 Miss. 359. , Missouri. — Ellison v. Bowman, 29 Mo. App. 439. New Mexico. — Newcomb v. White, 5 N. M. 435, 23 Pac. 671. New York. — Marshall «.Smith,20 N.Y.251 ; Van Vleck v. Ballou, 40 N. Y. App. Div. 489, 58 N. Y. Suppl. 125 ; Cowen v. West Troy, 43 Barb. (N. Y.) 48; Tyler v. Willis, 33 Barb. (N. Y.) 327; Ketchum v. Clark, 22 Barb. (N. Y.) 319; Rust v. Hauselt, 46 N. Y. Super. Ct. 22 ; Dainese v. Allen, 36 N. Y. Super. Ct. 98, 14 Abb. Pr. N. S. (N. Y.) 363; Carr v. Hills Archemedean Lawn Mower Co., 13 Daly (N. Y.) 211; Rosenstock v. Hoggarty, 13 N. Y. Suppl. 228, 36 N. Y. St. 92 ; Brewer v. Isish, 12 How. Pr. (N. Y.) 481; Delabigarre v. Bush, 2 Johns. (N. Y.) 490. North Carolina. — Depriest v. Patterson, 94 N. C. 519. Pennsylvania. — Southern Maryland R. Co. v. Moyer, 125 Pa. St. 506, 23 Wkly. Notes Cas. (Pa.) 554, 17 Atl. 461. South Carolina. — Price v. Price, 45 S. C. 57, 22 S. E. 790; Thomas v. Poole, 19 S. C. 323; Cureton v. Mills, 13 S. C. 409, 36 Am. Rep. 700. Tennessee. — Rogers v. Rogers, 101 Tenn. 428, 47 S. W. 701 ; Huntingdon v. Mullins, 16 Lea (Tenn.) 738. Vermont. — Walton v. Walton, 63 Vt. 513, 22 Atl. 617 ; Smalley v. Corliss, 37 Vt. 486. Virginia. — Preston v. National Exch. Bank, 97 Va. 222, 33 S. E. 546; Wilson v. Wilson, 93 Va. 546, 25 S. E. 596. West Virginia. — Gardner v. Gardner, 47 W. Va. 368, 34 S. E. 792; Arbogast v. Mc- Graw, 47 W. Va. 263, 34 S. E. 736 ; Ward v. Ward, 40 W. Va. 611, 21 S. E. 746, 52 Am. St. Rep. 911, 29 L. R. A. 449. Wisconsin. — Thornton v. Eaton, 45 Wis. 618 ; Jenkins v. Esterly, 22 Wis. 128. United States. — Coghlan v. South Carolina R. Co., 142 U. S. 101, 12 S. Ct. 150, 35 L. ed. 951 [affirming 82 Fed. 316] ; Burns v. Rosen- stein, 135 U. S. 449, 10 S. Ct. 817, 34 L. ed. 193 ; South Fork Canal Co. v. Gordon, 6 Wall. (U. S.) 561, 18 L. ed. 894; Kinsman v. Park- hurst. 18 How. (U. S.) 289, 15 L. ed. 385; New Orleans v. Fisher, 91 Fed. 574, 63 U. S. App. 455, 34 C. C. A. 15; Imperial L. Ins. Co. v. Newcomb, 62 Fed. 97, 19 U. S. App. 669, 10 C. C. A. 288 ; Tyler v. Angevine, 15 Blatchf. (U. S.) 536, 24 Fed. Cas. No. 14,306. See 2 Cent. Dig. tit. "Appeal and Error," § 1552 et seq. Thus no question is presented, on writ of error to review a judgment at law on a ref- eree's report, where there was no written stipulation waiving a jury, no bill of excep- tions, and no specific exceptions taken to the overruling of exceptions to the report or to the judgment. Dietz v. Lymer, 61 Fed. 792, 19 U. S" App. 663, 10 C. C. A. 71 [followed in Dundee Mortg., etc., Invest. Co. v. Hughes, 124 U. S. 157, 8 S. Ct. 377, 31 L. ed. 357]. Vol. II 736 APPEAL AND ERROR for further action, 7 and it is immaterial that the same objectionable matters appeared in the first report and were excepted to, 8 or that exceptions to matters other than those as to which the report was sent back remain undisposed of . 9 (iv) Accountings. Alleged errors on an accounting will not be reviewed in the absence of an exception to the allowance or disallowance of items thereof. 10 (v) Exceptions to Genes al Rule There are numerous decisions wherein the courts, either because of the discretion vested in them, because of enactments designed to protect substantial rights, or for the purpose of preventing manifest injustice, refuse to hold parties to a strict observance of the general rule. 11 ' Thus, it has been held that, if the master does not furnish in his report the facts necessary to enable the court to proceed to a final decree on the merits of the case 13 or to examine into the correctness of an account, 18 or the master complies with the rules prescribed by the chan- cellor to be observed in the statement of the account, 14 or the report is made as to details in accordance with the instructions of the parties so as to represent their views and claims and not those of the officer, 15 exceptions are unnecessary to enable the appellate court to pass on the propriety of the action below. Nor are exceptions necessary where the right to recover is submitted by the referee to the court for its decision, 16 or where the report is, in effect, a special verdict — as a report of facts merely 17 — or where there is undoubted error, 18 7. Kee v. Kee, 2 Gratt. (Va.) 116; Hooper v. Hooper, 29 W. Va. 276, 1 S. E. 280; Car- skadon v. Minke, 26 W. Va. 729; and see 2 Cent. Dig. tit. "Appeal and Error," § 1557 et seg. 8. Carskadon v. Minke, 26 W. Va. 729. 9. Maloney v. Missouri Pae. R. Co., 122 Mo. 106, 26 S. W. 702. If the recommital and directions of the court are erroneous, exceptions to the second report are not necessary to authorize a re- vision of improprieties in such report occa- sioned by action in accordance with such er- roneous directions. Harbin v. Bell, 54 Ala. 389. 10. Alabama. — Long v. Easly, 13 Ala. 239. Kentucky. — Collins v. Champ, 15 B. Mon. (Ky.) 118, 61 Am. Dec. 179; Bowling v. Cobb, 6 B. Mbn. (Ky.) 356. Michigan. — Clark v. Landon, 90 Mich. 83, 51 N. W. 357. Mississippi. — Williamson v. Downs, 34 Miss. 402. New Jersey. — Luse v. Rarick, 34 N. J. Eq. 212. Neti) York. — Matter of Kautsky, 56 N. Y. App. Div. 440, 67 N. Y. Suppl. 882. Wisconsin. — Warner v. Cuckow, 90 Wis. 291, 63 N. W. 238. See 2 Cent. Dig. tit. "Appeal and Error," § 1560 et seg. Where a judge undertakes to stafe an ac- count, without reference to a commissioner, he should proceed as a commissioner would upon charge and discharge accounts; and the parties should make exceptions to such of his conclusions as they object to, in order not only that he may have an opportunity to correct them, but also that, in case of appeal, the point in controversy may be clearly un- derstood. Barnebee v. Beckley, 43 Mich. 613, 5 N. W. 976. Vol. II 11. Though no exception is filed in the court below to a master's report failing to allow punitive damages on an injunction bond, such damages will be decreed on appeal where complicated accounts are not involved, and the whole matter is presented in the proof and discussed by counsel in their briefs; the rule that an exception to a, master's report will not be considered unless made below be- ing only one of practice, and the reference to a master on an injunction bond being a mere formalitv. South Penn Oil Co. v. Stone, (Tenn. Ch. 1900) 57 S. W. 374. See 2 Cent. Dig. tit. "Appeal and Error," § 1552 et seg. 12. Lang v. Brown, 21 Ala. 179, 56 Am. Dec. 244. 13. Bobe v. Stickney, 36 Ala. 482; Blake v. Dorgan, 1 Greene ( Iowa ) 547 ; Ringgold v. Ringgold, 1 Harr. & G. (Md.) 11, 18 Am. Dec. 250. 14. Bobe v. Stickney, 36 Ala. 482. The appellate court may examine into rights put in issue by the pleadings and which do not depend upon the state of the ac- counts, where an account may be necessary to determine the extent of a claim, although ac- counts have been stated, in an auditor's re- port directed below, involving a determina- tion of those rights, and no exceptions have been filed. Wells v. Beall, 2 Gill & J. (Md.) 458. 15. Walter v. Foutz, 52 Md. 147; Ander- son r. Tuck, 33 Md. 225; Dennis v. Dennis, 15 Md. 73. 16. Willey v. Laraway, 64 Vt. 559, 25 Atl. 436. 17. Marshall v. Smith, 20 N. Y. 251. 18. Maccubbin v. Cromwell, 2 Harr. & G. (Md.) 443; Clark v. Landon, 90 Mich. 83, 51 N. W. 357. The Maryland act of 1825, c. 117, prohibit- ing the reversal of a decree in the appellate APPEAL AND ERROR 737 or there is error in computation, 19 or failure to allow interest properly allow- able, 80 or where the law is misapplied to facts stated correctly, 21 or where, upon the whole case, the judgment is erroneous. 22 (iv) Judgment or Decision on Report, etc. It may be stated, gener- ally, that the rule requiring exceptions is applicable to judgments, decrees, or decisions rendered on the report, findings, or conclusions of referees or like offi- cers, either in confirming or refusing to confirm, or in recommitting, the same. 23 But there are many decisions to the effect that, where the determination of the court below is based on an insufficient or erroneous report, no exception to it is necessary to enable the court to inquire into its correctness. 24 Likewise, this excep- tion to the general rule has been held applicable to a judgment 25 or decree which was not warranted by the facts or matters reported, 26 to a decision adopting and confirming a referee's conclusions of law, 27 a decision based on a report sufficient to sustain it and as to which the court had no authority to entertain objections, 28 and to a finding by a court whose decision was reviewable without exception. 29 eourt on exceptions to an account not ap- pearing by the record to have been taken in the court below, does not apply to a formal account exhibiting merely a statement of the rights of the parties as solemnly adjudicated by the court below in a previous order. Mil- ler v. Allison, 8 Gill & J. (Md.) 35. 19. Brooks v. Robinson, 54 Miss. 272; Wills v. Dunn, 5 Gratt. (Va.) 384. An error in a registrar's report in comput- ing the amount of interest can be corrected on appeal only to the extent of the exception taken thereto, although it is evident from the record that the registrar made a greater mis- take than that pointed out by the exception. Lehman v. Levy, 69 Ala. 48. 20. Haynie v. American Trust Invest. Co., (Tenn. Ch. 1896) 39 S. W. 860. 21. Hurd f. Goodrich, 59 111. 450; Celluloid Mfg. Co. v. Cellonite Mfg. Co., 40 Ted. 476. 22. Wakeman v. Dalley, 44 Barb. (N. Y.) 498. 23. Georgia. — Merchants Nat. Bank v. Armstrong, 107 Ga. 479, 33 S. E. 473. Illinois. — Hibernian Banking Assoc, v. Law, 88 111. App. 18. Indian Territory. — The objection that ex- ceptions to a master's report were overruled as a whole will not be considered on appeal where the record does not show that appellant demanded separate rulings on each exception, and excepted to each ruling. McCurtain v. Grady, 1 Indian Terr. 107, 38 S. W. 65. Massachusetts. — Sullivan v. Arcand, 165 Mass. 364, 43 N. E. 198. Missouri. — Wentzville Tobacco Co. v. Wal- ker, 123 Mo. 662, 27 S. W. 639. Neic York. — Matter of Buffalo Ice Co., 37 N. Y. App. Div. 144, 55 N. Y. Suppl. 783; Cheesbrough v. Agate, 26 Barb. (N. Y.) 603; Smith v. Smith, 4 Johns. Ch. (N. Y.) 445. North Carolina. — Scroggs v. Stevenson, 100 N. C. 354, 6 S. E. Ill; Strauss v. Frederick, 98 N. C. 60, 3 S. E. 825. See 2 Cent. Dig. tit. "Appeal and Error," § 1552 et seq. 24. Iowa. — Washington County v. Jones, 45 Iowa 260. Kentucky. — Slaughter v. Slaughter, 8 B. Mon. (Ky.) 482; Wintersmith v. Fairleigh, 5 Ky. L. Rep. 241. [47] Missouri. — Shore v. Coons, 24 Mo. 556. North Carolina. — Hooks v. Sellers, 16 N. C. 61. Virginia. — Cookus v. Peyton, 1 Gratt. ( Va. ) 431; White v. Johnson, 2 Munf. (Va.) 285. See, however, Hansucker v. Walker, 76 Va. 753, wherein, there having been no exception taken, the court refused to reverse a decree of sale because the commissioner's report showed that usurious interest had been taken. West Virginia. — Ward v. Ward, 40 W. Va. 611, 21 S. E. 746, 52 Am. St. Rep. 911, 29 L. R. A. 449; Kanawha Valley Bank v. Wil- son, 25 W. Va. 242. United States. — Himely v. Rose, 5 Cranch (U. S.) 313, 3 L. ed. Ill; Murray v. Schooner Charming Betsey, 2 Cranch (U. S.) 64, 2 L. ed. 208. What may He reviewed. — On appeal from a judgment entered on a report to which no ex- ception was taken exceptions at the trial can alone be reviewed. Rosenstock v. Hoggarty, 13 N. Y. Suppl. 228, 36 N. Y. St. 92 [affirmed in 131 N. Y. 647, 30 N. E. 867, 43 N. Y. St. 963] . Where the court, upon an exception to a commissioner's report, decides a point and by a decree refers the ease back to the commis- sioner, who makes a report in accordance with the decision of the court, whereupon the court renders a final decree or decree settling the principle of the cause upon such reports so decided, such decree may be reviewed on ap- peal without an exception in the lower court on the matters embraced in the court's deci- sion on such point. Kyle v. Conrad, 25 W. Va. 760. 25. Burpe v. Van Eman, 11 Minn. 327. 26. Strang r. Allen, 44 111. 428; Wood v. Lee, 5 T. B. Mon. (Ky.) 50; Ruhl ». Berry, 47 W. Va. 824, 35 S. E. 896. A decree eon- firming a report which was not excepted to may be revised, where the matter involved in the appeal was not submitted to, nor consid- ered by, the referee. Hardin v. Hardin, 34 S. C. 77, 12 S. E. 936, 27 Am. St. Rep. 786. 27. Hodgin v. Toler, 70 Iowa 21, 30 N. W, 1, 59 Am. Rep. 435. 28. Headley v. Reed. 2 Cal. 322. 29. Matter of McAleenan, 53 N. Y. App. Div. 193, 65 N. Y. Suppl. 907. In the United States courts on a writ of er- Vol. II 738 APPEAL AND ERROR j. Time of Taking — (i) Proceedings During Trial. In order to make an exception available it must be taken at the time the ruling or decision com- plained of is made, or within the time allowed by statute or rule of practice for taking such exception, where such a statute or rule exists. 30 Thus, this rule has ror to a judgment on a referee's report in an action at law, where there is no written stipu- lation waiving a jury, and nothing showing a reference under a state statute, and where there is no bill of exceptions, and no specific exception was taken to the overruling of ex- ceptions to the referee's report, or to the judg- ment thereon at the time it was entered, al- though these rulings were assigned as grounds of a motion for a new trial, no question is pre- sented for review. Imperial L. Ins. Co. 17. Newcomb, 62 Fed. 97, 19 U. S. App. 669, 10 C. C. A. 288. 30. Arkansas. — Prairie County P. Ban- croft, 26 Ark. 526; Lyon v. Evans, 1 Ark. 349. California. — Towle v. Clunie (Cal. 1890) 23 Pac. 314; McGuire v. Drew, 83 Cal. 225, 23 Pac. 312. Compare Pfister v. Wade, 59 Cal. 273, wherein it was held that exceptions taken to an order denying an injunction served more than ten days from the date of the order, but within ten days of final judg- ment, were seasonably served. Connecticut. — Walsh v. Hayes, 72 Conn. 397, 44 Atl. 725. Florida. — Godwin v. Bryan, 16 Fla. 396. Georgia. — Berryman v. Haden, 112 Ga. 752, 38 S. E. 53; Clay v. Smith, 108 Ga. 189, 33 S. E. 963; Corniff p. Cook, 95 Ga. 61, 22 S. E. 47, 51 Am. St. Rep. 55. Illinois. — Burns v. People, 126 111. 282, 18 N. E. 550; Sullivan v. Dollins, 13 111. 85. Indiana. — Boyce r. Graham, 91 Ind. 420; Dickson v. Rose, 87 Ind. 103; Tecumseh Fac- ing Mills r. Sweet, 25 Ind. App. 284, 58 N. E. 93; Thomas v. Griffin. 1 Ind. App. 457, 27 N. E. 754. Compare Wabash R. Co. v. Dyke- man, 133 Ind. 56, 32 N. E. 823, which holds that the statute requiring an exception at the time of decision applies only to adversary pro- ceedings, and not to proceedings for the ap- pointment of a receiver without notice to de- fendant. Iowa. — Young v. Rann. Ill Iowa 253, 82 N. W. 7S5; Souster v. Black, 87 Iowa 519, 54 N. W. 534. Kansas. — Powers v. McCue, 48 Kan. 477, 29 Pac. 686; Gallagher v. Southwood, 1 Kan. 143. Kentucky. — Cobb v. Stewart, 4 Mete. (Ky.) 255, 83 Am. Dec. 465 ; Burns v. Com., 3 Mete. (Ky.) 13. Maine. — Fish v. Baker, 74 Me. 107. Maryland. — Hagan v. Hendry, 18 Md. 177. Massachusetts. — Troger v. Webster, 174 Mass. 580, 55 N. E. 318. Mississippi. — Green v. Robinson, 3 How. (Miss.) 105; Wilson P. Owens, 1 How. (Miss.) 126. Missouri. — Richardson v. Schuyler County Agricultural, etc., Assoc, 156 Mo. 407, 57 S. W. 117; McAnaw v. Matthis, 129 Mo. 142, 31 S. W. 344; Bond v. Finley, 74 Mo. App. 22; Vol. n Ecton v. Kansas City, etc., R. Co., 56 Mo. App. 337. Montana. — Randall v. Greenhood, 3 Mont. 506 ; Griswold v. Boley, 1 Mont. 545. Nebraska. — -Herzog v. Campbell, 47 Nebr. 370, 66 N. W. 424; Warrick i: Rounds, 17 Nebr. 411, 22 N. W. 785. New Hampshire. — Fowler v. Towle, 49 N. H. 507; Foss v. Strafford, 25 N. H. 78. New Mexico. — Laird v. Upton, 8 N. M. 409, 45 Pac. 1010; Territory v. Baker, 4 N. M. 117, 13 Pac. 30. New York. — New York v. New York Refrigr erating Constr. Co., 146 X. Y. 210, 40 N. E. 771, 66 N. Y. St. 590; Hunt v. Bloomer, 13 N. Y. 341, 12 How. Pr. (N. Y.) 567; Onondaga County Mut. Ins. Co. v. Minard, 2 N. Y. 98; Lanier r. Hoadley, 42 N. Y. App. Div. 6, 58 N. Y. Suppl. 665; Beach r. Raymond, 1 Hilt. (N. Y.) 201; Tremain v. Rider, 13 How. Pr. (N. Y.) 148. North Carolina. — Virgin Cotton Mills v. Abernathy, 115 N. C. 402, 20 S. E. 522; Carr v. Alexander, 112 N. C. 783, 17 S. E. 577; Hemphill v. Morrison, 112 N. C. 756, 17 S. E. 535; Jones v. Jones, 94 N. C. 111. Ohio. — Stuckev !'. Bloomer, 2 Ohio Cir. Ct. 541, 1 Onio Cir. Dec. 631. Pennsylvania. — Constine's Appeal, 1 Grant (Pa.) 242. South Carolina. — Stedham v. Creighton, 28 S. C. 609, 9 S. E. 465. Texas. — Houston r. Jones, 4 Tex. 170; Goode v. State, 2 Tex. App. 520. Vermont. — Gage r. Ladd, 6 Yt. 174. Virginia. — Washington, etc., Tel. Co. «. Hobson, 15 Gratt. (Va.) 122. Washington. — Ballard r. Slaughter First Nat. Bank, 13 Wash. 670, 43 Pac. 938. West Virginia. — Gilmer v. Sydenstrieker, 42 W. Va. 52, 24 S. E. 566. Wisconsin. — Meier v. Morgan, 82 Wis. 289, 52 N. W. 174, 33 Am. St. Rep. 39; Buel v. Munger, 13 Wis. 327; Getty v. Rountree, 2 Pinn. (Wis.) 379, 54 Am. Dec. 138. United States. — Merchants Exch. Bank p. McGraw, 76 Fed. 930, 48 U. S. App. 55, 22 C. C. A. 622. "The rule is peremptory, and without variation, that a court of error can- not consider an exception which was not ten- dered at the time of the ruling of the trial court complained of." This has been the uni- form construction of the Statute of West- minster II (13 Edw. I, c. 31), whence came the modern practice in respect to bills of ex- ceptions, and has always been understood to be the rule of law prevailing in appellate pro- ceedings under the common law. Johnson v. Garber, 73 Fed. 523, 524, 43 U. S. App. 107, 19 C. C. A. 556 [citing 2 Tidd Pr. *863; Wright v. Sharp, 1 Salk. 288]. See 2 Cent. Dig. tit. "Appeal and Error," § 1611 et seq. A motion to strike out exceptions because APPEAL AMD ERROR 739 been applied to the giving 81 or refusal of instructions, 83 to the admission or rejec- tion of evidence, 38 and, indeed, the doctrine applies in case of any ruling or decision. Exceptions taken after the jury retires, 84 or after verdict, 85 or after decree or judgment rendered, come too late. 86 (n) Refusal of New Trial. The action of the trial court in overruling a motion for a new trial cannot be assigned as error in the appellate court unless an exception to the decision on the motion was taken at the time of its entry. 37 k. Waiver. Where, on a trial, a party takes a step or adopts a course directly inconsistent with an exception previously taken by him to some ruling of the trial court, he will be deemed to have waived such exception, and cannot take advan- tage of it upon his appeal or writ of error. 38 they were not taken in time is not sanctioned by the practice of the supreme court. Home Sav., etc., Assoc, v. Burton, 20 Wash. 688, 56 Pac. 940. Exceptions to the court's refusal to make findings proposed by appellant will be con- sidered even though exceptions to the findings made were not taken within the time pre- scribed by statute. Home Sav., etc., Assoc, v. Burton, 20 Wash. 688, 56 Pac. 940. The form of a reservation of a point can- not be objected to on appeal unless an excep- tion thereto was taken at the trial. Velas v. Patton Coal Co., 197 Pa. St. 380, 47 Atl. 360. In trials by court. — When it is desired to obtain a review of rulings made during the progress of a trial without the intervention of a jury, exceptions thereto must be taken at the time in the same manner as in a trial by jury. Glas p. Prewitt, 26 Mo. 121 ; Tremain v. Rider, 13 How. Pr. (N. Y.) 148; Gilchrist v. Stevenson, 7 How. Fr. (N. Y.) 273. 31. California. — Garoutte v. Williamson, 108 Cal. 135, 41 Pac. 35, 413; Mallett v. Swain, 56 Cal. 171. Colorado. — McFeters v. Pierson, 15 Colo. 201, 24 Pac. 1076, 22 Am. St. Pep. 388. Kentucky. — Poston v. Smith, 8 Bush (Ky.) 589. Minnesota.- — O'Connor v. Chicago, etc., E. Co., 27 Minn. 166, 6 N. W. 481, 38 Am. Rep. 288. Montana. — Griswold v. Boley, 1 Mont. 545. Vermont.— State v. Clark, 37 Vt. 471. 32. Garoutte v. Williamson, 108 Cal. 135, 41 Pac. 35, 413; Burns v. People, 126 111. 282, 18 N". E. 550 ; Dozier v. Jerman, 30 Mo. 216; Tagg v. Miller, 10 Nebr. 442, 6 N. W. 764 ; Branton v. O'Briant, 93 N. C. 99. 33. Benepe v. Wash, 38 Kan. 407, 16 Pac. 950; Downey v. Read, 125 Mo. 501, 28 S. W. 860; Griffith v. Hanks, 91 Mo. 109, 4 S. W. 508 ; Schumaker v. Mather, 14 N. Y. Suppl. 41 1, 38 N. Y. St. 542 ; Collins v. Pan- handle Nat. Bank, 75 Tex. 254, 11 S. W. 1053. 34. Alabama. — Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562. California. — Mallett v. Swain, 56 Cal. 171. Florida. — Southern Express Co. v. Van Me- ter, 17 Fla. 783, 35 Am. Rep. 107. Indiana. — Jones v. Van Patten, 3 Ind. 107. Massachusetts. — Spooner v. Cummings, 151 Mass. 313, 23 N. E. 839. North Carolina. — By statute there is this exception: that exceptions to the charge may be taken in ten days after adjournment of court. Clark's Code Civ. Proc. N. C. (1900), p. 513; State v. Harris, 120 N. C. 577, 26 S. E. 774. 35. Godwin v. Bryan, 16 Fla. 396; Phil- lips v. Lane, 4 How. (Miss.) 122; Warren v. Lagrone, 12 S. C. 45. 36. Joliet Iron, etc., Co. v. Chicago, etc., R. Co., 50 Iowa 455. 37. Burke v. Ward, 50 111. App. 283. May be made during term. — An exception to an order denying a new trial may be made not later than the close of the term. Gilmer v. Sydenstricker, 42 W. Va. 52, 24 S. E. 566. Insufficient exception. — On filing a motion for new trial, a request made to the trial judge to note an exception in the event the motion was overruled does not constitute an exception to the overruling of the motion, as an exception can only be taken after the oc- currence of the matter complained of ; and the court has no power, at a subsequent term, to make an entry nunc pro tunc that an ex- ception was taken at the time the motion was overruled. Cincinnati v. Steadman, 8 Ohio Cir. Ct. 407. 38. Iowa. — Anson v. Dwipht. 18 Iowa 241. Kentucky. — Fuqua v. Moseley, 12 Ky. L. Rep. 989. Maine. — King v. Robinson, 33 Me. 114, 54 Am. Dec. 614, holding, however, that a waiver of exceptions does not authorize an inference that the proceedings had on the trial were incorrect. Maryland.— Boteler v. State, 8 Gill & J. (Md.)' 359, holding that, where some of the exceptions properly taken in the trial court are waived or abandoned, an appellate court can only consider questions arising under the exceptions not so waived or abandoned. Massachusetts. — Cook v. Castner, 9 Cush. (Mass.) 266. Minnesota. — Sleser Bros. Co. v. Minneapo- lis Cold-Storage Co., 77 Minn. 186, 79 N. W. 680 ; Weide v. Davidson, 15 Minn. 327. New York. — Lahr v. Metropolitan El. R. Co., 104 N. Y. 268, 10 N. E. 528; Byrnes «\ Cohoes, 67 N. Y. 204. See 2 Cent. Dig. tit. "Appeal and Error," § 1646 et seq. Applications of rule.— Where a demurrer to the answer was sustained and defendant ex- cepted, and plaintiff then asked leave to withdraw his demurrer but defendant ob- jected, and this objection was sustained, it was held that the objection was, in effect, a waiver Vol. II 740 APPEAL AND ERROR 3. Motions for New Trial. In a number of jurisdictions a motion for new trial is in no event necessary to preserve for review errors committed during the course of the trial by the trial court. In most states, however, motions for new trial are necessary to preserve certain errors for review by the appellate court. The character of the errors which it is thus necessary to preserve is dependent, of course, entirely on the special statutory provisions of the jurisdiction in which the question arises. 39 4. Certification of Questions and Cases m — a. In Connecticut. 41 Questions of law may be reserved. 43 by the superior court, court of common pleas, or dis- trict court, for the advice of the supreme court, on consent 43 of all the parties to the record, 44 and the trial court shall conform to the advice of the supreme court in the judgment, decree, or decision rendered. 45 b. In Illinois. 46 In any case where a majority of the judges of the appellate of the exceptions to the error previously al- leged. Anson v. Dwight, 18 Iowa 241. Where evidence is admitted over objection and an exception is taken, the party except- ing will waive the benefit of his exception if he afterward introduces the same evidence himself. Weide v. Davidson, 15 Minn. 327. Where plaintiff, after excepting to the rul- ing of the judge, amends his declaration, changing the form of the action and the issue to be tried, and defendant obtains a verdict on the merits, such exception is no longer open to plaintiff. Cook t*. Castner, 9 Cush. (Mass.) 266. What does not constitute waiver. — Where defendant* duly excepted to an erroneous or- der changing the venue, they did not waive their exception by going to trial in the new venue and failing to raise the question again by motion for new trial or in arrest of judg- ment. The error can only be reached on an appeal from the flnal judgment, as no appeal could be taken from the order changing the venue. Michaels V. Crabtree, 59 Iowa 615, 13 N. W. 752. When a. party has once properly made his exception to an adverse ruling on his de- murrer, he does not waive it by failine to except to the final judgment. Jordan v. Kav- anaugh, 63 Iowa 152, 18 N. W. 851. An exception to instructions is not waived liy subsequently asking the court to repeat them, in connection with certain answers made to questions propounded by the jury, as this merely asks the restatement so as to qualifv those answers. New York Mut. L. Ins. Co. r. Phinney, 178 U. S. 327, 20 S. Ct. 006, 44 L. ed. 1088 [reversing 76 Fed. 617, 48 U. S. App. 78, 22 C. C. A. 425]. 39. For the necessity, sufficiency, and ef- fect of such motions for new trials, generally, see New Trial. 40. Scope of treatment. — The question of certification in relation to civil cases only will be considered here. For certification, so far as it affects criminal proceedings, see Crim- inal Law. Inasmuch as the statutes gov- erning this practice are very dissimilar, it has been deemed best to consider the statutes of each jurisdiction, and the decisions there- under, separately. See infra, V, 4, a, et seq. 41. Conn. Gen. Stat. (1888), § 1114. 42. It is necessary that the facts be dis- tinctly found by the trial court. Dowd v. Vol. II Ensign, 68 Conn. 318, 38 Atl. 810, holding that if this is not done the cause will be re- manded for further and more explicit findings. 43. Written consent of the parties is nec- essarv. New York, etc., R. Co. v. Boston, etc., R. Co., 36 Conn. 196. 44. While the statute provides that all parties to the record must consent, this in- cludes merely such parties as choose to ap- pear in the trial court. State Bank v. Bliss, 67 Conn. 317, 35 Atl. 255. 45. Decree or judgment rendered. — Where a case has been reserved and judgment ren- dered in accordance with the advice given, the supreme court will not afterward, upon proceedings in error, consider questions that the party had a full opportunity to make and be heard upon when the ease was considered upon the reservation. Fowler v. Bishop, 32 Conn. 199. Where a ease is reserved for ad- vice upon the entire record, if the court dis- covers that the declaration is so insufficient that the judgment required by the facts would be a nullity, such a judgment ought not to be advised ; but if the facts show a good cause of action, and the declaration, though de- fective, is amendable, the court will ordi- narily advise judgment contingently upon such amendment. Camp )'. Scott, 47 Conn. 366. So, where a case is heard upon a reservation of a question of law and judgment entered in accordance with the advice given, the su- preme court will not, on the proceedings in error, again consider the question so decided. Derby r. Ailing, 43 Conn. 255; Nichols v. Bridgeport, 27 Conn. 459. 46. 111. Rev. Stat. (1899), c. 37, § 25; Starr & C. Anno. Stat. 111. (1896), -p. 3115, par. 8. Compare 111. Rev. Stat. (1899), e. 110, par. 76. The certificate of importance cannot be granted unless application is made within twenty days, the time limited for appeal (Kirkwood v. Steele, 168 111. 177, 49 N. E. 193; Ellis v. Von Ach, 14 111. App. 194), and the time is not extended by the time con- sumed upon a petition for a rehearing (Sholty r. Mclntyre, 136 111. 33, 26 N. E. 655; Mac- Lachlan v. McLaughlin, 126 111. 427, 18 N. E. 544; West Chicago Park Com'rs v. Kincade, 64 111. App. 113); and an order allowing an ap- peal entered after expiration of the time lim- ited for taking an appeal confers no jurisdic- tion of the cause on the supreme court. APPEAL AND ERROR 741 court shall be of the opinion that a case decided by them, involving a less sum than one thousand dollars, exclusive of costs, also involves questions of law of such importance, either on account of principal or.collateral interest, that they should be passed upon by the supreme court, 47 they may in such cases grant appeals and writs of error to the supreme court, on petition of the parties to the cause, *in which case the said appellate courts shall certify 48 to the supreme court the grounds of granting the appeal. 49 e. In Indiana. 50 Either party may reserve any question of law arising during the progress of the cause for the decision of the supreme court. 51 Any question so reserved may be taken to the supreme court upon a bill of exceptions whenever it arises on demurrer upon the pleadings involved. When the question so involved is shown by the bill of exceptions, the party excepting shall notify the court that he intends to take the question of law to the supreme court, and upon the bill of exceptions only ; s and the court shall thereupon cause the bill of exceptions to be so made that it will distinctly and briefly embrace so much of the record of the Indiana, etc., R. Co. v. Sampson, 132 111. 527, 24 N. E. 609 ; Tibballs v. Libby, 97 111. 552. 47. Discretion of judges in granting cer- tificate. — The question whether or not a cer- tificate shall be granted is entirely within the discretion of the judges of the court of ap- peals. The supreme court has no power to compel the appellate court to certify. Fuller v. Bates, 96 111. 132. When, from the evi- dence as disclosed by the record, the court is unable to discover that there are involved questions of law of such importance, either on account of principal or collateral interests, that they should be passed upon by the su- preme court, and they have not been settled by that court, the certificate of importance will be refused. Illinois Cent. R. Co. v. Louthan, 80 111. App. 579. 48,. Necessity for certificate. — A certifi- cate by a majority of the judges of the court of appeals is, where the amount involved is less than one thousand dollars, a condition precedent to a right of appeal to the supreme court. People v. Midkiff, 174 111. 323, 51 N. E. 785; Kirkwood v. Steele, 168 111. 177, 49 N. E. 193; MacLachlan v. McLaughlin, 126 111. 427, 18 N. E. 544; McNay v. Strat- ton, 109 111. 30 ; Umlauf i>. Umlaut, 103 111. 651 ; Fuller v. Bates, 8 III. App. 32. 49. Requisites of certificate and what may be considered thereon. — The certificate must state that the questions involved are import- ant. Indiana, etc., R. Co. v. Sampson, 132 111. 527, 24 N. E. 609. The certificate, unlike those required in most jurisdictions where questions are allowed to be certified, need not specifically point out the questions of law which are considered of sufficient importance to be passed upon by the supreme court. Steele v. Grand Trunk Junction R. Co., 125 111. 385, 17 1ST. E. 483. The entire case is before the supreme court, and the parties are not confined to the questions certified by the appellate division. Chicago, etc., R. Co. v. Guertin, 115 111. 466, 4 N. E. 507. 50. Thornton's Stat. Ind. (1897), § 647 et seq. At any time within one year after final judgment in the cause, and not after, the party excepting may take the reserved ques- tion to the supreme courfby appeal. The ap- peal in such case shall not stay proceedings upon the judgment unless so ordered by the supreme court or some judge thereof. Ind. Rev. Stat. (1897), § 648. 51. Only questions of law may be reserved (Woodard v. Baker, 116 Ind. 152, 18 N. E. 524; Fouty v. Morrison, 73 Ind. 333) which have been presented in the. trial court (Wood- ard v. Baker, 116 Ind. 152, 18 N. E. 524; Love i). Carpenter, 30 Ind. 284), actually arose and were decided during the progress of the cause (Woodard v. Baker, 116 Ind. 152, 18 N. E. 524; Short v. Stutsman, 81 Ind. 115), and affect the merits of the litigation (Pierse v. West, 29 Ind. 266). Final judgment is a condition precedent to the determination of reserved questions. Tay- lor v. Jay County, 120 Ind. 121, 22 N. E. 108. Necessity of motion for new trial. — Where the reserved question of law arises on the trial of the cause, a motion for new trial is always necessary. Conner v. Marion, 112 Ind. 517, 14 N. E. 488; Rousseau v. Corey, 62 Ind. 250; Starner v. State, 61 Ind. 360; Love v. Carpenter, 30 Ind. 284; Garver v. Dauben- speck, 22 Ind. 238. 52. Notice of intention to reserve ques- tions. — In order to reserve a question of law for the decision of the supreme court, notice must be given to the trial court of such in- tention (Slmgart v. Miles, 125 Ind. 445, 25 N. E. 551) ; but it is not necessary, where the rulings are made on the trial and duly ex- cepted to, to notify the court at that time that the party intends to reserve questions; it is sufficient if there is due exception at the time the ruling is made and the declaration of intention to reserve questions is made, and notice of intention to appeal on those ques- tions is given at the time the rulings upon which the questions arose are brought before the trial court for review (Shugart v. Miles, 125 Ind. 445, 25 N. E. 551). If the lower court, pursuant to the notice, fully and cor- rectly prepares the special bill of exceptions so as to present briefly and distinctly each question urged for reversal, no question as to the sufficiency of the notice given to the court can arise. Loesch v. Koehler, 144 Ind. 278, 41 N. E. 326, 43 N. E. 129, 35 L. R. A. 682. Vol. II 742 APPEAL AND ERROR cause only, and a statement of the cause, as will enable the supreme court to apprehend the particular question involved. 53 d. In Iowa. 54 No appeal shall be taken from the superior and district courts in any cause in which the amount in controversy, as shown by the pleadings, does not exceed one hundred dollars, unless the trial judge shall, during the term in which the judgment is entered, certify that the cause is one in which the appeal should be allowed, 55 and upon such certificate being filed the same shall be appeal- able, regardless of the amount in controversy. This limitation shall not affect the 53. Where the reserved question arises on evidence admitted at the trial all the evi- dence which has any bearing thereon must be made part of the record by the bill of ex- ceptions in order to enable the supreme court to apprehend the particular question involved. Connor v. Marion, 112 Ind. 517, 14 N. E. 488. See also Bissell p. Wert, 35 Ind. 54. 54. Iowa Code (1897), § 4110; Miller's Code Iowa (1888), § 3173; Iowa Code (1873), § 3173; Iowa Code (1851), § 1973. 55. Necessity for certificate. — The certifi- cate is a prerequisite to the jurisdiction of the supreme court where the amount in contro- versy is less than one hundred dollars, and where the case does not involve an interest in realty. Johnson p. Marshall, (Iowa 1899) 80 X. W. 395 ; Siblev Loaning Co. ('. McCaus- land, 81 Iowa 757, 46 X. W. 1072 ; Colby v. Cedar Rapids Ins. Co.. (Iowa 1884) 19 N. W. 891 ; Barnes v. Independent Dist. Xo. 2, 51 Iowa 700, 1 X. W. 618; Jeffries r. Singer Mfg. Co., 40 Iowa 702; Dean r. McTaggart, 40 Iowa 688. This certificate must appear in the record. — It is not sufficient to give the supreme court jurisdiction that the abstract recites that the proper certificate was signed by the judge and is on file among the papers of the case. Barnes v. Independent Dist. No. 2, 51 Iowa 700, 1 N. W. 618. The certificate must state that it involves the determination of a question of law (Kier- ulff r. Adams, 40 Iowa 31 ) , and that the question or questions are involved in the case. Brown r. Lloyd, (Iowa 1897) 73 X. W. 604; Hiatt r. Nelson, 100 Iowa 750, 69 N. W. 553: Connor r. Bennke, 100 Iowa 748, 69 X. W. 414; Smith v. Smith, 99 Iowa 747, 68 X. W. 721 ; Tucker r. Anderson, 97 Iowa 452, 66 X. W. 754: Ellis r. Keokuk County, 94 Iowa 199, 62 X. W. 660; Lamb r. Ross, 84 Iowa 578. 51 X. W. 48: Beeler r. Garrett, 76 Iowa 231, 40 X. W. 724 ; Ball r. Van Riper, 74 Iowa 146, 37 N. W. 120; Van Sickle v. Downs, 72 Iowa 624, 34 N. W. 449. It must also clearly and specifically indicate what the question or questions are. Benge r. Eppard, 110 Iowa 86, 81 X. W. 183 : Sloss r. Bailey. 104 Iowa 696, 74 X. W. 17 : Stern v. Sample. 96 Towa 341, 65 X. W. 304; Bennett it. Parker, 67 Iowa 451, 25 N. W. 700: Votaw v. Cor- win, 62 Iowa 39, 17 X. W. 142. It should re- cite the ultimate facts which the evidence establishes and upon which the questions cer- tified depend. Hull r. Loughlin, 82 Iowa 725, 47 X. W. 985 : Des Moines Ins. Co. r. Briley, 79 Iowa 485, 44 N. W. 715. The court will not determine a question certified where it is Vol. II necessary to examine the record to find out what are the facts which should have been stated in the certificate. Brown v. Lloyd, (Iowa 1897) 73 N. W. 604; Stern v. Sample, 96 Iowa 341, 65 X. W. 304; Long v. Chicago, etc., R. Co., 64 Iowa 541, 21 X. W. 23; White r. Beatty, 64 Iowa 331, 20 N. W. 459; Bower v. Kavanaugh, 62 Iowa 757, 17 N. W. 488; Buchanan County Bank v. Cedar Rapids, etc., R. Co., 62 Iowa 494, 17 X. W. 737; Votaw v. Corwin, 62 Iowa 39, 17 X. W. 142. Hence, the certificate must show when it was made. Merely entitling a case as of a certain term is not sufficient. Babcock f. Chickasaw County, 60 Iowa 752, 14 X. W. 315. The following questions have been held not sufficiently specific: "Can judgment be ren- dered in favor of plaintiff, and against de- fendant, upon the agreed statement of facts? " Dawley v. Houck, 53 Iowa 733, 6 N. W. 70. " Were the defendants, who were at the begin- ning of this suit residents of Carroll county, Iowa, legally sued in Dallas county, Iowa, under the circumstances described in the peti- tion?" White r. Beatty, 64 Iowa 331, 332, 20 N. W. 459. So a certificate consisting of a statement of facts and concluding as follows: " Upon said facts, did the court err in render- ing judgment against plaintiffs? " is not suf- ficiently specific to present any particular question of law. Johnson v. Singleton, (Iowa 1899) 80 X. W. 394. Time of making certificate. — In a number of the earlier decisions it is declared that the certificate must be made at the term at which the judgment or order appealed from is ren- dered. Fallon r. Johnson Dist. Tp., 51 Iowa 206, 1 N. W. 478; Rose v. Wheeler, 49 Iowa 52; Independence v. Purdy, 48 Iowa 675; Lo- max v. Fletcher, 40 Iowa 705. Later deci- sions further restrict the time within which the certificate can be made. The rule an- nounced by these decisions is that the certifi- cate must be made and filed when the case is decided and judgment entered (Smith «'. Smith, 99 Iowa 747, 68 X. W. 721 ; Powers v. Illinois Cent. R. Co., 97 Iowa 736, 66 N. W. 76 ; Callanan v. Kossuth County, 94 Iowa 408, 62 N. W. 7S4; Sehultz v. Holbrook, 86 Iowa 569, 53 X. W. 285 ; Brown r. Grundy County, 78 Iowa 561, 43 X. W. 529 Angus v. Snannon, 60 Iowa 311, 14 X. W. 315), and it has ac- cordingly been held that a certificate made eight days after trial is too late (Angus v. Shannon. 60 Iowa 311, 14 X. W. 315) ; that a certificate cannot be made nunc pro tunc after the trial term (Hinesley r. Mahaska County. 69 Iowa 511, 29 X. W. 433) ; and that the court has no power to grant leave during the APPEAL AND ERROR 743 right of appeal in any action in which an interest in real estate is involved, nor shall the right of appeal be affected by the remission of any part of the verdict or judgment returned or rendered. 56 e. In Kansas. 57 No appeal or proceeding in error shall be had or taken to the supreme court in any civil action in any case involving less than one hundred dollars, exclusive of costs, except in cases involving the tax or revenue laws, or the title to real estate, or an action for damages' in which slander, libel, malicious prosecution, or false imprisonment is declared upon, or the constitution of this state, or the constitution, 58 laws, or treaties of the United States, and when the judge of the district or superior court trying a case involving less than one hun- dred dollars shall certify to the supreme court that the case is one belonging to the excepted classes. 59 f. In Louisiana. The Louisiana constitution provides that the courts of appeal shall have power to certify to the supreme court any question or proposition of law arising in any cause pending before them concerning which they desire the instruction of the court. 60 term to have a certificate applied for and made in vacation (Morrison v. Ross, 90 Iowa 524, 58 N. W. 880). If the certificate is defective for failure to comply with the statutory requirements, it will be dismissed (Johnson v. Singleton, (Iowa 1899) 80 N. W. 394; Bradenberger v. Rigler, 68 Iowa 300, 27 N. W. 247; Wheaton v. Foster, 58 Iowa 661, 12 N. W. 629; Pitch i'. Flynn, 58 Iowa 159, 11 N. W. 649; Thomp- son v. French, 57 Iowa 559, 10 N. W. 900; Throckmorton v. Horton, 52 Iowa 737, 3 N. W. 461), and that, too, although appellee does not make any objection because of the defects (Wilson v. Iowa County, 52 Iowa 339, 1 N. W. 490, 3 N. W. 156). 56. What questions considered. — Only questions of law are reviewable. Questions of fact or of mixed law and fact cannot be considered. Ross v. Hardin County, 94 Iowa 252, 62 N. W. 844; Gillooby v. Chicago, etc., R. Co., 61 Iowa 53, 15 N. W. 604; Libby v. Chicago, etc., R. Co., 60 Iowa 323, 14 N. W. 316; Centerville v. Drake, 58 Iowa 564, 12 N. W. 594; Kierulff v. Adams, 40 Iowa 31. 50 the question certified must be involved in the case. Abstract propositions will not be considered. Parker v. Michaels, 74 Iowa 209, 37 N. W. 161 ; Miller v. Buena Vista County, 68 Iowa 711, 28 N. W. 31; Cunningham v. Chicago, etc., R. Co., 67 Iowa 514, 25 N. W. 756. Only questions presented will, as a gen- eral rule, be considered (Chilton v. Chicago, etc., R. Co., 72 Iowa 689, 34 N. W. 473; Ar- dery v. Chicago, etc., R. Co., 65 Iowa 723, 23 N. W. 141 ; Miller ». Haley, 66 Iowa 260, 23 N. W. 657; Colby v. Cedar Rapids Ins. Co., (Iowa 1884) 19 N. W. 891; Thorpe v. Dickey, 51 Iowa 676, 2 N. W. 581) ; but it has been held that the court may inquire into the ju- risdiction, although no question in relation thereto is certified (Hodges v. Tama County, 91 Iowa 578, 60 N. W. 185). While more than one question may be certified (Center- ville v. Drake, 58 Iowa 5b4, 12 N. W. 594), the whole case cannot be presented by certi- fied questions. Hawkeye Ins. Co. v. Erland- son, 84 Iowa 193, 50 N. W. 881. What are questions of fact. — The follow- ing questions are not reviewable as being ques- tions of fact or of mixed law and fact : Suffi- ciency of evidence to support the verdict ( Hudson v. Chicago, etc., R. Co., 59 Iowa 581, 13 N. W. 735, 44 Am. Rep. 692); rulings granting or refusing instructions (Bensley v. Chicago, etc., R. Co., 79 Iowa 266, 44 N. W. 544 ) ; the question : " Does the evidence le- gally establish an ' express contract of pay- ment ' and ' does the evidence legally estab- lish a release of the defendant from pay- ment'" (Landers v. Boyd, 59 Iowa 758, 12 N. W. 740). 57. Kan. Gen. Stat. (1899), § 4834. 58. Only the principle involved in the ex- ception certified by the court below will be considered in proceedings in error in the court of appeals, where such proceedings are based upon a judgment for less than one hundred dollars. Chicago, etc., R. Co. v. Campbell, 5 Kan. App. 423, 49 Pac. 321. If the certificate states that a constitu- tional question is involved, no other ques- tion will be considered than the one so as- signed ; and, if the constitutional question has already been passed upon adversely to the plaintiff in error, the judgment must be af- firmed. Missouri Pac. R. Co. v. Kimball, 48 Kan. 384, 29 Pac. 604. 59. Necessity of certificate. — The record must affirmatively show jurisdiction (Loomis v. Bass, 48 Kan. 26, 28 Pac. 1012), and the certificate must be a part of the record and filed therewith (Packard v. Packard, 56 Kan. 132, 42 Pac. 335, holding that where the amount involved does not appear, and there is no certificate showing that the ease belongs to one of the excepted classes, the case will be dismissed ) . Petition for certification must be filed ■within forty days after judgment is first en- tered, unless a rehearing is in fact granted. Gilmore v. Gilmore, 59 Kan. 19, 51 Pac. 891. 60. La. Const. (1898), art'. 101. Questions of fact are not reviewable. — Pugh v. St. Louis, etc., R. Co., 50 La. Ann. 1378, 24 So. 881; Maffaletta v. Wildenstein, 50 La. Ann. 1377, 24 So. 881. In Le Seigneur v. Bessan, 52 La. Ann. 187, 26 So. 865, it was held that the supreme court will, for the pur- pose of expressing an opinion of a question of Vol. II 744 APPEAL AND ERROR g. In Maine. Upon a hearing in any cause in equity, the justice of the supreme court hearing the same may report the cause to the next law court heard within the district in which it is pending, if he is of opinion that any question of law is involved of sufficient importance or doubt to justify the same, and the parties agree thereto. The cause shall be entered and copies furnished by com- plainant, and shall be heard and decided by said law court in like manner and with like results as in case of appeals. 61 h. In Massachusetts. A justice of the supreme court by whom a case is heard for final decree may reserve and report the findings and all questions of law therein for the consideration of the full court, and thereupon like proceed- ings shall be had as on appeals from final decrees. 62 Another statute requires the justice of the supreme court, on appeal from a decree in equity on request of appellant, to report the facts found by him, 63 and a further provision in respect to the practice in the superior court provides that it may, at any time before judg- ment in an action and after verdict or decision, report the case for determination by the supreme court. 64 law certified, take as true the findings of fact of the court of appeals, but will stand uncom- mitted as to the actual facts, and the law ap- plicable thereto, in ease they should be ulti- mately found otherwise thap as declared by the court of appeals. 61. Me. Rev. Stat. (1883), e. 77, § 23; Me. Rev. Stat. (1881), c. 68, § 13. Equity cases should not be reported to the law court, without a hearing before a single justice, until the pleadings are sufficiently perfected to enable the law court tomakeafinal decision upon the merits (Merrill v. Wash- burn, 83 Me. 189, 22 Atl. 118) ; and where the case is submitted to the law court on a report of findings or on an agreed statement of facts, all technical questions relating to pleading are waived, unless the contrary appears (Pills- bury v. Brown, 82 Me. 450, 19 Atl. 858, 9 L. R. A. 94; Maehias Hotel Co. v. Fisher, 56 Me. 321 ) . So, by submitting a cause to a law court on a report, objections that an ac- count annexed is uncertain and indefinite are considered as waived, unless the contrary ap- pears in the report. Elm City Club v. Howes, 92 Me. 211, 42 Atl. 392. In the superior courts, cases certified upon agreed statements of facts, and reports and motions for new trials, shall be entered, heard, and determined at the next law term in the district ; but any case for the law court may, by agreement of parties, be entered at the next law term held in either district. And all ex- ceptions arising in cases within the exclusive jurisdiction of either of said superior courts may be certified at once by the justice thereof to the chief justice of the supreme judicial court, and shall, when so certified, be argued in writing on both sides within thirty days thereafter, unless the justice of such superior court, for good cause, enlarges the time; and exceptions so certified shall be considered and determined by the justices of the supreme ju- dicial court as soon as may be. Decisions of the law court on all exceptions and questions from said superior courts shall be certified to the clerk of either of said superior courts with the same effect as in cases originating in the supreme judicial court in the county. Me. Rev. Stat. (1883), c. 77, § 75. In cases re- voi. n ported from the superior court, the law court will not entertain the case unless the report is signed by the justice of the superior court. Blodgett v. Dowe, (Me. 1888) 13 Atl. 580. 62. Mass. Pub. Stat. (1882), c. 151, § 20; Mass. Gen. Stat., c. 113, § 15. By Mass. Stat. ( 1883 ) , c. 323, § 2, this provision is also made applicable to proceedings in the superior court. Taft v. Stoddard, 141 Mass. 150, 6 K E. 836. By the Massachusetts statute of 1869, u. 438, it was provided that " questions of law, whether arising upon trial or other proceed- ing before the superior court, may, by con- sent of the parties to the suit, be reported be- fore verdict" for the determination of the supreme court of the state. Shea v. Boston, etc., R. Co., 154 Mass. 31, 27 N. E. 672; Cow- ley v. Train, 124 Mass. 226 ; Hogan v. Ward, 115 Mass. 130; Bearee -, . Bowker, 115 Mass. 129; Taylor v. Taunton, 113 Mass. 290; Jaha v. Belleg, 105 Mass. 208; Higbee v. Bacon, 11 Pick. (Mass.) 423. Report of case by supreme court justice. — Questions not raised or decided cannot be re- served on report for the full court. Xowell v. Boston Academy, 130 Mass. 209; Xash r. Xew England Mut. L. Ins. Co., 127 Mass. 91; Stuart v. Stuart, 123 Mass. 370; Sparhawk v. Sparhawk, 120 Mass. 390. 63. Mass. Stat. (1883), c. 323, § 7. Report of evidence to supreme court. — The presiding justice may, if he chooses, in decid- ing a motion for new trial, report the evidence to the full court, to determine the sufficiency thereof to support a certain finding of the jury, though the party against whom the find- ing was made did not request a determination of such question at the trial. Capper r. Cap- per, 172 Mass. 262, 52 N. E. 98. 64. Mass. Pub. Stat. (1882), c. 153, § 6; Mass. Stat. (1878), c. 231, § 1; Mass. Gen. Stat. e. 115, § 6. See also Murray v. Fitch- burg R. Co., 130 Mass. 99. Report of case by superior court. — Under this last-mentioned provision, the report of a case after determination will be discharged when it does not contain a verdict or decision by the superior court. Johnston v. Faxon, 167 Mass. 473, 46 N. E. 2; Terry v Bright- APPEAL AND ERROR 745 i. In Minnesota. In proceedings to enforce a tax against real estate the judg- ment shall be final, except that upon application of ,either party the court may, if in its opinion the point is of great public importance or likely to arise frequently, make a brief statement of the facts established bearing on the point and on its decision, and forthwith transmit the same to the clerk of the supreme court. 65 j. In Missouri. 86 "When_ any of the courts of appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting 67 shall deem contrary to any previous decision of any one of said courts of appeals, or of the supreme court, 68 the said court of appeals must, of its own motion, 69 pending the same term and not afterward, certify and transfer said cause or pro- ceeding and the original transcript therein to the supreme court ; and thereupon the supreme court must rehear and determine said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process ; and the last previous rulings of the supreme court on any question of law or equity shall, in all cases, be controlling authority in said courts of appeals. 70 man, 129 Mass. 535, 538, wherein it is said: " This statute clearly manifests the intention of the Legislature that cases in the Superior Court, whether tried with or without a jury, should be there decided, both upon the law and upon the facts, in the first instance, and that a verdict of the jury, or an equivalent finding of the judge, upon which judgment might be rendered, should be entered of re- cord, before any question of law should be re- ported from that court to this." Only questions of law can be considered (Churchill v. Palmer, 115 Mass. 310; Hubner v. Hoffman, 106 Mass. 346), and questions of law which might have been, bui which were not raised before verdict, cannot be reported for the decision of the supreme court. (Al- drich v. Springfield, etc., R. Co., 125 Mass. 404). The report should be so framed as to state the nature of the case, the questions of law in- tended to be reserved, and so much of the evi- dence as may be necessary to present such question. Churchill v. Palmer, 115 Mass. 310. 65. Minn. Stat. (1894), § 1589. The mode provided is the only mode for re- viewing a judgment in a proceeding of this character. Washington County v. German- American Bank, 28 Minn. 360, 10 N. W. 21; State v. Jones, 24 Minn. 86. Mandamus does not lie to compel a court to certify a case; but, if the court declines to do so in a proper case, the writ of certiorari may issue. Brown County v. Winona, etc., Land Co., 38 Minn. 397, 37 N. W. 949. The trial court must state what point or points were certified up for decision, and, ex- cept as to points so certified, the judgment of the trial court is final. State v. St. Croix Boom Corp., 49 Minn. 450, 52 N. W. 44; Mor- rison County v. St. Paul, etc., R. Co., 42 Minn. 451, 44 N. W. 982. The justice should also make a statement of the facts bearing upon such points, together with his decision or con- clusion (Morrison County v. St. Paul, etc., R. Co., 42 Minn. 451, 44 N. W. 982), and this statement has the effect of the findings and decisions of the trial court in ordinary cases (Ramsey County v. Chicago, etc., R. Co., 33 Minn. 537, 24 N. W. 313). No costs are allowed either party in cases certified under this statute. Olmstead County ■V. Barber, 31 Minn. 256, 17 N. W. 473, 944. 66. Mo. Const, art. 6, amendm. (1884), § 6 [Mo. Rev. Stat. (1889), p. 93]; Leonard v. Sparks, 117 Mo. 103, 22 S. W. 899, 38 Am. St. Rep. 646; Dowdy v. Wamble, 110 Mo. 280, 19 S. W. 489. 67. One of the judges should judicially de- termine that the decision is in conflict with a previous decision of the supreme court (Smith v. Missouri Pac. R. Co., 143 Mo. 33, 44 S. W. 718; State v. Rombauer, 125 Mo. 632, 28 S. W. 968), and his opinion should be com- municated to a majority of the court by an explicit statement in the form of an opinion filed by him in the cause ( State v. Philips, 96 Mo. 570, 10 S. W. 182). Hence, it has also been decided that the court of appeals cannot certify a case to the supreme court on the ground, which all the judges seem to have con- curred in, that the unanimous decision ren- dered seems opposed tc p former decision of the supreme court — the judges being unani- mous in the interpretation of such decision, their decision must be controlled by it. Sea- board Nat. Bank v. Woesten, 144 Mo. 407, 46 S. W. 201 ; Schafer v. St. Louis, etc., R. Co., 144 Mo. 170, 45 S. W. 1075. 68. Citing supreme court opinions in dis- senting opinion. — The mere fact that a judge of the court of appeals has cited opinions of the supreme court in argument in a dissenting opinion is not sufficient to indicate that he deems the opinion from which he dissents in conflict with such citations, and in such case it is not the duty of the court of appeals to certify the case to the supreme court. State v. Smith, 107 Mo. 527, 16 S. W. 401, 17 S. W. 901. Dissent merely as to the sufficiency of the evidence to support the verdict rendered in the trial court will not compel a certification. State v. Smith, 129 Mo. 585, 31 S. W. 917. 69. Mandamus will not lie to compel a cer- tification. State v. Rombauer, 140 Mo. 121, 40 S. W. 763, 125 Mo. 632, 28 S. W. 968. 70. If the decision of the court of appeals concurs with the last previous decision of the supreme court, but not with an earlier one, there is no authority to certify the ease up. Wood v. Hall, 23 Mo. App. 110. Vol. II 746 APPEAL AND ERROR k. In New Hampshire. Questions arising upon exceptions, upon a special verdict, an issue of law, motion for a new trial or in arrest of judgment, or other motion or proceeding, 71 or upon a statement of facts agreed to and signed by the parties, 72 may be reserved and assigned by the presiding justice or by any justice of the court in vacation, if he think fit, to the determination of the court at the next law term. 73 1. In New Jersey. A circuit judge may, in his discretion, direct any case of doubt or difficulty to be made and stated, and certified by him for argument before the supreme court, and shall render judgment in conformity with the opinion certified to him. On proceedings in error to reverse such judgment, the opinion shall be returned with the writ as part of the record, and errors may be assigned thereon ; if errors are found therein, the judgment may be reversed. 74 71. N. H. Pub. Stat. (1901), c. 204, § 13. Clerks of court shall furnish reserved cases, etc., to the state library (X. H. Pub. Stat. (1901), c. 208, § 11), and to the reporter and members of the court (N. H. Pub. Stat. (1901), c. 214, § 3). Questions of fact will not be decided on a reservation (Whitcher v. Dexter, 61 N. H. 91) ; and a transferred case raising no ques- tion of law will be discharged (Cox v. John- son, 61 N. H. 642). Questions arising on pleadings will not be considered until the facts have been found. Fellows i!. Fellows, 68 N. H. 611, 44 Atl. 752. See also Kaulbach v. Kaulbaeh, 63 N. H. 615. Additional evidence. — The court will not receive and consider additional evidence upon the hearing of questions reserved either in equity or in law. Cole v. Winnipisseogee Lake Cotton, etc., Mfg. Co., 54 ST. H. 242. 72. For the practice on the transfer on an agreed state of facts see Perkins r. Lang- main, 36 N. H. 501. 73. Showing decision of court and excep- tion. — In preparing a case it is not necessary to specially state a decision of the court of common pleas and exception thereto. It will be understood by the transfer upon a motion that there was a decision. Claggett v. Simes, 31 N. H. 56. Conclusiveness of certificate. — The certifi- cate sent from the superior court to the com- mon pleas on questions, and transferred by the latter, is conclusive upon the common pleas to the extent of the questions presented, but no further. The action remains in the common pleas, to be disposed of by that court. Stevenson v. Cofferin, 20 N. H. 288. Correction of certificate. — The common pleas may retransfer the matter, for the cor- rection of the certificate, either upon their own motion or at the request of the superior court. Stevenson v. Cofferin, 20 N. H. 288. The correction may be made in vacation by a judge who tried the case, and even by a judge after his retirement from the bench. Tappan r. Tappan, 31 N. H. 41. 74. X. J. Gen. Stat. (1895), p. 2575, §§ 247, 249. See also N. J. Gen. Stat. (1895), p. 1030, § 66 et seq., for a similar provision relating to inferior courts of common pleas. The circuit court must settle all questions of fact before it can send up a certified ease as one of doubt and difficulty. Bunn v. New York, etc., R. Co., (N. J. 1900) 47 Atl. 440; Vol. II Wentink v. Board of Chosen Freeholders, (N. J. 1900) 45 Atl. 1031; Murray v. Pater- son R. Co., 61 N. J. L. 301, 39 Atl. 648; Deste- fano v. Calandirie, 57 N. J. L. 483, 31 Atl. 385 ; Delaware, etc., R. Co. v. Nevelle, 51 N. J. L. 332, 17 Atl. 836, 19 Atl. 538. If this is not done, the case will be dismissed and returned to the circuit court to the end that all ques- tions of fact be first settled, and a certificate be made of the questions of law. Bunn v. New York, etc., R. Co., (N. J. 1900) 47 Atl. 440. To the same effect see Shepard, etc., Lumber Co. v. Burroughs, 62 N. J. L. 469, 41 Atl. 695. Reserving right to turn case reserved into special verdict. — In a case decided in the court of errors and appeals, since the enact- ment of the provision allowing assignments of error on the opinion of the court on a case reserved, it was held that, in order to review error in a judgment founded on a case re- served, it is necessary to reserve at the cir- cuit the right to turn such case reserved into a special verdict, so that the points involved may appear on the record, and that no party to a suit can bring a writ of error to a judg- ment founded on a case reserved at the cir- cuit. Pray v. Jersey City, 33 N. J. L. 506 [citing Arehbold Pr. (2d Eng. ed.) 452], as- signing as a reason for this rule "that neither party can have the advantage of a review of the opinion of the court on a case stated ... In practice, this imperfection of proceeding is amended by the judge, at nisi priiis, granting permission for either party to turn such case into a special verdict. But unless such power be expressly reserved, it has been repeatedly held that the change can- not be made, unless by the consent of the parties." So, in a very recent decision of ths supreme court, the same view seems to obtain. Traflet v. Empire L. Ins. Co., 64 N. J. L. 387, 46 Atl. 204. See also Wentink r. Board of Chosen Freeholders, (X. J. 1900) 45 Atl. 1031. If these decisions are correct it is not easy to understand why the legislature in- serted in the statute the provision that such certified opinion shall be returned with the writ of error as part of the record and that errors may be assigned thereon ; and, indeed, it has been held in another decision of the court of appeals, prior to the decision of the supreme court just cited, that " error can be assigned upon the opinion of the Supreme Court rendered on cases stated or reserved, APPEAL AND ERROR m m. In New York — (i) Certification from Appellate Division of Supreme Court to Court of Appeals. In this state there are statutory provisions for the certification of questions from the appellate division of the supreme court to the court of appeals. 75 (n) Certification of Exceptions Taken on Jury Trial to Appellate Division of Supreme Court. It is also provided by statute in this state that, on the application of a party who has taken one or more exceptions, the judge presiding at a trial by jury may at any time during the same term direct an 'order to be entered that the exceptions so taken be heard in the first instance by the appellate division of the supreme court, and that judgment be suspended in the and certified by the Circuit without their be- ing turned into special verdicts, and with- out the parties having leave to so turn them, for such cases are within the plain language of the act." Delaware, etc., R. Co. v. Nevelle, 51 N. J. L. 332, 17 Atl. 836, 19 Atl. 538. To warrant a reversal of the judgment ren- dered in conformity with the opinion of the supreme court, the plaintiff in error must show that the opinion was in conflict with some rule of law — all assignments which do not present questions of this character should be stricken out. Delaware, etc., R. Co. v. Ne- velle, 51 N. J. L. 332, 17 Atl. 836, 19 Atl. 538. Where a case is certified, the clerk shall file the certificate, enter a rule as of course, setting the cause down for argument, and place the same on the paper, giving it prior- ity according to the date of filing the certifi- cate. N. J. Gen. Stat. (1895), p. 2574, § 248. 75. N. Y. Code Civ. Proc. §§ 190, 191. The original provision has been amended four times since 1895. What questions considered. — Under these provisions only questions of law will be con- sidered. Matter of Westerfield, 163 N. Y. 209, 57 N. E. 403 ; Commercial Bank v. Sher- wood, 162 N. Y. 310, 56 N. E. 834. Nor will the court answer abstract questions (Schenck v. Barnes, 156 N. Y. 316, 50 N. E. 967, 41 I. R. A. 395 ; Hearst v. Shea, 156 N. Y. 169, 50 N. E. 788 ; Baxter v. McDonnell, 154 N. Y. 432, 48 N. E. 816; Grannan v. Westchester Racing Assoc, 153 N. Y. 449, 47 N. E. 896), or questions not passed upon by the court be- low (Schenck v. Barnes, 156 N. Y. 316, 50 N. E. 967, 41 L. R. A. 395). No other ques- tions than those certified will be considered (Salisbury v. Slade, 160 N. Y. 278, 54 N. E. 741; Hearst v. Shea, 156 N. Y. 169, 50 N. E. 788; Baxter v. McDonnell, 154 N. Y. 432, 48 N. E. 816; Grannan r. Westchester Racing Assoc, 153 N. Y. 449, 47 N. E. 896) ; and the questions should be such that the answers may determine the particular con- troversy involved in the appeal, and not merely a part of it (Blaschko v. Wurster, 156 N. Y! 437, 51 N. E. 303, in which it was further said that, where the decision below may stand upon several grounds, it is not enough that the questions certified present only the weak propositions involved in the particular ground claimed to be affected with error, ignoring all the grounds upon which the decision may well stand ) . But see Bax- ter v. McDonnell, 154 N. Y. 432, 48 N. E. 816, wherein it was held that while the court of appeals will be confined to the question cer- tified, it must examine the record not only to see that the question actually arose, but also to see how it arose, so that it can be de- cided as it was presented to the courts be- low. Limitations of rule. — Where the question certified was passed upon by the court below and made the basis of the order appealed from, it will be considered although it may be doubtful whether it presents any proposi- tions which were in issue between the parties. Hearst v. Shea, 156 N. Y. 169, 50 N. E. 788. Certificate should state that there is a question or questions of law involved which should be considered by the court of appeals (Bastable v. Syracuse, 72 N. Y. 64), and what the question is (Squire v. McDonald, 138 N. Y. 554, 34 N. E. 398, 53 N. Y. St. 269). If several questions are certified, each ques- tion should be separately stated so that it can be answered yes or no. Devlin v. Hin- man, 161 N. Y. 115, 55 N. E. 386. Question should be clearly stated. — The court will decline to answer any question cer- tified unless it is sufficiently definite to pre- vent different answers under different cir- cumstances (Schenck v. Barnes, 156 N. Y. 316, 50 N. E. 967, 41 L. R. A. 395), and the court of appeals will examine the record, not only to see that the question actually arose, but also to see how it arose, so that the ap- pellate court can decide it as it was presented to the court below (Hearst v. Shea, 156 N. Y. 169, 50 N. E. 788; Baxter v. McDonnell, 154 N. Y. 432, 48 N. E. 816). Time of applying for certificate. — Applica- tion for leave to appeal under these provi- sions must be made at the term of the appel- late division at which the order or judgment appealed from was granted, or before the end of the next succeeding term, and, if the order allowing the appeal was not obtained within that time, no order can be subsequently granted. Porter v. International Bridge Co., 163 N. Y. 79, 57 N. E. 174. The right to ap- peal does not become absolute until the appel- late division has made the proper order allow- ing it, and the sixty days within which an appeal from an order of the appellate court must be taken (N. Y. Code Civ. Proc § 1325) does not begin to run until such order is granted (Porter v. International Bridge Co., 163 N. Y. 79, 57 N. E. 174). Vol. II 748 APPEAL AND ERROR meantime.™ This order may be revoked or modified on notice at any time before the hearing of the exceptions, in court or out of court, by the judge who made it, or it may be set aside for irregularity by the court at any term thereof. Unless it is so revoked or set aside, the exceptions must be heard upon a motion for new trial which must be decided by the appellate division. The motion is deemed to have been made when the order is granted, and either party may notice it for hearing upon the exceptions at a term for the appellate division. 77 n. In Ohio. Any judge of the superior court of Cincinnati, sitting in superior term, may reserve and adjourn for the decision of such court in general term any question of law or fact arising in any case upon the record, or upon evidence in writing, and, when the decision of such question authorizes or requires a final order or judgment, the same may be entered by the court in general term. 78 o. In Pennsylvania. 79 A judge of the district court of Philadelphia, or of the court of common pleas of any county, may, on the trial of the case, reserve ques- tions of law for the consideration of the judges of said court sitting together. 80 76. The record should contain a formal or- der that the exceptions be originally heard in the appellate division of the supreme court. Campbell v. Jughardt, 50 N. Y. App. Div. 460, 64 N. Y. Suppl. 198 (a case under Bliss' Anno. Code Civ. Proc. N. Y. § 1000) ; Web- ster p. Cole, 17 Hun (N. Y.) 507. But it seems that the entry of a formal order was not necessary under N. Y. Code Proc. § 265. This requisite is sufficiently complied with when the minutes of the trial, signed by the clerk, contain a statement that defendant's exceptions are to be heard in the appellate division in the first instance, and that entry of judgment be suspended in the meantime. Sedgwick r. Macy, 24 N. Y. App. Div. 1, 49 N. Y. Suppl. 154. The order can be made only in cases of trial by jury. See Malloy v. Wood, 3 Abb. Pr. (N. Y.') 369. The order should not provide for the ser- vice of a notice of appeal. — Where exceptions are ordered to be heard and judgment is sus- pended until the hearing and decision, there is nothing to appeal from. Battersby r. Col- lier, 34 N. Y. App. Div. 347, 54 N. Y. Suppl. 363. Only questions of law can be determined (Martin v. Piatt, 51 Hun (N. Y.) 429, 4 N. Y. Suppl. 359, 21 ST. Y. St. 330; Hoteh- kins r. Hodge, 38 Barb. (N. Y.) 117; Fey v. Smith, 3 Daly (N. Y.) 386), and only excep- tions duly taken at the trial will be con- sidered (Emmons »>. Wheeler, 3 Hun (N. Y.) 545; Hoxie v. Greene, 37 How. Pr. (N. Y.) 97). All controverted questions of fact are to be regarded as settled by the verdict, and neither the general term nor the court of ap- peals may consider the weight of evidence or set aside the verdict on the facts, unless there is such an absence of evidence to support a material finding that the court may deter- mine as a matter of law that the fact was not proved. Metropolitan Nat. Bank v. Sir- ret, 97 N. Y. 320. The court has power only on a hearing of the exceptions to grant or deny a motion for new trial. It cannot, on sustaining the ex- ceptions, dismiss the complaint on the merits. Matthews v. American Cent. Ins. Co., 154 N. Y. 449, 48 N. E. 751, 61 Am. St. Rep. 627, Vol. II 39 L. E. A. 433. If the exceptions are not well taken the motion should be denied and judgment entered on the verdict, or the order of nonsuit as the case may be. Matthews v. American Cent. Ins. Co., 154 N. Y. 449, 48 N. E. 751, 61 Am. St. Rep. 627, 39 L. R. A. 433 ; Huda r. American Glucose Co., 151 N. Y. 549, 45 N. E. 942. 77. N. Y. Code Civ. Proc, § 1000 [this sec- tion being, apparently, an amendment of N. Y. Code Civ. Proc. § 1000, as contained in Bliss' Anno. Code Civ. Proc. N. Y. § 1000, which in turn was an amendment of the old N. Y. Code Civ. Proc. § 265]. 78. Bates' Anno. Stat. Ohio (1897), §503. In Cincinnati t>. Cincinnati Inclined Plane R. Co., 56 Ohio St. 675, 47 N. E. 560, it is held that when a question of law or fact is reserved by the superior court upon a bill of evidence, and final judgment is rendered thereon, the general term has no power to re- mand such judgment to the special term for further proceedings; but that the cause may be remanded to the special term for trial as to matters left unadjudicated, but in such trial the judgment must be taken and held as final as to the questions on which it was rendered ; but it may be used as a factor in molding the decree covering the whole case. 79. Brightly's Purd. Dig. Pa. (1894), p. 1695. 80. Questions considered. — The question reserved must be a pure question of law, and not a question of fact or a mixed question of law and fact. Mayne v. Maryland Fidelity, etc., Co., 198 Pa. St. 490, 48 Atl. 469 ; Casey v. Pennsylvania Asphalt Paving Co., 198 Pa. St. 348, 47 Atl. 1128; Buckley v. Duff, 111 Pa. St. 223, 3 Atl: 823; Com. v. Mc- Dowell, 86 Pa. St. 377; Koons v. MeNamee, 6 Pa. Super. Ct. 445, 42 Wkly. Notes Cas. (Pa.) 21. It must not bs an abstract propo- sition, but must rule the case so completely that its decision will warrant a bindinff in- struction. Mayne v. Maryland Fidelity, etc., Co., 198 Pa. St. 490, 48 Atl. 469; Casev v. Pennsylvania Asphalt Paving Co. 198 Pa. St. 348, 47 Atl. 1128; Wild v. Trainor, 59 Pa. St. 439. Questions of law and fact illustrated.— The question whether the bond of a bank APPEAL AND ERROR T49 The questions may be decided by three or by two of said judges sitting together for that purpose, and either party has the light to a bill of exceptions to the opinion of the court thereon. p. In Rhode Island. The statutes of this state provide that in all civil cases in the district court, except certain ones therein enumerated, a jury trial may, on payment of costs, be claimed within two days after the decision of such court, and that the clerk shall certify the record to the common pleas division of the supreme court on the next court day of the district court. 81 It is also provided that where a cause is certified up, either party may, within ten days after the date of certification, hie such further pleas as he may see fit. 82 trustee was valid is a question of mixed law and fact and cannot be reserved. Com. v. McDowell, 86 Pa. St. 377. So, also, the ques- tion whether, under all the evidence, the plaintiff is entitled to recover, is improper. Newhard v. Pennsylvania R. Co., 153 Pa. St. 417, 26 Atl. 105, 19 L. R. A. 563. But the question whether there is any evidence of a fact essential to recovery is a question of law which may be reserved. Casey v. Pennsylvania Asphalt Paving Co., 198 Pa. St. 348, 47 Atl. 1128; Williams v. Crystal Lake Water Co., 191 Pa. St. 98, 43 Atl. 206; Boyle v. Ma- hanoy City. 187 Pa, St. 1, 40 Atl. 1093; Fisher v. Seharadin, 186 Pa. St. 565, 40 Atl. 1C91 [overruling Yerkes r. Richards, 170 Pa. St. 346, 32 Atl. 1089] ; Newhard v. Pennsylvania R. Co., 153 Pa. St. 417, 26 Atl. 105, 19 L. R. A. 563; Koons ». Western Union Tel. Co., 102 Pa. St. 164. Requisites of reservation. — The question must be clearly stated (Mayne v. Maryland Fidelity, etc., Co., 198 Pa. St. 490, 48 Atl. 469 ; Casey v. Pennsylvania Asphalt Paving Co., 198 Pa. St. 348. 47 Atl. 1128; Central Bank v. Earlev, 115 Pa. St. 359, 10 Atl. 33; Henry v. Heilman, 114 Pa. St. 499, 6 Atl. 921 ; Wilson v. Steamboat Tuscarora, 25 Pa. St. 317), and the facts on which it arises must be apparent on the record or found by the jury in order that exceptions may be taken and a review had (Mayne v. Maryland Fidelity, etc., Co., 198 Pa. St. 490, 48 Atl. 469; Casey v. Pennsylvania Asphalt Paving Co., 198 Pa. St. 348, 47 Atl. 1128: Yerkes v. Richards, 170 Pa. St. 346, 32 Atl. 1089; Blake v. Metzgar, 150 Pa. St. 291, 24 Atl. 755; Henry v. Heilman, 114 Pa. St. 499, 6 Atl. 921; Smith v. Arsenal Bank, 104 Pa. St. 518; Ferguson v. Wright, 61 Pa. St. 258; Wilde v. Trainor, 59 Pa. St. 439 ; Winchester v. Bennett, 54 Pa. St. 510 ; Wilson v. Steam- boat Tuscarora, 25 Pa. St. 317; Irwin v. Wickersham, 25 Pa. St. 316; Koons v. Mc- Namee, 6 Pa. Super. Ct. 445, 42 Wkly. Notes Cas. (Pa.) 21). An omission in this respect is not cured by a, reference to the statement of facts and law in the opinion of the court appealed from. Johnston v. United Presb. Board of Publication, (Pa. 1886) 7 Atl. 92. Finally, when there is a judgment on re- served points, it is always desirable that there should be a written opinion to indicate to the court of errors the ground of the judgment. Mayne v. Maryland Fidelity, etc., Co., 198 Pa. St. 490, 48 Atl. 469; Wilde v. Trainor, 59 Pa. St. 439. The judgment should be pro- nounced upon the solution of the question of law reserved, and should also be certified as in the ease stated. Yerkes v. Richards, 170 Pa. St. 346, 32 Atl. 1089. Presumption as to correctness of statement of facts. — Where a point is reserved the par- ties will be presumed to have consented to the correctness of the statement of facts em- braced in the reservation, and a party not excepting to it at the time is estopped from denying its accuracy. Central Bank v. Earley, 113 Pa. St. 477, 6 Atl. 236; Mohan v. Butler, 112 Pa. St. 590, 4 Atl. 47; Koons v. Western Union Tel. Co., 102 Pa. St. 164; Pennsylvania Ins. Co. v. Phoenix Ins. Co., 71 Pa. St. 31 ; Ginther v. Yorkville, 3 Pa. Super. Ct. 403. Very great injustice might be done if a party not objecting at the time of the reservation should be permitted afterward to take the ground that there was no evidence of the facts, or that they ought to have been submitted to the jury. Pennsylvania Ins. Co. v. Phoenix Ins. Co., 71 Pa. St.~31. Effect of defective reservation. — A reser- vation which violates any of the rules men- tioned in the two preceding sections " is incurably bad, and a judgment entered in pursuance of it will be reversed whether an exception has been taken or not; but in con- sidering whether a reservation is good, the appellate court will look at its substance not- withstanding the form in which it has been made ; and if no exception has been taken to the form it will be conclusively presumed that the parties acquiesced in the statement of facts as they appear in the point, and as- sented to the reservation as made." Casey v. Pennsylvania Asphalt Paving Co., 198 Pa. St. 348, 47 Atl. 1128 [citing Velas r. Patton Coal Co., 197 Pa. St. 380, 47 Atl. 360; Rynd v. Baker, 193 Pa. St. 486, 44 Atl. 551 ; Boyle v. Mahanoy City, 187 Pa. St. 1, 40 Atl. 1093; Pennsylvania Ins. Co. v. Phosnix Ins. Co., 71 Pa. St. 31]. This does not mean, however, that a failure to except cures all defects in a point. It is defects of form only, and not de- fects of substance, which are cured by failure to except. Casey v. Pennsylvania Asphalt Paving Co., 198 Pa. St. 348, 47 Atl. 1128. 81. R. I. Gen. Laws (1896), e. 237, §§ 7, 8. Neglect of the clerk to comply with these provisions does not defeat the jurisdiction of the common pleas division of the supreme court from the subsequent certification of the record thereto. Wilbur v. Best, (R. I. 1901) 48 Atl. 824. 82. R. I. Gen. Laws (1896), u. 238, § 3. This statute has been held to be directory only as to the time of filing such pleas, and Vol. II 750 APPEAL AND ERROR q. In Texas. 83 The Texas statutes provide for the certification of questions from the court of civil appeals to the supreme court in two cases : First, where one of the judges of the former court dissents from its decision ; M and, second, when an issue of law arises in the court of civil appeals, which such court deems it advisable to present to the supreme court for adjudication. In the first case the court shall, upon motion of the party to the cause or on its own motion, cer- tify the point or points of dissent, and the clerk shall send up a certified copy of the conclusions of fact and law as found by the court, the questions of law on which there is a division, and the original transcript, when so ordered by the supreme court, and the decision of the supreme court on the question shall be entered as the judgment of the court of civil appeals. In the second case, the presiding judge must certify the very question to be decided by the supreme court, and during the pendency of the decision by the latter court the cause shall be retained for final adjudication in accordance with such decision. 85 that, where the party applying for jury trial fails to have the certification sent up within the prescribed time, the court will make such order as to the filing of pleas as will pre- serve the rights of the parties. Wilbur v. Best, (R. T. 1901) 48 Atl. 824. 83. Tex. Rev. Stat. (1895), arts. 967, 1040-1043. What is known as certification of questions is provided to bring questions of law upon which the court of appeals is unable to agree before the supreme court for its decision; but it has been held that this pro- ceeding is not compulsory, and does not su- persede the writ of error. Campbell v. Wig- gins, 85 Tex. 451, 22 S. W. 5. And it has been held that the court of civil appeals will not certify questions to the supreme court when a writ of error will lie. Magill v. Brown, (Tex. Civ. App. 1899) 50 S. W. 642. The effect of certifying questions to the su- preme court is to preclude the party from subsequently taking the cause up by writ of error, except where the court certified the questions of its own motion. Camp- bell v. Wiggins, 85 Tex. 451, 22 S. W. 5. 84. Necessity for dissent by one judge. — In the first case in which the certificate of questions is authorized there must be a dis- sent by one of the judges. The supreme court has no jurisdiction to revise a ruling in which all the judges of the court of civil appeals concurred. Campbell v. Wiggins, 85 Tex. 424, 451, 21 S. W. 599, 22 S. W. 5. 85. What questions considered. — Under these provisions only questions of law can be considered _ (Laughlin r. Fidelitv Mut. Ins. Co., 87 Tex. 115, 26 S. W. 1064; Kelley-Good- fellow Shoe Co. v. Liberty Ins. Co., 87 Tex. 112, 26 S. W. 1063), and the question certified must not be purely abstract. The court has no jurisdiction to decide questions which do not arise upon the facts in the cause (West- ern Union Tel. Co. v. Burgess, (Tex. 1900) 54 S. W. 1021 ; Berlin Iron Bridge Co. v. San Antonio, 92 Tex. 388, 49 S. W. 211; Roy v. Whitaker, 93 Tex. 346, 48 S. W. 892, 49 S. W. 367; Allen v. Tyson-Jones Buggy Co., 91 Tex. 22, 40 S. W. 393, 714; Farmers'' Nat. Bank i\ Templeton, 90 Tex. 503, 39 S. W. 914; Cleveland v. Carr, 90 Tex. 393. 38 S. W. 1123; Missouri R. Co. v. Belcher, 88 Tex. 549, 32 S. W. 518). Only those questions which Vol. II are presented in the certificate will be con- sidered (Galveston, etc., R. Co. v. Zantzinger, 92 Tex. 365, 48 S. W. 563, 71 Am. St. Rep. 859, 44 L. R. A. 553), and, while the court is at liberty to certify more than one question (Wettermark v. Campbell, 93 Tex. 517, 56 S. W. 331; Kelley-Goodfellow Shoe Co. v. Liberty Ins. Co., 87 Tex. 112, 26 S. W. 1063; Waco Water, etc., Co. v. Waco, 86 Tex. 661, 26 S. W. 943, 31 L. R. A. 392 ) , the whole case cannot be certified for the decision of the su- preme court (Mann v. Dublin Cotton-Oil Co., 91 Tex. 617, 45 S. W. 373; Bassett v. Sherrod, 89 Tex. 272, 34 S. W. 600; Laughlin v. Fi- delity Mut. Ins. Co., 87 Tex. 115, 26 S. W. 1064; Kelley-Goodfellow Shoe Co. v. Liberty Ins. Co., 87 Tex. 112, 26 S. W. 1063). Requisites of certificate. — The exact ques- tion or questions upon which the decision of the supreme court is desired must be certified. Mann v. Dublin Cotton-Oil Co.. 91 Tex. 617, 45 S. W. 373; Eustis v. Henrietta, 90 Tex. 254, 38 S. W. 165; Waco Water, etc., Co. v. Waco, 86 Tex. 661, 26 S. W. 943. 31 L. R. A. 392; Union Cent. L. Ins. Co. v. Chowning, 86 Tex. 654, 26 S. W. 982, 24 L. R. A. 504. The question or questions must be clearly stated (Wettermark v. Campbell, 93 Tex. 517, 56 S. W. 331 ; Kelley-Goodfellow Shoe Co. v. Lib- erty Ins. Co., 87 Tex. 112, 26 S. W. 10*63), and if there are several questions, a separate statement is necessary (Wettermark v. Camp- bell, 93 Tex. 517, 56 S. W. 331 ) . So, the facts in regard to which the question arises must be found and certified with the questions. Galveston, etc., R. Co. v. Zantzinger, 92 Tex. 365, 48 S. W. 563, 71 Am. St. Rep. 859, 44 L. R. A. 553; Rov v. Whitaker, 92 Tex. 346, 48 S. W. S92, 94 S. W. 367 ; Allen r. Tyson- Jones Buggy Co., 91 Tex. 22, 40 S. W. 393, 714; Farmers' Nat. Bank ;:. Templeton, 90 Tex. 503, 39 S. W. 914; Cleveland r. Carr, 90 Tex. 393, 38 S. W. 1123; Missouri, etc., R. Co. r. Belcher, 88 Tex. 549, 32 S. W. 518. Questions held not sufficiently specific- Five charges asked by plaintiff were refused, and these charges being copied in the cer- tificate, the following questions were pro- pounded thereon: "Do any of the special charges requested announce correct proposi- tions of law in this case; and if so, which of them should have been given in charge to the APPEAL AND ERROR 751 _ p. In Wisconsin. 86 There shall be no appeal to the supreme court in cases involving, exclusive of costs, less than one hundred dollars, except where the title to a tract of land is in question, or the case involves the construction of some pro- vision ot the federal or state constitutions, unless the judge 87 of the court where the judgment was rendered shall certify that the case necessarily involves the decision of some question or point of law of such doubt and difficulty as to require the decision of the supreme court. 88 s. In Wyoming. When an important question arises 8B in the district court, the judge may cause the same to be reserved and sent to the supreme court for decision. 90 t. In the Federal Courts — (i) Statutory Enactments. Statutes authorizing the certification of questions for review by the supreme court have existed for a long period of time. The first of these statutes was enacted on April 29, 1802 ; 91 jury?" It was held that this interrogatory was not sufficiently specific. Laughlin v. Fidelity Mut. Ins. Co., 87 Tex. 115, 26 S. W. 1064. So, it has been held that a certifi- cate which presents the question whether the court erred in sustaining a demurrer to a petition to enjoin the collection of a tax will be dismissed, as the decision of that question involves the decision of many others. Waco - Water, etc., Co. v. Waco, 86 Tex. 661, 26 S. W. 943, 31 L. R. A. 392. Necessity for final judgment. — It is also necessary, to give the court jurisdiction, that there should have been a final decision, and, pending a motion for rehearing, the case is not finally decided so as to render proper a certification of points of dissent. Johnson v. Portwood, 89 Tex. 235, 34 S. W. 596, 787. When case dismissed. — A certificate which does not certify the exact question to be de- cided will be dismissed (Eustis v. Henrietta, 90 Tex. 254, 38 S. W. 165; Waco Water, etc., Co. r. Waco, 86 Tex. 661, 26 S. W. 943, 31 L. R. A. 392. See also Mann v. Dublin Cot- ton-Oil Co., 92 Tex. 377, 48 S. W. 567), and the court of civil appeals will be required to again certify the questions so as to conform to the statute (Eustis v. Henrietta, 90 Tex. 254, 38 S. W. 165). 86. Wis. Laws (1895), c. 215, as amended by Wis. Laws (1897), e. 183; Sanborn & B. Anno. Stat. Wis. (1889), § 4721 et seq. 87. In making the certificate the trial judge shall act judicially and with some de- gree of discretion, and not. in a merely per- functory way, sign a certificate in order to enable a party to appeal where no disputable question of law is involved. Rosenow v. Gard- ner, 99 Wis. 358, 74 N. W. 982. 88. The certificate must state the ulti- mate facts on which the particular questions of law are raised, so that the court may de- termine the same from such statement alone, without reference to the record (Field v. El- roy, 99 Wis. 412, 75 N. W. 68 ; Burkhardt v. Elgee, 95 Wis. 375, 70 N. W. 296; Leppla v. Reed, 94 Wis. 307, 68 N. W. 991; Indepen- dence Creamery Co. v. Lockway, 94 Wis. 148, 68 N. W. 656), and the question or questions of law must be clearly stated (Field v. Elroy, 99 Wis. 412, 75 N. W. 68). The bill of exceptions will not serve the purpose of such certificate where it states the evidence only, and not the ultimate facts. State v. Kellogg, 99 Wis. 532, 73 N. W. 22. 89. Question held sufficiently difficult and important. — The question as to the validity of fifty-five thousand dollars of bonds of a county is sufficiently important and difficult to authorize its reference to the supreme court. Crook County v. Rollins Invest. Co., 3 Wyo. 470, 27 Pac. 683. 90. Wyo. Laws (1888), c. 66. The district court should distinctly state the question found to have arisen in the case, and deemed to be either important or diffi- cult, or both. Merely stating that there is an important question, and not stating what it is, brings up nothing for review. Carbon County©. Rollins, (Wyo. 1900) 62 Pac. 351; Corey p. Corey, 3 Wyo. 210, 19 Pac. 443. It has been held, however, that, where the ques- tion sought to be reserved was clearly stated in a stipulation of counsel, this was sufficient to present the question for review. Carbon County v. Rollins, (Wyo. 1900) 62 Pac. 351. The reservation may be made before judg- ment. — Schenck c. Union Pac. R. Co., 5 Wyo. 430, 40 Pac. 840. 91. The act of congress of April 29, 1802, so changed the judicial system that the cir- cuit court is composed of two, instead of three, judges ; and, in order to provide a means to remove the obstacle to the trial of a cause which' would arise whenever the judges failed to agree upon a question arising during the course of the trial, it was enacted that such questions might be certified to the su- preme court for its decision. 2 TJ. S. Stat, at L. p. 159; and see also TJ. S. Rev. Stat. (1878), §§ 651, 697. This provision was not repealed by the act of congress of April 10, 1869 [16 TJ. S. Stat, at L., p. 144], changing the personnel of the circuit court. In discussing the effect of the latter act Mr. Justice Bradley, in New Eng- land Mar. Ins. Co. v. Dunham, 11 Wall. (U. S.) 1, 20 L. ed. 90, pointed out the fact that, while the personnel of the court was changed by this act, which created a judge to take the place of the justice of the supreme court, the court still consisted of only two members, so that the mischief which the certificate of di- vision was Intended to meet remained the same. Vol. II 752 APPEAL AND ERROR the second of these statutes on June 1, 1872 ; 92 and the third and last statute on March 3, 1891. 93 (n) Certifyixg Whole Case. Under the acts of April 29, 1802, and June 1, 1S72, the whole case could not be certified up to the supreme court, 9 * even when its decision turned upon matters of law only, 95 and the rule could not be evaded by 92. The act of congress of June •., 1872, provides that whenever, in any civil suit or proceeding in a circuit court held by a circuit justice and a circuit or district judge, or by a circuit judge and a district judge, there occurs any difference of opinion between the judges as to any matter or thing to be de- cided, proved, or ordered by the court, the opinion of the presiding justice or judge shall prevail, and be considered the opinion of the court for the time being (17 U. S. Stat, at L., p. 196; U. S. Rev. Stat. (1878), §§ 650, 693), and that, when a, final judgment or decree is entered, the question shall be certified, and the certificate entered of record (17 U. S. Stat, at L., p. 196; U. S. Rev. Stat. (1878), § 652). With respect to civil cases the act of June 1, 1872, has superseded the act of April 29, 1802, allowing questions to be certified up be- fore judgment. Bartholow Banking House v. School Trustees, 105 U. S. 6, 26 L. ed. 937; Dow v. Johnson, 100 TJ. S. 158, 25 L. ed. 632. 93. The act of congress of March 3, 1891, contains two distinct provisions for certifica- tion. 26 U. S. Stat, at L. c. 517, U. S. Eev. Stat. Suppl. (1891), p. 901, c. 517. See also, generally, Certiorari ; and Ex p. Woods, 143 TJ. S. 202, 12 S. Ct. 417, 36 L. ed. 125 [quoting Ex p. Lau Ow Bew, 141 TJ. S. 583, 12 S. Ct. 43, 35 L. ed. 868]. Section five of the act reads : " Appeals or writs of error may be taken from the district courts or from the existing circuit courts di- rect to the Supreme Court. ... In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdic- tion alone shall be certified to the Supreme Court from the court below for decision." Section six of the act in effect provides that in any case in which the judgment of the cir- cuit court of appeals is made final it may at any time certify to the supreme court any questions or propositions of law concerning which it desires the instructions of that court for its proper decision, and thereupon the su- preme court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the circuit court of appeals in such ease, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it has been brought there for review by writ of error or appeal. Effect of statute.— While there has been no decision expressly declaring that the pro- visions of the act of March 3, 1891, superseded the acts of April 29, 1802, and June 1, 1872, it is to be noted that no attempt has been made to certify questions under the acts of April 29, 1802. and June 1, 1872, since the enactment of the act of March 3, 1891, and Vol. II this, in connection with the further fact that the provisions of the latter act are apparently inconsistent with those of the former acts, furnishes a strong inference to that effect. Nevertheless, it has been said that in civil cases the intention of congress as to the cer- tification provided for in the act of June 1, 1891, is to be arrived at in the light of the rules prevailing prior to that date in relation to certificates of division under the two older statutes. Graver v. Faurot, 162 TJ. S. 435, 16 S. Ct. 799, 40 L. ed. 1030; Maynard v. Hecht, 151 TJ. S. 324, 14 S. Ct. 353, 38 L. ed. 179. Hence, it would seem that the court will look to the former decisions to determine what questions may be certified, the manner of pre- paring the certificate, stating the questions, etc. 94. Cincinnati, etc., R. Co. r. MeKeen, 149 U. S. 259, 13 S. Ct. 840, 37 L. ed. 725; Hosford v. Germania F. Ins. Co., 127 U. S. 399, 8 S. Ct. 1199, 32 L. ed. 196; Smith v. Crait, 123 U. S. 436, 8 S. Ct. 196, 31 L. ed. 267; State Nat. Bank v. St. Louis Rail Fastening Co., 122 TJ. S. 21, 7 S. Ct. 1054, 30 L. ed. 1121; TJ. S. v. Northway, 120 TJ. S. 327, 7 S. Ct. 580, 30 L. ed. 664; California Artificial Stone Paving Co. v. Molitor, 113 U. S. 609, 5 S. Ct. 618, 28 L. ed. 1106; Weeth v. New England Mortg. Security Co., 106 U. S. 605, 1 S. Ct. 91, 27 L. ed. 99; Daniels v. Chicago, etc., R. Co., 3 Wall. (U. S.) 250, 18 L. ed. 224; Dennistoun v. Stewart, 18 How. (U. S.) 565, 15 L. ed. 489; Sadler v. Hoover, 7 How. (TJ. S.) 646, 12 L. ed. 855; Adams v. Jones, 12 Pet. (TJ. S.) 207, 9 L. ed. 1058 ; Harris v. Elliott, 10 Pet. (TJ. S.) 25, 9 L. ed. 333; U. S. v. Bailey, 9 Pet. (TJ. S.) 267, 9 L. ed. 124; Saunders v. Gould, 4 Pet. (TJ. S.) 392, 7 L. ed. 897; Wayman v. South- ard, 10 Wheat. (U. S.) 1, 6 L. ed. 253. Thus, a question which asks the supreme court to decide whether, upon all the evidence in the case, defendant was entitled to a ver- dict cannot be properly certified. London F. Ins. Assoc, r. Wickham, 128 TJ. S. 426, 9 S. Ct. 113, 32 L. ed. 503. 95. London F. Ins. Assoc. i\ Wickham, 128 U. S. 426, 9 S. Ct. 113, 32 L. ed. 503; Jewell v. Knight, 123 U. S. 426, 8 S. Ct. 193, 31 L. ed. 190. Reason for rule. — When a certificate of di- vision brings up the whole ease it would be, if the court should decide it, in effect, the ex- ercise of original rather than appellate juris- diction. White v. Turk, 12 Pet. (U. S.) 238, 9 L. ed. 1069. The object of the statutes was to meet a case where two judges differ on a clear and distinct proposition of law material to the de- cision of the ease. If in reality more than one such question occurs they may be em- braced in the certificate; but this does not mean that the whole case can be presented APPEAL AND ERROR 753 splitting up the whole case in the form of questions. 98 Where it was evident from the record that the whole cause had been sent up the practice was to dismiss it for want of jurisdiction. 97 By the express wording, however, of the fifth section of the act of March 3, 1891, the sole question which may be certified from the district court or circuit court to the supreme court is that of the jurisdiction of the district or circuit court. 98 (ra) Questions Which May Be Certified — (a) Questions Arising During Trial. The question which may be certified upon a division of opinion must be upon some matter arising on the trial of the cause. 99 Questions arising incidentally, or in relation to a collateral matter after rendition of a judgment or decree, cannot be certified. 1 (b) Quest/ions of Law and Fact. So the question certified must be a question of law, not one of fact, or one of mixed law and fact. 2 It must not involve or for decision, with all its propositions of fact and of law. Waterville v. Van Slyke, 116 U. S. 699, 6 S. Ct. 622, 29 L. ed. 772. 96. U. S. ». Reilly, 131 U. S. 58, 9 S. Ct. 664, 33 L. ed. 75 ; Dublin Tp. v. Milford Five Cent Sav. Inst., 128 TJ. S. 510, 9 S. Ct. 148, 32 L. ed. 533 ; Webster v. Cooper, 10 How. (U. S.) 54, 13 L. ed. 325; Nesmith v. Sheldon, 6 How. (U. S.) 41, 12 L. ed. 335; U. S. v. Briggs, 5 How. (U. S.) 208, 12 L. ed. 119; White v. Turk, 12 Pet. (U. S.) 238, 9 L. ed. 1069. 97. Waterville v. Van Slyke, 116 U. S. 699, 6 S. Ct. 622, 29 L. ed. 772 ; Daniels v. Chicago, etc., R. Co., 3 Wall. (U. S.) 250, 18 L. ed. 224; Nesmith v. Sheldon, 6 How. (U. S.) 41, 12 L. ed. 335. The rule applies with equal force to the certification of questions by the circuit court of appeals, under section 6 of the act of March 3, 1891. Warner v. New Orleans, 167 U. S. 467, 17 S. Ct. 892, 42 L. ed. 239; Cross v. Evans, 167 U. S. 60, 17 S. Ct. 733, 42 L. ed. 77; Graver v. Faurot, 162 U. S. 435, 16 S. Ct. 799, 40 L. ed. 1030; Fabre v. Cunard Steam- ship Co., 59 Fed. 500, 11 U. S. App. 616, 8 C. C. A. 199. But, while it is not permitted to certify the whole case, the supreme court may, by the express provisions of that section, require such certification to be made when questions are certified, or may bring up by certiorari any case in which the decision of that court would otherwise be final. Graver v. Faurot, 162 U. S. 435, 16 S. Ct. 799, 40 L. ed. 1030; Maynard v. Heeht, 151 U. S. 324, 14 S. Ct. 353, 38 L. ed. 179; Farmers', etc., State Bank v. Armstrong, 49 Fed. 600, 6 U. S. App. 4, 1 C. C. A. 394. When questions or propositions are certified, accompanied by a proper state- ment of the facts on which they arise, it is for the supreme court to determine whether ■ it will answer such questions or propositions as are propounded, or direct the whole record to be placed before it in order to decide the matter in controversy in the same manner as if the case had been brought up by writ of error or appeal. Cincinnati, etc., R. Co. v. McKeen, 149 U. S. 259, 13 S. Ct. 840, 37 L. ed. 725. 98. Carey v. Houston, etc., R. Co., 150 U. S. 170, 14 S. Ct. 63, 37 L. ed. 1041; McLish v. Roff, 141 U. S. 661, 12 S. Ct. 118, 35 L. ed. 893. See also Barling v. Bank of British [48] North America, 50 Fed. 260, 7 U. S. App. 194, 1 C. C. A. 510. 99. U. S. Bank v. Green, 6 Pet. (U. S.) 26, 8 L. ed. 307. See also Davis v, Braden, 10 Pet. (U. S.) 286, 9 L. ed. 427, in which it is said : " The court do not mean to decide, defi- nitely, that no question can be brought here upon a certificate of a division of opinion un- less the point arose upon the trial of the cause, but are very much induced to think that such is the true construction of the act; but from the general words used, eases may possibly arise that we do not foresee." Thus, the di- vision being upon a mere matter arising upon the service of execution and a mere question, upon a collateral contest between the marshal and the bank, as to the marshal's right to fees, the supreme coui t acquires no jurisdic- tion. U. S. Bank v. Green, 6 1 Pet. (U. S.) 26, 8 L. ed. 307. Habeas corpus proceedings. — The United States circuit court has authority to certify questions in a proceeding for a writ of habeas corpus to inquire into the sentence of a mili- tary commission, and the supreme court has jurisdiction to hear and determine them. Ex p. Milligan, 4 Wall. (U. S.) 2, 18 L. ed. 281. 1. Daniels v. Chicago, etc., R. Co., 3 Wall. (U. S.) 250, 18 L. ed. 224; Devereaux v. Marr, 12 Wheat. (U. S.) 212, 6 L. ed. 605. Abstract or hypothetical questions. — A proposition which is merely abstract or hy- pothetical will not be considered. Pelham v. Rose, 9 Wall. (U. S.) 103, 19 L. ed. 602; Havemeyer v. Iowa County, 3 Wall. (U. S.) 294, 18 L. ed. 38; Ward v. Chamberlain, 2 Black (U. S.) 430, 17 L. ed. 319; Ogilvie v. Knox Ins. Co., 18 How. (U. S.) 577, 15 L. ed. 490. The supreme court will not decide a question certified where the decision will avail nothing. U. S. v. Buzzo, 18 Wall. (U. S.) 125, 21 L. ed. 812. 2. Warner v. New Orleans, 167 U. S. 467, 17 S. Ct. 892, 42 L. ed. 239; Graver v. Fau- rot, 162 U. S. 435, 16 S. Ct. 799, 40 L. ed. 1030; U. S. v. Perrin, 131 U. S. 55, 9 S. Ct. 681, 33 L. ed. 88; London F. Ins. Assoc. v. Wickham, 128 U. S. 426, 9 S. Ct. 113, 32 L. ed. 503, 141 U. S. 564, 12 S. Ct. 84, 35 L. ed. 860; Jewell v. Knight, 123 U. S. 426, 8 S. Ct. 193, 31 L. ed. 190; Williamsport Nat. Bank v. Knapp, 119 U. S. 357, 7 S. Ct. 274, 30 L. ed. Vol. II 754 APPEAL AND ERROR imply a conclusion or judgment upon the weight or effect of testimony or facts adduced in the cause. 3 (c) Questions Relating to Matters of Discretion of Trial Court — (1) State- ment of Rule. So, the general rule is that the court cannot, upon a certificate of a division of opinion, acquire jurisdiction relating to matters of pure discre- tion in the trial court. 4 (2) Limitation of Rule. The rule stated in the preceding section is subject to this limitation : that where a motion resting in the discretion of the court pre- sents for consideration a question going directly to the merits, the decision of which may determine the points in controversy, the reviewing court will, never- theless, consider the question on a certificate of division. 5 (d) Only Questions Certified Considered. The court can look to the certifi- cate alone for the question which occurred and for the points on which the deci- sion of the court below differed. 6 (iv) Contents and Requisites of Certificates — (a) Statement of Ques- tions on Which Instruction Is Desired. The question certified must be a distinct point or proposition of law and stated clearly, so that it can be definitely answered, 7 446; Waterville v. Van Slyke, 116 U. S. 699, 6 S. Ct. 622, 29 L. ed. 772; California Artifi- cial Stone Paving Co. v. Molitor, 113 U. S. 609, 5 S. Ct. 618, 28 L. ed. 1106; Weeth v. New England Mortg. Security Co., 106 U. S. 605, 1 S. Ct. 91, 27 L. ed. 99; Brobst v. Brobst, 4 Wall. (U. S.) 2, 18 L. ed. 387; Daniels P. Chicago, etc., R. Co., 3 Wall. (U. S.) 250, 18 L. ed. 224; Silliman v. Hudson River Bridge Co., 1 Black (U. S.) 582, 17 L. ed. 81; Den- nistoun v. Stewart, 18 How. (U. S.) 565, 15 L. ed. 489; Wilson v. Barnum, 8 How. (U. S.) 258, 12 L. ed. 1070; Nesmith v. Sheldon, 6 How. (U. S.) 41, 12 L. ed. 335; U. S. v. Bailey, 9 Pet. (U. S.) 267, 9 L. ed. 124. 3. McHenry v. Alford, 168 U. S. 651, 18 S. Ct. 242, 42 L. ed. 614; Maynard v. Hecht, 151 U. S. 324, 14 S. Ct. 353, 38 L. ed. 179; London F. Ins. Assoc, v. Wickham, 128 U. S. 426, 9 S. Ct. 113, 32 L. ed. 503; Jewell v. Knight, 123 U. S. 426, 8 S. Ct. 193, 31 L. ed. 190; Weeth v. New England Mortg. Security Co., 106 U. S. 605, 1 S. Ct. 91, 27 L. ed. 99; Dennistoun v. Stewart, 18 How. (U. S.) 565, 15 L. ed. 489. Questions of fact illustrated. — Thus, the question of fraud is necessarily a compound of fact and of law, and, upon a certificate of di- vision of opinion, the fact must be distinctly found before the supreme court can decide the law. Jewell v. Knight, 123 U. S. 426, 8 S. Ct. 193, 31 L. ed. 190. The following question has also beer, held one of fact : " Whether, according to the true construction of the Woodworth patent, as amended, the machines made or used by the defendant at the time of filing the bill, or either of them simply, do or do not infringe the said amended letters patent." Wilson v, Barnum, 8 How. (U. S.) 258, 12 L. ed. 1070. 4. U. S. v. Rosenberg, 7 Wall. (U. S.) 580, 19 L. ed. 263; Wiggins v. Gray, 24 How. (U. S.) 303, 16 L. ed. 688; Jones v. Van Zandt, 5 How. (U. S.) 215, 12 L. ed. 122; Davis v. Braden, 10 Pet. (U. S.) 286, 9 L. ed. 427. Illustrations. — Accordingly, the court will not determine, upon a certificate of division Vol. II «f opinion, whether or not a new trial shall be granted (TJ. S. v. Thomas, 151 U. S. 577, 14 S. Ct. 426, 38 L. ed. 276; U. S. v. Daniel, 6 Wheat. (TJ. S.) 542, 5 L. ed. 326; Lanning v. London, 4 Wash. (TJ. S.) 332, 14 Fed. Cas. No. 8,075 ; Taylor v. Carpenter, 2 Woodb. & M. (TJ. S.) 1, 23 Fed. Cas. No. 13,785) ; whether plaintiff in ejectment shall be permitted to enlarge the demise (Smith v. Vaughan, 10 Pet. (TJ. S.) 366, 9 L. ed. 457), or any ques- tion in any equity cause relating to the prac- tice in the circuit court and depending upon the exercise of sound discretion in the appli- cation of the rules which regulate the courts of equity in the circumstances of the particu- lar case (Packer v. Nixon, 10 Pet. (TJ. S.) 408, 9 L. ed. 473) . But see Daniels v. Chicago, etc., R. Co., 3 Wall. (U. S.) 250, 18 L. ed. 224; TJ. S. v. Kelly, 11 Wheat. (U. S.) 417, 6 L. ed. 508, from both of which cases it seems that a division of opinion may be certified on a mo- tion in arrest of judgment. 5. U. S. v. Thomas, 151 U. S. 577, 14 S. Ct. 426, 38 L. ed. 276 ; U. S. v. Rosenberg, 7 Wall. (TJ. S.) 580, 19 L. ed. 263; Tj. S. v. Chicago, 7 How. (U. S.) 185, 12 L. ed. 660; U. S. v. Wilson, 7 Pet. (U. S.) 150, 8 L. ed. 640. Of this character is a motion to continue a temporary injunction until a final hearing on the merits. TJ. S. v. Chicago, 7 How. (U. S.) 185, 12 L. ed. 660. 6. U. S. v. Ambrose, 108 TJ. S. 336, 2 S. Ct. 682, 27 L. ed. 746; Dennistoun v. Stewart, 18 How. (U. S.) 565, 15 L. ed. 489; Kennedy v. Georgia Bank, 8 How. (TJ. S.) 586, 12 L. ed. 1209; U. S. v. Briggs, 5 How. (TJ. S.) 208, 12 L. ed. 119. Even though the entire record is sent up, only such parts as relate to the questions cer- tified will be considered — irrelevant matter will be disregarded. TJ. S. v. Thomas, 151 TJ. S. 577, 14 S. Ct. 426, 38 L. ed. 276. 7. McHenry v. Alford, 168 U. S. 651. 18 S. Ct. 242, 42 L. ed. 614; U. S. v. Union Pac. R. Co., 168 U. S. 505, 18 S. Ct. 167, 42 L. ed. 559; Columbus Watch Co. v. Robbins, 148 TJ. S. 266, 13 S. Ct. 594, 37 L. ed. 445; U. S. v. Brewer, 139 U. S. 278, 11 S. Ct. 538, 35 L. ed. APPEAL AND ERROR 755 without regard to the other issues of law or fact in the case. 8 If the certificate contains several questions, each one must be separately stated, and stated with reference to that part of the case on which it arose. 9 _ (b) Statement of Facts on Which Questions Arose. The certificate must con- tain a statement of the facts on which the questions or propositions of law certified arose, 10 and this statement should consist of ultimate facts, leaving nothing but a conclusion of law to be drawn. 11 (c) Statement That Instruction Is Desired. In order to invoke the exercise of the jurisdiction of the supreme court in the instruction of the circuit court of appeals as to the proper decision of questions or propositions of law, the certifi- cate must show that the instruction of the supreme court as to the proper decision of such questions or propositions was desired. 12 (v) Necessity for Actual Division of Opinion. As a general rule, in order to authorize the consideration of a question certified there must be an actual division of opinion, and if it appears upon the record that no such dis- agreement actually existed, the question will not be considered. 13 (vi) Necessity for Final Judgment. Under the act of June 1, 1872, no questions could be certified until after final judgment, 14 and this is also the rule under the fifth section of the act of March 3, 1891. 15 Under the sixth sec- 190; U. S. 17. Chase, 135 U. S. 255, 10 S. Ct. 756, 34 L. ed. 117; U. S. 17. l^acher, 134 TJ. S. 624, 10 S. Ct. 625, 33 L. ed. 1080; U. S. v. Hall, 131 U. S. 50, 9 S. Ct. 663, 33 L. ed. 97; London F. Ins. Assoc, v. Wickham, 128 U. S. 426, 9 S. Ct. 113, 32 L. ed. 503; Jewell v. Knight, 123 TJ. S. 426, 8 S. Ct. 193, 31 L. ed. 190; U. S. ». Northway, 120 U. S. 327, 7 S. Ct. 580, 30 L. ed. 664; Williamsport Nat. Bank v. Knapp, 119 U. S. 357, 7 8. Ct. 274, 30 L. ed. 446; U. S. v. Waddell, 112 U. S. 76, 5 S. Ct. 35, 28 L. ed. 673; Daniels 17. Chicago, etc., R. Co., 3 Wall. (TJ. S.) 250, 18 L. ed. 224; Sad- ler i;. Hoover, 7 How. (U. S.) 646, 12 L. ed. 855; TJ. S. v. Briggs, 5 How. (U. S.) 208, 12 L. ed. 119; Perkins -v. Hart, 11 Wheat. (TJ. S.) 237, 6 L. ed. 463. 8. TJ. S. 17. Union Pac. It. Co., 168 U. S. 505, 18 S. Ct. 167, 42 L. ed. 559; London F. Ina. Assoc, v. Wickham, 128 TJ. S. 426, 9 S. Ct. 113, 32 L. ed. 503 ; Jewell v. Knight, 123 U. S. 426, 8 S. Ct. 193, 31 L. ed. 190. If the questions are too imperfectly stated to enable the supreme court to pronounce any opinion, upon them, that court will not give an opinion, but will certify that they are too imperfectly stated for consideration. Perkins v. Hart, 11 Wheat. (TJ. 8.) 237, 6 L. ed. 463. See also Sadler v. Hoover, 7 How. (TJ. S.) 646, 12 L. ed. 855. The following questions have been held too general for consideration: Whether an indictment charges the defendant with an offense (U. S. 17. Chase, 135 U. S. 255, 10 S. Ct. 756, 34 L. ed. 117; TJ. S. 17. Laeher, 134 U. S. 624, 10 S. Ct. 625, 33 L. ed. 1080; U. 8. 17. Northway, 120 TJ. S. 327, 7 S. Ct. 580, 30 L. ed. 664 ) ; whether a demurrer to counts of an indictment ought to be sustained ; whether the first three counts to an indictment charge an offense under the laws of the United States (U. S. 17. Brewer, 139 U. S. 278, 11 S. Ct. 538, 35 L. ed. 190) ; whether a decree should be rendered for complainants or for defend- ants (Sadler v. Hoover, 7 How. (U. S.) 646, 12 L. ed. 855). 9. Daniels v. Chicago, etc., R. Co., 3 Wall. (U. S.) 250, 18 L. ed. 224. 10. Cincinnati, etc., R. Co. v. McKeen, 149 U. S. 259, 13 S. Ct. 840, 37 L. ed. 725; Water- ville v. Van Slyke, 116 U. S. 699, 6 S. Ct. 622, 29 L. ed. 772; Havemeyer v. Iowa County, 3 Wall. (U. S.) 294, 18 L. ed. 38; U. S. 17. Columbus City Bank, 19 How. (U. S.) 385, 15 L. ed. 662; Ogilvie v. Knox Ins. Co., 18 How. (U. S.) 577, 15 L. ed. 490. 11. Thus, a statement of particular facts, in the nature of matters of evidence, upon which no decision can be made without infer- ring a fact which is not found, is not suffi- cient. Jewell 17. Knight, 123 U. S. 426, 8 S. Ct. 193, 31 L. ed. 190; Sigafus 17. Porter, 85 Fed. 689, 56 U. S. App. 62, 29 C. C. A. 391. 12. Columbus Watch Co. 17. Robbins, 148 U. S. 266, 13 S. Ct. 594, 37 L. ed. 445. 13. Colorado Cent. R. Co. 17. White, 101 U. S. 98, 25 L. ed. 860; Daniels 17. Chicago, etc., R. Co., 3 Wall. (U. S.) 250, 18 L. ed. 224; Webster 17. Cooper, 10 How. (U. 80 54, 13 L. ed. 325; U. S. v. Stone, 14 Pe't. (U. S.) 524, 10 L. ed. 572. In U. S. v. Stone, 14 Pet. (U. S.) 524, 10 L. ed. 572, it was said: "In some cases, where the point arising is one of importance, the judges of the Circuit Court have sometimes, by consent, certified the point to the Supreme Court — as upon a division of opinion — when, in truth, they both rather seriously doubter, than differed, about it. They must be cases sanctioned by the judg- ment ' of one of the judges of the Supreme Court, in this circuit." 14. Ex p. Clodomira Cota, 110 U. S. 385, 4 S. Ct. 25, 28 L. ed. 172; Ex p. Tom Tong, 108 U. S. 556, 2 S. Ct. 871, 27 L. ed. 826; Bar- tholow Banking House 17. School Trustees, 105 U. S. 6, 26 L. ed. 937. 15. Maynard v. Hecht, 151 U. S. 324, 14 S. Ct. 353, 38 L. ed. 179 ; Carey v. Houston, etc., R. Co., 150 U. S. 170, 14 S. Ct. 63, 37 L. ed. 1041; McLish ». Roff, 141 U. S. 661, 12 S. Ct. 118, 35 L. ed. 893. Vol. II 756 APPEAL AND ERROR tion of the act of March 3, 1891, the questions are certified up before final judg- ment, 16 and, when instructions are received as to the questions certified, the cause will be finally disposed of. 17 (to) Jurisdictional Amount. The original act of April 29, 1802, was always held to apply to material questions of law arising in all cases, regardless of the amount in controversy, 18 and the same was the case under the law of June 1, 1872, lil nor is there anything in the law of March 3, 1891, to change the rule in this regard. (vin) Composition of Court from Which Questions Are Certified. The division of opinion must arise between two judges w who are competent to take part in the judgment. A case cannot be brought to the supreme court on a cer- tificate of division between a judge who is qualified and one who is disqualified to take part in the judgment. 21 VI. PARTIES. A. In General. The general rule with regard to parties is that every person to be directly affected in his interests or rights by a judgment on appeal or writ of error is entitled to be named or described in the application or writ, to have notice thereof, and an opportunity of being heard and of defending his rights. 1 B. Appellants or Plaintiffs in Error — l. Proper Parties — a. In General. When one of two or more plaintiffs or defendants, against whom a judgment or 16. Sigafus v. Porter, 84 Fed. 430, 51 U. S. App. 693, 28 C. C. A. 443; Andrews v. Na- tional Foundry, etc., Works, 77 Fed. 774, 46 U. S. App. 619, 23 C. C. A. 454, 36 L. R. A. 139. 17. Sigafus >: Porter, 84 Fed. 430, 51 U. S. App. 693, 28 C. C. A. 443. 18. Dow v. Johnson, 100 U. S. 158, 25 L. ed. 632. 19. See Lawrence r. Nelson, 143 U. S. 215, 12 S. Ct. 440, 36 L. ed. 130; Union Nat. Bank v. Kansas City Bank, 136 U. S. 223, 10 S. Ct. 1013, 34 L. ed. 341 ; Hosford v. Germania F. Ins. Co., 127 U. S. 399, 8 S. Ct. 1199, 32 L. ed. 196; Dow v. Johnson, 100 U. S. 158, 25 L. ed. 632. 30. That the reason for the provision for certification of questions to the supreme court is to be found in the fact that the cir- cuit court consisted of only two judges, in consequence of which, should they disagree, the division of opinion would remain and the question continue unsettled, is pointed out in New England Mar. Ins. Co. v. Dunham, 11 Wall. (U. S.) 1, 20 L. ed. 90; Ex p. Milligan, 4 Wall. (U. S.) 2, 18 L. ed. 281; U. S. v. Daniel, 6 Wheat. (U. S.) 542, 5 L. ed. 326. 21. U. S. v. Emholt, 105 U. S. 414, 26 L. ed. 1077; Nelson v. Carland, 1 How. (U. S.) 265, 11 L. ed. 126; U. S. v. Lancaster, 5 Wheat. (U. S.) 434, 5 L. ed. 127. See also New England Mar. Ins. Co. v. Dunham, 11 Wall. (U. S.) 1, 20 L. ed. 90. Hence, a certificate of questions or propo- sitions of law concerning which a circuit court of appeals desires the instruction of the supreme court is irregular when a quo- rum of its members does not sit in the case. Cincinnati, etc., R. Co. v. McKeen, 149 U. S. 259, 13 S. Ct. 840, 37 L. ed. 725, wherein it appeared that the case came on to be heard before the circuit judge and two district judges, the circuit justice not being in at- tendance or able at that time to attend; that Vol. II one of said judges was unwilling to sit upon the final hearing, and, it appearing to the court that the appeal involved . questions of great importance, it was ordered that these questions be certified to the supreme court for instruction. The supreme court held that this was irregular, and ordered the case dismissed. 1. California. — Senter v. De Bernal, 38 Cal. 637. Georgia. — Carey v. Giles, 10 Ga. 1; Har- rington v. Roberts, 7 Ga. 510. Kentucky. — Miller v. Cabell, 81 Ky. 178, 4 Ky. L. Rep. 962. See also Adams v. Com., 2 Bibb (Ky.) 242. Massachusetts. — Porter v. Rummery, 10 Mass. 64. Missouri. — Paxton v. Humber, 39 Mo. 521. Teaeas. — Stephenson v. Texas, etc., R. Co., 42 Tex. 162. United States. — St. Louis United Elevator Co. v. Nichols, 91 Fed. 832, 34 C. C. A. 90; Dodson v. Fletcher, 78 Fed. 214, 49 U. S. App. 61, 24 C. C. A. 69; Andrews v. National Foundry, etc., Works, 76 Fed. 166, 46 U. S. App. 281, 22 C. C. A. 110, 36 L. R. A. 139. See 2 Cent. Dig. tit. "Appeal and Error," § 1795. As to persons entitled to review see supra, IV, A. A party who occupies the position of a stake-holder, and by his answer submits to whatever judgment the court may render in the case, need not join in an appeal or writ of error ; but his rights will be protected by the court. Fowler v. Morrill, 8 Tex. 153. Where a defendant suffers judgment by de- fault he is not a necessary party to an appeal prosecuted by a co-defendant, although a re- versal may affect him adversely. Garnsey v. Knights, 1 Thomps. & C. (N. Y.) 259. But see Midland R. Co. v. St. Clair, 144 Ind. 363, 42 N. E. 214; Lee v. Mozingo, 143 Ind. 667, 41 N. E. 454. APPEAL AND ERROR 757 decree has been rendered, appeals or sues out a writ of error, he should usually join his co-plaintiffs or co-defendants as appellants or plaintiffs in error ; and upon the trial they may unite with him and assign error, or they may sever and be heard in defense of the judgment or decree. 2 b. Nominal op Useless Parties. The omission of nominal and useless parties will not deprive the real party in interest of his right to have the question reex- amined on its merits by the appellate court. 8 2. District of Columbia. — Godfrey v. Roes- sle, 5 App. Cas. (D. C.) 299. Georgia. — Western Union Tel. Co. v. Grif- fith, 111 Ga. 551, 36 S. E. 859; Bird v. Harris, 63 Ga. 433. Illinois. — Christy v. Marmon, 163 111. 225, 45 N. E. 150. Indiana. — Stults v. Gibler, 146 Ind. 501, 45 N. E. 340; Anderson Glass Co. v. Brake- man, (Ind. App. 1896) 45 N. E. 193; Perry v. Botkin, 15 Ind. App. 83, 42 N. E. 964. Kansas. — Daughters v. German-American Ins. Co., (Kan. App. 1900) 62 Pac. 428; Mil- ler v. Pickering, (Kan. App. 1900) 61 Pac. 975. United States. — Davis v. Mercantile Trust Co., 152 U. S. 590, 14 S. Ct. 693, 38 L. ed. 563; Downing v. McCartney, 131 U. S. xcviii, ap- pendix, 19 L. ed. 757 ; Shannon v. Cavazos, 131 U. S. lxxi, appendix, 15 L. ed. 929 ; John- son v. Trust Co. of America, 104 Fed. 174. See 2 Cent. Dig. tit. "Appeal and Error," § 1796; and infra, VI, B, 4, a, (i). Season of rule may be found stated in Jacques r. Cesar, 2 Saund. 100; 2 Tidd Pr. 1053. In partition suit part of defendants filed a cross-complaint claiming all the land against their co-defendants and plaintiff, and obtained a decree in their favor. Upon an appeal by plaintiff from the decree it was held that his co-defendants to the cross-complaint should have been made co-appellants, and his failure to do this rendered the appeal subject to dis- missal. Benbow v. Garrard, 139 Ind. 571, 39 N. E. 162. The surety on an injunction bond or an ap- peal bond in the court below, against whom judgment has been . rendered, should be made a party to an appeal or writ of error. Lamar v. Grier, 3 Ga. 121; Coffee v. Newsom, 2 Ga. 439. See also Psalmonds v. Barksdale, 3 Ga. 584. But see, apparently contra, Johnson v. Wilson, 68 Ga. 290. And see Crawford v. Jones, 65 Ga. 523; and Stump v. Sheppard, Cooke (Tenn. ) 190, in which it is said that usage and practice have sanctioned the idea in appeals that the principal acts as an agent of his securities in the steps which are neces- sary to be taken. The court will, therefore, presume that when the principal obtains an appeal it is for his securities as well as for himself. While it would be more regular for the suit to appear in the higher court in the name of the principal and securities, it is sufficient if it appears in the name of the prin- cipal alone. The securities appearing upon the record, judgment may be rendered against them if necessary. See 2 Cent. Dig. tit. "Appeal and Error," § 1797. Where, on the trial of two foreclosure suits, brought by different parties against the same defendant and consolidated, it was adjudged that both mortgages were invalid, but only one of plaintiffs appealed, making his co- plaintiff an appellee together with defendant, and both plaintiffs assigned as sole error the conclusion against the validity of their re- spective mortgages, it was held that the fail- ure to make both plaintiffs appellants was a ground for dismissing the appeal. Smith o. Wells Mfg. Co., 144 Ind. 266, 43 N. E. 131. See also, to like effect, Lee v. Mozingo, 143 Ind. 667, 41 N. E. 454; Gregory v. Smith, 139 Ind. 48, 38 N. E. 395. In Mississippi it has been held that the rule requiring all parties to a judgment at law to join in prosecuting a writ of error does not apply to the decrees of chancery and probate courts. Thompson v. Toomer, 50 Miss. 394; Overstreet v. Trainer, 24 Miss. 484. Term and vacation appeals. — In some juris- dictions a distinction is made between ap- peals taken during the term at which the de- cree or judgment sought to be reversed is rendered, and those taken during vacation. In the former case it is not necessary to make all the co-parties below parties to the appeal (Roach v. Baker, 145 Ind. 330, 43 N. E. 932, 44 N. E. 303 ; Coco v. Thienman, 25 La. Ann. 236; Sevier ■». Sargent, 25 La. Ann. 220; and see also Francis v. Lavina, 26 La. Ann. 311) ; while in the latter, the general rule, as above stated, applies in all its force (Owen v. Dres- back, 154 Ind. 392, 56 N. E. 22, 848; McKee v. Root, 153 Ind. 314, 54 N. E. 802; and see also Ind. Rev. Stat. (1897), §§ 652, 657, and cases cited supra, notes 1, 2). 3. District of Columbia. — Raub v. Masonic Mut. Relief Assoc, 3 Maekey (D. C.) 68. Georgia. — Western Union Tel. Co. v. Grif- fith, 111 Ga. 551, 36 S. E. 859; De Vaughn v. Byrom, 110 Ga. 904, 36 S. E. 267; Mohr-Weil Lumber Co. v. Russell, 109 Ga. 579, 34 S. E. 1005. Missouri. — Gray v. Dryden, 79 Mo. 106. New Mexico. — Albuquerque v. Zeiger, 5 N. M. 518, 25 Pac. 787. United States. — Norwich, etc., R. Co. v. Johnson, 15 Wall. (U. S.) 8, 21 L. ed. 118; Galveston, etc., R. Co. v. House, 102 Fed. 112; Mercantile Trust Co. v. Kanawha, etc., R. Co., 58 Fed. 6, 16 U. S. App. 37, 7 C. C. A. 3. As to right of nominal party to review see supra, IV, A, b, (IV). An unnecessary and improper party in the court below need not be made a party to a proceeding in error. Howard v. Levering, 8 Ohio Cir. Ct. 614. See also Culver v. Mul- lally, 94 Ga. 644, 21 S. E. 895, in which it was held that a co-plaintiff, forced upon the orig- Vol. II 758 APPEAL AND ERROR 2. Separate Proceedings by One or More Co-Parties — a. In General. While, as a general rule, all co-parties should be joined in an appeal or writ of error, this does not preclude any one or more of them from prosecuting an appeal where they alone are affected by the judgment or decree complained of, or where the interests of the parties are separate, or upon the failure or refusal of their co-par- ties to join. Usually, though not invariably, it is required that notice shall be served upon the parties not appealing, and that they must be designated as appel- lants or plaintiffs in error in the petition or writ, in order not only that the record may be identified, but also to prevent their subsequently taking an appeal in case of their refusal to join. 4 b. Appeal or Writ Maintainable by Only a Part of Co-Parties. When less inal plaintiff by illegal amendment, was not a necessary party to a writ of error, more es- pecially if he disclaimed at the trial all own- ership and interest in the subject-matter of the litigation and asserted no interest what- ever relatively to either party. A defendant against whom no judgment has been rendered need not be joined as an appel- lant with his co-defendant. W itkina v. Vroo- man, 51 Hun (N. Y.) 17S, 5 N. Y. Suppl. 172, 21 N. Y. St. 586 [reversed, as to another point, in 123 N. Y. 211, 25 1S T . E. 322, 33 N. Y. St. 173]. See also, to like effect, Coe v. Turner, 5 Conn. 86 ; Berghoff v. McDonald, 87 Ind. 549 ; Easter r. Severin, 78 Ind. 540; Hammon v. Sexton, 09 Ind. 37. Similarly, persons not parties to the judg- ment below cannot properly be joined in a writ of error. Gary v. Wood, 4 Ala. 296; Adams v. Robinson, Minor (Ala.) 285. A railroad company, which is hopelessly in- solvent and practically defunct, and all of whose property, rights, and franchises have been transferred to a purchaser at » foreclos- ure sale, is not a necessary party to an appeal by such purchaser from a decree distributing the proceeds of the sale. Galveston, etc., R. Co. v. House, 102 Fed. 112. 4. Alabama. — Ex p. Webb, 58 Ala. 109; Garlick r. Dunn, 42 Ala. 404. Colorado, — Davidson v. Jennings, (Colo. 1900) 60 Pac. 354, 48 L. R. A. 340. Connecticut. — Coe v. Turner, 5 Conn. 86. Florida. — Jacksonville, etc., R., etc., Co. v. Broughton, 38 Fla. 139, 20 So. 829. Georgia. — Connally v. Rice, 77 Ga. 312; Ruffin v. Paris, 75 Ga. 653. See also Patter- son v. Barrow, 99 Ga. 166, 25 S. E. 398. Idaho. — Alexander r. Leland, 1 Ida. 425. Illinois. — Thorp V. Thorp. 40 111. 113. Indiana. — Pritchett v. McGaughey, 151 Ind. 638, 52 N. E. 397. Iowa. — Barlow v. Scott, 12 Iowa 63, con- struing Iowa Code (1897), § 4111 et seq. Maryland. — Alexander v. Worthington, 5 Md. 471; Barnes v. Dodge, 7 Gill (Md.) 109. Michigan. — People v. Wayne Cir. Judge, 36 Mich. 331. Mississippi. — Thompson v. Toomer, 50 Miss. 394; Saunders v. Saunders, 49 Miss. 327. Missouri. — Gray v. Dryden, 79 Mo. 106; Home Sav. Bank v. Traube, 6 Mo. App. 221. New Jersey. — Peer v. Cookerow, 14 N. J. Eq. 361. New York. — Brown v. Richardson, 4 Rob. (N. Y.) 603; Fenner v. Bettnar, 22 Wend. Vol. II (N. Y.) 621; Peoples. Judges, 1 Wend. (N. Y.) 90. North Carolina. — Smith v. Calloway, 35 N. C. 477. Oregon. — Cox v. Alexander, 30 Oreg. 438, 46 Pac. 794. Pennsylvania. — Bonner v. Campbell, 48 Pa. St. 286; Finney v. Crawford, 2 Watts (Pa.) 294; Gallagher v. Jackson, 1 Serg. & R. (Pa.) 492. Texas. — Wiederanders v. State, 64 Tex. 133; Gooch v. Parker, 16 Tex. Civ. App. 256, 41 S. W. 662. Virginia. — Purcell v. McCleary, 10 Gratt. (Va.) 246. Washington. — Garrison v. Cheeney, 1 Wash. Terr. 489. See 2 Cent. Dig. tit. "Appeal and Error," § 1798. As to splitting appeals see supra, I, J. Notice to co-party unnecessary. — Under the New York code any one or more co-plain- tiffs or co-defendants may appeal alone, and no notice is required to be given to anyone but the opposite party and the clerk. Brown v. Richardson, 4 Rob. (N. Y.) 603; Mattison v. Jones, 9 How. Pr. (N. Y. ) 152, 4 E. D. Smith (N. Y.) 427. Use of name of co-party. — Under 111. Rev. Stat. (1845), p. 420, it has been held that either of several defendants, against whom a decree may be rendered, may remove the suit to the supreme court by appeal or writ of error, and for that purpose has a, right to use the names of others not joining in the ap- peal. Willenborg v. Murphy, 40 111. 46. Com- pare Garrison v. Cheeney, 1 Wash. Terr. 489, where it was held, under Wash. Code (1869), § 44, that the writ need only be prosecuted in the name of the party aggrieved by the de- cision of the lower court. Withdrawal by acting appellant.— In Bon- ner f. Campbell, 48 Pa. St. 286, the record showed that the appeal from the award of arbitrators was by all of defendants, though only one of them acted in taking it. The recognizance entered into by that one recog- nized all, and, after the appeal, the record showed all as the subjects of the orders of the court for the payment of costs. Subsequently the defendant who acted in taking the appeal undertook to withdraw it on the ground that he was the only appellant. This withdrawal the court vacated as to the other defendants, and the case went to trial between them and plaintiff. APPEAL AND ERROR 759 than the full number of co-appellants or co-plaintiffs in error can alone main- tain the proceedings, the others should he dismissed without prejudice to those who may maintain the proceedings. 5 c. Joint Liability or Joint Interest — (i) In General. Where a judgment or decree is rendered against parties jointly liable, or having a joint interest in the subject-matter of the litigation, one of the parties may appeal or sue out a writ of error though his co-parties do not join. 6 (n) Effect of Separate Appeal. Where there has been a joint judg- ment or decree against several, the effect of an appeal or writ of error by one or more, without the concurrence of their co-parties, is to carry up the whole case, and a reversal will enure to the benefit of all. 7 d. Judgment Against One or More Only. Where a judgment or decree is rendered against a part only of the co-plaintiffs or co-defendants, an appeal or writ of error should be prosecuted only in the names of those prejudiced. Where those not prejudiced are joined therein, the petition or writ will be dismissed. 8 e. On Refusal of Co-Parties to Join in or Prosecute. Where one or more of the co-plaintiffs or co-defendants refuse to join in or prosecute an appeal or 5. Malaer v. Damron, 31 111. App. 572. 6. District of Columbia. — Raub v. Masonic Mut. Relief Assoc., 3 Mackey (D. C.) 68. Kentucky. — Johnson v. Johnson, 1 Dana (Ky.) 364. Missouri. — Morgner v. Birkhead, 34 Mo. 214. Nebraska. — But see Wolf v. Murphy, 21 Nebr. 472, 32 N. W. 303. New Jersey. — Peer v. Cookerow, 14 N. J. Eq. 361. New Mexico. — New Mexico, etc., R. Co. v. Madden, 7 N. M. 215, 34 Pac. 50. Ohio.— Ewers v. Rutledge, 4 Ohio St. 210; Emerick v. Armstrong, 1 Ohio 513. Compare Smetters v. Rainey, 14 Ohio St. 287. Texas. — Dickson v. Burke, 28 Tex. 117; Willie v. Thomas, 22 Tex. 175. Virginia. — Purcell v. McCleary, 10 Gratt. (Va.) 246. See 2 Cent. Dig. tit. "Appeal and Error," § 1802. It is well-settled law in Illinois that where two defendants join in praying an appeal, which appeal is allowed on condition that both" defendants enter into an appeal bond in a given sum within a certain time, one alone cannot perfect an appeal. If a party desires a separate appeal he must pray for it, and obtain an order accordingly. Bamberger v. Golden, 87 111. App. 156. Where, in an action in tort against two de- fendants, judgment is rendered against both jointly, one defendant may bring error to re- view the same without joining therein his co- defendant. New Mexico, etc., R. Co. v. Mad- den, 7 N. M. 215, 34 Pac. 50. The co-parties should, however, be sum- moned, and, upon their refusal to join, the court will enter an order of severance against them. See infra, VI, B, 3. 7. Johnson v. Johnson, 1 Dana (Ky.) 364; Peer v. Cookerow, 14 N. J. Eq. 361; Ewers v. Rutledge, 4 Ohio St. 210; Emerick v. Arm- strong, 1 Ohio 513; Dickson v. Burke, 28 Tex. 117: Willie e. Thomas, 22 Tex. 175; Wood v. Smith, 11 Tex. 367; Burleson v. Henderson, 4 Tex. 49. Extent of rule. — Even where the right of .appeal has been lost by the co-parties, as where the statutory limitation has run against them, and appellant has had the right of ap- peal saved owing to infancy or other disabil- ity, a reversal as to him will apply to the whole case. Peer v. Cookerow, 14 N. J. Eq. 361. 8. Arkansas. — Hay v. State Bank, 5 Ark. 250. Colorado. — Venner v. Denver Union Water Co., (Colo. App. 1900) 63 Pac. 1061; Diamond Tunnel Gold, etc., Min. Co. v. Faulkner, 14 Colo. 438, 24 Pac. 548. Connecticut. — Coe v. Turner, 5 Conn. 86. Georgia. — Wyche v. Greene, 16 Ga. 47. Indiana. — Lowe v. Turpie, 147 Ind. 652, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 233. Kansas. — Leavenworth v. Duffy, (Kan. App. 1900) 62 Pac. 433. Massachusetts. — Shaw v. Blair, 4 Cush. (Mass.) 97. Mississippi. — Coffee v. Planters' Bank, 11 Sm. & M. (Miss.) 458, 49 Am. Dec. 68. New York. — Jaqueth v. Jackson, 17 Wend. (NY.) 434. North Carolina. — Stephens v. Batchelor, 23 N. C. 60; Sharpe v. Jones, 7 N. C. 306. Ohio. — Emerick v. Armstrong, 1 Ohio 513. Oklahoma.— Outcalt v. Collier, 8 Okla. 473, 58 Pac. 642 [reversing 6 Okla. 615, 52 Pac. 738].. England. — Cannon v. Abbot, 1 Lev. 210; Parker v. Lawrence, Hob. 70 note ; Barnwell v. Grant, Style 190; Vaughan v. Loriman, Cro. Jac. 138. See 2 Cent. Dig. tit. "Appeal and Error," § 1803. See also infra, VI, H, 2 et seq. Where one joint defendant in trespass is ac- quitted, and one found guilty, the latter may appeal the cause as to himself, without af- fecting the former. Emerick v. Armstrong, 1 Ohio 513. Vol. II 760 APPEAL AND ERROR writ of error, upon notice or process regularly served, or, after having perfected the appeal, abandon it, the others may prosecute the proceedings alone. 9 f. Parties in a Representative or Official Capacity. Parties in a representa- tive or official capacity may bring separate proceedings in error to protect the interests represented by them. 10 g. Several Lia'bility or Separate Interests. Where a decree or judgment is several both in form and in substance, and the interest represented by each of the co-parties, plaintiff or defendant, is separate and distinct from that of the others, any party may appeal or sue out a writ of error separately, to protect his own interests, without joining his co-parties in the appeal, and without a summons and severance. 11 Where one named as a party defendant in the lower court has not been served with pro- cess, nor appeared and answered, he is not a necessary party to an appeal or writ of er- ror prosecuted by the other defendant or de- fendants. Searcy v. Tillman, 75 Ga. 504; Macon, etc., R. Co. v. Washington, 69 Ga. 764; Winters v. Hughes, 3 Utah 438, 24 Pac. 907. Compare Thompson v. Valarino, 3 Den. (N. Y.) 179; Mason v. Denison, 11 Wend. (N. Y.) 612, 15 Wend. (N. Y.) 64. 9. Georgia. — Jordan v. Gaulden, 73 Ga. 191. Illinois. — Willenborg v. Murphy, 40' 111. 46. And see Bartlett v. Keating, 79 111. App. 642. Iowa. — Barlow v. Scott, 12 Iowa 63. Louisiana. — Jaffray v. Moss, 41 La. Ann. 548, 6 So. 520; Walton v. Police Jury, 26 La. Ann. 355. Michigan. — Detroit Sav. Bank v. Truesdail, 38 Mich. 430 ; People v. Wayne Cir. Judge, 36 Mich. 331. Missouri. — Gray v. Dryden, 79 Mo. 106 ; Home Sav. Bank v. Traube, 6 Mo. App. 221. New Jersey. — Peer v. Cookerow, 14 N. J. Eq. 361. Neic York. — Bockes v. Hathorn, 78 N. Y. 222; Mattison v. Jones, 9 How. Pr. (N. Y.) 153, 4 E. D. Smith (N. Y.) 427. See Fenner v. Bettner, 22 Wend. (N. Y.) 621. Texas. — Ruhl v. Kauffman, 65 Tex. 723; Simmons v. Fisher, 46 Tex. 126. Virginia. — Reno v. Davis, 4 Hen. & M. (Va.) 283. Washington. — Kelley v. Kitsap County, 5 Wash. 521, 32 Pac. 554. Wisconsin. — In re Luscombe, (Wis. 1901) 85 N. W. 341. United States. — Todd v. Daniel, 16 Pet. (U. S.) 521, 10 L. ed. 1054; Farmers' L. & T. Co. v. McClure, 78 Fed. 211, 49 U. S. App. 46, 24 C. C. A. 66. But see Wilkinson v. Gilchrist, 27 N. C. 228; Hicks v. Gilliam, 15 N. C. 217; Dunns v. Jones, 20 N. C. 154. See 2 Cent. Dig. tit. " Appeal and Error," § 1799. Abandonment of appeal. — Where a writ of error has been sued out by several, a portion of the plaintiffs in error may dismiss the suit as to themselves, leaving the remaining plain- tiffs to prosecute their suit if the latter so desire to d". Thorp v. Thorp, 40 111. 113. Declination and waiver of notice. — Under Horner's Stat. Ind. (1897), § 635, it was held that where a husband, co-defendant with his Vol. II wife, filed a declination to join in the wife's appeal, and waived notice, he was not a neces- sary party to the appeal. Pritehett v. Mc- Gaughey, 151 Ind. 638, 52 N. E. 397. 10. Prince v. Bates, 19 Ala. 105; State v. Moore County, 24 N. C. 430, which last was a proee ding against the justices of a county, in their official capacity as justices of the county court, a judgment being rendered against them. It was held that they might appeal although a minority refused to join in the proceedings. The rule as to appeals in re- lation to joint individuals, defendants to a suit, was held not to apply. 11. Alabama. — Farr v. State, 6 Ala. 794; Howie v. State, 1 Ala. 113. Florida. — Jacksonville, etc., R., etc., Co. v. Broughton, 38 Fla. 139, 20 So. 829 ; Guarantee Trust, etc., Co. v. Buddington, 23 Fla. 514. Georgia. — Pupke v. Meador, 72 Ga. 230. See also Bates v. Harris, 112 Ga. 32, 37 S. E. 105. Illinois. — Farrell v. Patterson, 43 111. 52. Indiana. — Larsh v. Test, 48 Ind. 130. Kentucky. — Campbell v. Johnston, 4 Dana (Ky.) 177 ; Wells v. Wells, 4 T. B. Mon. (Ky.) 152, 16 Am. Dec. 150. Massachusetts. — Porter v. Rummery, 10 Mass. 64. Nebraska. — Polk v. Covell, 43 Nebr. 884, 62 K. W. 240. New York. — Williams v. Western Union Tel. Co., 93 N. Y. 162 ; Genet v. Davenport, 60 N. Y. 194. Ohio.— Hull v. Bell, 54 Ohio St. 228, 43 N. E. 584; Pruden v. Sewell, 5 Cine. L. Bui. 517. Oregon. — South Portland Land Co. v. Mun- ger, 36 Oveg. 457, 54 Pac. 815. Pennsylvania. — Adamson's Appeal, 110 Pa. St. 459, 1 Atl. 327. Tennessee,. — Ragon v. Howard, 97 Tenn. 334, 37 S. W. 136. Texas. — Curlin v. Canadian, etc.. Mortg., etc., Co.. 90 Tex. 376, 38 S. W. 766; Cheatham v. Riddle. 8 Tex. 162. United States.— Gilfillan v. McKee, 159 U. S. 303, 16 S. Ct. 6, 40 L. ed. 161 ; City Nat. Bank v. Hunter, 129 U. S. 557, 9 S. Ct. 346, 32 L. ed. 752; Hanrick v. Patrick, 119 U. S. 156, 7 S. Ct. 147, 30 L. ed. 396 ; Milner v. Meek, 95 U. S. 252, 24 L. ed. 444; Grand Island, etc., R. Co. v. Sweeney, 103 Fed. 342 ; Gray v. Have- meyer, 53 Fed. 174, 10 U. S. App. 456, 3 C. C. A. 497 ; Louisville, etc., R. Co. v. Pope. 74 Fed. 1, 76 U. S. App. 25, 20 C. C. A. 253. APPEAL AND ERROR 7«1 3. Summons and Severance or Some Equivalent Proceeding — a. When Authorized or Required. All parties against whom a joint judgment or decree has been rendered must join in the writ of error or petition for appeal, if any one of them takes out such writ or files such petition, or else there must be a proper summons and severance, or some equivalent proceeding, in order to allow the prosecution of the petition or writ by any less than the whole number of those adversely affected." b. Proceedings to Obtain — (i) Former Practice. Formerly, the remedy by summons and severance was the usual mode of proceeding when more than one person was interested jointly in a cause of action or other proceeding, and one See 2 Cent. Dig. tit. "Appeal and Error," § 1800. Peisons who have several interests ox lia- bilities may sever, and prosecute different writs of error to the same judgment.' Cheat- ham v. Kiddle, 8 Tex. 162. Where judgment is rendered against one de- fendant personally, he ma. bring a writ of er- ror to review it without joining other defend- ants in the writ, notwithstanding the fact that the judgment also establishes the debt as a lien on real property as against the other defendants. Germain v. Mason, 12 Wall. (U. S.) 259, 20 L. ed. 392. Vendors and vendees. — In suits affecting the title to land in which both vendor and vendee are made parties, either may appeal from an adverse decision without joining the other. Simon v. Richard, 42 La. Ann. 842, 8 So. 629 ; Simkins v. Searey, 10 Tex. Civ. App, 406, 32 S. W. 849. See 2 Cent. Dig. tit. "Appeal and Error," § 1801. In a suit, by an obligee on a bond to make title, against the obligor and a subsequent purchaser, such purchaser may appeal from an adverse decision without being joined bv the obligor himself. Daniel v. Hill, 23 Tex. 571. 12. Alabama. — Moore v. McGuire, 26 Ala. 461; Knox v. Steele, 18 Ala. 815, 54 Am. Dec. 181. Colorado. — See McClure v. Sanford, 3 Colo. 514, construing Colorado act of 1872, p. 105. Florida.— Knight v. Weiskopf, 20 Fla. 140. ' Illinois. — Bartlett v. Keating, 79 111. App. 642. Indiana. — Shulties v. Keiser, 95 Ind. 159 ; Henry v. Hunt, 52 Ind. ,114. Kentucky. — Watson v. Whaley, 2 Bibb (Ky.) 392. Maryland. — Cumberland Coal, etc., Co. v. Jeffries, 21 Md. 375. Massachusetts. — Shirley v. Lunenburg, 11 Mass. 379. -Saunders v. Saunders, 49 Miss. 327 ;" "Henderson v. Wilson, 4 Sm. & M. (Miss.) 732. Missouri. — Fagan v. Long, 30 Mo. 222. Nebraska.— Woll v. Murphy, 21 Nebr. 472, 32 N. W. 303. New Jersey. — Van Buskirk v. Hoboken, etc., R. Co., 31 N. J. L. 367. New York. — Thompson v. Valarino, 2 How. Pr. (1ST. Y.) 259; Bradshaw v. Callaghan, 8 Johns. (N. Y.) 558. See also Clapp v. Brom- agham, 9 Cow. (N. Y.) 304. Ohio — Smetters v. Rainey, 14 Ohio St. 287. Wisconsin.— Doty v. Strong, 1 Pinn. ( Wis. ) 165. United States. — Beardsley v. Arkansas, etc., R. Co., 158 U. 8. 123, 15 S. Ct. 786, 39 L. ed. 919; Sipperley v. Smith, 155 U. S. 86, 15 S. Ct. 15, 39 L. ed. 79 ; Davis v. Mercantile Trust Co., 152 U. S. 590, 14 S. Ct. 693, 38 L. ed. 563; Inglehart v. Stansbury, 151 U. S. 68, 14 S. Ct. 237, 38 L. ed. 76 ; Hardee v. Wil- son, 146 U. S. 179, 13 S. Ct. 39, 36 L. ed. 933; Estes v. Trabue, 128 TJ. S. 225, 9 S. Ct. 58, 32 L. ed. 437 ; Humes v. Chattanooga Third Nat. Bank, 54 Fed. 917, 13 U. S. App. 86, 4 C. C. A. 668 ; Hedges v. Seibert Cylinder Oil Cup Co., 50 Fed. 643, 3 U. S. App. 25, 1 C. C. A. 594. See 2 Cent. Dig. tit. " Appeal and Error," § 1810 et seq. Actions against partners. — Summons and severance is necessary to authorize one part- ner to bring error in an action by both part- ners for damages for the unlawful seizure of the firm's property. Feibelman v. Packard, 108 TJ. S. 14, 1 S. Ct. 138, 27 L. ed. 634. Rule to show cause. — In New Jersey, if a judgment is rendered against two defendants, and one takes an appeal, the latter's proper course is to take a rule on the other defendant to show cause why he should not prosecute his appeal alone. Sheppard ». Fenton, 9 N. J. L. 8. Summons and severance is not necessary where the interest of each defendant is sepa- rate and distinct, and the decree is several, both in form and substance. Gilfillan v. Mc- Kee, 159 TJ. S. 303, 16 S. Ct. 6, 40 L. ed. 161. See supra, VI, B, 2, a. Effect of failure to summon and sever. — Where only one of several co-parties appeals or sues out a writ of error, and fails to pro- cure a writ of summons and severance, or to take some equivalent action, the appeal will be dismissed, or the writ of error quashed, on motion, and the cause stricken from the docket. Henderson v. Wilson, 4 Sm. & M. (Miss.) 732. What record must show. — An appeal or writ of error, prosecuted by one or more of several co-parties, will be dismissed where the record does not show either that the other de- fendants were notified in writing and failed to appear, or that they appeared and refused to join in the appeal or writ. Hardee v. Wil- son, 146 U. S. 179, 13 S. Ct. 39, 36 L. ed. 933; Mastevson v. Howard, 10 Wall. (J. S.) 416, 19 L. ed. 953. Vol. II 762 APPEAL AND ERROR or more of them refused to participate in the legal assertion of the joint rights involved in the matter. 13 (n) Modern Practice. But this practice nas fallen into disuse in the American courts, and any equivalent proceedings which will have the same effect as the more formal summons and severance are sufficient. 14 e. Effect. After a judgment of severance has been entered in the lower court, one party may appeal or sue out a writ of error without joining the other party or parties. 15 4. Joinder — a. When Authorized or Required — (i) In General. All co-parties, whether plaintiffs or defendants in the original suit, should, as a rule, 13. Masterson v. Howard, 10 Wall. (U.S.) 416, 19 L. ed. 953; Andrews v. Cromwell, Cro. Eliz. 891, 892. See 2 Cent. Dig. tit. "Appeal and Error," § 1807. 14. Missouri. — Fagan v. Long, 30 Mo. 222. Virginia. — Reno v. Davis, 4 Hen. & M. (Va.) 283. Washington. — Nelson r. Territory, 1 Wash. 125, 23 Pac. 1013. Wisconsin. — Doty v. Strong, 1 Pinn. (Wis.) 165, 168, wherein it was said: "The practice of summons and severance is not familiar to the American courts of error. The more easy and equally legitimate practice would be to enter a rule against those persons named in the writ of error as plaintiffs and not ap- pearing, either to appear and assign error or submit to be served. In any practice, how- ever, all the defendants in the judgment must first join in suing out the writ of error." United States. — Masterson v. Howard, 10 Wall. (U. S.) 416, 19 L. ed. 953 (wherein Miller, J., says : " We do not attach import- ance to the technical mode of proceeding called ' summons and severance ' " ) ; Mercan- tile Trust Co. v. Kanawha, etc., R. Co., 58 Fed. 6, 16 U. S. App. 37, 7 C. C. A. 3. See 2 Cent. Dig. tit. "Appeal and Error," § 1807. Joining co-parties as appellees. — In some jurisdictions a co-party who refuses to join in an appeal or writ of error may properly be cited as an appellee. Lobelle v. Lobelle, 5 La. Ann. 174; Farrar v. Newport, 17 La. 346; Traverso v. Row, 10 La. 500; Polk v. Covell, 43 Nebr. 884, 62 N. W. 240; Wolf v. Murphy, 21 Nebr. 472, 32 N. W. 303; Smetters v. Rainey, 14 Ohio St. 287; Simmons v. Fisher, 46 Tex. 126. See 2 Cent. Dig. tit. "Appeal and Error," § 1808. See also infra, VI, C, 3. Severance on motion. — In Missouri, on ap- peal, the court may, on motion, order a sev- erance of a defendant who does not join in the appeal. Fagan v. Long, 30 Mo. 222. Severance without summons. — Where all the parties to an appeal, writ of error, or supersedeas are before the court, an order of severance may be made without a summons. Reno v. Davis, 4 Hen. & M. (Va.) 283. Substituted service. — Where one of the necessary parties to an appeal cannot be found within the jurisdiction of the court, an affidavit to that effect, by the other appel- lants, attached to the latter's petition for a Vol. II writ of error, is not a sufficient compliance with the requirement that notice and an op- portunity to be heard should be given to all parties appellant. In such a ease those de- siring to appeal should make diligent efforts to serve the proper notice upon the other party, and, in the event of their being unable to make such service as is required by law, to make a showing to the court having juris- diction of what they have done, and obtain an order for such substituted service as the court may think proper. Nelson v. Terri- tory, 1 Wash. 125, 23 Pac. 1013. Written notice. — Where there is more than one party to a judgment below, the mere alle- gation, by one of the appellants in his peti- tion, that the other failed to appear or re- fused to join, is not sufficient. There should be a written notice and due service, or the record should show his appearance and re- fusal, and that the court, on that ground, granted an appeal to the party who prayed for it, as to his own interest. Masterson v. Howard, 10 Wall. (U. S.) 416, 19 L. ed. 953. 15. Hargraves v. Lewis, 7 Ga. 110. See 2 Cent. Dig. tit. "Appeal and Error," § 1809. Effect upon appellants or plaintiffs in error. — After a summons and severance, or other equivalent proceedings, the parties who as- sign error will be treated as the only appel- lants or plaintiffs in error, and they will not be heard to complain of errors which are only prejudicial to the parties who refuse to join in the assignment. Millsap v. Stanley, 50 Ala. 319; Savage v. Walsh, 24 Ala. 293. Effect upon those not joining. — After a judgment of severance, a party who has re- fused to proceed is barred from prosecuting the same right in another appeal or writ of error. Saunders v. Saunders, 49 Miss. 327 ; Thompson v. Valarino, 2 How. Pr. (N. Y.) 259; Masterson v. Howard, 10 Wall. (U. S.) 416, 19 L. ed. 953 [citing 2 Rolle Abr. 488; 1 Tidd Pr. 129; 2 Tidd Pr. 1136, 1169]. In Indiana and Iowa, when notice of appeal by one defendant is served upon a co-defend- ant, the latter will be held to have joined in the appeal unless he appears and declines to do so (Cambria Iron Co. v. Union Trust Co., 154 Ind. 291, 56 N. E. 665, 48 L. R. A. 41 [de- nying rehearing in 55 N. E. 745] ; Engleken v. Webber, 47 Iowa 558) ; and unless he so appears, he cannot afterward appeal, and will be liable for his proportion of the costs (Barlow v. Scott, 12 Iowa 63). APPEAL AND ERROR 763 be joined in a writ of error or petition for appeal, and this must be done even though some of them may choose to abide by the judgment or decree sought to be modified or reversed. 16 (n) Parties Jointly Liable, or Haying Joint Lnterests—(a) Ln General. All parties against whom a joint judgment or decree is rendered must join in a writ of error or appeal, unless there has been a severance of the parties in interest effected by summons and severance, or by an equivalent proceeding appearing in the record." 16. Alabama. — Collins v. Baldwin, 109 Ala. 402, 19 So. 862; Griffin v. Wilson, 19 Ala. 27, discussing the effect of a discontinuance as to one defendant. Colorado. — Chapman v. Pocock, 7 Colo. 204, 3 Pae. 219. District of Columbia. — Godfrey v. Roessle, 5 App. Cas. (D. C.) 299. Florida.— Whitloek v. Willard, 18 Fla. 156. Georgia. — McNulty v. Pruden, 62 Ga. 135 ; Harrington v. Roberts, 7 Ga. 510. Illinois. — Christy v. Marmon, 163 111. 225, 45 N. E. 150; Bartlett v. Keating, 79 111. App. 642. Indiana.— Stults v. Gibler, 146 Ind. 501, 45 N. E. 340; Anderson Glass Co. v. Brakeman, (Ind. App. 1896) 45 N. E. 193. And see Zim- merman v. Ganmer, 152 Ind. 552, 53 N. E. 829. Kansas. — Buck v. Gallienne, 6 Kan. App. 919, 49 Pac. 686; Walker v. Blount, 5 Kan. App. 610, 49 Pac. 98. Kentucky. — Young v. Ditto, 2 J. J. Marsh. (Ky.) 72. Louisiana. — State v. Judge, 39 La. Ann. 1041, 6 So. 27 ; Pasley v. McConnell, 38 La. Ann. 470. Maryland. — Bouldin v. Bank of Commerce, 21 Md. 44 ; Lovejoy v. Irelan, 17 Md. 525, 79 Am. Dee. 667. Massachusetts. — Shirley v. Lunenburg, 11 Mass. 379. Nebraska. — Bates-Smith Invest. Co. v. Scott, 56 Nebr. 475, 76 N. W. 1063. New York. — Van Vleek v. Ballou, 40 N. Y. App. Div. 489, 58 N. Y. Suppl. 125 ; Sheridan v. Sheridan Electric Light Co., 38 Hun (N. Y.) 396 ; Cooperstown Bank v. Corlies, 1 Abb. Pr. N. S. (N. Y.) 412. Rhode Island. — Genearelle v. New York, etc., R. Co., 21 R. I. 216, 44 Atl. 174. Texas.— Hancock v. Metz, 15 Tex. 205; Yarnell v. Bennett, (Tex. Civ. App. 1901) 61 S. W. 153. Vermont. — Priest v. Hamilton, 2 Tyler (Vt.) 44. West Virginia. — Frank v. Zeigler, 46 W. Va. 614, 33 S. E. 761. Wisconsin. — Kaehler v. Halpin, 59 Wis. 40, 17 N. W. 868, joint contempt defendants. United States. — Nash v. Harshman, 149 U. S. 263, 13 S. Ct. 845, 37 L. ed. 727; An- drews v. National Foundry, etc., Works, 76 Fed. 166, 46 U. S. App. 281, 22 C. C. A. 110, 36 L. R. A. 139. See 2 Cent. Dig. tit. "Appeal and Error," § 1810 et seq. As to joinder of appeals see supra, I, I. As to misjoinder of appellants or plaintiffs in error see infra, VI, H, 2, a. As to nonjoinder of appellants or plaintiffs in error see infra, VI, H, 3. Errors affecting part of defendants only. — It is no ground of objection to a joinder of defendants as plaintiffs in error that some of the errors complained of affect one of the de- fendants only. Auld v. Kimberlin, 7 Kan. 601. New parties. — Where new parties are made by supplemental bill, they should be joined with the original parties in an appeal from an adverse decree. Toulmin v. Hamilton, 7 Ala. 362. Appeal from several decree. — Though a de- cree is several in its operation, an appeal therefrom should be in the name of all the parties against whom it has been rendered. Young v. Ditto, 2 J. J. Marsh. (Ky.) 72. 17. Alabama. — Decatur Branch Bank v. McCollum, 20 Ala. 280 ; Swift v. Hill, 1 Port. (Ala.) 277. Arkansas. — Miller v. Heard, 6 Ark. 73. Colorado. — Fuller v. Swan River Placer Co., 5 Colo. 123. Connecticut. — Phelps v. Ellsworth, 3 Day (Conn.) 144. Delaware. — Whitaker v. Parker, 2 Harr. (Del.) 413. Florida. — McCallum v. Culpepper, 41 Fla. 107, 26 So. 187; Jones v. Stewart, 37 Fla. 369, 19 So. 657. Georgia. — Harrington v. Roberts, 7 Ga. 510. Illinois.— Mclntyre v. Sholty, 139 111. 171, 29 N. E. 43; Kingsbury v. Sperry, 119 111. 279, 10 N. E. 8. Indiana. — Pearse v. Redman, 51 Ind. 539; Anheuser-Busch Brewing Assoc, v. George, 14 Ind. App. 1, 42 N. E. 245. Iowa. — Huner v. Reeves, 2 Greene (Iowa) 190. Kansas. — Goodwin v. Wyeth Hardware, etc., Co., (Kan. App. 1900) 62 Pac. 11; Miller v. Pickering, (Kan. App. 1900) 61 Pac. 975. Kentucky. — Riney v. Riney, 1 B. Mon. (Ky.) 69; Castleman v. Homes, 7 T. B. Mon. (Ky.) 591. Massachusetts. — Gay v. Richardson, 18 Pick. (Mass.) 417; Andrews v. Bosworth, 3 Mass. 223. Minnesota. — Babcock v. Sanborn, 3 Minn. 141. Mississippi. — Thomas v. Wyatt, 9 Sm. & M. (Miss.) 308; Preira v. Silva, 4 Sm. & M. (Miss.) 735. New York. — Jaqueth v. Jackson, 17 Wend. (N. Y.) 434. North Carolina. — Kelly v. Muse, 33 N. C. 182; Mastin v. Porter, 32 N. C. 1. But this is otherwise since N. C. Code (1883), § 547. Vol. II 764 APPEAL AND ERROR (b) Principal and Surety. Where a judgment or decree is rendered against both the principal and his sureties, they should all join in a writ of error or appeal. 18 b. Proceedings by One in Name of All. One of several co-parties aggrieved by a judgment or decree may, in the name of all and without the consent of his co-parties, sue out a writ of error or appeal. 19 C. Appellees, Respondents, or Defendants in Error — i. In General. All parties in favor of whom a judgment or decree has been rendered below, or who are interested in having such judgment or decree sustained, or whose interests will necessarily be affected by a reversal or modification of such judgment or decree, should be made appellees, respondents, or defendants in error. For lack of proper or necessary parties a petition or writ of error will be dismissed. 20 This Ohio. — Loewenstein V. Rheinstrom, 10 Ohio Dec. 587; Abair v. Merchants' Nat. Bank, 3 Ohio Cir. Ct. 290, 2 Ohio Cir. Dec. 165. Pennsylvania. — Fotterall v. Floyd, 6 Serg. & R. (Pa.) 315. Rhode Island. — Curry v. Stokes, 12 R. I. 52. Tennessee. — Barksdale v. Butler, 6 Lea (Tenn.) 450; Garrett v. Cocke, 8 Baxt. (Term.) 274. Wisconsin. — Doty e. Strong, 1 Pinn. (Wis.) 165. United States. — Feibelman v. Packard, 108 U. S. 14, 1 S. Ct. 138, 27 L. ed. 634; Simpson V. Greeley, 20 Wall. (U. S.) 152, 22 L. ed. 338. See 2 Cent. Dig. tit. "Appeal and Error," § 1811. In a suit by partners for damages for the unlawful seizure of firm property, their in- terest is joint, and they should join in the ap- peal from an adverse decree. Feibelman v. Packard, 108 U. S. 14, 1 S. Ct. 138, 27 L. ed. 634. Joint verdict upon separate pleas. — In an action, whether on contract or in tort, against two or more, if they plead separately, but the jury finds a verdict and assesses damages against them jointly, one cannot appeal with- out the other. Smith v. Cunningham, 30 X. C. 460; Donnell v. Shields, 30 N. C. 371; Dunns v. Jones, 20 X. C. 154. But either party can now appeal. Clark's Code Civ. Proc. N. C. (1900), § 547. Tenants in common may join in an appeal. Sangamon County v. Brown, 13 111. 207. 18. Eastland v. Jones, Minor (Ala.) 275; Thomas i. Wyatt, 9 Sm. & M. (Miss.) 308; Humes v. Chattanooga Third Nat. Bank, 54 Fed. 917, 13 U. S. App. 86, 4 C. C. A. 668. See 2 Cent. Dig. tit. "Appeal and Error," § 1812. 19. Alabama. — Vaughan v. Higgins, 68 Ala. 546; Deslonde v. Carter, 28 Ala. 541. Florida. — Nash v. Hayeraft, 34 Fla. 449, 16 So. 324; Standley v. Jaffray, 13 Fla. 596. Illinois. — Willenborg v. Murphy, 40 111. 46; Moore v. Capps, 9 111. 315. Xew Jersey. — Van Buskirk v. Hoboken, etc., E. Co., 31 N. J. L. 367; Pharo v. Parker, 21 N. J. L. 332. Tennessee. — Patterson v. Butterworth, 4 Yerg. (Tenn.) 157; Stump v. Shephard, Cooke (Tenn.) 190. Vol. II Wisconsin. — Doty v. Strong, 1 Pinn. (Wis.) 165. See 2 Cent. Dig. tit. "Appeal and Error," § 1813. Effect of appeal by one in name of all. — Where one of several co-parties appeals in the name of all, and gives a bond superseding the whole judgment, this will not discharge from their liability those not joining with him in the prosecution of the appeal. They are necessarily co-parties in order to the due iden- tification of the record; but, unless they join in the prosecution of the proceeding, the orig- inal judgment or decree will remain in force as to them. Duncan v. Hargrove, 22 Ala. 150. See also Webster v. Yancy, Minor (Ala.) 183. And compare Hammond v. People, 164 111. 455. 46 N. E. 796, construing 111. Prac. Act, § 70. 20. AZaoama.— Clark v. Knox, 65 Ala. 401; Tombeckbee Bank i. Freeman, Minor (Ala.) 2S5. California. — Vincent i: Collins, 122 Cal. 3S7, 55 Pac. 129; Hibernia Sav., etc.. Soc. v. Lewis, 111 Cal. 519. 44 Pac. 175. Compare MeKeany v. Black, (Cal. 1896) 46 Pac. 381. Colorado. — Standley v. Hendrie, etc., Mfg. Co., 25 Colo. 376, 55 Pac. 723. District of Columbia. — Slater v. Hamaeher, 15 App. Cas. (D. C.) 294. Georgia. — Tiner v. Carter, 110 Ga. 285, 34 S. E. 567; Inman v. Estes, 104 Ga. 645, 30 S. E. 800. Illinois. — State Bank v. Wilson, 8 111. 89. Indiana. — Capital Nat. Bank r. Reid. 154 Ind. 54, 55 N. E. 1023; Bozeman r. Cale, 139 Ind. 187, 35 N. E. 828. Ioica. — Mclntyre v. Clemans, (Iowa 1899) 79 N. W. 369. Kansas. — Miles v. Lackey, (Kan. 1901) 63 Pac. 738; Leverton v. Kneisel, (Kan. App. 1901) 63 Pac. 291; Sheridan v. Snyder, 4 Kan. App. 214, 45 Pac. 1007 ; Foreman v. Ward, 2 Kan. App. 739, 43 Pac. 1139. Kentucky. — Wilson's Petition, 21 Kv. L. Rep. 231, 51 S. W. 149 ; Mitchell v. Tyler, 20 Ky. L. Rep. 1249, 49 S. W. 422. Louisiana. — Andrus v. His Creditors, 46 La. Ann. 1351, 16 So. 215; Murphy r. Fac- tor's, etc., Ins. Co., 36 La. Ann. 953. Minnesota. — Keils v. Nelson-Tenney Co., 74 Minn. 8, 76 X. W. 790. yebraska. — See Richardson v. Thompson, 59 Nebr. 299, 80 N. W. 909 ; Kuhl v. Fierce County, 44 Nebr. 584, 62 X. W. 1066. APPEAL AND ERROR 765 rule has been applied to all intervening parties to a suit; 21 to all members of a partnership, where the decree or judgment affects the firm or a part of its members as such j 22 to debtors, creditors, and claimants ; M to garnishees, on appeals in garnish- ment proceedings ; 34 to parties in default, or who have confessed judgment in the court below; 25 to parties in a representative or official capacity, 26 such as Ohio. — Wangerien v. Aspell, 47 Ohio St. 250, 24 N. E. 405; Smetters v. Rainey, 13 Ohio St. 568. Texas. — Cates v. Sparkman, 66 Tex. 155, 18 S. W. 446; Thompson v. Pine, 55 Tex. 427. Wisconsin. — Kemp v. Hein, 48 Wis. 32, 3 N. W. 831. United States. — Kidder v. Fidelity Ins., etc., Co., 105 Fed. 821 ; Railroad Equipment Co. v. Southern R. Co., 92 Fed. 541, 34 C. C. A. 519. See 2 Cent. Dig. tit. "Appeal and Error," § 1814 et seq. 21. All intervening parties. — Swearingen v. McDaniel, 12 Rob. (La.) 203; Kellogg v. Clark, 15 La. 362; Hayden v. Mitchell, (Tex. Civ. App. 1893) 24 S. W. 1085; Fairfield v. Binnian, 13 Wash. 1, 42 Pae. 632; and 2 Cent. Dig. tit. "Appeal and Error," § 1824. See also, generally, Interpleader. But where the intervener claims only a part of the property in dispute, and the appeal re- lates to the remainder of the property only, such intervener is not a necessary party. Gibson v. White, 4 La. Ann. 14. 22. Partners. — Crosthwait v. James, 95 Ga. 570, 20 S. E. 494 ; Hammitt v. Payne, 27 La. Ann. 100; Tupery v. Lafitte, 19 La. Ann. 296; and see 2 Cent. Dig. tit. "Appeal and Error," § 1831. 23. Debtors, creditors, and claimants. — Georgia. — Davis v. Peel, 97 Ga. 342, 22 S. E. 525 (special lien) ; Baker v. Thompson, 78 Ga. 742, 4 S. E. 107 (marshaling assets). Indiana. — Garside v. Wolf, 135 Ind. 42, 34 X. E. 810, foreclosure. Kansas. — Kellam v. Manspeaker, 61 Kan. 857, 58 Pac. 990 (creditor's suit) ; Van Laer v. Kansas Triphammer Brick Works, 56 Kan. 545, 43 Pac. 1134 (mechanic's lien); Hyde Park Invest. Co. v. Atchison First Nat. Bank, 56 Kan. 49, 42 Pac. 321 (foreclosure) ; Hodg- son v. Billson, 11 Kan. 357 (joint judgment creditors). Kentucky. — Murphy v. O'Reiley, 78 Ky. 263 (creditor's suit) ; Barnett v. Feichheimer, 5 Ky. L. Rep. 183 (order appointing re- ceiver ) . Louisiana. — Treadwell's Succession, 38 La. Ann. 260; Taylor v. Calloway, 14 La. Ann. 688 (intervention) ; Elder v. Rogers, 11 La. Ann. 606 (garnishment) ; Garcia v. Their Creditors, 3 Rob. (La.) 436 (distribution). 'New York. — Whiteside v. Prendergast, 2 Barb. Ch. (N. Y.) 471, order filing receiver's bond nunc pro tunc. Ohio.— Veach v. Kerr, 41 Ohio St. 179; Buckingham v. Commercial Bank, 21 Ohio St. 131 (creditors' suits). Texas. — Blackman v. Harry, (Tex. Civ. App. 1896) 35 S. W. 290, foreclosure. Washington. — Badebaugh V. Tacoma, etc., R. Co., 8 Wash. 570, 36 Pac. 460, receiver- ship. United States. — -Gray v. Havemeyer, 53 Fed. 174, 10 U. S. App. 456, 3 C. C. A. 497, foreclosure and mechanic's lien. See 2 Cent. Dig. tit. "Appeal and Error," § 1822. 24. Garnishees. — Juilliard v. May, 130 111. 87, 22 N. E. 477 ; Yerkes v. McGuire, 54 Kan. 614, 38 Pac. 781; Gregg v. Baldwin, (Kan. App. 1900) 62 Pac. 727; Tuthill v. Moulton, 9 Kan. App. 434, 58 Pac. 1031; Reese v. Couyers, 16 La. Ann. 39; Copley v. Snow, 3 La. Ann. 623; Greenman v. Melbye, 78 Minn. 361, 81 N. W. 21. Compare Barner v. Gor- den, 16 La. Ann. 324. See 2 Cent. Dig. tit. "Appeal and Error," § 1823; and, generally, Garnishment. Joinder of garnishees. — Under proceedings against the same defendant, each of five garn- ishees answered that he owed defendant noth- ing, and asked to be allowed a certain sum as expenses of answering. A joint judgment was rendered in their favor against plaintiff for the aggregate amount of their claims. It was held that a writ of error by plaintiff would not be dismissed on the ground that the case of each garnishee was separate and should have been brought up by a separate writ of error. Suiter v. Brooks, 74 Ga. 401. 25. Parties in default or who have confessed judgment. — California. — Matter of Castle Dome Min., etc., Co., 79 Cal. 246, 21 Pac. 746. Florida. — Megin v. Filor, 4 Fla. 203. Georgia. — Bower v. Thomas, 69 Ga. 47. Indiana. — Midland R. Co. v. St. Clair, 144 Ind. 363. 42 N. E. 214. Louisiana. — King v. Atkins, 33 La. Ann. 1057. See 2 Cent. Dig. tit. "Appeal and Error," § 1819. , But where such parties never had any inter- est in the subject-matter in dispute, or their interest is of such a character as to be unaf- fected by the result of the proceeding, they are not necessary to the appellate jurisdic- tion. Bostwick v. Blair, 2 Kan. App. 89, 43 Pac. 297; Toledo v. Schulters, 11 Ohio Cir. Ct. 528, 5 Ohio Cir. Dec. 269. Presumption of lack of interest. — In Phelps, etc., Windmill Co. v. Baker, 49 Kan. 434, 30 Pac. 472, it was held that, on appeal by plaintiff in an action to foreclose a me- chanic's lien, where it appeared that the par- ties made defendants by him as having an interest in the land failed to appear, though properly served, it would be presumed that the court found that such parties had no in- terest in the land, and that consequently they were not necessary parties to an appeal. 26. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 1825 et seq. Vol. II 766 APPEAL AND ERROR attorneys, 27 guardians, 28 personal representatives, 29 public officers, 30 or trustees : 31 to purchasers at judicial sales ; K to sureties ; ffi to states and political divisions ; u and to vendors, purchasers, and warrantors. 35 But parties who have no interests 27. South Carolina R. Co. v. Moore, 28 6a. 398, 73 Am. Dee. 778; Gaines' Succession, 46, La. Ann. 695, 15 So. 80; Peck v. Peck, 23 Hun (N. Y.) 312; Campbell v. Western, 3 Paige (N. Y.) 124. 28. Whitaker v. Patton, 1 Port. (Ala.) 9 (guardian ad litem) ; Parks v. Honeywell, 55 Kan. 615, 40 Pae. 896 (guardian) ; Moodie v. Cambot, 14 La. Ann. 153 (tutor) ; Andat v. Gilly, 12 Rob. (La.) 323 (curator and tu- trix ) . 29. Miltenberger v. Pipes, 23 La. Ann. 267; Embley v. Hunt, 28 N. J. Eq. 421 ; McAllister v. Godbold, (Tex. Civ. App. 1894) 29 S. W. 417 ; Taylor v. Savage, 2 How. (U. S.) 395, 11 L. ed. 313, 1 How. (U. S.) 282, 11 L. ed. 132. 30. Prestridge v. Officers of Ct., 42 Ala. 405; Eschert v. Harrison, 29 La. Ann. 860. Clerk of court— Cox v. Rees, 16 La. 109. Commissioner. — McKee v. Hann, 9 Dana (Ky.) 526. County treasurer. — Soukup v. Union Invest. Co., 84 Iowa 448, 51 N. W. 167, 35 Am. St. Rep. 317. Receiver. — Scannell v. Felton, 57 Kan. 468, 46 Pac. 948. Sheriff .— Loring v. Wittich, 16 Ela. 495; Moore v. Brown, 81 Ga. 10, 6 S. E. 833; White v. Bird, 20 La. Ann. 282. 31. Allen v. Cravens, 68 Ga. 554; Long- Bell Lumber Co. v. Haines, 3 Kan. App. 316, 45 Pac. 97; Collins v. Marshall, 10 Rob. (La.) 112 (assignee in bankruptcy) ; Renick v. Western Union Bank, 13 Ohio 298, 42 Am. Dee. 203 (trustees of defunct corporation) ; Hammond v. Mays, 45 Tex. 486. 32. A purchaser at a judicial sale is a proper and necessary party, appellee, or de- fendant in error, to any appellate proceedings relating to the property sold, or to the valid- ity of the proceedings under which the sale was held. Alabama. — Thompson v. Campbell, 52 Ala. 583. Compare Hoard v. Hoard, 41 Ala. 590. California. — Hibernia Sav., etc., Soc. v. Lewis, 111 Cal. 519, 44 Pac. 175. Illinois. — Sprague v. Hards, 17 111. App. 104. Kansas. — Kellam v. Manspeaker, 61 Kan. 857, 58 Pac. 990. Kentucky. — McKee v. Hann, 9 Dana (Ky.) 526 ; Sanders v. Wade, 17 Ky. L. Rep. 205, 30 S. W. 656. Neio York. — Barnes v. Stoughton, 6 Hun (N. Y.) 254. See 2 Cent. Dig. tit. "Appeal and Error," § 1832. Devisee of deceased purchaser. — Where an estate was sold on the petition of infant own- ers, in a writ of error by them to reverse the decree, the devisee of the deceased purchaser and the commissioner who sold the estate and holds the proceeds are the only necessary parties defendant. McKee v. Hann, 9 Dana (Ky.) 526. Purchase under an irregular decree. — Where Vol. II a person bought mortgaged premises sold un- der an irregular decree, on a writ of error to reverse the decree and sale it was held that the court could not, where the purchaser was not a party to the record, decide on the valid- ity of the sale. Crocket v. Hanna, 6 J. J. Marsh. (Ky.) 335. See also Coger v. Coger, 2 Dana (Ky.) 270. 33. Wherever the rights and interests of a surety may be affected by the result of an ap- peal or writ of error, he is a proper and necessary party to the proceedings on review, but, where the surety has no interest in the result, he should not be made a party. Alabama. — De Sylva v. Henry, 3 Port. (Ala.) 132. Arkansas. — Long v. State, 13 Ark. 289. Iowa. — Fisher v. Chaffee, 96 Iowa 15, 64 N. W. 662. Kansas. — Bonebrake v. Aetna L. Ins. Co., 3 Kan. App. 708, 41 Pac. 67. Louisiana. — Tilton v. Vignes, 33 La. Ann. 240; Battalora v. Erath, 25 La. Ann. 318. Ohio.— King v. Bell, 36 Ohio St. 460. Texas. — Lange v. Tritze, (Tex. Civ. App. 1899) 53 S. W. 583; Wright v. Red River County Bank, 2 Tex. Civ. App. 97, 20 S. W. 879. Washington. — Cline r. Mitchell, 1 Wash. 24, 23 Pac. 1013. Compare Thomas v. Price, 88 Ga. 533, 15 S. E. 11 ; and see also 2 Cent. Dig. tit. "Ap- peal and Error," § 1833. 34. Where a state or a political division is adverse in interest to the party aggrieved by a judgment or decree, it should be made an appellee or defendant in error to proceedings on review. Weissinger v. State, 11 Ala. 540; Pearson v. Yewdall, 95 U. S. 294, 24 L. ed. 436. See 2 Cent. Dig. tit. "Appeal and Error," § 1834. Actions by state on relation of individual. — In Rogers v. State, (lnd. 1901) 59 N. E. 334, it was held that, in an action by the state on the relation of an individual, it is not neces- sary or proper to make any party other than the state an appellee on an appeal from a judgment in its favor. Under Sandels & H. Dig. Ark. (1894), § 1270, providing that, where appeals are prosecuted in the circuit court or supreme court in cases in which the county is interested, the judge of the county court shall defend the same, it is not error for the circuit court to refuse to make the county a party in a case in which the county is interested, on an appeal to that court from an order of the county judge, since the judge could defend his order on appeal by virtue of the statute without the county be- ing formally made a party to the proceedings. Cleburne County v. Morton, (Ark. 1900) 60 S. W. 307. 35. Where vendors, vendees, or warrantors are made parties below, they should also, in all cases where a reversal or modification will APPEAL AND ERROR 767 to maintain, 36 or persons who are not parties below, although interested in the judgment as rendered, 37 have been held not to be proper or necessary parties within the rule. adversely affect their interests, be made par- ties, appellee or defendant in error, in pro- ceedings to review the judgment of the lower court. Richardson v. Great Western Mfg. Co., 3 Kan. App. 445, 43 Pac. 809; Lee v. Campbell, 8 Ky. L. Rep. 421, 1 S. W. 873; Baird v. Russ, 33 La. Ann. 920. See 2 Cent. Dig. tit. "Appeal and Error," § 1835. The vendor of a mortgagor, who has been called in as warrantor in an action to fore- close the mortgage, is not a necessary party to an appeal from a judgment enforcing the mortgage. Rachel v. Rachel, 11 La. Ann. 687. Where a warrantor is cited by a defend- ant, the plaintiff, on appeal from the judg- ment against him, should cite such warrantor as well as defendant. Hutchinson v. John- son, 19 La. Ann. 141; Long v. Barnes, 13 La. Ann. 392; Nouvet v. Armant, 12 La. Ann. 71 ; Hewson v. Creswell, 10 La. Ann. 232. But, when there is an agreement of record that the case shall first be tried between the original parties, warrantors need not be made parties. Beard v. Poydras, 13 La. 82. Abandonment of right against warrantor. — An appeal will not be dismissed, because the warrantor has not been made a party to the appeal, where the defendant has abandoned all right of appeal against his warrantor. Scuddy v. Shaffer, 14 La. Ann. 569. 36. Mere nominal parties, or parties who have no interests that can be affected by the judgment on appeal, are neither necessary nor proper parties to an appeal or writ of error. Alabama. — Thompson v. Campbell, 52 Ala. 583; Creighton v. Paine, 2 Ala. 158. Florida. — Guarantee Trust, etc., Co. v. Buddington, 23 Fla. 514, 2 So. 885. Indiana. — Clements v. Davis, 155 Ind. 624, 57 N. E. 905; Mueller v. Stinesville, etc., Stone Co., 154 Ind. 230, 56 N. E. 222; Hogan v. Robinson, 94 Ind. 138. Iowa. — Brundage v. Cheneworth, 101 Iowa 256, 70 N. W. 211, 63 Am. St. Rep. 382. Kansas. — Washburn v. Thomas, 8 Kan. App. 856, 56 Pac. 539. Kentucky. — Francis v. Burnett, 7 Ky. L. Rep. 715. Louisiana. — Gaines' Succession, 46 La. Ann. 695, 15 So. 80; Hart's Succession, 25 La. Ann. 583. Maryland. — Bouldin V. Bank of Commerce, 21 Md. 44. Ohio. — Renick v. Western Union Bank, 15 Ohio 298, 42 Am. Dec. 203, defunct corpora- tion. Texas. — Wilson v. Trueheart, 14 Tex. 31. United States. — Basket v. Hassell, 107 U. S. 602, 2 S. Ct. 415, 27 L. ed. 500; Edgell v. Felder, 99 Fed. 324, 39 C. C. A. 540. See 2 Cent. Dig. tit. "Appeal and Error," § 1815. Remainder-men after life-interest. — In Phil- lips v. Phillips, 2 Ky. L. Rep. 217, it was heli that remainder-men, who were the children of mortgagors having a life-interest were not affected by the judgment foreclosing the mort- gage, and consequently, were not necessary parties to an appeal from a judgment order- ing a sale of the land. 37. The rule is limited in its operation to the parties to the suit, and does not extend to third persons interested in the judgment as rendered. Alabama. — Roberts v. Taylor, 4 Port. (Ala.) 421. California. — Herrimann v. Menzies, 115 Cal. 16, 44 Pac. 660, 46 Pac. 730, 56 Am. St. Rep. 81, 35 L. R. A. 318. Georgia. — See Epping v. Aiken, 71 Ga. 682. Indiana. — McAllister v. State, 81 Ind. 256. Kansas. — Barton v. Hanauer, 4 Kan. App. 531, 44 Pac. 1007. Kentucky. — Smith v. Craft, (Ky. 1900) 58 S. W. 500; Broseke v. Pendleton Bldg. Assoc, 7 Ky. L. Rep. 660. Louisiana. — Tyson's Succession, 21 La. Ann. 117; Patten v. Powell, 16 La. Ann. '128. New York. — Gardner v. Gardner, 5 Paige (N. Y.) 170. United States. — Payne v. Niles, 20 How. (U. S.) 219, 15 L. ed. 895; Davenport v. Fletcher, 16 How. (U. S.) 142, 14 L. ed. 879. See 2 Cent. Dig. tit. "Appeal and Error," § 1820. However the orders of the court in the case are entitled, none are parties in the appellate court to a complainant's appeal from a dis- missal of his bill except those who are parties below. Lyle v. Bradford, 7 T. B. Mon. (Ky.) 111. Assignees. — The assignment of an interest in a judgment or decree does not make the assignee a party to the action so as to entitle him to service of notice of appeal from the decree or judgment. Littleton Sav. Bank v. Osceola Land Co., 76 Iowa 660, 39 N. W. 201 ; Medyaski v. Theiss, 36 Oreg. 397, 59 Pac. 871. But it has been held that where a judg- ment is transferred according to law, and an execution is levied on the property, and an- other person interposes a claim, the assignee is the proper party to a writ of error. Slay- ton v. Jones, 15 Ga. 89. See also infra, VI, F. In surrogate proceedings all the parties in- terested in sustaining the decision of the sur- rogate should be made parties to a petition of appeal therefrom, even though such parties did not appear before the surrogate, unless it appears that they had notice to appear. Gilchrist v. Rea, 9 Paige (N. Y.) 66. Per- sons, not parties to proceedings before a sur- rogate, who have been awarded sums by his decree, are rightly made parties respondent in an appeal to the supreme court. Willcox v. Smith, 26 Barb. (N. Y.) 316. On appeals from orders disposing of motions for new trials, to quash executions and the like, only the parties to the motion are neces- sary parties to the appellate proceedings. Vol. II 768 APPEAL AND ERROR 2. In Proceedings by Interveners. In proceedings for review . by an inter- vener, or other indirect party, all the parties to the action, both plaintiff and defendant, should usually be made appellees or defendants in error. 88 3. In Separate Proceedings by One or More Co-Parties. Where one or more co-parties desire to appeal or sue out a writ of error, they should, as a general rule, make their fellows co-appellants or plaintiffs in error. 89 But, in some juris- dictions, if the co-parties decline to join in the appeal or writ, it is permissible for those appealing to join them in the proceedings as appellees or defendants in error, and, properly, this course should be pursued where the interests of the parties are adverse. 40 4. Where Judgment Is Favorable to One or More Co-Defendants. As a general rule, where a judgment is favorable to one or more co-defendants, and adverse as to others, the latter should be joined in an appeal or writ of error brought by plaintiff to review the action in favor of the former. 41 Herriman v. Menzies, 115 Cal. 16, 44 Pao. 660, 46 Pac. 730, 56 Am. St. Rep. 81, 35 L. R. A. 318; McAllister v. State, 81 Ind. 256. Persons as to whom action has been dis- missed. — Where an action has been dismissed in the lower court as to some of the defend- ants before trial, they are not necessary par- ties. Hogan v. Robinson, 94 Ind. 138; Masters v. Martin, 3 B. Mon. (Ky.) 176; Watson v. Sawyer, 12 Wash. 35, 40 Pac. 413, 41 Pae. 43. See also Casey v. Oakes, 13 Wash. 38, 42 Pac. 621. Persons as to whom decision has been had. — Where an action has been decided as to some of the parties, and their rights fully ad- judicated, they are not parties to a judgment afterward rendered therein disposing of the claims of the remaining parties. Doyle v. MeLeod, 4 Wash. 732, 31 Pac. 96. 38. Kansas. — Frankfort First Nat. Bank v. Westmoreland First Nat. Bank, 1 Kan. App. 159, 41 Pac. 976. Kentucky. — Eadly v. Shower, 3 Ky. L. Pep. 329. Louisiana. — Guilbeau v. Cormier, 21 La. Ann. 629; Allen v. Rodgers, 16 La. Ann. 372. Texas. — Greenwade v. Smith, 57 Tex. 195. United States. — Davis v. Mercantile Trust Co., 152 U. S. 590, 14 S. Ct. 693, 38 L. ed. 563. See 2 Cent. Dig. tit. "Appeal and Error," § 1818. But where the interest of any party can in no wise be affected by the result of the pro- ceedings on review, it is unnecessary to join him. What Cheer v. Hines, 86 Iowa 231, 53 N. W. 126; Hanriek v. Patrick, 119 U. S. 156, 7 S. Ct. 147, 30 L. ed. 396. This latter was a ease of trespass to try title to real es- tate. Third persons intervened, setting up a claim of title derived through plaintiffs. There was a judgment in favor of plaintiffs and against interveners and defendants, and it was held that, although such judgment was joint in form, it was not so in substance, and that, consequently, the interveners were not obliged to join defendants in their writ of error. A third party, on appealing from a final judgment on the ground of his liability to contribute, must cite plaintiff and defendant as appellees; otherwise the appeal will be dis- missed for want of proper parties. Guilbeau v. Cormier, 21 La. Ann. 629. Vol II 39. See supra, VI, B, 2, a. 40. Indiana. — Clear Creek Tp. v. Rittger, 12 Ind. App. 355, 39 N. E. 1052. Kansas. — Marburg v. Douglass, (Kan. 1896) 45 Pac. 599; Long-Bell Lumber Co. v. Haines, 3 Kan. App. 316, 45 Pae. 97. Louisiana. — Broussard v. Guidry, 21 La. Ann. 618; Noble v. Logan, 21 La. Ann. 515. Nebraska. — Polk v. Covell, 43 Nebr. 884, 62 N. W. 240; Andres v. Kridler, 42 Nebr. 784, 60 N. W. 1014. Ohio. — Jones v. Marsh, 30 Ohio St. 20; Smetters v. Rainey, 14 Ohio St. 287. See also Rider v. Fritchey, 49 Ohio St. 285, 30 N. E. 692, 15 L. R. A. 513. Texas. — Simmons v. Fisher, 46 Tex. 126. Wyoming. — Johnston v. Little Horse Creek Irrigating Co., 4 Wyo. 164, 33 Pac. 22. See 2 Cent. Dig. tit. " Appeal and Error," § 1817. 41. Alabama. — Duncan v. Hargrove, 22 Ala. 150. Arkansas. — State Bank v. Kerby, 9 Ark. 345. Illinois. — Bradley v. Gilbert, 155 111. 154, 39 N. E. 593 la/firming 46 111. App. 623]. Louisiana. — Bourbon v. Castera, 8 La. Ann. 383. Michigan. — Mills v. Bunce, 26 Mich. 101. Ohio. — Means v. Clark, 7 Ohio Cir. Ct. 276. Pennsylvania. — Campbell v. Floyd, 153 Pa. St. 84, 32 Wkly. Notes Cas. (Pa.) 1, 25 Atl. 1033: Texas. — Cates v. Sparkman, 66 Tex. 155, 18 S. W. 446; Barnard v. Tarleton, 57 Tex. 402. Compare Egan r. Esbrada, (Ariz. 1899) 56 Pac. 721. See 2 Cent. Dig. tit. "Appeal and Error" § 1816. Similarly, where the unsuccessful defend- ants appeal from a judgment or decree un- favorable to them, they should join their suc- cessful co-parties as appellees or defendants in error. Humphrey v. Hunt, 9 Okla. 196, 59 Pac. 971. Distinct interests. — But where the result of the proceedings on review can in no wise affect the rights and liabilities of those against whom judgment has been rendered, they are not necessary parties. Fouche v. Harison, 78 Ga. 359, 3 S. E. 330; McGaughey v. Latham, 63 Ga. 67 ; Wilson v. Stewart, 63 Ind. 294 ; Payne V. Raubinek, 82 Iowa 587, 48 APPEAL AND ERROR T69 D. Death of Party — 1. Before Appeal or Writ of Error — a. Effect in General. Where one of the parties to a suit or action dies before the taking of an appeal or writ of error, if the cause of action survives, the appeal or writ should be prosecuted by or against the legal representatives of the decedent. 43 b. Of Sole Appellant op Plaintiff in Error. At common law, in both personal and real actions, when plaintiff in error dies before the assignment of error the writ of error will abate. 43 The modern practice generally authorized by statute is that, where a sole appellant or plaintiff in error dies before taking his appeal or writ of error, the appeal or writ may be prosecuted in the name of the heirs or legal representatives of the deceased. 44 N. W. 995 ; Merrill v. Packer, 80 Iowa 542, 45 N. W. 1076; Elam v. Barr, 14 La. Ann. 671; Dow v. Hardy, 13 La. Ann. 441. Severance in defense. — In Gordon v. Dreux, 6 Rob. (La.) 399, defendants sued as maker and indorser severed in their defense; there was judgment in favor of plaintiff against the maker, but against him as to the indorser, and he appealed from the latter alone. On a motion to dismiss on th" ground that the maker was not a party, it was held that the defendants having severed in their defense, and their interests being distinct, it was un- necessary to cite the party who had no inter- est in the matter in controversy between hia •co-defendant and plaintiff. Where an action against two defendants is dismissed as to one upon demurrer, the judg- ment being final in its nature, plaintiff may take the ease up on writ of error without making the other defendant a party thereto, although the action is still pending in the court below against them. MeGaughey v. Latham, 63 Ga. 67. See also Wilson v. Stew- art, 63 Ind. 294. Similarly, where a petition has been filed against several defendants, and a separate demurrer thereto by one or more -of them is overruled, the remaining defend- ants need not be made parties to, or be served with, a copy of a bill of exceptions assigning as error the overruling of the demurrer. Jones v. Hurst, 91 Ga. 338, 17 S. E. 635. 42. See Abatement and Revival, III, and the following cases: California. — Sanchez v. Roach, 5 Cal. 248. Georgia. — Neves v. Scott, 15 Ga. 510. See also Rogers v. Smith, 63 Ga. 172. Indiana. — Liming v. Nesbitt, 66 Ind. 602. But see Taylor v. Elliott, 52 Ind. 588. Kansas. — Bridge v. Main St. Hotel Co., (Kan. 1900) 61 Pac. 754; Kuhnert v. Conde, 39 Kan. 265, 18 Pac. 193. Louisiana. — Myers v. Brigham, 33 La. Ann. 1013; Kerr v. Hays, 9 La. Ann. 241. Maryland. — Harryman v. Harryman, 49 Md. 67. Missouri. — Murphy v. Redmond, 46 Mo. 317. Ohio.— Welton v. Williams, 28 Ohio St. 472; Keek v. Jenney, 1 Cleve. L. Rep. 90, 4 Ohio Dec. 173. Tennessee. — Daniel v. East Tennessee Coal Co., 105 Tenn. 470, 58 S. W. 859; Smith v. Cunningham, 2 Tenn. Ch. 565. Compare 5 Heisk. (Tenn.) 770, index, tit. Appeal 1. Texas. — Bissell v. Lavaca, 6 Tex. 54. Com- pare Conn v. Hogan, 93 Tex. 334, 55 S. W. 323, a case of death before appeal from judg- ment in appellate court. f49] Virginia. — Compare Booth v. Dotson, 93 Va. 233, 24 S. E. 935, construing Va. Code (1887), §§ 3305, 3307. United States. — But see State v. Demarest, 110 U. S. 400, 4 S. Ct. 25, 28 L. ed. 191. See 2 Cent. Dig. tit. " Appeal and Error,'' § 1842. As to death of party as affecting time for taking appeal see infra, VII, A, 1, a, (iv). As to objections to revival on death of party see supra, V, B, 1, t. In divorce proceedings an appeal lies from a decree entered after the death of one party, though it was apparently entered in the party's lifetime, and thus is valid on its face. Wilson v. Wilson, 73 Mich. 620, 41 N. W. 817. 43. Lillard v. Fields, 7 J. J. Marsh. (Ky.) 148; Booth v. Dotson, 93 Va. 233, 24 S. E. 935 [disapproving Buckner v. Blair, 2 Munf. (Va.) 336]; Green v. Watkins, 6 Wheat. (U. S.) 260, 5 L. ed. 256; and see also 2 Cent. Dig. tit. " Appeal and Error," § 1843. 44. Alabama. — Armstrong v. Adams, 6 Ala. 751; Ex p. Norris, 2 Ala. 385. California. — Sanch z v. Roach, 5 Cal. 248. Georgia. — Neves v. Scott, 15 Ga. 510. Indiana.— Moore v. Slack, 140 Ind. 38, 39 N. E. 237 ; Liming v. Nesbitt, 66 Ind. 602. Kansas. — Kuhnert v. Conde, 39 Kan. 265, 18 Pac. 193. Louisiana. — Kerr v. Hays, 9 La. Ann. 241. Maryland. — Owings v. Owings, 3 Gill & J. (Md.) 1. Missouri. — Murphy v. Redmond, 46 Mo. 317. Ohio. — Kennard v. Kennard, 35 Ohio St. 660. Pennsylvania. — Ulshafer v. Stewart, 71 Pa. St. 170 [disapproving Boas v. Heister, 3 Serg. & R. (Pa.) 271]. Virginia. — Booth v. Dotson, 93 Va. 233, 24 S. E. 935 [disapproving Buckner v. Blair, 2 Munf. (Va.) 336]. Canada. — Muirhead v. Shirreff, 14 Can. Supreme Ct. 735. See 2 Cent. Dig. tit. "Appeal and Error," § 1843. Waiver of objection. — A judgment on ap- peal in the name of a deceased plaintiff, ren- dered without objection on the part of ap- pellee, is not a nullity, though it should prop- erly have been prosecuted in the name of the legal representative of the deceased. Spald- ing v. Wathen, 7 Bush (Ky.) 659. Where, in an action ex delicto, the plaintiff dies before appeal, the action will abate, and no appeal will lie in favor of his personal Vol. II 770 APPEAL AND ERROR e. Of One of Several Appellants op Plaintiffs in Error. While, at common law, a writ of error sued out by two or more plaintiffs in error abated upon the death of either plaintiff before errors assigned, 45 the better rule now seems to be that, where one of several appellants or plaintiffs in error dies before taking his appeal or writ, the cause may be prosecuted in the name of his legal representatives. 46 d. Of Appellee or Defendant in Error. An appeal or writ of error will not abate by reason of the death of appellee or defendant in error before the taking of the appeal or writ. 47 The appeal or writ should, however, be prosecuted in the names of the legal representatives of the deceased. 48 , 2. Pending Appeal or Writ of Error — a. Effect in General. An appeal or writ of error will not abate on the death of a party while the proceedings are pending in the appellate court. 49 In such a case the executor or administrator of the decedent should, by the practice which obtains in some jurisdictions, be made a party to prosecute or defend the suit. 50 There are jurisdictions, however, in which representatives. Stout v. Indianapolis, etc., R. Co., 41 Ind. 149. 45. Boas v. Heister, 3 Serg. & R. (Pa.) 271; Sappington v. Philips, 1 Yerg. (Tenn.) 105; Howard v. Pitt, 1 Salk. 261; Pennoyer v. Bruce, 1 Ld. Raym. 244; 2 Tidd Pr. 1134. 46. Morrow v. Taggart, 45 Ala. 293; Bran- ham v. Johnson, 62 Ind. 259; Sappington v. Philips, 1 Yerg. (Tenn.) 105; Sappington v. Crockett, 1 Yerg. (Tenn.) 103. See also Churchwell v. East Tennessee Bank, 7 Heisk. (Tenn.) 780; Holland v. Harris, 2 Sneed (Tenn.) 68; Young v. Officer, 7 Yerg. (Tenn.) 137. But see Boas v. Heister, 3 Serg. & R. (Pa.) 271 [disapproved in Ulshafer v. Stew- art, 71 Pa. St. 170]. See 2 Cent. Dig. tit. "Appeal and Error," § 1844. The survivors may appeal or sue out a writ /of error. Huff v. Miller, 2 Swan (Tenn.) 84. See also Grove v. Swartz, 45 Md. 227. But see Smith v. Cunningham, 2 Tenn. Ch. 565, to the effect that such an appeal, taken by the survivors, is void as to the estate of the de- ceased. 47. Hutchcraft v. Gentry, 2 J. J. Marsh. (Ky.) 499; Carroll v. Bowie, 7 Gill (Md.) 34; Green v. Watkins, 6 Wheat. (U. S.) 260, 5 L. ed. 256. But see Shartzer v. Love, 40 Cal. 93; and 2 Cent. Dig. tit. "Appeal and Error," § 1845. Actions ex delicto. — A writ of error cannot be maintained by plaintiff on a judgment founded on a tort after the death of the tort- feasor. Barret v. Gaston, 1 111. 255. But, in an action of tort against two, the judgment may be reversed after the death of one without making the representatives of that one parties. Potter v. Gratiot, 1 Mo. 368. 48. Wesson v. Crook, 24 Ala. 478 ; Hopkins v. Hopkins, 91 Ky. 310, 12 Ky. L. Rep. 945, 15 S. W. 854; Harryman v. Harryman, 49 Md. 67. Compare Garrison v. Burden, 40 Ala. 513. And see Reeves v. Davis, 6 Ky. L. Rep. 288, in which it was held that the death of plain- tiff does not prevent or obstruct the granting of an appeal, though no personal representa- tive has qualified. 49. Delaware. — Gregg v. Banner, 2 Harr. (Del.) 407 [following Summerl v. Dauphin, (Del.) Aug. 6, 1814]. Vol. II Kentucky.- (Ky.) 609. -Marshall v. Peck, 1 Dana . — Burns v. Stanton, 24 Miss. 580. New York. — Vroom v. Ditmas, 5 Paige (N. Y.) 528. South Carolina. — Denoon v. O'Hara, 1 Brev. (S. C.) 500. Compare King v. Clarke, McMull. Eq. (S. C.) 48. Tennessee. — Erwin v. Foster, 6 Lea (Tenn.) 187. Virginia. — Reid v. Strider, 7 Gratt. (Va.) 76, 54 Am. Dec. 120. Contra, Pruden v. Mansfield, 2 West. L. Month. 577, 2 Ohio Dee. 385. For a full discussion of the effect of the death of a party pending an appeal or writ of error see Abatement and Revival, III, A, 18. See 2 Cent. Dig. tit. "Appeal and Error," § 1846. 50. Connecticut. — Stiles' Appeal, 41 Conn. 329. Louisiana. — Anderson v. Arnette, 30 La. Ann. 72 ; Olinde v. Gougis, 4 Mart. ( La. ) 96. Maryland. — See Carroll v. Bowie, 7 Gill (Md.)34. New York. — Mapes v. Knorr, 47 N. Y. App. Div. 639, 62 N. Y. Suppl. 303 ; Wilson v. Ham- ilton, 9 Johns. (N. Y.) 442; Vroom v. Dit- mas, 5 Paige (~H. Y.) 528. Compare Rogers v. Paterson, 4 Paige (N. Y.) 409. Tennessee. — Erwin v. Foster, 6 Lea (Tenn.) 187. Texas. — Gibbs v. Belcher, 30 Tex. 79. In Kentucky, if the plaintiff in a judgment dies after an appeal has been granted there- from, defendant may abandon that appeal and, without revivor, have an appeal granted by the clerk against plaintiff's executor. Ma- gee v. Frazier, 21 Ky. L. Rep. 254, 51 S. W. 174. Actions which do not survive. — In Mary- land it has been held that Md. Acts (1815), c. 149, providing that appellate causes shall not abate by reason of the death of a party before rule argument, applies to cases which, before the passage of the act, did not survive. Car- roll v. Bowie, 7 Gill (Md.) 34. Contest for administration. — In Williams v. Mullinsi 43 Tex. 610, it was held that when, pending an appeal by one of the contestants APPEAL AND ERROR m it has been held that the substitution of the deceased party's personal representa- tives is not necessary. 51 b. Of Sole Appellant or Plaintiff in Error. The death of a sole appellant or plaintiff in error pending his appeal or writ of error will not, under the statutes of most of the states, abate the appeal or writ, but the legal representatives of such party will be permitted to prosecute the proceedings to final judgment. 52 c. Of One of Several Appellants or Plaintiffs in Error. The death of one of several appellants or plaintiffs in error does not abate a suit, nor necessitate a revival of it in the appellate court. The cause survives to, and may be prose- cuted by, the other plaintiffs in error. 53 of the administration, one of the parties dies, the appeal abates, under the probate law of 1870. Remandment of cause to bring in proper par- ties. — In Wilson v. Hamilton, 9 Johns. (N. Y.) 442, upon petition of one of the respondents showing that one of the respondents had mar- ried, and that another respondent and one of appellants had died, pending the appeal, the cause was remanded to the lower court with- out prejudice to either party, in order that the proper parties might be brought in. 51. California. — Phelan v. Tyler, 64 Cal. 80, 28 Pac. 114. Maryland.— Carroll v. Bowie, 7 Gill (Md.) 34; Roche v. Johnson, 2 Harr. & J. (Md.) 37 note. Vermont. — Walker v. King, 2 Aik. (Vt.) 204. Virginia. — Reid v. Strider, 7 Gratt. (Va.) 76, 54 Am. Dec. 120. United States. — U. S. Bank v. Weisiger, 2 Pet. (U. S.) 481, 7 L. ed. 492. Case under rule argument. — In Maryland, if either of the parties in the court of appeals dies after the cause has been put under rule argument, the writ of error will not abate. Roche v. Johnson, 2 Harr. & J. (Md.) 37 note. See also Carroll v. Bowie, 7 Gill (Md.) 34. Effect of ignorance of death — -Judgment entered nunc pro tunc. — Where complainant died after the entry of an appeal from the decision of a vice-chancellor, and after the cause was ready for a hearing on the appeal, but, the fact of his death being unknown to counsel, the cause was afterward heard and decided by the chancellor upon the appeal, it was held that the decree upon the appeal might be entered nunc pro tunc as of a day previous to the death of complainant, and after his entering of the appeal. Vroom v. Ditmas, 5 Paige (N. Y. ) 528. See also Rogers v. Paterson, 4 Paige (N. Y.) 409; U. S. Bank v. Weisiger, 2 Pet. (U. S.) 481, 7 L. ed. 492. In the latter case respondent died a few days before the argument, but his death was not known to the court or counsel until after the appeal had been argued and decided against him, and then the court, upon a suggestion of the fact, and after hearing the objection of the counsel who had argued the cause for the decedent, ordered the decree to be entered as of the first day of the term, which was pre- vious to respondent's death. 52. Alabama. — Ex p. Norris, 2 Ala. 385. Kentucky. — Marshall v. Peck, 1 Dana (Ky.) 609. Indiana. — Hahn r. Behrman, 73 Ind. 120. Louisiana. — Hoggatt's Succession, 3G La. Ann. 337. Maryland. — Carroll v. Bowie, 7 Gill ( Md. ) 34. New Hampshire. — Holt v. Rice, 51 N. H. 370. Pennsylvania. — Ulshafer v. Stewart, 71 Pa. St. 170. Texas. — Hohenthal v. Turnure, 50 Tex. 1. United States. — -Green v. Watkins, 6 Wheat. (U. S.) 260, 5 L. ed. 256. See 2 Cent. Dig. tit. " Appeal and Error," § 1847. But see Hanney v. Murray, 9 Gill & J. (Md. ) 157, in which it was held that if an appellant dies before commencement of the term to which the appeal is taken, the appeal will abate. And see also Maskall v. Maskall, 3 Sneed (Tenn.) 207, in which it was held that where the appeal is taken from the chan- cery to the supreme court, and appellant does not dismiss or abandon his appeal, the cause stands for hearing de novo, and an abatement caused by his death is an abatement of the suit, and not of the appeal. In case of actions which do not survive, a distinction is drawn between those in which the judgment below has been for plaintiff and those in which it has been for defendant. In the former case the general rule applies, since by the judgment the cause of action is merged therein ( see Abatement and Revival, III, A, 18, b, (i) [but see, contra, Long v. Hitchcock, 3 Ohio 274]); in the latter, not only the appeal or writ, but the action itself, abates. Har- rison v. Moseley, 31 Tex. 608 ; and see Abate- ment and Revival, III, A, 18, b, (n) . 53. Alabama.— Alexander v. Rea, 50 Ala. 64; Gregg v. Bethea, 6 Port. (Ala.) 9. Connecticut. — Norris v. Sullivan, 47 Conn. 474. Kentucky. — Clay v. Gibson, 13 Ky. L. Rep. 414, 17 S. W. 220; Clay v. Grayson, 13 Ky. L. Rep. 415, 17 S. W. 219, Maryland. — Grove v. Swartz, 45 Md. 227. Missouri. — Hunleth v. Leahy, 146 Mo. 408, 48 S. W. 459 ; Maguire v. Moore, 108 Mo. 267, 18 S. W. 897. New York. — McGregor v. Comstock, 28 N. Y. 237; Camp v. Bennett, 16 Wend. (N. Y.) 48. Tennessee. — Banks v. Brown, 4 Yerg. (Tenn.) 198. See also Patterson v. Butter- worth, 4 Yerg. (Tenn.) 157. And compare Sappington v. Philips, 1 Yerg. (Tenn.) 105. Vol. II Y72 APPEAL AND ERROR d. Of Sole Appellee, Respondent, or Defendant In Error — (i) In A ctions Whigs Survive. The death of a sole appellee, respondent, or defendant in error pending an appeal or writ of error, where the action survives, will not abate the appeal or writ of error, but it will survive against the decedent's personal representatives. 54 (n) In Actions Which Do Not Survive — (a) Judgment for Plaintiff. "Where judgment below has been rendered in favor of plaintiff, and he dies pend- ing an appeal or writ of error prosecuted by defendant, there is no abatement of the appellate proceedings. 55 (b) Judgment for Defendant. But where the judgment below is for defend- ant, and he dies pending an appeal or writ of error prosecuted by plaintiff, the appellate proceedings will abate. 56 e. Of One of Several Appellees, Respondents, or Defendants in Error. The death of one of several appellees or defendants in error pending an appeal or writ of error will not abate the appeal or writ, which may be prosecuted against the survivors, to the exclusion of the decedent's representatives. 57 Texas. — Bingham v. ftyse, 14 Tex. 241. United States. — McKiimey v. Carroll, 12 Pet. (TJ. S.) 66, 9 L. ed. 1002. See 2 Cent. Dig. tit. "Appeal and Error," § 1848. But see Stell v. Glass, 1 Ga. 475, in which it was held that if, before trial on appeal, one of three defendants dies, the representatives of that one must be made parties, although the appeal was taken by one of deceased's co- defendants alone. Action by husband and wife for slander of wife — Death of wife. — Where the court be- low arrested a judgment obtained by a hus- band and wife for slander of the wife, for which they sued out a, writ of error, on the death of the wife the writ was abated. Stroop v. Swarts, 12 Serg. & R. (Pa.) 76. Election by defendant in error. — Where one of the plaintiffs in error dies, the defendant in error may either revive or elect to pro- ceed to the hearing with the surviving plain- tiff, or abate the appeal. Patterson v. Butter- worth, 4 Yerg. (Tenn.) 157. 54. Arkansas. — Ragsdale v. Stuart, 8 Ark. 268. Delaware. — Newcastle County Common v. Holcomb, 1 Houst. (Del.) 293. Louisiana. — Howard v. Walsh, 28 La. Ann. 847; Howard v. Yale, 27 La. Ann. 621. Maryland. — Carroll v. Bowie, 7 Gill (Md.) 34. View York. — Schuschard v. Reimer, 1 Daly (N. Y.) 459; Delaplaine v. Bergen, 7 Hill (N. Y.) 591; Rogers v. Paterson, 4 Paige . Bond, 81 Ind. 510. 72. In the latter case, the legal representa- tives of the decedent are the proper parties to prosecute or defend the proceedings on re- view. Cake u.Woodbury, 3 App. Cas. (D. C.) 60. See also Title Guarantee, etc., Co. v. Hol- verson, 95 Ga. 707, 22 S. E. 533; Hardy v. Irwin, 10 La. Ann. 703. Compare Wentworth v. Wentworth, 12 Vt. 244. APPEAL AND ERROR 777 e. Procedure for Revival or Substitution — (i) In Oenbsal. The proced- ure for revival or substitution of parties, in the event of the death of a partv to a suit or action, is determined by the statutes of the several states. 78 The revival and substitution is accomplished, in some jurisdictions, by filing the writ and transcript in the appellate court, and citing the parties to appear; 74 in others, by motion and order in the appellate court; 75 in others, by petition and prayer to answer;™ in others, by suggestion of death and issuance, by appellate court, of a writof scire facias ; 77 and in others by suing out a writ of error and citing the parties to appear. 78 73. See the statutes of the several states; and 2 Cent. Dig. tit. "Appeal and Error," § 1858 et seq. ; and infra, note 74 et seq. Continuance to allow a revival. — Where, pending an appeal from an order of the spe- cial term denying a motion, the death of a party respondent appeared by suggestion in the points of counsel, the hearing was directed to stand over to enable appellant to bring be- fore the court the proceedings in revivor, or to bring the representatives of the deceased before the court. Jay v. De Groot, 1 Hun (N. Y.) 118. Declaration of authorization by counsel. — In Stafford v. Mead, 9 Rob. ( La. ) 142, it was held that a suggestion of the appellee's death before commencement of the action, made by appellant, will not be noticed where the oppos- ing counsel declares in open court that he is authorized to appeal for the representatives of the deceased, and waives the right to have them called upon to defend the cause. The objection, to have weight, should have come from them. Denial of capacity to prosecute. — If appel- lant's death be suggested to the supreme court and, upon leave given, the executor be cited to prosecute the appeal, but denies his capac- ity, the issue must be sent for trial to the court below. Anselm v. Wilson, 8 La. 35. In Ohio, independently of statute, the su- preme court has power, in the exercise of a sound discretion, to direct the revivor of a proceeding in error. Black v. Hill, 29 Ohio St. 86. Laches of petitioner. — In Matter of Pear- sail, 58 Hun (N. Y.) 610, reported in full in 12 N. Y. Suppl. 604, 25 N. Y. St. 202, on an application for leave to revive an appeal al- leged to have been taken from an order ap- pointing an additional trustee under a will, the evidence that an appeal had been taken, or that notice of appeal had been served on the opposing parties, being very indefinite and uncertain, and it appearing that three years had elapsed since the order was made, it was held that the application was properly denied. Power of clerk to issue writ. — If a party dies after judgment in the court below, the clerk of that court cannot issue a writ of er- ror. Wesson v. Crook, 24 Ala. 478 ; Sewall v. Bates, 2 Stew. (Ala.) 462. 74. By filing writ and transcript. — Ex p. Norris, 2 Ala. 385. And see Wise v. Brocker, 1 Colo. 550. 75. By motion and order. — In some states revival and substitution may be had, on mo- tion to the appellate court, where the death takes place pending appeal or writ of error. Hyde Park Invest. Co. v. Atchison First Nat. Bank, 56 Kan. 49, 42 Pac. 321 ; McCurdy v. Agnew, 8 N. J. Eq. 728 ; Daniel v. Robinson, 1 Wash. (Va.) 154; Strong v. Eldridge, 8 Wash. 595, 36 Pac. 696. By conditional order. — In Ohio, proceedings in error may be revived against the representa- tive of a deceased party by a conditional order. Foresman v. Haag, 37 Ohio St. 143; Pavey v. Pavey, 30 Ohio St. 600; Black v. Hill, 29 Ohio St. 86. 76. By petition and prayer to answer. — Renwiek v. Cooper, 10 Paige (N. Y.) 303; Hanover v. Sperry, 35 Ohio St. 244, in which latter case it was held that the petition must be verified. 77. By scire facias. — Alabama. — Dettis v. Taylor, 6 Port. (Ala.) 333. But see Wesson v. Crook, 24 Ala. 478, in which it was held, under Ala. Civ. Code, § 3039, that, when either party to a judgment dies after judgment and before appeal taken thereon, an appeal may be prosecuted in the name of, or against, the legal representatives of the deceased on pro- ducing evidence to the clerk, judge of probate, etc., of the death of the party, and the grant of letters testamentary. In such a case the parties are made in the court below. Delaware. — Newcastle County Common v. Holeomb, 1 Houst. (Del.) 293. Mississippi. — Mayer v. McLure, 36 Miss. 389, 72 Am. Dec. 190. Tennessee. — Huff v. Miller, 2 Swan (Tenn.) 84. Virginia. — Keel v. Herbert, 1 Wash. (Va.) 138. 78. By writ and citation from appellate court. — If leave to revive against a decedent's representatives is refused below, the proper practice, in the supreme court of the United States, is to sue out a writ of error from that court against such representatives, citing them to appear at the next term. McClan v. Boon, 6 Wall. (U. S.) 244, 18 L. ed. 835. Waiver and consent. — The legal representa- tives of a deceased party may waive formal notice, and consent to an immediate revival of the proceedings, which may then proceed to final issue. Smith v. Allen, 5 Day (Conn.) 337 ; Pruden P. Mansfield, 2 West. L. Month. 577, 2 Ohio Dec. 385. Where no administration has been granted. — A party desiring to appeal or sue out a writ of error against an opposing party who has died after judgment or decree, and over whose estate no administrator has been ap- pointed, should apply to the proper court for Vol. II 778 APPEAL AND ERROR (it) Method of Suggesting Death. The method of suggesting the death of a party and notifying interested parties, depending, as it does, upon the statutes of the various states, is not uniform, and no general rule can be laid down upon the subject. 79 (in) Proof of Death and Appointment of Representatives. There must not only be adequate proof of a party's death, but also of the appointment and qualification of his personal representatives. 80 (rv) Persons Required or Entitled to Revive. Where a party to a suit or action dies, whether such death occur before or after the perfection of an appeal or writ of error, the persons interested in the prosecution of the appellate proceedings are the proper parties to revive the cause. 81 (v) In What Court Prosecuted. The proceedings for revival or substi- tution must be prosecuted in the lower court, where the death of a party occurs before the perfection of an appeal or proceedings in error ; 83 but where a party the appointment of an administrator, against whom a revivor may then be had. Richard- son v. Williams, 5 Port. (Ala.) 515. 79. Alabama. — Wesson v. Crook, 24 Ala. 478 (prosecution of appeal under Ala. Civ. Code, § 3039); Bettis v. Taylor, 6 Port. (Ala.) 333 (motion to appellate court, and scire fa- cias to show cause why writ shall not issue). California. — Judson v. Love, 35 Cal. -163, suggestion of death by affidavit. Delaware. — Newcastle County Common v. Holcomb, 1 Houst. (Del.) 293, scire facias. Illinois. — West v. Biggs, 26 111. 533, ten days' notice to adverse parties required before grant of a rule of joinder in error. Iowa. — In Barney v. Barney, 14 Iowa 189, it was held that the entry of record, in the supreme court, of a suggestion of death of a party to an action and a continuance for no- tice to the survivor does not of itself operate as a revivor of the cause. Kansas. — Guess v. Briggs, 54 Kan. 32, 37 Pac. 121, notice of application for revivor, to be served in the same manner, and returned within the same time, as a summons. Michigan. — Van Valkenburg v. Rogers, 17 Mich. 322, by service of copy of writ. Mississippi. — Mayer "v. McLure, 36 Miss. 389, 72 Am. Dec. 190, by scire facias ad audi- endum errores. New Jersey. — Peer v. Cookerow, 13 N. J. Eq. 136, by bill in the nature of bill of re- vivor. New York. — Shaler, etc., Quarry Co. v. Brewster, 32 N. Y. 472 (by affidavit) ; Jaun- eey v. Rutherford, 9 Paige (N. Y.) 273 (by petition and notice). Tennessee. — -Foster v. Burem, 1 Heisk. (Tenn.) 783 (discussing and enumerating various modes of revivor) ; Huff v. Miller, 2 Swan (Tenn.) 84 ( writ of error, scire facias ) . Texas. — Teas v. Robinson, 11 Tex. 774, sug- gestion in writ and prayer for citation. Virginia. — Keel v. Herbert, 1 Wash. (Va.) 138, by scire facias. See 2 Cent. Dig. tit. "Appeal and Error," § 1859. 80. Magarrell v. Magarrell, 74 Iowa 378, 37 N. W. 961; Sickman v. Diamond, 34 La. Ann. 1218. See 2 Cent. Dig. tit. "Appeal and Error," § 1860. Vol. II Certificate of appointment insufficient. — On the death of plaintiff, and the dismissal of his petition for appeal for want of prosecution, no offer to revive having been made, plain- tiff's administrator cannot appeal from the judgment by merely filing in the appellate court, with a copy of the judgment, a certifi- cate of the county court clerk showing his ap- pointment as administrator. This is not suf- ficient to show his right to appeal. Buckler v. Brewer, 13 Ky. L. Rep. 236. In Colorado, if, after judgment, plaintiff die, defendant, in suing out a writ of error, may make the decedent's personal representative a party without preliminary proof of the death of the original party, or the appointment of the person sued. Wise v. Brocker, 1 Colo. 550. 81. Raine v. State Bank, 4 Gratt. (Va.) 150; and see also 2 Cent. Dig. tit. "Appeal and Error," § 1861. Where an appellee dies after an appeal is perfected and before the filing of the record in the supreme court, the law does not require his executor or administrator to enter an appearance; but it is the duty of appellant to get such executor or administrator into court by the service of a writ or notice. Palmer v. Gardiner, 77 111. 143. See also An- derson v. White, 10 Paige (N. Y.) 575, in which the successful party below had died before the institution of appellate proceedings, and it was held that the adverse party might revive the suit, in case the representatives of the decedent should neglect to do so, for the purpose of enabling defendant to appeal, if he had no other remedy, and an appeal would lie. But see Teas v. Robinson, 11 Tex. 774, in which it was held that where, after obtain- ing judgment in the district court, plaintiff dies before defendant prosecutes his writ of error, defendant cannot revive the judgment against himself in favor of the representa- tives of the deceased in order to prosecute the writ of error. The proper practice in such a case is to sue out the writ of error, stating in the petition the fact of plaintiff's death, and pray a citation to the party au- thorized by law to represent and maintain such plaintiff's interests. 82. Ex p. Trapnall, 29 Ark. 60 ; Thomas v. Thomas, 57 Md. 504. But see Foresman v. APPEAL AND ERROR 779 dies after the cause has been removed to the appellate court by a perfected appeal or writof error, that court is the proper one in which to prosecute proceedings for revival or substitution. 83 d. Time for Revival or Substitution — (i) In General — (a) Discretion of Court. Where not regulated by statute or by rules of court, the time within which proceedings for revival or substitution of parties are to be commenced is limited only by the discretion of the court. 84 (b) Laches. In those jurisdictions where no limitation is fixed by statute or rules of court, an application to revive or substitute parties may be refused by the court, in the exercise of a sound discretion, where the applicant has been guilty of laches in the institution of the proceedings. 85 {11) Limitations _ by Statute or Rules of Court. In some states a limitation as to the time within which such proceedings may be instituted has been fixed by statute, and a failure to apply for a revival or substitution of parties within the prescribed period will usually be fatal. 86 In other states, rules of Haag, 37 Ohio St. 143, in which it was held that the revivor may be in the supreme court, though the party died before the reservation of the case by the district court. See 2 Cent. Dig. tit. "Appeal and Error," $ 1862. 83. Lyons v. Roach, 72 Cal. 85, 13 Pac. 151; Hastings v. McKinley, 8 How. Pr. (N. Y.) 175; Wayne Justices v. Crawford, 8 if. C. 10. Compare Reid v. Strider, 7 Gratt. ( Va.) 76, 54 Am. Dec. 120, in which it was held that it is not necessary to revive a cause in the supreme court on the death of one of the parties pending appeal, but the cause may be revived when it is sent to the court below, after final judgment. After judgment on appeal. — In Latham v. Hodges, 35 N. C. 267, it was held that where an appeal is taken to the supreme court, and a final judgment rendered there, a writ of error coram nobis, upon the ground that one of the parties died before the trial in the su- preme court, cannot be allowed in that court. Where a cause is in the appellate court on a special or feigned issue only, the lower court has jurisdiction of questions arising from the death of a party. Matter of Hicks, 2 Code Rep. (N. Y.) 128. This case was an appeal from the decree of the surrogate refusing to admit a will to probate. The decree was set aside and a feigned issue awarded, and the case remained in the supreme court, general term, only for the purpose of trying such issue. Upon the death of appellant it was lield that the question whether the appeal abated could be disposed of only in the surro- gate's court. 84. Alabama. — Evans v. Boggs, Minor arty appealing, all plaintiffs may stand on the appeal if they so desire. God- frey v. Moosic Mountain, etc., R. Co., 3 Lack.. Jur. (Pa.) 121. In Vermont, if two or more are made de- fendants under the processes provided in the- statute against forcible entry and detainer, and all are found guilty, and one appeals, it will be considered by the court that he ap- peals for all. Hurlbutt v. Meachum, 2 Tyler (Vt.) 397. Presence of attorney in court. — Where the attorney of absent heirs is necessary as a party, his presence in court is sufficient to sustain the appeal. Clark's Succession, 11 La. Ann. 124. Summons and severance against non-join- ing parties. — Where, upon a motion to dis- miss for the non-joinder of a defendant in the appeal, the appellants move the court for a writ of summons and severance against the- non-joining party, the court may properly overrule the motion to dismiss, and order the writ of summons and severance. Mottu v. Primrose, 23 Md. 482. Citation in erroneous capacity. — Where an appellee or defendant in error is cited erro- neously — as where he is cited as an indi- vidual when he occupies only a representa- tive capacity — the appeal or writ will be dismissed on motion. Osborn's Tutorship, 23 La. Ann. 178. Omission to state by whom taken. — The failure to state in the petition or record by which party, plaintiff or defendant, an ap- peal or writ of error is taken is not a suffi- cient ground for dismissal. Adams v. Law^ 16 How. (U. S.) 144, 14 L. ed. 880. 17. Illinois. — Lochnitt v. Stockon, 31 111. App. 217. See also Callaghan v. Myers, 89 111. 566. Indiana. — Miller v. Arnold, 65 Ind. 488. New York. — Gardner v. Gardner, 5 Paige- (N. Y.) 170. Pennsylvania. — Bonner v. Campbell, 48 Pa. St. 286. Texas. — Miller v. Sullivan, 89 Tex. 480, 35 S. W. 362. See 2 Cent. Dig. tit. "Appeal and Error," § 1871. 18. Thorp v. Thorp, 40 111. 113. See infra, XIV. APPEAL AND ERROR 787 b. Unauthorized Appeals. An appeal, taken in the name of a party with- out such party's knowledge or consent, may, on motion, be dismissed as to him. 19 6. Amendments — a. In General. Defects in appellate proceedings, such defects arising from the non-joinder or misjoinder of parties, are usually amend- able in the appellate court. 20 Against consent of co-parties. — Where one of several plaintiffs in error moves to with- draw, without the consent of the others, the motion will be entered, and the cause pro- ceed as between remaining plaintiffs and the opposite party. Hyde v. Tracy, 2 Day (Conn.) 491. See 2 Cent. Dig. tit. "Appeal and Error," § 1871. 19. Mclntyre v. Sholty, 139 111. 171, 29 N. E. 43; Harding v. Durand, 36 111. App. 238; Miller v. Arnold, 65 Ind. 488; Ikerd v. Borland, 35 La. Ann. 337; Watson v. Wat- son, 4 Rand. (Va.) 611. See also Robinson v. Robinson, 20 S. C. 567. An appeal, taken contrary to his client's order, by an attorney who has been dis- charged, will be dismissed on motion of the client. Ikerd v. Borland, 35 La. Ann. 337. Appeal in name of administrator. — In Mc- lntyre v. Sholty, 139 111. 171, 29 N. E. 43, it was held that, under 111. Rev. Stat. c. 3, § 123, providing that an appeal lies from a judg- ment of the county court in favor of a per- son who is aggrieved, where a judgment was recovered against an administrator for a tres- pass by his intestate, a, writ of error, sued out in the administrator's name without his knowledge, should be dismissed on motion by him. Where the preponderance of the testimony is that a party did authorize an appeal, a motion to strike the name of said party from the record as an appellant, on the ground that he never authorized the appeal, will be refused. Robinson v. Robinson, 20 S. C. 567. See 2 Cent. Dig. tit. "Appeal and Error," « 1872. 20. Alabama. — Harper v. Bibb, 45 Ala. 670 ; Garlick v. Dunn, 42 Ala. 404. Florida. — Continental Nat. Bldg., etc., As- soc, v. Miller, 41 Fla. 418, 26 So. 725; Nash v. Haycraft, 34 Fla. 449, 16 So. 324. Georgia. — McCain v. Sublive, 109 Ga. 547, 34 S. E. 1013; Bennett v. Georgia Trust Co., 106 Ga. 578, 32 S. E. 625 ; Steele Lumber Co. v. Laurens Lumber Co., 98 Ga. 329, 24 S. E. 755. Compare Arnold v. Wells, 6 Ga. 380. Illinois. — Peadro v. People, 57 111. App. 45. Kentucky. — Callaghan v. Carr, 3 Litt. (Ky.) 153. Nebraska. — Andres v. Kridler, 42 Nebr. 784, 60 N. W. 1014. New Jersey. — Holcombe v. Holcombe, 29 N. J. Eq. 375. New Mexico. — Neher v. Armijo, 9 N. M. 325, 54 Pac. 236. North Carolina.— N. C. Code (1883), § 965. Pennsylvania. — Hill v. West, 1 Binn. (Pa. ) 486. Texas. — Morrison v. Lewis, 13 Tex. 64. Washington. — Garrison v. Cheeney, 1 Wash. Terr. 489. Wyoming. — Seibel v. Bath, 5 Wyo. 409, 40 Pac. 756. United States. — U. S. v. Schoverling, 146 IT. S. 76, 13 S. Ct. 24, 36 L. ed. 893; Inland, etc., Coasting Co. v. Tolson, 136 U. S. 572, 10 S. Ct. 1063; 34 L. ed. 539 ; Adams v. Johnson, 107 U. S. 251, 2 S. Ct. 246, 27 L. ed. 386; Moore v. Simonds, 100 U. S. 145, 25 L. ed. 590. See 2 Cent. Dig. tit. "Appeal and Error," § 1875 et seq. A discretionary power. — See Pearson v. Yewdall, 95 U. S. 294, 24 L. ed. 436. After appeal. — When a judgment is amended nunc pro tunc, after an appeal has, been taken, by adding another defendant, the amendment will be considered as relating- back for the purpose of bringing up the en- tire case with the new party, but not so as to defeat the appeal for want of proper parties, or from the misdescription of the judgment. in the appeal bond. Farmer v. Wilson, 33 Ala. 446. An appeal prosecuted against a firm instead of against the individual partners is defect- ive, but may be cured by amendment. U. S. v. Schoverling, 146 U. S. 76, 13 S. Ct. 24, 36 L. ed. 893; Estes v. Trabue, 128 TJ. S. 225, 9 S. Ct. 58, 32 L. ed. 437. See also Moore v. Simonds, 100 U. S. 145, 24 L. ed. 590. Consent. — In some jurisdictions an amend- ment by the addition of a new party cannot be had without the consent of such party. Carey <>. Rice, 2 Ga. 408 ; Andres v. Kridler, 42 Nebr. 784, 60 N. W. 1014; Seibel v. Bath, 5 Wyo. 409, 40 Pac. 756. Joint judgments. — Where, to a joint judg- ment against several defendants, two of such defendants, without joining the others or without a severance, sue out a writ of error, a motion for leave to amend by joining the other defendants, or by a severance, will be denied. Mason v. U. S., 136 U. S. 581, 10 S. Ct. 1062, 34 L. ed. 545. A mistake, made in respect to the name of one of the parties to an appeal, may be amended. Scheel v. Eidman, 77 111. 301. See also Kingsley v. Schmicker, (Tex. Civ. App. 1900) 60 S. W. 331. Parol evidence to rectify defect. — An ap- peal by one of two defendants cannot be made the appeal of both by parol evidence that it was intended to be such, unless the error be chargeable to the default of the officer who took the appeal. Sterrett v. Ramsay, 2 Watts (Pa.) 91. Parties added by supplemental bill. — Where new parties are made by a supplemental bill, a writ of error sued out in the names of the Vol. II 788 APPEAL AND ERROR b. After Expiration of Time to Appeal. Depending, as they do, upon the interpretation of diverse statutes, the decisions are not uniform as to the power of amendment, with regard to parties, after the expiration of the statutory limitation as to the time within which appeals may be taken. 21 e. Loss of Interest in Subjeet-Matter. An appeal or writ of error taken in the name of a party after he has, by assignment, or otherwise, lost interest in the subject-matter of litigation, cannot be amended in the appellate court by the sub- stitution of the person upon whom such party's interest has devolved. 22 d. Mode of Amendment. The usual procedure for remedying a defect of party caused by non-joinder is to issue a summons, citing the party to appear and join, or to submit to an order of severance. 23 7. Waiver of Objections — a. In General. If a petition for appeal or writ of error is not objected to by appellee, respondent, or defendant in error for want of necessary parties, the appeal or writ may be decided on its merits as to such non- objecting party, though all the proper parties are not before the court. 24 parties to the original bill alone is amend- able under the statute. Toulmin v. Hamil- ton, 7 Ala. 362. Persons interested in sustaining the decree or judgment below cannot, on motion of a dissatisfied suitor, be made appellants or plaintiffs in error by amendment to the peti- tion or bill of exceptions. Craig v. Webb, 70 Ga. 188. See also Knox v. McCalla, 70 Ga. 725. In such a ease, the interest of the party being adverse, he should be made an appellee or defendant in error. Price v. Lathrop, 66 Ga. 247. Persons not necessary to the jurisdiction of the appellate court will not be made parties by amendment. McCalop v. Fluker, 12 La. Ann. 345. Striking out the name of the party and in- serting that of another in a writ of error will not be allowed in Georgia. Arnold v. Wells, 6 Ga. 380. 21. In Kentucky it is held that it is too late. Smith v. Craft, (Ky. 1900) 58 S. W. 500. To like effect see National Bank v. New- heart, 41 Fla. 470, 27 So. 297; Bridge v. Main St. Hotel Co., (Kan. 1900) 61 Pac. 754. In Nebraska it is held that defendants against whom a joint judgment has been ren- dered, but who have not been made parties to the petition in error, may, within the statu- tory time, be made defendants in error in or- der to obviate the defect of parties. Andres v. Kridler, 42 Nebr. 784, 60 N. W. 1014. In New York it is too late. Patterson v. Hamilton, 26 Hun (N. Y.) 665. See also Wait v. Van Allen, 22 N. Y. 319 ; Humphrey v. Chamberlain, 11 N. Y. 274; Cotes v. Car- roll, 28 How. Pr. (N. Y.) 436. But see Cox. v. Schermerhorn, 12 Hun (N. Y.) 411; Crit- tenden v. Adams, 5 How. Pr. (N. Y.) 310. In Ohio parties omitted by mistake may be joined in error, though the time for filing- a petition in error has elapsed. Secor v. Wit- ter, 39 Ohio St. 218; Bradford v. Andrews, 20 Ohio St. 208, 5 Am. Rep. 645 [distinguishing; disapproving, and doubting Smetters v. Rainey, 14 Ohio St. 287]. But see Loewen- stein v. Rheinstrom, 10 Ohio Dec. 587. 22. Weiler v. Long, 13 Pa. Co. Ct. 632, 3 Pa. Dist. 218. Vol. II Discharge of personal representative. — Where an appeal or writ of error is taken in the name of an executor or administrator af- ter he has been discharged as such, the appel- late court has no power to substitute another party to the action, and a motion to that pur- pose will be overruled. McCormick Harvest- ing Mach. Co. v. Snedigar, 3 S. D. 625, 54 N. W. 814. And see Taylor v. Savage, 1 How. (U. S.) 282, 11 L. ed. 132, in which it was held that where an executor is party to a de- cree in equity, and he is removed before an appeal has been taken by the appellant and an administrator de bonis non is appointed, the irregularity of such appeal cannot be cured in the appellate court unless the ad- ministrator voluntarily appears. 23. Nash v. Haycraft, 34 Fla. 449, 16 So. 324; Steele Lumber Co. v. Laurens Lumber Co., 98 Ga. 329, 24 S. E. 755 ; Carey v. Giles, 10 Ga. 1; Holcombe v. Holeombe, 29 N. J. Eq. 375. 24. Campbell v. Arcenaux, 3 La. Ann. 558 ; Toop v. New York, 13 N. Y. Suppl. 280, 36 N. Y. St. 724; Gilchrist v. Rea, 9 Paige (N. Y.) 66; Cairnes v. Knight, 17 Ohio St. 68; Howard, v. Levering, 8 Ohio Cir. Ct. 614; Huebschman v. Cotzhausen, (Wis. 1900) 82 N. W. 720. But see Atkins v. Nordyke Marmon Co., 60 Kan. 354, 56 Pac. 573, in which it was held that defects of parties go to the jurisdiction of the court, and conse- quently cannot be waived. See 2 Cent. Dig. tit. "Appeal and Error," § 1873. Ohio Rev. Stat. (1892), § 5062, which pro- vides that a defect of parties is a ground of demurrer, and § 5064, which provides that, where no objection is taken upon that ground', the same is waived, have been held to apply to proceedings in error. Howard v. Levering, 8 Ohio Cir. Ct. 614. Waiver by stipulation. — In Toop v. New York, 13 N. Y. Suppl. 280, 36 N. Y. St. 724, sureties for performance of a contract for work brought suit, alleging that the work had been abandoned by the contractor and performed by them, with the consent of the other party to the contract, and recovered judgment against the latter for the compensa- APPEAL AND ERROR 789 b. Failure to Objeet in Time. 25 Objection that proper and necessary parties have not been joined in an appeal or writ of error, or that there has been a mis- joinder of parties, will be deemed to be waived where the appellee, respondent, or defendant in error fails to make objection in due season. 26 VII. REQUISITES AND PROCEEDINGS FOR TRANSFER OF CAUSE. A. Time for Taking and Perfecting— l. In General — a. Rule Stated — (i) Generally. The time within which a proceeding to review the action of a lower court must be prayed, taken, and perfected is regulated by statute,* 7 and tion agreed on. On appeal from such judg- ment it was held that an objection that plain- tiffs had not shown an assignment to them of the contract was obviated by an oral stipu- lation by counsel on the argument that the court should dispose of the appeal as though plaintiffs were properly assignees of the con- tract, and that the pleadings should be amended to show an allegation and admission of such assignment, the appellate court hav- ing power to allow such amendment. 25. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 1874. 26. After appearance and joinder in error it is too late for defendant to object that an administrator has been improperly made a party plaintiff in a writ of error. Booker v. Hunt, 1 Port. (Ala.) 26; Olson v. Sheffield, 90 111. App. 198. But see Garside v. Wolf, 135 Ind. 42, 34 N. E. 810, in which it was held that the failure of plaintiff to join, on his appeal, certain defendants who were neces- sary appellees, is not waived by a joinder in error. And see Dunns v. Jones, 20 N. C. 154> in which it was held that where, in assump- sit against two, they plead separately, and the jury assesses damages against both jointly, and one appeals to the superior court, and plaintiff obtains an order to take a depo- sition, and the case is continued to the next term, it will, at that term, be dismissed on motion of plaintiff. Contra, Ex p. Moore, 64 N. C. 90. After submission. — It is too late to make objection to the non-joinder or misjoinder of parties after the cause has been submitted. Coffey v. Norwood, 81 Ala. 512, 8 So. 199; Carter v. Thompson, 41 Ala. 375; Higbee v. Rodeman, 129 Ind. 244, 28 N. E. 442; Mun- son v. Blake, 101 Ind. 78; Bates-Smith In- vest. Co. v. Scott, 56 Nebr. 475, 76 N. W. 1063; Curtin v. Atkinson, 36 Nebr. 110, 54 N. W. 131 ; Consaul v. Sheldon, 35 Nebr. 247, 52 N. W. 1104; Wangerien v. Aspell, 47 Ohio St. 250, 24 N. E. 405. Upon argument. — An objection that an ap- peal was taken by interveners without join- ing as appellants the defendants to the orig- inal bill, and without a summons and sever- ance, cannot be suggested for the first time in argument. Louisville Mfg. Co. v. Brown, 101 Ala. 273, 13 So. 15. See also Venner v. Sun L. Ins. Co., 17 Can. Supreme Ct. 394. Objection, on account of misjoinder of par- ties in the lower court, cannot be originally made in the appellate court. Chappell v. Robertson, 2 Rob. (Va.) 590. In Louisiana, the want of proper parties for a final decree may be brought to the notice of the court at any time. Marcy v. Citizens' Mut. Ins. Co., 21 La. Ann. 429; Belleville Iron Works Co. v. Its Creditors, 16 La. Ann. 77. United States. — The objection that a writ of error from a judgment against two jointly was sued out by only one of them, without a proper severance, can be taken at any time before judgment is rendered thereon. Ayres v. Polsdorfer, 105 Fed. 737. 27. Legislative power to prescribe and amend. — It has been expressly decided that the legislature has the power to prescribe and change the time within which proceedings for review must be taken. Smythe v. Boswell, 117 Ind. 365, 20 N. E. 263; The Schooner Marinda v. Dowlin, 4 Ohio St. 500; Gaskins v. Com., 1 Call (Va.) 194. As to prospective or retrospective effect of statutes amending or repealing statutes pre- scribing the time for taking appeals or su- ing out writs of error see the following cases: Alabama. — Page v. Matthews, 40 Ala. 547 ; Lewis v. Lindsay, 33 Ala. 304 [overruling Green v. Maclin, 29 Ala. 695]. California. — Melde v. Reynolds, 120 Cal. 234, 52 Fac. 491. Colorado. — Hewitt v. Colorado Springs Co., 5 Colo. 184; Willoughby v. George, 5 Colo. 80. Florida. — Sammis v. Bennett, 32 Fla. 458, 14 So. 90, 22 L. R. A. 48. Illinois. — McClure v. Walker, 103 111. 544. Indiana. — Evansville, etc., R. Co. v. Bar- bee, 74 Ind. 169; Lindley v. Darnall, 24 Ind. App. 399, 56 N. E. 861. Kentucky. — Saunders v. Moore, 14 Bush (Ky.) 97; Moss v. Hall, 1 Ky. L. Rep. 280. Minnesota. — Kerlinger v. Barnes, 14 Minn. 526. Nebraska. — Roesink v. Barnett, 8 Nebr. 146. New York. — New York v. Schermerhorn, 1 N. Y. 423; Bailey v. Kincaid, 57 Hun (N. Y.) 516, 19 N. Y. Civ. Proc. 232; 11 Nl Y. Suppl. 294, 33 N. Y. St. 110. Ohio.— Canaan Tp. v. Board of Infirmary Directors, 46 Ohio St. 694, 23 N. E. 492; Wade v. Kimberley, 5 Ohio Cir. Ct. 33. Pennsylvania. — Shelly v. Dampman, 174 Pa. St. 495, 34 Atl. 124 [affirming 1 Pa. Super. Ct. 115, 38 Wkly. Notes Cas. (Pa.) 312]. „„,. Tennessee. — Trim v. McPherson, 7 Coldw. (Tenn.) 15. Vol. II Y90 APPEAL AND ERROR the proceeding must be taken and perfected within the prescribed statutory time. 28 Texas — Wright v. Hardie, 88 Tex. 653, 32 S. W. 885; Story v. Runkle, 32 Tex. 398; Compton v. Ashley, (Tex. Civ. App. 1895) 28 S. W. 924. Virginia. — Yarborough v. Deshazo, 7 Gratt. (Va.) 374. Wisconsin. — Sydnor v. Palmer, 32 Wis. 406; Smith v. Packard, 12 Wis. 371. See 2 Cent. Dig. tit. "Appeal and Error," § 1882. See also supra, I, C, 2, g. 28. Alabama. — Buford v. Ward, 108 Ala. 307, 19 So. 357; Kimbrell v. Rogers, 90 Ala. 339, 7 So. 241. Arizona. — Fleury v. Jackson, 1 Ariz. 361, 25 Pae. 669. Arkansas. — Johnson v. Godden, (Ark. 1892) 18 S. W. 125; Joyner v. Hall, 36 Ark. 513. California. — Matter of Devincenzi, 131 Cal. 452, 63 Pac. 723; Bartlett v. Maekey, 130 Cal. 181, 62 Pae. 482. Colorado. — Simonton v. Rohm, 9 Colo. 402, 12 Pae. 424; Fischer v. Hanna, 8 Colo. App. 471, 47 Pac. 303. Connecticut. — Halliday v. Collins Co., (Conn. 1900) 47 Atl. 321; Russell v. Monson, 33 Conn. 506. District of Columbia. — 'National Cable Co. v. Washington, etc., R. Co., 8 App. Cas. (D. C.) 478. Florida. — Jacksonville, etc., R., etc., Co. v. Broughton, 38 Fla. 139, 20 So. 829; Hall v. Penny, 13 Fla. 593. Georgia. — Gress Lumber Co. v. Coody, 99 Ga. 775, 27 S. E. 169; Pergason v. Etcherson, 91 Ga. 785, 18 S. E. 29. Idaho. — Balfour v. Eves, (Ida. 1895) 42 Pac. 508. Illinois. — Balance v. Frisby, 2 111. 595 ; Lawyers' Co-Operative Pub. Co. v. Chicago Law Book Co., 90 111. App. 425. Indiana. — Baker v. Martin, (Ind. 1901) 59 N. E. 174; Rogers v. State, (Ind. App. 1901 ) 59 N E. 334. Iowa. — Young v. Rann, 111 Iowa 253, 82 N. W. 785 ; Lesure Lumber Co. v. Mutual F. Ins. Co., 101 Iowa 514, 70 N. W. 761. Kansas. — Atchison, etc., R. Co. v. Dougan, 39 Kan. 181, 17 Pae. 811; Kauter v. Entz, 8 Kan. App. 788, 61 Pae. 818. Kentucky. — Elizabethtown, etc., R. Co. v. Catlettsburg Water Co., (Ky. 1901) 61 S. W. 47: Boyle v. Stivers, (Ky. 1900) 58 S. W. 691. Louisiana. — New Orleans v. Crescent City R. Co., 41 La. Ann. 904, 6 So. 719; Charles v. Board of Liquidation, 37 La. Ann. 176. Maine. — Carleton v. Lewis, 67 Me. 76. Maryland.— Hoppe v. Byers, 60 Md. 381 ; Powhatan Steamboat Co. v. Potomac Steam- boat Co., 36 Md. 238. Massachusetts. — Emmons v. Alvord, (Mass. 1901) 59 N. E. 126; Elwell v. Dizer, 1 Allen (Mass.) 484. Michigan. — Carney v. Baldwin, 95 Mich. 442, 54 N. W. 1081; Moore v. Ellis, 18 Mich. 77. Mississippi. — Wilson v. Pugh, 61 Miss. 449; Vol. II Briscoe v. Planters' Bank, 3 Sm. & M. (Miss.) 423. Missouri. — Crutsinger v. Missouri Pac. R. Co., 82 Mo. 64; Sater v. Hunt, 75 Mo. App. 468. Montana. — Ramsey v. Burns, 24 Mont. 234, 61 Pac. 129 ; Welcome v. Howell, 20 Mont. 42, 49 Pac. 393. Nebraska. — Clark v. McDowell, 58 Nebr. 593, 79 N. W. 158 ; Smith v. Silver, 58 Nebr. 429, 78 N. W. 725. Nevada. — Reinhardt v. Company D, First Brigade, 23 Nev. 369, 47 Pac. 979; Weinrich v. Porteus, 12 Nev. 102. New Hampshire. — Rowell v. Conner, 57 N. H. 323 ; Holt t>. Smart, 46 N. H. 9. New Jersey. — Hillyer v. Schenck, 15 N. J. Eq. 398 ; Newark Plank-Road, etc., Co. v. El- mer, 9 N. J. Eq. 754. Neiv York. — Porter v. International Bridge Co., 163 N. Y. 79, 57 N. E. 174; Voisin v. Commercial Mut. Ins. Co., 123 N. Y. 120, 25 N. E. 325, 33 N. Y. St. 160, 9 L. R. A. 612 {affirming 56 Hun (N. Y.) 215, 9 N. Y. Suppl. 267] ; Lane v. Wheeler, 101 N. Y. 17. 3 N. E. 796; Burch v. Newbury, 10 N. Y. 374: New York v. Schermerhorn. 1 N. Y. 423: MeCall v. Moschowitz, 14 Daly (N. Y.) 16; Whit- man v. Johnson, 10 Misc. (N. Y.) 730. 31 N. Y. Suppl. 1009, 65 N. Y. St. 103: Kin? v. Piatt. 2 Abb. Dec. (N. Y.) 527, 3 Abb. Pr. N. S. (NY.) 174; Mason v. Jones, Code Ren. N. S. (N. Y.) 335: Deming v. Post, 1 Code Rep. (N. Y.) 121; Muir v. Demaree, 9 Wend. (N. Y.) 449; Halsey v. Van Amringe, 4 Paige (N. Y.) 279. North Carolina.- — Simmons v. Allison, 119 N. C. 556, 26 S. E. 171; Russell v. Hearne, 113 N. C. 361, 18 S. E. 711: Tucker v. Inter- States L. Assoc, 112 N. C. 796. 17 S. E. 532; Applewhite v. Fort, 85 N. C. 596. North Dakota. — Keogh v. Snow, (N. D. 1900) 83 N. W. 864; Stierlen v. Stierlen, 8 N. D. 297, 78 N. W. 990. Ohio. — Layer v. Schaber, 57 Ohio St. 234, 48 N. E. 939 ; Mannix v. Purcell, 46 Ohio St. 102, 19 N. E. 572, 15 Am. St. Rep. 562, 2 L. R. A. 753 ; Cowie v. Meyers, 10 Ohio Dec. 91; Snell ?'. Cincinnati St. R. Co.. 16 Ohio Cir. Ct. 633, 700, 9 Ohio Cir. Dec. 264. Oklahoma. — Herring v. Wiggins, 7 Okla. 312, 54 Pac. 483. Oregon. — Joshua Hendy Mach. Works v. Portland Sav. Bank, 24 Oreg. 60, 32 Pac. 1036. Pennsylvania. — Barlott v. Forney, 187 Pa. St. 301, 41 Atl. 47 : Pottsville Bank v. Cake, 12 Pa. Super. Ct. 61 ; Lingerfield v. George, 10 Phila. (Pa.) 80, 30 Leg. Int. (Pa.) 321; Jones' Appeal, 11 Wkly. Notes Cas. (Pa.) 554. South Carolina. — Weatherly v. Jackson, 3 Rich. (S. C.) 228. South Dakota. — Granger v. Roll, 6 S. D. 611, 62 N. W. 970; Mouser v. Palmer, 2 S. D. 466, 50 N. W. 967. Tennessee. — Chester v. Foster, 90 Tenn. 515, 16 S. W. 615; Smith v. Sprout, (Tenn. APPEAL AND ERROR 791 (n) Persons Under Disabilities— (a) In General. It is usually provided that statutes limiting the time for taking appeals shall not run against persons under certain legal disabilities. 29 (b) Persons Excepted — (1) Infants, Maeeied Women, and Ltjnatics. The persons ordinarily excepted are infants, 30 married women, 31 and persons non eompos mentis. 32 Ch. 1900) 58 S. W. 376; Gamble v. Branch, (Tenn. Ch. 1898) 52 S. W. 897. Texas. — Peabody v. Marks, 25 Tex. 19 ; State v. Kroner, 2 Tex. 492; Western Union Tel. Co. v. Bedell, (Tex. Civ. App. 1900) 57 S. W. 706. Utah. — Snow v. Rich, (Utah 1900) 61 Pae. 336 ; Ryan, etc., Cattle Co. v. Murdock, 8 Utah 497, 33 Pac. 136. Vermont. — West Derby v. Newport Ceme- tery Assoc, 69 Vt. 166, 37 Atl. 239; Robin- son v. Robinson, 32 Vt. 738. Virginia. — Jordan v. Cunningham, 85 Va. 418, 7 S. E. 540; Frazier v. Frazier, 77 Va. 775; White v. Jones, 4 Call (Va.) 253, 2 Am. Deo. 564. Washington. — Hibbard v. Delanty, 20 Wash. 539, 56 Pac. 34 ; Seattle, etc., R. Co. v. Simp- son, 19 Wash. 628, 54 Pac. 29. West Virginia. — Shumate v. Crockett, 43 W. Va. 491, 27 S. E. 240. Wisconsin. — Milwaukee Electric R., etc., Co. v. Bradley, 108 Wis.. 467, 84 N. W. 870; Jarvis v. Hamilton, 37 Wis. 87. Wyoming. — Kuhn v. McKay, 6 Wyo. 466, 46 Pae. 853. United States.— U. S. v. Pena, 175 U. S. 500, 20 S. Ct. 165, 44 L. ed. 251; Small v. Northern Pae. R. Co., 134 U. S. 514, 10 S. Ct. 614, 33 L. ed. 1006; Logan v. Goodwin, 101 Fed. 654, 41 C. C. A. 573; Noonan v. Chester Park Athletic Club, 93 Fed. 576, 35 C. C. A. 457. England.— White v. Witt, 5 Ch. D. 589, 46 L. J. Ch. 560, 37 L. T. Rep. N. S. 110, 25 Wkly. Rep. 435 ; Cummins v. Herron, 4 Ch. D. 787, 25 Wkly. Rep. 325, 46 L. J. Ch. 423, 36 L. T. Rep. N. S. 41 ; Trail v. Jackson, 4 Ch. D. 7, 46 L. J. Ch. 16, 25 Wkly. Rep. 36. Canada. — Currier v. Crosby, 16 N. Brunsw. 610; Seminairg de Quebec v. Vinet, 6 L. C. Jur. 138. See 2 Cent. Dig. tit. "Appeal and Error," § 1877 et seq. In Quebec, the rule limiting the period of appeal to the privy council, though usually adhered to, is not imperative. The party complaining of delay should not himself be guilty of delay. If he has been he has no claim to be heard. The appeal may be al- lowed to proceed on sufficient cause shown. St. Louis v. St. Louis, 1 Moore P. C. 143. See also Allan v. Pratt, 32 L. C. Jur. 57, 3 Q. B. 322; Merchants' Bank v. Whitfield, 27 L. C. Jur. 183. Not properly statutes of limitations. — Statutes limiting the time for taking an ap- peal are not technically statutes of limita- tions, and hence temporary suspensions of the operation of state statutes of limitations during the civil war were held not to apply to statutes limiting the time within which an appeal might be taken. Trim v. McPherson, 7 Coldw. (Tenn.) 15; Hart v. Mills, 38 Tex. 513; Pace v. Hollaman, 31 Tex. 158; Walker v. Taul, 1 Tex. App. Civ. Cas. § 31; Rogers v. Strother, 27 Gratt. (Va.) 417. 29. Hawkins v. Hawkins, 28 Ind. 66; Hinde v. Whitney, 31 Ohio St. 53 ; Caldwell v. Hods- den, 1 Lea (Tenn.) 305. See also Shuman v. Hurd, 79 Wis. 654, 48 N. W. 672. But the Texas act of Sept. 1, 1892, requires writs of error to be prosecuted within twelve months after rendition of judgment, without except- ing any class of person. Perry v. Warner, (Tex. Civ. App. 1897) 40 S. W. 170. See 2 Cent. Dig. tit. "Appeal and Error," § 1905 et seq. Necessity of showing disability. — Where a party alleges that he is entitled to commence a proceeding in error after the lapse of the statutory time, by reason of some legal disa- bility recognized by the statute, the facts which bring such party within the excepted class must be averred in the petition in er- ror. Piatt v. Sinton, 35 Ohio St. 282. 30. Connecticut. — Davidson, a Minor, 1 Root (Conn.) 275. Indiana. — Vordermark v. Wilkinson, 147 Ind. 56, 46 N. E. 336. Kentucky.— Moss v. Hall, 79 Ky. 40, 3 Ky. L. Rep. 89, 1 Ky. L. Rep. 314. Louisiana. — Prejean v. Robin, 14 La. Ann. 788 : Dufau v. Defleehier, 3 La. 304. Massachusetts. — Eager v. Com., 4 Mass. 182. Ohio. — Arrowsmith v. Gleason, 1 Ohio Cir. Ct. 345. Tennessee. — Ridgely v. Bennett, 13 Lea (Tenn.) 206. Texas. — McAnear v. Epperson, 54 Tex. 220, 38 Am. Rep. 625 ; Miers v. Betterton, 18 Tex. Civ. App. 430, 45 S. W. 430. See 2 Cent. Dig. tit. "Appeal and Error," § 1911. A minor heir, on arriving at his majority, cannot by appeal obtain the reversal of a judgment rendered against the succession of his father, and which the executor of that succession allowed to become final by not ap- pealing. West v. Davis, 34 La. Ann. 357. 31. Bertrand v. Taylor, 87 111. 235; Fenn v. Early, 113 Pa. St. 264, 6 Atl. 58 ; Cordray v. Galveston, (Tex. Civ. App. 1894) 26 S. W. 245 (prior to the act of Sent. 12. 18. White, 88 Tex. 591, 32 S. W. 525. Vermont. — Barnard v. Barnard, 16 Vt. 223. Virginia. — Orr v. Pennington, 93 Va. 268. 24 S. E. 928. Wyoming. — -Hogan v. Peterson, 8 Wyo. 549, 59 Pac. 162. See 2 Cent. Dig. tit. "Appeal and Error," § 1960 et seq. Allegation outside of record. — Allegations which go beyond the record in the case can- not be considered. Cooley v. Cooley, (Tenn. Ch. 1896) 37 S. W. 1028. Argumentative assignment. — So much of the assignment of error as is argumentative is improper. Hodo v. Mexican Nat. R. Co., 88 Tex. 523, 32 S. W. 511. Waiver. — Where the overruling of a motion to strike out matter from a pleading as al- ternative and hypothetical is not assigned as error in the notice of appeal, the objection is waived. Emison v. Owyhee Ditch Co., 37 Oreg. 577, 62 Pac. 13. 15. Crenshaw v. Taylor, 70 Iowa 386, 30 N. W. 647; Evans v. Jones, 7 Cine. L. Bui. 345; Treichler v. Bower, 1 Woodw. (Pa.) 219; Kidder v. Fay, 60 Wis. 218, 18 N. W. 839; and see also 2 Cent. Dig. tit. "Appeal and Error," § 1946. In Nebraska, verification is unnecessary. Newlove v. Woodward, 9 Nebr. 502, 4 N. W. 237. In Pennsylvania, the oath, in taking an ap- peal from an assessment of railroad damages, need not be made before the prothonotary of the court, but may be made before, and at- tested by, any magistrate in that state au- thorized to administer oaths. Delong v. Al- lentown R. Co., 1 Woodw. (Pa.) 191. Misplaced signature. — An affidavit for ap- peal is not invalidated by the fact that the signature of the deponent was, through a mis- take, placed below the jurat instead of being in its proper place. Launius r. Cole, 51 Mo. 147. Omission of appellant's attorney to sign the petition for an appeal is not such a fault of appellant as will justify the dismissal of the appeal. Erwin v. Commercial, etc., Bank, 12 Rob. (La.) 227. 16. Florida.— Weston v. Moody, 29 Fla. 169, 10 So. 612. Kansas. — Leavenworth, etc., R. Co. v. Whit- aker, 42 Kan. 634, 22 Pac. 733. Louisiana. — See Hearing v. Mound City L. Ins. Co., 29 La. Ann. 832. Michigan. — Matter of Flint, etc., R. Co., 105 Mich. 289, 63 N. W. 303. Nebraska. — Robinson v. Kilpatrick-Koch Dry Goods Co., 50 Nebr. 795, 70 N. W. 378 ; Spencer v. Thistle, 13 Nebr. 201, 13 N. W. 208. New Hampshire. — Patrick v. Cowles, 45 N. H. 553. New York. — Van Slyke v. Schmeck, 10 Paige (N. Y.) 301. Texas. — -Homes v. Henrietta, 91 Tex. 318, 42 S. W. 1052; Western Union Tel. Co. v. Smith, 88 Tex. 9, 28 S. W. 931, 30 S. W. 549. See 2 Cent. Dig. tit. "Appeal and Error," § 1956. An amendment which sets forth an entirely new allegation of error will not be allowed after the lapse of time limited for bringing a petition in error. Cogshall v. Spurry, 47 Kan. 448, 28 Pac. 154. Manner of amendment. — Where an amend- ment is to be made by striking out or adding an allegation to a petition, it cannot be done by mutilating or altering the files. The party amending should either file a new petition or answer, or file a statement of the amendment, Vol. n 812 APPEAL AND ERROR allowed." A defect in an appeal because there is no affidavit, 1 ^ 1 or a defective affidavit, 19 or an insufficient petition, may be waived when no objection is made, or when objection is not made in apt time. 20 e. Papers Aeeompanying. 21 In some jurisdictions, a transcript of the record must be filed along with the petition in error. 22 4. Notice of Application. Whether appellee or defendant in error is entitled to a notice of the application for the allowance of an appeal _ or writ of error depends upon the provisions of the particular statute under which the appeal or writ of error is sought to be obtained. 23 5. Order Granting Application 24 — a. Describing Judgment. The order and designate by reference where the new mat- ter is to be inserted, or what is to be consid- ered as stricken out. Hill v. Road Dist. No. 6, 10 Ohio St. 621. 17. Nowland v. Horace, 8 Kan. App. 722, 54 Pac. 919; Proper v. Luce, 3 Penr. & W. (Pa.) 65. See also Bondurant v. Watson, 103 U. S. 278, 26 L. ed. 447. 18. James v. Dyer, 31 Ark. 489 ; Heckert's Appeal, 13 Serg. & R. (Pa.) 104. 19. Proper v. Luce, 3 Penr. & W. (Pa.) 65. 20. Orr v. Pennington, 93 Va. 268, 24 S. E. 928 ; and see also 2 Cent. Dig. tit. "Appeal and Error," § 1958. Reference to annexed papers. — It has been held that an insufficient affidavit for appeal may be sustained by its reference and annexa- tion to other papers in the cause. Blair v. Stewart, 18 N. J. L. 123. 21. In Texas, the law requires applications for writs of error from the court of civil ap- peals to the supreme court to be accompanied by a certified copy of the conclusions of law and fact filed in the cause by the former court (Burnett r. Powell, 86 Tex. 382, 24 S. W. 788, 25 S. W. 17 ; Texas, etc., R. Co. i\ Wilson, 85 Tex. 507, 22 S. W. 300, 385 [see also Interna- tional, etc., R. Co. v. Douglass, 87 Tex. 297, 28 S. W. 271] ) ; and in this state it has also been held that an opinion, written and filed on rehearing in the court of civil appeals af- ter the original opinion, should, when neces- sary to a proper understanding of the ques- tions involved, be made a part of the record on application for a writ of error to the su- preme court (Gulf, etc., R. Co. v. Kizziah, (Tex. 1893) 22 S. W. 300). 22. Garneau v. Omaha Printing Co., 42 Nebr. 847, 61 N. W. 100; Cain v. Cocke, 1 Lea (Tenn.) 288. See 2 Cent. Dig. tit. "Appeal and Error," § 1952. 23. See 2 Cent. Dig. tit. "Appeal and Er- ror." § 1954. In Kentucky, it has been decided that the statute requiring notice of application for writs or error coram vobis did not apply to a case where the object of the writ was to eon- test the validity of a judgment, but referred exclusively to proceedings for relief against faulty replevin and forthcoming bonds or faultv executions. Breckinbridge v. Coleman, 7 B. *Mon. (Ky.) 331. In New Jersey, it has been held that an ap- plication for an order to require the appellee to answer the anneal, and even the order it- self, mav be made without notice to the ap- pellee. Wyckoff v. Hulse, 28 N. J. Eq. 429. Vol. II In Ohio, it was decided that where a party desired to appeal from the court of common pleas to the supreme court, he must enter no- tice on the records of the court during the term of the judgment, and that if he omitted the entry, and merely declared in court his in- tention to appeal, this would not authorize the court at a subsequent term to order an entry nunc pro tunc. Bradford v. Watts, Wright (Ohio) 495. In Tennessee, it has been held that a writ of error is in the nature of a new suit, and may be obtained as of right by any person en- titled to it without his giving notice of ap- plication therefor, ilowry v. Davenport, 6 Lea (Tenn.) 80; Caldwell" r. Hodsden, 1 Lea (Tenn.) 305; Spurgin v. Spurgin, 3 Head (Tenn.) 22. In Washington, it was decided that, under a statute of that state, an appeal taken at chambers, without a notice of application for the allowance of the appeal, would be dis- missed. Parker v. D' Acres, 3 Wash. Terr. 12, 13 Pac. 903. 24. Forms of orders allowing an appeal may be found in Indiana, etc., R. Co. v. Sampson, 132 111. 527, 24 N. E. 609; Shields v. Coleman, 157 U. S. 168, 15 S. Ct. 570, 39 L. ed. 660; Fleitas r. Richardson, 147 U. S. 538, 13 S. Ct. 429, 37 L. ed. 272; Radford r. Folsom, 123 U. S. 725, 8 S. Ct. 334. 31 L. ed. 292; Dodge r. Knowles, 114 U. S. 436, 5 S. Ct. 1108, 29 L. ed. 296. Form of order allowing writ of error is set out in Butler r. Gage, 138 U. S. 52, 11 S. Ct. 235, 34 L. ed. 869. An ordinary order indorsed on a writ of error, staying proceedings on the judgment and exception for the purpose of removing the cause by writ of error, is not sufficient. A proper allowance of the writ should be in- dorsed. Wilbur v. Ramsey, 1 How. Pr. (N. Y.) 10. See also Meyers v. Meyers, 98 Mo. 262 T 11 S. W. 617. Two orders. — In Louisiana an order for a, suspensive appeal and devolutive appeal may be granted by the judge separately or both in one order. Funke r. McVay, 21 La. Ann. 102. Time for making or entering order. — See Louisville r. Muldon, 19 Ky. L. Rep. 1386, 43 S. W. 867; Irving v. Dunseomb, 2 Wend. (N. Y.) 205; Latham v. TJ. 8., 131 TJ. S. xcvii, appendix, 19 L. ed. 452. Entry of order nunc pro tunc. — See Dykes r. Cockrell, 6 La. Ann. 707; Clapp r. Graves, 2 Hilt. (N. Y.) 317; Nicholson v. Chicago, 5 Biss. (TJ. S.) 89, 18 Fed. Cas. No. 10,248. APPEAL AND ERROR 813 must clearly state from what judgment the party desires to prosecute his appeal. 25 b. Designating Appellate Court. While the order should designate the court to which the appeal is taken or the writ of error returnable, a failure in this par- ticular does not always invalidate the order. 26 e. Designating Parties. It is not always necessary to describe by name every party who may take advantage of an order allowing an appeal. 27 Nor need the order name individually all of the appellees. 38 d. Designating Return-Term. In some jurisdictions it is the duty of the trial judge to fix the time and place to which the appeal is returnable ; 29 and if the order of appeal does not name the time and place of return, 30 or, if an erroneous time or place is designated, 31 it is a fault which is not attributable to appellant. 33 e. Fixing Amount of Bond. In some jurisdictions the order must prescribe the amount of the appeal bond. 33 25. Hunt v. Curry, 37 Ark. 100; Day v. Callow, 39 Cal. 593; Matter of Dayries, 19 La. Ann. 73. But inaccuracies in an order describing a judgment appealed from will not invalidate the appeal if the description contains state- ments sufficient to identify the judgment re- ferred to. People's Brewing Co. v. Bcebinger, 40 La. Ann. 277, 4 So. 82. 26. Thus, where the order omits to desig- nate the court to which the appeal is allowed, and by law it can go to a certain court only, the appellant may follow the law, file his record in that court, and have his appeal heard there. Illinois Cent. B. Co. v. Highway Com'rs, 61 111. App. 203 [disapproving Mis- sissippi Valley Manufacturers Mut. Ins. Co. 0. Bermond, 39 111. App. 267]. See also Friend v. Graham, 10 La. 438. It is merely a clerical error, which will not affect the right of appeal, for the lower court to grant an appeal to the supreme court when there is no such appellate tribunal in the ju- risdiction. Stone v. Cromie, 87 Ky. 173, 10 Ky. L. Eep. 19, 7 S. W. 920. Such oversight may be cured by the recital of the bond on appeal and by other proceed- ings. New Iberia Telephone Exch. v. Cumber- land Tel., etc., Co., 51 La. Ann. 1022, 25 So. 975. 27. Carne v. Peacock, 114 111. 347, 2 N. E. 165, wherein it was held that where so many persons "were interested that it was imprac- ticable to enter a separate order allowing an appeal as to each, a, general order permitting all parties desiring to appeal to do so, with- out naming the several parties, was suffi- cient. 28. Eichardson v. Green, 130 U. S. 104, 9 S. Ct. 443, 32 L. ed. 872, holding this to be the rule where the names of all the appellees are given in the appeal bond. Name of counsel. — Where there is counsel of record, an order of court, purporting to be granted on motion of the counsel of the party, is legal and binding, because it is presumed to refer to the counsel of record, and it is un- necessary to name him ; but when a party has no counsel of record, and applies by counsel for an order which could only be granted on petition or motion, it must appear by the record who is the counsel undertaking to rep- resent the party, in order that there may be some responsibility growing out of the act of the court in granting the order. Shields v. Matheison, 9 La. Ann. 487. 29. Laicher v. New Orleans, etc., E. Co., 28 La. Ann. 320. 30. Laicher v. New Orleans, etc., B. Co., 28 La. Ann. 320. In Louisiana, by statute, the trial judge has the legal discretion to fix a different re- turn-day from that named by law if more time be required to prepare the record for ap- peal. Calloway's Succession, 49 La. Ann. 968, 22 So. 225 ; Bartoli v. Huguenard, 39 La. Ann. 411, 2 So. 196, 6 So. 30; Brabazon v. New Or- leans, 28 La. Ann. 64. See also Williams v. Close, 14 La. Ann. 737, and La. Laws (1870, extra session), No. 45, § 4. But under La. Code Prac. art. 883, it seems that the time allowed for the return-day could not be ex- tended by the court from which the appeal was taken, but only by the supreme court. Harbour v. Brickel, 10 Bob. (La.) 419; Hemp- kin v. Averett, 12 La. 482 ; Ginn v. Clack, 12 La. 480 ; Laville v. Bightor, 1 1 La. 198 ; Hart v. Fisk, 10 La. 481 ; and see also State v. Judge, 9 La. Ann. 14. In Bridge v. Merle, 7 La. 446, it was held that the judge a quo could not, by a second order, extend the re- turn-day on the ground that the first day fixed was not a judicial day. 31. Watkins Banking Co. v. Louisiana Lumber Co., 47 La. Ann. 581, 17 So. 143; State v. Balize, 38 La. Ann. 542; Claffe v. Heyner, 31 La. Ann. 594; State v. Brown, 29 La. Ann. 861 ; Cramer v. Brown, 26 La. Ann. 272; Brou v. Becnel, 20 La. Ann. 254; Trimble v. Brichta, 10 La. Ann. 778; Bains v. Kemp, 4 La. 318. See also Miller v. Speight, 61 Ga. 460, wherein it was held that a writ of error, returnable by law to the August term, will not be dismissed for a misdescription of the term in the order granting the appeal when the misdescription consists in writing July term instead of August term, there being no July term. 32. Hence, the appeal will not be dismissed on account thereof unless the error is the re- sult of a suggestion of appellant which is adopted by the judge. State v. Stephens, 38 La. Ann. 928; State v. Balize, 38 La. Ann. 542; State v. Jumel, 35 La. Ann. 980; Wooton v. Le Blanc, 32 La. Ann. 692; Citizens' Bank v. Ruty, 26 La. Ann. 747. 33. 'Wolfley v. Lebanon Min. Co., 3 Colo. 64; Lowenstein v. Fudickar, 43 La. Ann. 886, Vol. II 814 APPEAL AND ERROR t. Prescribing Conditions. Conditions other than those prescribed by statute should not be imposed in an order allowing an appeal. 34 g. Signature of Judge. In Louisiana, the omission of the judge to sign the order is immaterial ; 35 but the rule seems to be otherwise in Kentucky. 86 h. Amendment. A defective order allowing an appeal may be amended.* 7 i. Revocation — (i) Right to Revoke. It seems that a court has the power, during the term, at the request of appellant, to set aside the order of allowance, and thus vacate the appeal which has been granted in appellant's favor. 88 The court cannot, however, vacate an order allowing an appeal after the expiration of the term at which such order was made. 39 (n) Effect of Revocation. When, in a proper case, the allowance of an appeal has been revoked, the appeal itself will be dismissed. 40 6. Order Refusing Application. The refusal to grant an application for a writ of error, it seems, is in effect an affirmance of the correctness of the decision of the court below. 41 9 So. 742; Keller's Succession, 39 La. Ann. 579, 2 So. 553. See also McGuirk v. Mar- chand, 45 La. Ann. 732, 13 So. 161; and 2 Cent. Dig. tit. "Appeal and Error," § 1978. 34. Sanitary Dist. v. Cook, 51 111. App. 424; State v. Engleman, 45 Mo. 27; and see also 2 Cent. Dig. tit. "Appeal and Error," § 1980. Directions for the insertion into the trans- cript of records filed in evidence have been held to render an order irregular. State v. Kruttschnitt, 44 La. Ann. 567, 10 So. 887. 35. Austin v. Scovill, 34 La. Ann. 484; Theriot v. Michel, 28 La. Ann. 107. 36. Kanatzar v. Kanatzar, 4 Ky. L. Rep. 448, wherein it was held that an appeal will be stricken from the docket where it appears that the judge of the lower court did not sign the order. See also, generally, Orders. 37. National City Bank v. New York Gold Exch. Bank, 97 N. Y. 645; Health Depart- ment v. Trinity Church, 10 Misc. (N. Y.) 738, 32 N. Y. Suppl. 120, 65 N. Y. St. 215; Brown v. Brown, 66 Vt. 76, 28 Atl. 666. Amendment can be made at a subsequent term only from some minute or memorial paper from which it can be determined what the order really was. Town v. Howieson, 175 111. 85, 51 N. E. 712. Reference to petition to supply defects. — When an order of appeal is made on the back or at the foot of a petition for appeal, the de- ficiencies in the order may be supplied by reference to the petition. Friend v. Graham, 10 La. 438. 38. Campbell v. Garven, 5 Ark. 485 ; Ober- koetter v. Luebbering, 4 Mo. App. 481 ; Phil- lips v. Ordway, 101 TJ. S. 745, 25 L. ed. 1040; Ex p. Roberts, 15 Wall. (U. S.) 384, 21 L. ed. 131 [overruling Nutt v. TJ. S._, 8 Ct. CI. 185] ; and see also 2 Cent. Dig. tit. "Appeal and Error," § 1940. After acceptance of the bond on appeal and docketing of the cause in the United States supreme court, the federal circuit court has no power to vacate the allowance of an ap- peal, though the term at which the appeal was allowed has not adjourned. Keyser v. Farr, 105 U. S. 265, 26 L. ed. 1025. In Louisiana, it has been held that, the Vol. II moment a sufficient appeal bond is signed and citation issued, the jurisdiction of the appel- late court attaches, and the lower court is incompetent to disturb the order granting the appeal. State v. Judge, 21 La. Ann. 152; State v. Judge, 21 La. Ann. 43; Potier v. Harman, 1 Rob. (La.) 527; Ailing v. Beamis, 15 La. 385. See also State %>. Judge, 39 La. Ann. 774, 2 So. 390; State v. Judge, 36 La. Ann. 192. Second appeal during pendency of the first. ■ — ■ When an appeal has been granted and is still pending, the court below has no jurisdic- tion to grant a, second appeal from the same judgment. Pomeroy's Succession, 22 La. Ann. 518. The court may vacate an order allowing an appeal when the order. was made upon an er- roneous appearance of counsel or under a mis- take of fact (Ex p. Roberts, 15 Wall. (TJ. S.) 384, 21 L. ed. 131 ; Farmers' L. & T. Co. v. Mc- Clure, 78 Fed. 211, 24 C. C. A. 66, 49 U. S. App. 46 ) ; or where the court to which appeal was granted has no jurisdiction ( Engelman v. Coco, 42 La. Ann. 923, 8 So. 610). So it has been held that where the appellate court has improperly granted a writ of error, that court will quash the same. Gaskins v. Com., 1 Call (Va.) 194. 39. Springer v. Merchants Nat. Bank, 67 111. App. 317; Anderson v. Anderson, 2 Call (Va.) 198. See also McGarrahan v. New Idria Min. Co., 49 Cal. 331 : Rector v. Lips- comb, 141 U. S. 557, 12 S. Ct. 83, 35 L. ed. 857 ; and see also 2 Cent. Dig. tit. "Appeal and Error," § 1940. Time for objecting to allowance. — Objec- tions to the legality of the allowance of an appeal should be made on the occasion of the allowance. Graves v. Sheldon, 2 D. Chipm. (Vt.) 71, 15 Am. Dec. 653. 40. Weiser v. Blaese, 34 La. Ann. 833; Sthele v. Millspaugh, 33 La. Ann. 194; Mc- Kim v. Manwaring, 5 Hill (N. Y.) 296; and see also 2 Cent. Dig. tit. "Appeal and Error," § 1940. 41. Brackenridge v. Cobb, 85 Tex. 448, 21 S. W. 1034. In Nebraska, it has been held that the dis- missal of a petition in error from an appel- APPEAL AND ERROR 815 7. Proof of Allowance. Any particular formality by which the allowance is made to appear is not material. 42 8. Questions Presented Upon the Application — a. Grounds for Granting or Denying 43 — ^) Conflict of Decisions. A writ of error will sometimes be granted on the ground that the decision which it is sought to have reviewed is in conflict with other decisions previously made upon the same question in the same jurisdiction. 44 (n) Fraud and Laches of Applicant. It is within the discretion of the court to grant or deny the application of one who has been guilty of bad faith and laches. 45 (in) Importance of Interests Involved.® In New York, leave to appeal to the court of appeals or to the appellate division should be granted when there is a question of the construction of public statutes ; where the case is one of public importance or involves large interests, or is of importance to others besides the litigants ; or where a number of cases depend on the decisions. 47 late court, without an examination of the merits of the assignments, operates as an affirmance of the judgment sought to be re- viewed. Bell v. Walker, 54 Nebr. 222, 74 N. W. 617; Dunterman v. Storey, 40 Nebr. 447, 58 N. W. 949 ; and see also 2 Cent. Dig. tit. "Appeal and Error," § 1957; and infra, XIV. 42. Steamboat Zephyr v. Brown, 2 Wash. Terr. 44, 3 Pac. 186 ; Washington, etc., R. Co. i). Bradley, 7 Wall. (U. S.) 575, 19 L. ed. 274; Hudgins v. Kemp, 18 How. (U. S.) 530, 15 L. ed. 514; U. S. v. Haynes, 2 McLean (TJ. S.) 155, 26 Fed. Cas. No. 15,335. An agreement of parties in the appellate court to the fact of an allowance is sufficient evidence of the allowance. The New England, 3 Sumn. (U. S.) 495, 18 Fed. Cas. No. 10,151. Security taken and citation signed by judge, see Brandies v. Cochrane, 105 TJ. S. 262, 26 L. ed. 989. 43. See infra, VII, B, 8, a, (i)-(m). 44. Sheaff v. Williams, 59 Ohio St, 559, 53 N. E. 50; Terrell v. MeCown, 87 Tex. 470, 29 S. W. 467. See 2 Cent. Dig. tit. "Appeal and Error," § 1964. 45. Downer v. Howard, 47 Wis. 476, 3 N. W. 1. 46. In the District of Columbia, from an interlocutory order, a discretionary appeal will not be allowed, unless a strong ease is made out showing to the court of appeals the necessity of an immediate readjudication. U. S. Electric Lighting Co. v. Ross, 9 App. Cas. (D. C.) 558; National Cable Co. v. Washington, etc., R. Co., 8 App. Cas. (D. C.) 478; Thompson v. Conroy, 8 App. Cas. (D. C.) 145; Morris v. Washington, etc., R. Co., 6 App. Cas. (D. C.) 513. 47. Atlantic, etc., Tel. Co. v. Barnes, 39 N. Y. Super. Ct. 357; Butterfield v. Radde, 38 N. Y. Super. Ct. 44; Lynch v. Sauer, 16 Misc. (N. Y.) 362, 38 N. Y. Suppl. 1, 25 N. Y. Civ. Proc. 286, 74 N. Y. St. 369 ; Blake v. Voight, 12 N. Y. Suppl. 213, 35 N. Y. St. 37; Taylor v. Arnoux, 15 N. Y. St. 383; and see also 2 Cent. Dig. tit. "Appeal and Error," § 1963. N. Y. Code Civ. Proc. § 191, subd. 2, pro- vides for an appeal from a unanimous de- cision of the appellate division in certain cases when the appellate division certifies that, in its opinion, a question of law is in- volved which ought to be reviewed by the court of appeals. Young v. Fox, 155 N. Y. 615, 50 N. E. 279. See also supra, V, B, 4, m. New question. — In Mundt v. Glokner, 26 N. Y. App. Div. 123, 50 N. Y. Suppl. 190, it was held that, where the question presented upon the appeal was novel and of first im- pression, leave should be granted to appeal to the court of appeals. Where the subject-matter involved is tri- fling in amount, or where the principle in- volved is not of sufficient importance to jus- tify the application, leave to appeal should not be granted. Roeber v. New Yorker Staats Zeitung, 2 N. Y. App. Div. 163, 37 N. Y. Suppl. 719, 73 N. Y. St. 393; Myers v. Rosen- back, 14 Misc. (N. Y.) 638, 36 N. Y. Suppl. 7, 70 N. Y. St. 766; Josuez v. Murphy, 6 Daly (N. Y.) 404; Annan v. Ritchie, 6 Dalv (N. Y.) 331; Lynch v. Sauer, 16 Misc. (N. Y.) 362, 38 N. Y. Suppl. 1, 25 N. Y. Civ. Proc. 286, 74 N. Y. St. 369; Riche v. Martin, 2 Misc. (N. Y.) 64, 20 N. Y. Suppl. 872, 49 N. Y. St. 921 ; Kent v. Sibley, 7 N. Y. Suppl. 801, 28 N. Y. St. 183; Ahren v. National Steamship Co., 11 Abb. Pr. N. S. (N. Y.) 356: and see also 2 Cent. Dig. tit. "Appeal and Error," § 1966. Counsel's want of preparation. — InDrucker v. Patterson, 2 Hilt. (N. Y.) 135, it was held that an affidavit, from which it appeared that on the first hearing of the case the counsel for appellant was not duly prepared to argue the case, and therefore entertained the belief that the court did not fully understand the ques- tion involved in the case, did not show any grounds for allowing an appeal. Question previously decided. — An appeal or writ of error will not be granted in order to have a question passed upon which has al- ready been settled by a previous decision in another case. Flaherty v. Greenman. 7 Daly (N. Y.) 481; Ward v. Edesheimer, 18 N. Y. Suppl. 139, 45 N. Y. St. 283; Sire v. Hum- boldt, 16 N. Y. Suppl. 956, 41 N. Y. St. 954; Deutsche v. Reilly, 19 Alb. L. J. 162; Holt v. Maverick, 86 Tex. 457, 25 S. W. 607. See also Palmer v. Moeller, 2 Hilt. (N. Y.) 421, 19[ How. Pr. (N. Y.) 322; Saril v. Payne, 4 N. Y. Vol. TI 816 APPEAL AND ERROR b. Merits of Controversy. Generally, the merits of the controversy between the parties will not be determined or fully investigated on a petition for an appeal or writ of error. 48 9. Writ of Mandamus to Compel Allowance. Upon the refusal of an inferior court to grant an appeal to a party entitled thereto, the appellate court will issue a mandamus directing the allowance of the appeal. 49 But a mandamus will not issue when the party has another adequate remedy. 50 C. Costs and Fees — 1. In General. Some statutes regulating appellate practice provide that the costs which have accrued must be paid before the appeal is perfected. 51 Suppl. 897, 24 N. Y. St. 486. Compare State v. Whitaker, 45 La. Ann. 1299, 14 So. 66; and see also 2 Cent. Dig. tit. "Appeal and Error," § 1965. Remitting excess of judgment. — On » mo- tion for leave to file a petition in error, de- fendant in error will be permitted to remit, on the record of the court below, any excess that may be found in the judgment, and when such remittitur is properly entered the mo- tion will be overruled. Averill Coal, etc., Co. v. Verner, 22 Ohio St. 372. Substantial justice done. — Where the court has a discretionary power as to the allowance of an appeal it will refuse the appeal when substantial justice has been done, though some irregularities may be attributable to the prevailing party. The Sloop Chester v. The Brig Experiment, 2 Dall. (U. S.) 41, 1 L. ed. 280. 48. Matthews v. Fogg, 35 N. H. 289 ; Lamb i'. Lane, 4 Ohio St. 167, in which last case it was also held, however, that where the ques- tions involved are of unusual gravity and a decision of them at an early day is highly de- sirable, the appellate court will consider them fully upon a mere motion for leave to file a petition. Compare Dodge v. Stiekney, 62 N. H. 330, construing N. H. Gen. Laws, c. 207, § 9. 49. Arkansas. — Pettigrew v. Washington Countv, 43 Ark. 33; Beebe v. Lockert, 6 Ark. 422. Kentucky. — Schmidt v. Mitchell, 95 Ky. 342, 15 Ky. L. Rep. 768, 25 S. W. 278 ; Kelly v. Toney, 95 Ky. 338, 15 Ky. L. Rep. 718, 25 S. W. 264 ; Louisville Industrial Reform School v. Louisville, 88 Ky. 584, 11 Kv. L. Rep. 109, 11 S. W. 603. Louisiana. — State v. Houston, 36 La. Ann. 210; State v. Currie, 35 La. Ann. 887; State v. Judge, 31 La. Ann. 850; State v. Parish Judge, 29 La. Ann. 809; State v. Judge, 28 La. Ann. 900; State v. Judge, 24 La. Ann. 596 ; State v. Judge, 23 La. Ann. 768 ; State v. Judge, 18 La. Ann. 628 ; State v. Judge, 17 La. Ann. 186; State v. Judge, 12 Rob. (La.) 320; Little v. Consolidated Assoc. Com'rs, 2 La. Ann. 731 ; State v. Probate Judge, 12 Rob. (La.) 315; Gravier v. Caraby, 8 La. 202. Missouri. — Patton v. Williams, 74 Mo. App. 451; State v. Lewis, 71 Mo. 170; Hall v. Au- drain County, 27 Mo. 329. Tennessee. — King v. Hampton, 3 Hayw. (Tenn.) 59. See, generally, Mandamus. Vol. II Mandamus does not lie to compel the granting of an appeal in a case which, on the face of the papers, is unappealable (State v. Burthe, 39 La. Ann. 341, 1 So. 656) ; or to compel a district judge to rescind an order granting an appeal (State v. Judge, 14 La. Ann. 60). Under N. C. Code (1883), §§ 252, 253, upon the refusal of the clerk to prepare a state- ment of the case, as required by Clark's Code Civ. Proc. N. C. (1900), § 254, on appeal from his decision to the superior court, the court in term, or a judge at chambers, may direct him to do so by a simple order. Farmers Nat. Bank v. Burns, 107 N. C. 465, 12 S. E. 252. 50. Byrne v. Harbison, 1 Mo. 225; Sabine v. Rounds, 50 Vt. 74. See also infra, XIV. 51. Florida. — Wheeler, etc., Mfg. Co. v. Johns, 37 Fla. 262, 20 So. 236, as to payment of all accrued costs. But see Jackson v. Haisly, 27 Fla. 205, 9 So. 648 ; Smith v. Cur- tis, 19 Fla. 786, to the effect that the rule does not apply to cases in equity. And com- pare also Florida Orange Hedge Fence Co. v. Branham, 27 Fla. 526, 8 So. 841; Mclver v. Marshall, 24 Fla. 42, 4 So. 563. Georgia. — Perkins v. Rowland, 69 Ga. 661. See also Brewer v. Brewer, 6 Ga. 587 ; Nisbet v. Lawson, 1 Ga. 275 ; Doe v. Peeples, 1 Ga. 1, to the effect that plaintiff in error should pay all costs accrued, but that a failure to do so will not deprive the appellate court of juris- diction to hear the cause. The clerk may waive the payment of costs by receiving an appeal without demanding the costs or ten- dering a cost-bill. Lynier v. Jackson, 20 Ga. 773; Crawford v. Cate, 20 Ga. 69; Short v. Cohen, 11 Ga. 39. Kentucky. — Gore v. Pettit, 2 B. Mon. (Ky.) 25, as to payment of jury-fee. Missouri. — Hardison v. Steamboat Cumber- land Valley, 13 Mo. 226, as to payment of jury-fee. New York. — Weehawken Wharf Co. v. Knickerbocker Coal Co., 25 Misc. (N. Y.) 309, 54 N". Y. Suppl. 566 (construing N. Y. Code Civ. Proc. § 779, as to payment of costs of motion) ; Schwartz v. Schendel, 23 Misc. (N. Y.) 473, 51 N. Y. Suppl. 395; Szerlip v. Bair, 20 Misc. (N. Y.) 588, 46 N. Y. Suppl. 461 (construing N. Y. Laws (1896), c. 748, and N. Y. Code Civ. Proc. § 3047 ) . Pennsylvania. — The payment of the taxed costs is a condition precedent, and is indis- pensable to an appeal from an award of arbitrators. Peterson v. Pennsylvania R. Co., APPEAL AND ERROR 817 2. For Transcript. In some jurisdictions, the fees of the clerk for making out, certifying, and transmitting the transcript must be prepaid or secured, or the appeal will not be properly perfected; 52 while in other jurisdictions the clerk must perform these duties without prepayment or security. 53 3. In Appellate Court. It is sometimes provided by statute or rule of court that the fees of the clerk of the appellate court shall be paid or secured in advance, or within a certain time, fixed by the statute or the rule. 54 195 Fa. St. 494, 46 Atl. 112; Carr v. McGov- ern, 66 Pa. St. 457; Williams v. Hazlep, 14 Pa. St. 157. e In the absence of statutory authority it has been decided that a court cannot by a rule require parties appealing from its judgments to pay all accrued costs prior to the perfect- ing of their appeals. People v. Quinn, 12 Colo. 473, 21 Pac. 488. Manner of payment. — Only actual pay- ment is required, and an appeal will not be dismissed for a mere technical default, but only for a substantial failure of payment. Schrenkeisen v. Kishbaugh, 162 Pa. St. 45, 29 Atl. 284. Thus, payment by a check which is itself actually paid within the twenty days prescribed by statute is a valid payment. Rice v. Constein, 89 Pa. St. 477. See also Burns v. Smith, 180 Pa. St. 606, 37 Atl. 105, holding that an appeal should not be stricken off for non-payment of costs within the pre- scribed twenty days, where appellant's check, given to the prothonotary sixteen days before expiration of the time, was good, and known to the prothonotary to be so, and was ac- cepted by him in payment without objection, but was not presented for payment or de- posited for collection. The fact that the pro- thonotary receives payment of costs on appeal in the shape of a draft, which, on the same day, without his indorsement or provision for recourse to him, was cashed by a bank, is not a ground for dismissing the appeal. Delong v. Allentown R. Co., 1 Woodw. (Pa.) 191 [distinguishing Ellison v. Buckley, 42 Pa. St. 281, where appellant paid only a part of the costs, and gave the deputy of the prothono- tary a note for the balance, which note was not paid off until the day when a rule was taken to strike off the appeal]. Municipal corporations are not bound to pay costs before taking an appeal. Swartz v. Middletown School Dist, 21 Pa. Co. Ct. 175. Where two appeals have been taken in the same cause, the first of which appeals was dismissed, the second one will be stayed until the costs of the first are paid. Dresser v. Brooks, 1 Abb. Dec. (N. Y.) 555. 52. Idaho. — Potter v. Talkington, (Ida. 1897) 49 Pac. 14, stating rule in this state prior to the act of March 12, 1897. Iowa. — Peterson v. Hays, 85 Iowa 14, 51 N. W. 1143; Loomis v. McKenzie, 57 Iowa 77, 8 N. W. 779, 10 -N. W. 298. Kentucky. — In this state the question seems to be undecided. See Houston v. Ducker, 86 Ky. 123, 9 Ky. L. Rep. 421, 5 S. W. 382; Dun- can v. Baker, 13 Bush (Ky.) 514; Bates v. Foree, 4 Bush (Ky.) 430. Louisiana. — State v. Rousseau, 28 La. Ann. 579, construing La. Acts (1872), No. 24, § 2. [52] Prior to the enactment of this statute, de- cisions upon this question were not always harmonious. See State v. Sixth Dist. Ct. Clerk, 23 La. Ann. 762; State v. Second Dist. Ct. Clerk, 22 La. Ann. 585; State v. Seventh Dist. Ct. Clerk, 22 La. Ann. 563; State v. Phelps, 6 Rob. (La.) 308. Michigan. — Boardman v. Taylor, 16 Mich. 62. New York. — Chambers v. Appleton, 47 N. Y. Super. Ct. 524; Gardner v. Brown, 5 How. Pr. (N. Y.) 351; Aldrich v. Ketehum, 12 N. Y. Leg. Obs. 319. North Carolina. — Brown v. House, 119 N. C. 622, 26 S. E. 160; Bailey v. Brown, 105 N. C. 127, 10 S. E. 1054; Andrews v. Whis- nant, 83 N. C. 446. Under Clark's Code Civ. Proc. N. C. (1900), § 551, it seems that leave to appeal in forma pauperis, except in crim- inal cases, does not excuse appellant from paying the costs of transcript. State v. Dey- ton, 119 N. C. 880, 26 S. E. 159; Sanders v. Thompson, 114 N. C. 282, 19 S. E. 225; State v. Nash, 109 N. C. 822, 13 S. E. 733; Bailey v. Brown, 105 N. C. 127, 10 S. E. 1054; Mar- tin v. Chasteen, 75 N. C. 96. Time of payment. — In Iowa, it has been held that payment of the fees of the clerk of the court for a transcript need not be made within the time allowed for the service of notice of appeal. Slone v. Berlin, 88 Iowa 205, 55 N. W. 341 ; Bruner v. Wade, 85 Iowa 666, 52 N. W. 558. Waiver of prepayment. — In Varnum v. Winslow, 106 Iowa 287, 76 N. W. 708, it was held that when the clerk accepts service of a notice of appeal containing an admission that the costs of the transcript have been paid or secured, he waives his right to prepayment or security. 53. Parker v. MeGaha, 13 Ala. 344; Bowie v. Maryland Agricultural College, 27 Md. 268. In Tennessee, it has been decided that it is the duty of the clerk to make out, certify, and transmit the transcript without the prepay- ment of his fees. But when the clerk has performed this duty, and the transcript has been lost, he will not be compelled to pre- pare another without compensation. Western Union Tel. Co. v. Ordway, 8 Lea (Tenn.) 558. Writ of error. — In Arkansas and Texas, it has been decided that the clerk has no right to withhold the transcript of a writ of error until his fees for making it out are paid or secured. Thorn v. Glendenin, 12 Ark. 60; Davis r. Carter, 18 Tex. 400 ; v. Cost- ley, 7 Tex. 460. 54. California. — Boyd v. Burrel, 60 Cal. 280. Colorado. — Busby v. Camp, 16 Colo. 38, 26 Pac. 326. Vol. II 818 APPEAL AND ERROR D. Bonds and Undertakings— 1. Necessity — a. In General. At com- mon law, it seems, no appeal bond is necessary. 55 b. Statutory Requirements — (i) In General. By statute,_ however, in most jurisdictions, the filing of a bond is an essential step in perfecting an appeal. 5 Florida. — Johnson v. Polk County, 23 Fla. 58, 1 So. 334; Robinson v. Roberts, 16 Fla. 156. Iowa. — Seott v. Lasell, 71 Iowa 180, 32 N. W. 322; Cole v. Laub, 35 Iowa 590. Louisiana. — State v. Heuchert, 42 La. Ann. 270, 7 So. 329 ; Champomier v. Washington, 2 La. Ann. 722. Massachusetts. — Burlingame v. Bartlett, 161 Mass. 593, 37 N. E. 748. Oregon. — Therkelsen v. Therkelsen, 35 Oreg. 75, 54 Pae. 885, 57 Pac. 373. Utah. — Van Wagonen v. Barben, 9 Utah 481, 35 Pac. 497; Legg v. Larson, 7 Utah 110, 25 Pac. 731. Washington. — Griffith v. Maxwell, 22 Wash. 634, 61 Pae. 708, wherein it was held that when appellant had failed to transmit the docket-fee with the transcript, so that the case was not docketed for the first term, the court might dismiss the appeal, or direct com- pensation to be paid to appellee for the delay. United States. — Selma, etc., R. Co. v. Louisiana Nat. Bank, 94 U. S. 253, 24 L. ed. 32; Owings v. Tiernan, 10 Pet. (U. S.) 447, 9 L. ed. 489. Fee for printing record. — Upon an appeal to the supreme court of the United States, if the record is printed under the supervision of the clerk, he may require the payment of the fee, chargeable under supreme court Rule 24, before the printing is done. If the parties themselves furnish the printed copies, the fee must be paid, if demanded by the clerk, in time to enable him to make the necessary ex- amination and be ready to deliver the copies to the parties or their counsel and to the court when needed for any purpose in the pro- gress of the cause. Bean v. Patterson, 110 U. S. 401, 4 S. Ct. 23, 28 L. ed. 190. Fee for prothonotary. — In Konigmacher v. Kimmel, 1 Penr. & W. (Pa.) 207, 21 Am. Dec. 374, it was held that, in the case of an appeal from a decree of the circuit court, the prothonotary could not demand his fee before entering it. 55. Ringgold's Case, 1 Bland (Md.) 5 [citing 2 Tidd Pr. 1074] wherein it is said: " The right of appeal seems to have been con- ceded to the citizen by the common law in all civil cases, without check or control of any kind whatever." " The giving of bond with sureties is not essential, in all cases, as part of an appeal, but only in those cases in which it is re- quired by statute, or by the order of the court allowing the appeal in cases where the court possesses power to prescribe such terms." Peoria County v. Harvey, 18 111. 364. 370. As to waiver of bond see infra, VII, D, 11, a, (i). For supersedeas and stay bonds see infra, VIII. 56. Arizona. — Sutherland v. Putnam, (Ariz. 1890) 24 Pae. 320. Vol. II California.— Meyer v. San Diego, 130 Cal. 60, 62 Pac. 211 ; Seott v. Glenn, 98 Cal. 168, 32 Pac. 983; Von Schmidt v. Widber, (Cal. 1893) 32 Pac. 531. Colorado. — Clelland v. Tanner, 8 Colo. 252, 7 Pac. 9. See also Pollock v. People, 1 Colo. 83. Florida. — Finnegan v. Fernandina, 14 Fla. 72. Illinois. — Traders Safe, etc., Co. v. Calow, 77 111. App. 146 ; John F. Alles Plumbing Co. v. Alles, 67 111. App. 252. Kentucky. — Wickliffe v. Clay, 1 Dana (Ky.) 585. See also Clinton v. Phillips, 7 T. B. Mon. (Ky.) 117. Louisiana. — Davis v. Curtis, 3 Mart. N. S. (La.) 142; Dubreuil v. Dubreuil, 5 Mart. (La.) 81. Maine. — Moore v. Phillips, 94 Me. 421, 47 Atl. 913. Massachusetts. — Santon v. Ballard, 133 Mass. 464, relating to appeals from certain courts, holding that bond cannot be dispensed with by consent of parties. Montana. — Washoe Copper Co. v. Hickey, 23 Mont. 319, 58 Pac. 866. Nebraska. — Hier v. Anheuser-Busch Brew- ing Assoc, 52 Nebr. 144, 71 N. W. 1005; School Dist. No. 6 v. Traver, 43 Nebr. 524, 61 N. W. 720. "Nevada. — Marx v. Lewis, 24 Nev. 306, 53 Pac. 600 ; Gaudette v. Glissan, 11 Nev. 184. New Hampshire. — Clark v. Courser, 30 N. H. 454. "New York. — Architectural Iron Works v. Brooklyn, 85 N. Y. 652; Raymond v. Rich- mond, 76 N. Y. 106; Cowdin v. Teal, 67 N. Y. 581; Jones v. Decker, 14 Abb. Pr. (N. Y.) 391 ;• Spotts v. Dumesnil, 12 Abb. Pr. N. S. (N. Y.) 117; Sheldon v. Barnard, 3 How. Pr. (N. Y.) 423; Langley v. Warner, 3 How. Pr. (N. Y.) 363, 1 N. Y. 606. Compare Par- sons v. Suydam, 4 Abb. Pr. (N. Y.) 134. North Carolina. — Harshaw v. McDowell, 89 N. C. 181; Smith v. Reeves, 85 N. C. 594; Clark's Code Civ. Proc. N. C. (1900), § 552. Ohio.— Hubbard v. Topliff, 60 Ohio St. 382, 54 N. E. 367. Pennsylvania. — Com. v. Judges, 10 Pa. St. 37; Chew's Case, 8 Watts & S. (Pa.) 375; Page v. J. C. McNaughton Co., 2 Pa. Super. Ct. 519; Moody's Appeal, 1 Pennyp. (Pa.) 287. South Dakota. — McConnell v. Spicker, 13 S. D. 406, 83 N. W. 435 ; Sutton v. Consoli- dated Apex Min. Co., 12 S. D. 576, 82 N. W. 188. Tennessee. — Davis v. Hansard, 9 Humphr. (Tenn.) 173. See also Ing v. Davey, 2 Lea (Tenn.) 276. Texas. — Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486; Lyell v. Guadalupe County, 28 Tex. 57. Compare Hansborough v. Towns, 1 Tex. 58. Utah. — Crismon v. Bingham Canyon, etc., APPEAL AND ERROR 819 In some states, however, an appeal bond is not required in order to give the appel- R. Co., 3 Utah 249, 2 Pae. 208. Compare Winters v. Hughes, 3 Utah 438, 24 Pae. 907. Virginia. — See Thomson v. Evans, 6 Munf. (Va.) 397; Braxton v. Morris, 1 Wash. (Va.) 380. Washington. — Van Dusen v. Kelleher, 20 Wash. 716, 56 Pae. 35; Hibbard v. Delanty, 20 Wash. 539, 56 Pae. 34; Smithson v. Woodin, 13 Wash. 709, 43 Pae. 638. Compare Pox v. Utter, 6 Wash. 299, 33 Pae. 354. Wisconsin. — Eureka P. Steam Heating Co. v. Sloteman, 67 Wis. 118, 30 N. W. 241. Wyoming. — Horton v. Peacock, 1 Wyo. 39. See 2 Cent. Dig. tit. "Appeal and Error," § 2001 et seq. Alabama. — Bond is unnecessary where ap- peal is not intended to act as a supersedeas; a simple acknowledgment in writing by the sureties is sufficient to secure the costs. Mar- shall v. Croom, 50 Ala. 479 ; Williams v. Mc- Conico, 27 Ala. 572 ; Riddle v. Hanna, 25 Ala. 484; Spencer v. Thompson, 24 Ala. 512. Arkansas — Appeal from probate court. — Under the Arkansas act of Jan. 4, 1849, no bond for costs is required on appeals from probate to circuit courts. Sullivan v. Dead- man, 14 Ark. 49; Ross v. Davis, 13 Ark. 293; Biseoe v. Maddin, 12 Ark. 765 {overruling Morrow v. Walker, 10 Ark. 569]. Connecticut. — Probate appeals, for the want of a bond are voidable only, and not void. Orcutt's Appeal, 61 Conn. 378, 24 Atl. 276; Bailey v. Woodworth, 9 Conn. 388. Florida — Chancery appeals. — A chancery appeal may be perfected without giving bond and security, or paying the costs of the suit as required in suits at law. Williams v. Hil- ton, 25 Pla. 608, 6 So. 452; Smith v. Curtis, 19 Pla. 786; Bauknight v. Sloan, 17 Pla. 281; Kilbee v. Myrick, 12 Fla. 416. Indiana — Term appeals. — " The filing of » bond is an essential step in perfecting a term appeal, and where a bond is not filed within the time limited by the order granting the appeal, the appeal must be upon notice. This doctrine has been asserted in many un- reported decisions, made upon motions, and is declared in Holloran v. Midland R. Co., 129 Ind. 274, 28 N. E. 549 ; Webber v. Brieger, 1 Colo. App. 92, 27 Pae. 871 ; Goodwin v. Pox, 120 U. S. 775, 7 S. Ct. 779, 30 L. ed. 815. In Jones v. Droneberger, 23 Ind. 74, and in Ham v. Greve, 41 Ind. 531, there are intimations of a contrary doctrine, but there was no author- itative decision upon the question. The fail- ure to file a bond does not, however, prevent an appeal upon notice. As held in Burt v. Hoettinger, 28 Ind. 214, a bond is not always essential to an appeal; but, as held in Hol- loran v. Midland R. Co 7 129 Ind. 274, 28 N. E. 549, where there is no bond, notice is required. A bond is, we may add, not essential to the appeal, although it is necessary to obtain a supersedeas, where notice is given." Ex p. Sweeney, 131 Ind. 81, 30 N. E. 884. See also Sturgis v. Rogers, 26 Ind. 1 ; John V. Farwell Co. v. Newman, 17 Ind. App. 649, 47 N. E. 234. Where no appeal was prayed and no bond given in the court below, a cause cannot be properly appealed — as from an interlocu- tory order — under the second specification of Ind. Rev. Stat. p. 162, § 376. Berry v. Berry, 22 Ind. 275; Staley v. Dorset, 11 Ind. 367. Mississippi — Decree overruling demurrer. — The provisions of Miss. Code (1871), §§ 1251, 1252, 1257, requiring appeal bonds, do not embrace appeals from a decree overrul- ing a demurrer. Byrd v. Clarke, 52 Miss. 623; Philips v. Hines, 33 Miss. 163; Gay v. Edwards, 30 Miss. 218. Missouri — Appeals in attachment suits. — Defendant may appeal from an adverse judg- ment in an attachment suit without giving a bond. His failure to give a bond deprives him of the right to a supersedeas. Paddock- Hawley Iron Co. v. Graham, 48 Mo. App. 638 ; Crawford v. Greenleaf, 48 Mo. App. 590. New York — City court appeals. — Under N. Y. Code Civ. Proc. §§ 1340, 1341, as amended by N. Y. Laws (1895), e. 946, se- curity is not necessary on an appeal from a judgment of the general term of the city court of New York set for the hearing at the appellate term. Quigg v. International Shirt, etc., Co., 16 Misc. (N. Y.) 39, 37 N. Y. Suppl. 916, 73 N. Y. St. 44. But see Carling v. Pur- eell, 3 Misc. (N. Y.) 55, 22 N. Y. Suppl. 558, 51 N. Y. St. 835, to the effect that, under former statutory conditions, security to per- fect an appeal from a, judgment of the city court to the court of common pleas was held to be essential. And compare Sehnitzer v. Willner, 5 Misc. (N. Y.) 418, 25 N. Y. Suppl. 960 [distinguishing Lane v. Humbert, 16 Daly (N. Y.) 186, 9 N. Y. Suppl. 744, 31 N. Y. St. 277; Carling v. Purcell, 3 Misc. (N. Y.) 55, 22 N. Y. Suppl. 558, 51 N. Y. St. 835, on the ground that in these eases the appeal was from a judgment, and not an order], where it was held that, under N. Y. Code Civ. Proc. § 1343, no security was required to appeal to the court of common pleas from an order made by the general term of the city court of New York. New York. — On appeals from orders made upon special motions, as distinguished from judgments, no security is required. Beach v. Southworth, 6 Barb. (N. Y.) 173. Statutes are constitutional which require the giving of an appeal bond. Hier v. An- heuser-Busch Brewing Assoc, 52 Nebr. 144, 71 N. W.. 1005. United States supreme court practice. — Al- though, upon an appeal to the supreme court of the United States, a bond should be filed, its omission affects only the regularity of the proceedings. The taking of security is not jurisdictional in its character. If, through mistake or accident, no bond or a defective bond has been filed, that court will not dis- miss the appeal, but will permit a bond to be given there. Brown v. McConnell, 124 U. S. 489, 8 S. Ct. 559, 31 L. ed. 495 ; Union Ins. Co. v. Smith, 124 U. S. 405, 8 S. Ct. 534^ 31 L ed. 497 ; Edmonson v. Bloomshire, 7 Wall. (U S.) 306, 19 L. ed. 91; Seymour v. Freer, Vol. II ■820 APPEAL AND ERROR late court jurisdiction. 57 And, as a general rule, no bond is required for the prose- cution of a writ of error. 58 (n) Where There Are Several Judgments or Orders — (a) In Gen- eral. Statutes requiring undertakings on appeal generally contemplate a separate appeal bond for each judgment or order appealed from. 59 In some cases, however, a single bond may support an appeal from more than one judgment or order. 60 5 Wall. (U. S.) 822, 18 L. ed. 564 [distin- guishing The Dos Hermanos, 10 Wheat. (U. S.) 306, 6 L. ed. 328] ; Ex p. Milwaukee, etc., R. Co., 5 Wall. (U. S.) 188, 18 L. ed. 676; An- son v. Blue Ridge R. Co., 23 How. (U. S.) 1, 16 L. ed. 517. Compare Boyce v. Grundy, 6 Pet. (U. S.) 777, 8 L. ed. 579; Veiteh v. Farmers' Bank, 6 Pet. (U. S.) 777, 8 L. ed. 578. 57. Failure to give bond simply denies the complaining party a supersedeas to the judg- ment below. Where no bond is given the op- posite party is at liberty to proceed to en- force his rights below, by execution or other- wise, subject, of course, to the chances of a reversal. Perkins v. Rowland, 69 6a. 661 ; Nisbet v. Lawson, 1 Ga. 275 ; Doe v. Peeples, 1 Ga. 1; Biddison v. Mosely, 57 Md. 89; Price v. Thomas, 4 Md. 514; State v. Adams, 9 Mo. App. 464. See also Childress v. Foster, 2 Ark. 123 ; Hill v. Hudspeth, 22 Ga. 621 ; Mc- Kim v. Thompson, 1 Bland (Md.) 150; Ring- gold's Case, 1 Bland (Md.) 5; Blanehard v. Wolff, 1 Mo. App. 520; Byrne v. Thompson, 1 Mo. 443; and infra, VIII, H, 1; VIII, L. Under Howell's Anno. Stat. Mich. § 6738, as amended by Mich. Acts ( 1899 ) , p. 380, a bond on an appeal is not required except where a stay of proceedings is sought. Daeschke v. Schellenberg, (Mich. 1900) 82 N. W. 665. Prior to this enactment a bond was neces- sary. Covell v. Mosely, 15 Mich. 514. See also Atty.-Gen. v. Hane, 50 Mich. 447. 58. Arkansas. — Dillard v. Noel, 2 Ark. 123. Florida. — Wheeler, etc., Mfg. Co. v. Johns, 37 Fla. 262, 20 So. 236. See also Florida Orange Hedge Fence Co. v. Branham, 27 Fla. 526, 8 So. 841; Weiskoph v. Dibble, 18 Fla. 22. Compare Union Bank v. MeBride, 2 Fla. 7. Mississippi. — Winters r. Claitor, 54 Miss. 341 ; Swann v. Home, 54 Miss. 337 ; Tombig- bee R. Co. v. Bell, 4 Sm. & M. (Miss.) 685. See also Baskin v. May, 9 Sm. & M. (Miss.) 373; Stephens v. Hood, 9 Sm. & M. (Miss.) 75. New Hampshire. — Rochester v. Roberts, 25 N. H. 495 ; Tracy v. Perry, 5 N. H. 172. Ohio. — Barker v. Cory, 15 Ohio 9. But, under the Texas statute, where a peti- tion for a writ of error is filed, but there is no writ-of-error bond for costs, nor affidavit of inability to give such bond, the writ of er- ror will, on motion, be dismissed. Indianola R. Co. v. Fryer, 56 Tex. 609; Waterhouse v. Love, 23 Tex. 559. Compare San Roman v. De la Serna, 40 Tex. 306 [overruling Dawson v. Hardy, 33 Tex. 198] ; Horton v. Bodine, 19 Tex. 280; Turner v. Hamilton, 6 Tex. 250 — to the effect that, under the statutes of 1846 and 1858, no bond expressly for costs was necessary when there was a supersedeas bond. Vol. II In several jurisdictions, a non-resident must give a cost bond on suing out a writ of error. Edgar Gold, etc., Min. Co. v. Taylor, 10 Colo. 110, 14 Pac. 113; Filley v. Cody, 3 Colo. 221; Talpey v. Doane, 2 Colo. 298 ; Roberts v. Fahs, 32 III. 474; Smith v. Robinson, 11 111. 119; Hickman v. Haines, 10 111. 20 ; Ripley v. Mor- ris, 7 111. 381. 59. California. — Sharon v. Sharon, 68 Cal. 326, 9 Pac. 187; People v. Center, 61 Cal. 191. See also Biagi v. Howes, 63 Cal. 384. Florida. — Moseley v. Shepherd, 1 Fla. 155, where there were several appellants and two separate and distinct rules taken. Louisiana. — Clairteaux's Succession, 35 La. Ann. 1178. North Carolina. — But see Pretzfelder v. Merchants' Ins. Co., 116 N. C. 491, 21 S. E. 302. Rhode Island. — Harris v . Harris, 2 R. I. 538, where there were also several appellants. Texas. — Chambers v. Fiske, 9 Tex. 261. Wisconsin. — Sweet v. Mitchell, 17 Wis. 125; Chamberlain v. Sage, 14 Wis. 193; White v. Appleton, 14 Wis. 190. See also Montgomery v. American Cent. Ins. Co., 106 Wis. 543, 82 N. W. 532, where there were also several appellants. Non-appealable order appealed from. — In Schermerhorn v. Anderson, 1 N. Y. 430, 2 Code Rep. (N. Y.) 2, it was held that when an appeal was taken from two orders, one of which was not appealable, and the undertak- ing was insufficient for a double appeal, the court might allow appellant to amend, by striking out all reference to the non-appeal- able order, upon paying costs of the appeal from the non-appealable order, and that the bond would then be sufficient to support the appeal from the appealable order. Penalty covering several appeals. — " Where several distinct decisions and orders have been made by the court below, in the same suit, and between the same parties, it is some- times permitted to the party who considers himself aggrieved by such decisions to em- brace them all in the same notice of appeal. But where the proceeding is in the nature of a separate and distinct -appeal from each or- der, as in this case, the appellant must either execute a separate appeal bond upon the ap- peal from each order, or he must give one bond upon the appeal with a penalty suffi- ciently large to cover the appeals from both orders, and with a, condition which is broad enough to embrace the damages and costs of both." Skidmore v. Davies, 10 Paige (N. Y.) 316, 318. To the same effect is Tyler v. Sim- mons, 6 Paige (N. Y.) 127. 60. As where there is an appeal from sev- eral orders, all of which relate to the same question, the several orders being treated as APPEAL AND ERROR 821 # (b) Two Appeals and One Bond. In some jurisdictions an appeal from a judgment and certain particular orders, or from two or more particular orders, will be supported by one bond. 61 e. Exemptions — (i_) In General. Certain parties are exempted by statute from the necessity of giving appeal bonds. 62 But such parties must show affirma- tively to the court their right to this exemption. 63 a single order (Edgecomb v. His Creditors, 19 Nev. 149, 7 Pae. 533) ; where several ques- tions, tending to one conclusion, in the same ease, having been consolidated by consent of the parties to the case, are passed on in sev- eral separate decrees rendered simultaneously (People's Brewing Co. v. Bcebinger, 40 La. Ann. 277, 4 So. 82; Geddes' Succession, 36 La. Ann. 963; Clark's Succession, 30 La. Ann. 801 ) ; where two orders are made and entered in a cause on the same date, one of which or- ders substantially embraces the other, and de- fendant appeals from both orders (Gregory v. Dodge, 3 Paige (N. Y.) 90) ; or when two judgments in one suit are given against the plaintiff in favor of different defendants, but there is only one judgment record (Smith v. Lynes, 2 N. Y. 569, 4 How. Pr. (N. Y.) 209). 61. In California and Montana, it is a well- settled rule of practice that one bond is suffi- cient in the instance of an appeal from a judgment and an order denying a new trial. Granger v. Robinson, 114 Cal. 63*1, 46 Pac. 604; Williams r. Dennison, 86 Cal. 430, 25 Pac. 244; Sharon v. Sharon, 68 Cal. 326, 9 Pac. 187; Nolan v. Montana Cent. R. Co., 24 Mont. 327, 61 Pac. 880 ; Ramsey v. Burns, 24 Mont. 234, 61 Pac. 129; Coleman v. Perry, 24 Mont. 237, 61 Pac. 129. In all other cases where an appeal is taken from two or more orders, or from a judgment and an order, an undertaking for each appeal must be given. Centerville, etc., Irrigation Ditch Co. v. Bach- told, 109 Cal. Ill, 41 Pac. 813. Where the undertaking is executed between the time of entering the judgment and the filing of a mo- tion for a new trial, and is designed to cover the appeal from both, the instrument is di- visible, and the fact that it is invalid for want of consideration as to the appeal from the or- der does not affect its validity as to the ap- peal from the judgment. Clarke v. Mohr, 125 Cal. 540, 58 Pae. 176. In Idaho, under Ida. Rev. Stat. § 4809, see Kelly v. Leachman, (Ida. 1897) 51 Pac. 407; Vane v. Towle, (Ida. 1897) 50 Pac. 1004; Sebree v. Smith, 2 Ida. 327, 16 Pac. 477 — applying the rule generally. In Wisconsin, an exception is made in cases where a review of an intermediate order is al- lowed upon appeal from a final judgment. Sweet v. Mitchell, 17 Wis. 125. Extent and limits of rule. — Where such undertaking refers to the judgment alone, or to only one of the orders appealed from, the court will have jurisdiction only of the mat- ter referred to in the undertaking. California. — Dodge v. Kimple, 121 Cal. 580, 54 Pac. 94; Pignaz v. Burnett, 121 Cal. 292, 53 Pac. 633; Rhoads v. Gray, (Cal. 1897) 48 Pac. 971. Idaho. — Young v. Tiner, (Ida. 1894) 38 Pac. 697 ; Sebree v. Smith, 2 Ida. 327, 16 Pac. 477 ; McCoy v. Oldham, 1 Ida. 465. Illinois. — Campbell v. Jacobson, 44 111. App. Zoo. Louisiana. — Bouttfi v. Bouttg, 30 La. Ann. 177. Montana. — Hurley v. O'Neill, 24 Mont. 293 61 Pac. 658. If the undertaking has no special reference to either matter appealed from, but is con- ditioned generally upon " such appeal " or " said appeals," all the appeals will be dis- missed, upon the ground that, by reason of its ambiguity, it cannot be determined for which appeal the bond was given. Matter of Hey- denfeldt, 119 Cal. 346, 51 Pac. 543; Center- ville, etc., Irrigation Ditch Co. v. Bachtold, 109 Cal. Ill, 41 Pae. 813; Field v. Andrada, (Cal. 1894) 37 Pac. 180; McCormick v. Bel- vin, 96 Cal. 182, 31 Pac. 16; Wallace p. Mc- Kinley, (Ida. 1898) 53 Pae. 104; Kelly r. Leachman, (Ida. 1897) 51 Pac. 407; Weil v. Sutter, (Ida. 1896) 44 Pac. 555; Schiller v.. Small, (Ida. 1895) 40 Pae. 53; Richter r. Eagle L. Assoc, 24 Mont. 340, 61 Pac. 878; Washoe P. Copper Co. v. Hickey, 23 Mont. 319, 58 Pac. 866; Murphy v. Northern Pac. R. Co., 22 Mont. 577, 57 Pac. 278; Creek v. Boze- man Water Works Co., 22 Mont. 327, 56 Pac. 362. In Montana, a distinction has been made, in the case of an appeal from a judgment and an order refusing a new trial, between a bond conditioned that appellant will pay all costs and damages " on the appeal, or such appeal, or a dismissal thereof," and " on such ap- peals or a dismissal thereof," a bond condi- tioned in the first manner being held suffi- cient (Nolan v. Montana Cent. R. Co., 24 Mont. 327, 61 Pac. 880; Ramsey v. Burns, 24 Mont. 234, 61 Pac. 129; Watkins v. Mor- ris, 14 Mont. 354, 36 Pac. 452 ) ; and one con- ditioned in the other manner being held in- sufficient on the ground that the sureties as- sume no liability thereby unless both appeals should be decided against appellant, or should be dismissed (Coleman v. Perry, 24 Mont. 237, 61 Pac. 129 ; Baker v. Butte City Water Co., 24 Mont. 113, 60 Pac. 817). This dis- tinction is discussed in a late case and af- firmed — not because it is right in principle, but because of the reluctance of the court to disturb the practice as settled in the first case deciding the question. Ramsey v. Burns, 24 Mont. 234, 61 Pac. 129 [following Watkins v. Morris, 14 Mont. 354, 36 Pac. 452]. 62. See infra, VII, D, 1, c, (n) et seq.; and 2 Cent. Dig. tit. "Appeal and Error," § 2005 et seq. 63. Pugh v. Ottenkirk, 3 Watts & S. (Pa.) 170; Weeden v. Martin, 2 Tex. App. Civ. Cas. § 197; Guest v. Phillips, 34 Tex. 176. Vol. II " 822 APPEAL AND ERROR (n) Assignees and Trustees. Trustees and assignees are among the parties sometimes exempted. 64 (in) Guardians and Wards. Under some statutes K guardians are sometimes allowed to appeal without giving bonds when the appeals are taken in the interest of the wards. 66 No security is required of a ward appealing from an order appointing a guardian for him, or refusing to remove one previously appointed. 67 (iv) Municipal Corporations. Statutes have been enacted in some states providing that an appeal bond shall not be required of a municipal corporation. 68 64. California. — Seheerer v. Edgar, 67 Cal. 377, 7 Pac. 760. Georgia. — Sawyer v. Cheney, 59 Ga. 368. Kentucky. — Paducah Hotel Co. v. Long, 92 Ky. 278, 13 Ky. L. Rep. 531, 17 S. W. 853, construing Ky. Civ. Code, § 619, to the effect that every insolvent assignee may be required to give an appeal bond. Ohio. — Kennedy v. Thompson, 3 Ohio Cir. Ct. 446, 2 Ohio Cir. Dec. 254; Biddle v. Phipps, 2 Ohio Cir. Ct. 61 (holding that the trustee must give bond unless the appeal is in the interest of the trust) ; Biddle r. Phipps, 2 Ohio Cir. Ct. 61, 1 Ohio Cir. Dec. 363. Compare Collins o. Millen, 57 Ohio St. 289, 48 N. E. 1097. Utah. — Crismon v. Bingham Canyon, etc., R. Co., 3 Utah 249, 2 Pac. 208, holding, how- ever, that, under a statute providing that a collector of taxes shall be responsible for the taxes collected by him, and sue for them in his own right, he is not a trustee as to the taxes not yet collected by him, and in a suit for them he must give an appeal bond. County treasurer. — In Hubbard v. Topliff, 60 Ohio St. 382, 54 N. E. 367, it was decided that a county treasurer was not a party in a trust capacity within the meaning of the stat- ute providing that such party might appeal without giving a bond. To the same effect are State v. Delaware County, 15 Ohio Cir. Ct. 40, 8 Ohio Dec. 244; State v. Smiley, 14 Ohio Cir. Ct. 660, 8 Ohio Cir. Dec. 117. And compare Seheerer v. Edgar, 67 Cal. 377, 7 Pac. 760. The bond of a trustee in bankruptcy is not sufficient to exempt the trustee from giving an appeal bond under Ohio Rev. Stat. § 5228, providing that a party in any trust capacity who has given bond in the state shall not be required to give any bond and security- to per- fect an appeal. Kuhn v. Haley, 20 Ohio Cir. Ct. 286, 11 Ohio Cir. Dee. 105. 65. Under other statutes an appeal bond must be filed. Potter v. Todd, 73 Mo. 101. See also Hudgins v. Leggett, 84 Tex. 207, 19 S. W. 387 (construing Tex. Rev. Stat. arts. 1408, 2201, 2202) ; Lumpkin v. Smyth, 57 Tex. 489 ; Watson v. Guest, 41 Tex. 559 ( con- struing Paschal's Dig. Tex. art. 1503). 66. Hubbard v. Topliff, 60 Ohio St. 382, 54 N. E. 367 ; Tompkins v. Page, 70 Wis. 249, 35 N. W. 563; Stinson v. Leary, 69 Wis. 269, 34 N. W. 63; and see also 2 Cent. Dig. tit. "Appeal and Error," § 2007. Guardians ad litem come within this rule under Tex. Rev. Stat. (1895), art. 1048. Tutt v. Morgan, 18 Tex. Civ. App. 627, 42 S. W. 578, 46 S. W. 122. vol. n Limits of rule. — A bond must be filed by a guardian when a personal obligation is im- posed upon him by the judgment appealed from (Hunter v. Thurmon, 25 Miss. 463) ; or where he appeals from an order for his re- moval (Morrow v. Walker, 10 Ark. 569). 67. Maine. — Witham, Appellant, 85 Me. 360, 27 Atl. 252. Massachusetts. — McDonald v. Morton, 1 Mass. 543. Missouri. — State v. Ball, 27 Mo. 324. New Hampshire. — Wadleigh v. Eaton, 59 N. H. 574. Rhode Island. — Atwood v. Warwick Pro- bate Ct., 17 R. I. 537, 23 Atl. 99. A ward who has become of age must file a bond. Curtiss v. Morrison, 93 Me. 245, 44 Atl. 892. 68. California. — Meyer v. San Diego, 130 Cal. 60, 62 .Pac. 211. Illinois. — Holmes v. Mattoon, 111 111. 27, 53 Am. Rep. 602. Compare Warren V.Wright, 3 111. App. 420. Louisiana. — State v. New Orleans, 34 La. Ann. 467 ; State v. Brown, 29 La. Ann. 53. Pennsylvania. — King v. Penn Dist., 1 Phila. (Pa.) 402, 9 Leg. Int. (Pa.) 140. Texas. — Vernon v. Montgomery, ( Tex. Civ. App. 1895) 33 S. W. 606; Victoria v. Jessel, 7 Tex. Civ. App. 520, 27 S. W. 159. Washington. — Elma v. Carney, 4 Wash. 418, 30 Pac. 732. Wisconsin. — Miller v. Jacobs, 70 Wis. 122, 35 N. W. 324. A township drainage district has been held to be a municipal corporation within the meaning of such a statutory provision. Ha- vana Tp. Drainage Dist. No. 1 v. Kelsey, 120 111. 482, 11 N. E. 256; Union Drainage Dist. Com'rs v. Highway Com'rs, 87 111. App. 93. Counties are sometimes exempted by stat- ute from giving appeal bonds. Maricopa County v. Osborn, (Ariz. 1895) 40 Pac. 313; Maricopa County r. Rosson, (Ariz. 1895) 40 Pac. 314; Lamberson v. Jefferds, 116 Cal. 492, 48 Pac. 485; Warden v. Mendocino County, 32 Cal. 655 ; People v. Marin County, 10 Cal. 344. See also Davis v. Hansard, 9 Humphr. (Tenn.) 173; and compare Freestone County v. Bragg, 28 Tex. 91. But a county officer is not exempted from filing an undertaking on appeal by virtue of the provision of Cal. Code Civ. Froc. § 1058. Von Schmidt v. Widber, (Cal. 1893) 32 Pac. 532. Compare Lamber- son v. Jefferds, 116 Cal. 492, 48 Pac. 485. Validity and effect of such statutes. — Such statutes are constitutional. Holmes v. Mat- toon, 111 111. 27, 53 Am. Rep. 602; Kathman v. New Orleans, 11 La. Ann. 145; McClay v. APPEAL AND ERROR 823 _ {v) Personal Representatives. As a general rule, a bond need not be given by an executor or an administrator prosecuting an appeal or writ of error in the interest of the estate." But when an executor or administrator appeals in his own behalf from a judgment affecting him personally, he undoubtedly must give bond in like manner as any other person appealing from a judgment by which he considers himself personally aggrieved.™ Lincoln, 32 Nebr. 412, 49 N. W. 282. Such exemptions, being in derogation of general law, cannot be extended to other parties even though the latter be officers of such corpora- tion (State v. Brown, 29 La. Ann. 53; State v. Mount, 21 La. Ann. 177) ; except where the suit against the ministerial officers of a municipal corporation is to all intents and purposes against the corporation (State v. New Orleans, 34 La. Ann. 467 ) . 69. Arkansas. — Johnson v. Duval, 27 Ark. 599. California. — Matter of McDermott, 127 Cal. 450, 59 Pac. 783; Ex p. Orford, 102 Cal. 656, 36 Pae. 928; Kirsch v. Derby, 93 Cal. 573, 29 Pac. 218. See also Matter of Sher- rett, 80 Cal. 62, 22 Pac. 85. Georgia.— Sawyer v. Cheney, 59 Ga. 368 ; Irving v. Melton, 27 Ga. 330. Indiana. — Ruch v. Biery, 110 Ind. 444, 11 N. E. 312; Davis v. Huston, 84 Ind. 272; Case v. Nelson, 22 Ind. App. 22, 52 N. E. 176. Michigan. — Winter v. Winter, 90 Mich. 197, 51 N. W. 363. Mississippi. — Hunter v. Thurmon, 25 Miss. 463; Scott v. Searles, 1 Sm. & M. (Miss.) 590. Missouri. — Bruening v. Oberschelp, 42 Mo. ■276. New Hampshire. — Prescott v. Farmer, 59 N. H. 90. Ohio.— Hubbard v. Topliff, 60 Ohio St. 382, 54 N. E. 367; TJlery v. Ulery, Wright (Ohio) ■631. A statute exempting administrators and executors who have given bonds to the state from giving appeal bonds does not apply to an administrator or executor who has not given such a bond. Dennison v. Talmage, 29 Ohio St. 433; Roberts v. Wheeler, Wright (Ohio) 697. A non-resident executor who has not given a bond within the state is not entitled to appeal without giving an appeal l)ond. Work v. Massie, 6 Ohio 503. Pennsylvania. — Maule v. Shaffer, 2 Pa. St. 404; Pugh v. Ostenkirk, 3 Watts & S. (Pa.) 170. Texas.— Daniel v. Mason, 90 Tex. 162, 37 S. W. 1061; Erwin v. Erwin, (Tex. Civ. App. 1901) 61 S. W. 159; Anglin v. Barlow, (Tex. Civ. App. 1898) 45 S. W. 827; Tutt v. Mor- gan, 18 Tex. Civ. App. 627, 42 S. W. 578, 46 S. W. 122; Huddleston v. Kempner, (Tex. Civ. App. 1894) 28 S. W. 236. Utah.— But see Wells v. Kelly, 11 Utah 421, 40 Pac. 705 [distinguishing Uebel v. Mal- tese, 2 Utah 4301, holding that, notwithstand- ing supreme court Rule 24, an administrator must give an appeal bond on appeal from the probate to the district court where the sure- ties on his official bond had been discharged, at their own instance, before appeal taken. Virginia.— McCauley v. Griffin, 4 Gratt. (Va.) 9 (holding that, where an executor had been allowed to qualify without bond, as di- rected by the testator, he need not give an appeal bond on an appeal for the protection of the estate) ; Linney v. Holliday, 3 Rand. (Va.) 1. Wisconsin. — But compare In re Somervaill, 104 Wis. 72, 80 N. W. 65, holding that an ap- pellant from an order refusing probate to a will must file an appeal bond although he is named as executor in the will, as he does not become an executor until he has been con- firmed in his office by the court. United States. — Deneale i>. Young, 2 Cranch C. C. (U. S.) 200, 7 Fed. Cas. No. 3,785. Canada. — In Ontario a personal representa- tive must give a, bond. Re Parker, 16 Ont. Pr. 392. See 2 Cent. Dig. tit. "Appeal and Error," § 2006. Bond by co-defendants. — In Sadler v. Green, 1 Hen. & M. (Va.) 26, it was decided that, when an appeal is taken jointly by the ex- ecutor and legatees, the latter having posses- sion of the property in dispute, they must file an appeal bond; and in Duggan v. Noell, 30 Tex. 451, it was decided that where a dece- dent's widow intervened and appealed in a, suit against the administrator, she must give an appeal bond, although the administrator had also appealed. In Emerick v. Armstrong, 1 Ohio 513, however, it was decided that an executor or administrator could perfect an ap- peal — not only for himself, but for his co- defendants — in all cases where the interest was joint, without giving a bond. One who is appointed temporary adminis- trator under the Texas statute is not required to give bond on appeal. Anglin v. Barlow, (Tex. Civ. App. 1898) 45 S. W. 827. Rule applied. — Where a judgment is ob- tained by a person as an individual against himself as administrator, he need not file a bond upon taking an appeal. Jones v. Jones, 91 Ind. 378. And where a person is inter- ested in a suit both as an individual and in his representative capacity, upon taking an appeal he need file no bond except in respect to his individual interest. Shearman v. Chris- tian, 1 Rand. (Va.) 393; Dunton v. Robins, 2 Munf. (Va.) 341. 70. Georgia. — Hickman v. Hickman, 74 Ga. 401 ; McCay v. Devers, 9 Ga. 184. Indiana. — Case v. Nelson, 22 Ind. App. 22, 52 N. E. 176. Iowa. — Matter of Pierson, 13 Iowa 449. Mississippi. — Hudson v. Gray, 58 Miss. 589; Campbell v. Doyle, 57 Miss. 292; Holi- man v. Dibrell, 51 Miss. 96; Hunter v. Thur- mon, 25 Miss. 463. Vol. n 824 APPEAL AND ERROR (vi) States. The general rule is that a state has a right to appeal in a suit for its own interest -without giving bond. 71 d. Deposit of Money in Lieu of Bond. Unless it is expressly authorized by statute, 72 depositing money in court does not meet the requirements of a statute providing for an undertaking on appeal. 73 e. Appeals in Forma Pauperis — (i) In General. The fact of poverty does not of itself relieve an appellant of the necessity of giving an appeal bond; 74 Ohio. — Taylor v. McCullom, 5 Cine. L. Bui. 414. Pennsylvania. — Lundy's Estate, 3 C. PI. Rep. (Pa.) 139. Texas.— McTaylor v. State, 39 Tex. 298; Guest v. Guest, 48 Tex. 210; Hicks v. Oliver, (Tex. Civ. App. 1894) 26 S. W. 641. Virginia. — Erskine v. Henry, 6 Leigh (Va.) 378; Porter v. Arnold, 3 Rand. (Va.) 479. In Pugh v. Jones, 6 Leigh (Va.) 299, it was de- cided that where » judgment was entered against an executor personally instead of in his representative capacity, although the judgment was plainly erroneous the executor must file a bond before being allowed to appeal. So, when an executor or administrator ap- peals from a decision removing him as per- sonal representative, he must file a bond. Matter of Danielson, 88 Cal. 480, 26 Pac. 505 ; Coutlet v. Atchison, etc., R. Co., 59 Kan. 772, 52 Pac. 68; Mallory v. Burlington, etc., R. Co., 53 Kan. 557, 36 Pac. 1059 ; duff's Estate, 11 N. Y. Civ. Proc. 338; Guest v. Guest, 48 Tex. 210. Compare Uebel v. Maltese, 2 Utah 430. 71. People v. Clingan, 5 Cal. 389; State v. Rushing, 17 Fla. 223 ; State v. Cannon, 45 La. Ann. 1231, 14 So. 130; Greiner v. Prender- gast, 2 Rob. (La.) 235; State v. Coahoma County, 64 Miss. 358, 1 So. 501 ; and see also 2 Cent. Dig. tit. "Appeal and Error," §§ 2008, 2009. But where a private party, as relator, brings suit in the name of the attorney-general, an effective appeal cannot be taken without the giving of an undertaking. State v. Milwau- kee, 102 Wis. 509, 78 N. W. 756. State revenue agent. — In Adams v. Kuhn, 72 Miss. 276, 16 So. 598, it was held that un- der Miss. Acts (1892), § 4194, a state revenue agent might appeal, without giving a, bond, in an action brought to recover back taxes; and, under the Louisiana statute, a state tax- collector need not give bond. Merchants' Mut. Ins. Co. v. Board of Assessors, 40 La. Ann. 371, 3 So. 891. See also Smith v. New Or- leans, 43 La. Ann. 726, 9 So. 773. Where United States appeals. — No bond for the prosecution of a suit or to answer in damages or costs is required on writs of error or appeal issuing from, or brought to, the United States supreme court by direction of the controller of the currency, in suits by or against insolvent national banks or the re- ceivers thereof. Pacific Nat. Bank v. Mixter, 114 U. S. 463, 5 S. Ct. 944, 29 L. ed. 221; Rob- inson v. Southern Nat. Bank, 94 Fed. 22. See also Piatt v. Adriance, 90 Fed. 772; and State l'. U. S., 8 Blackf. (Ind.) 252. 72. California. — Wiebold v. Rauer, 95 Cal. Vol. II 418, 30 Pac. 558; Stratton v. Graham, 68 Cal. 168, 8 Pac. 710. Georgia. — See Hill v. Hudspeth, 22 Ga. 621. Louisiana. — Sauer v. Union Oil Co., 43 La. Ann. 699, 9 So. 566 (municipal bonds suffi- cient) ; Lanata v. Bayhi, 31 La. Ann. 229. Massachusetts. — Maley v. Moshier, 160 Mass. 415, 36 N. E. 64. Nevada. — Alt v. California Fig Syrup Co., 18 Nev. 423, 4 Pac. 743 ( certificate of deposit sufficient ) . New Jersey. — Clark v. Haines, 4 N. J. Eq. 136. New York. — Lane v. Humbert, 18 N. Y. Civ. Proc. 377, 16 Daly (N. Y.) 186, 9 N. Y. Suppl. 744, 31 N. Y. St. 277; Mclntyre v. Strong, 63 How. Pr. (N. Y.) 405, 2 Civ. Proc. 36, 48 N. Y. Super. Ct. 299. North Carolina. — Eshon v. Chowan County, 95 N. C. 75 (note payable to appellant and secured by mortgage on realty insufficient; but quwre as to note and mortgage executed by appellant ) . See Clark's Code Civ. Proc. N. C. (1900), § 552. 73. Gordon v. Camp, 2 Fla. 23; Beckwith v. Kansas City, etc., R. Co., 28 Kan. 484 ; Al- vord v. Mallory, 10 Ky. L. Rep. 80; and see also 2 Cent. Dig. tit. "Appeal and Error," § 2071. 74. Georgia.— Fite v. Black, 85 Ga. 413, 11 S. E. 782. Missouri. — Green v. Castello, 35 Mo. App. 127. New York. — Butler v. Jarvis, 117 N. Y. 115, 22 N. E. 561, 26 N. Y. St. 841. Texas. — Halloran v. Texas, etc., R. Co., 40 Tex. 465. United States. — The Presto, 93 Fed. 522, 35 C. C. A. 394. Canada. — In Legault v. Legault, 2 L. C. L. Jur. 10, it was held that in Quebec appeals cannot be brought in forma pauperis to the court of queen's bench. See also Derome v. Robitaille, 4 Leg. N. 99 ; Loyseau v. Charbon- neau, 3 Leg. N. 308; Trust v. Quintal, 3 Leg. N. 397 ; Canadian Bank of Commerce v. Brown, 19 L. C. Jur. 110; Prevost v. Rogers, Q. B. June, 1878. Statutes authorizing persons to sue in forma pauperis have been held, in some juris- dictions, not to extend to writs of error or appeal, but only to suits or actions prosecuted in courts of original jurisdiction. Ostrander v. Harper, 14 How. Pr. (N. Y.) 16; McDonald v. New York City Sav. Bank, 2 How. Pr. (N. Y.) 35; Moore v. Cooley, 2 Hill (N. Y.) 412 (construing 2 N. Y. Rev. Stat. (25th ed.) p. 362, § 1 ) ; Hoagland v. Hoagland, 18 Utah 304, 54 Pac. 978 (construing Utah Rev. Stat. (1898), §§ 1016-1020, 3303). APPEAL AND ERROR 825 but there must be express statutory authority for an appeal in forma pau- peris.™ (u) Persons Entitled. The statutory right to appeal in forma pauperis upon making the requisite affidavit ordinarily extends to all persons entitled to appeal from a judgment or decree. 76 But it has been held that neither a non- resident, 77 an administrator of an insolvent estate, 78 a guardian ad litem,'' 9 a next friend, 80 an infant, 81 nor a married woman suing by next friend, 1 of a general statute providing for pauper appeals. can take advantage The United States statute of July 20, 1892, providing that any citizen entitled to bring suit in a federal court " may commence and prosecute to conclusion " such suit without prepaying fees or costs or giving security therefor, has been held in some circuits to embrace the right to appeal without bond. Columb v. Webster Mfg. Co., 76 Fed. 198; Fuller ». Montague, 53 Fed. 206. See also Brinkley v. Louisville, etc., R. Co., 95 Fed. 345; Wickelman v. A. B. Dick Co., 85 Fed. 851, 57 U. S. App. 196, 29 C. C. A. 436, in which the decision of the question is left open. In other circuits it has been held otherwise. Ex p. Harlow, 3 App. Cas. (D. C.) 203; Mc- Grane v. McCann, 2 App. Cas. (D. C.) 221; The Presto, 93 Fed. 522, 35 C. C. A. 394. The old English statutes of 2 Hen. VII, c. 12, and 23 Hen. VIII, c. 15, providing for the prosecution of civil cases by indigent per- sons, did not apply to, or contemplate, the prosecution of appeals or writs of error to an appellate court in forma pauperis. Anony- mous, 1 Mod. 268. See also Ex p. Harlow, 3 App. Cas. (D. C.) 203; Bolton v. Gardner, 3 Paige (N. Y.) 273. 75. In many jurisdictions statutes have been enacted expressly providing for an ap- peal without paying costs and fees or giving an undertaking, when the person desiring the appeal shall have taken the prescribed oath of inability. Alabama. — Ex p. Tower Mfg. Co., 103 Ala. 415, 15 So. 836; Guy v. Lee, 80 Ala. 346. Georgia. — Fite v. Black, 85 Ga. 413, 11 S. E. 782 ; Savannah v. Brown, 64 Ga. 229. Indiana. — Falkenburgh v. Jones, 5 Ind. 296. North Carolina. — An appeal is allowed without bond, if party is unable by reason of poverty, to give security or to make deposit; but there is no stay of execution, and appel- lant must pay his own costs. Speller v. Spel- ler, 119 N. C. 356, 26 S. E. 160; Clark's Code Civ. Proc. N. C. (1900), pp. 789, 790, and cases cited. Tennessee. — Cox v. Patton, 11 Lea (Tenn.) 545; Lynn v. Tellieo Mfg. Co., 8 Lea (Tenn.) 29. Texas.— Demonet v. Jones, (Tex. Civ. App. 1897 ) 42 S. W. 1033. But compare Halloran v. Texas, etc., R. Co., 40 Tex. 465 ; Prestige v. Prestige, 25 Tex. 585. Applicable to writs of error. — In Tennessee and Texas, it has been decided that the right to proceed in forma pauperis applies to writs of error as well as appeals. Campbell v. Boul- ton, 3 Baxt. (Tenn.) 354; Herd v. Dew, 9 Humphr. (Tenn.) 364; Brumley v. Hayworth, 3 Yerg. (Tenn.) 420; Rodgers v. Alexander, 35 Tex. 116. The clerk has no power to accept the pauper oath in lieu of the bond, where the appeal is granted on condition that the party give bond " as required by law." Henly v. Claiborne, 1 Lea (Tenn.) 224. Under Tenn. Code, § 3192, a plaintiff appeal- ing from a judgment in an action of false imprisonment, malicious prosecution, or slan- der cannot prosecute the appeal in forma pauperis. Hendrickson v. Cartright, 99 Tenn. 364, 41 S. W. 1053; Cox v. Patton, 11 Lea (Tenn.) 545. But a defendant appealing in such action may do so without giving a bond. Heatherlyv. Bridges, 1 Heisk. (Tenn.) 220. When the surety on an appeal bond be- comes insolvent the appellant may save his appeal by an affidavit that he is advised and believes that he has a good cause of appeal, and that, owing to poverty, he is unable to give other good security as required by law. Sample v. Cary, 19 Ga. 573; Burkhalter v. Bullock, 18 Ga. 371. 76. Andrews v. Page, 2 Heisk. (Tenn.) 634. See supra, IV; and 2 Cent. Dig. tit. " Appeal and Error," § 2073. A municipal corporation may enter an ap- peal in forma pauperis through its chief ex- ecutive officer. Savannah v. Brown, 64 Ga. 229. 77. Christian v. Gouge, 58 How. Pr. (N. Y.) 445, holding that the statute was intended solely for the benefit of residents of the state. 78. McCoy v. Broderick, 3 Sneed (Tenn.) 202, wherein it was held that, since a statute authorizing suits in forma pauperis confers a personal privilege, an administrator cannot take an appeal in forma pauperis on an affi- davit merely that the estate is insolvent. 79. Musgrove v. Lusk, 5 Baxt. (Tenn.) 684. 80. Brooks v. Workman, 10 Heisk. (Tenn.) 430. 81. Sharer v. Gill, 6 Lea (Tenn.) 495. 82. Sharer v. Gill, 6 Lea (Tenn.) 495, hold- ing that, when the suit of a married woman is required to be brought by her next friend, she cannot take an appeal in the suit under the pauper oath. Under the Alabama statute, it has been de- cided that a married woman may appeal in forma pauperis from a judgment or decree which, by force of its own terms, subjects her statutory or other separate estate to sale; but that she cannot appeal in such mode from a personal judgment against her for the recov- ery of money. Ex p. Towle Mfg. Co., 103 Ala. 415, 15 So. 836; Guy v. Lee, 80 Ala. 346; Cahalan v. Monroe, 65 Ala. 254; Coleman v. Vol. II 826 APPEAL AND ERROR (m) The Affidavit — (a) In General. The affidavit upon an appeal m forma pauperis must, as to form and contents, comply substantially with the requirements of the statute authorizing such affidavit. 83 (b) By Whom Made. The affidavit must be made by the party dissatisfied with the judgment. 84 (c) Time and Place of Making and Filing. The statutory requirements as to the time and place of filing the affidavit, and as to the officer before whom it is to be made, must be complied with. 85 (d) Truth of Affidavit. While, in Georgia, the affidavit is not traversible, 86 the filing of the affidavit constitutes only prima facie proof of inability. 87 2. Parties — a. Obligors — (i) In General. The bond or undertaking on appeal must be given by the person praying the appeal, and obtaining the order therefor. 88 Smith, 52 Ala. 259; Marshall v. Croom, 50 Ala. 479. 83. Josey v. Sheorn, 106 Ga. 204, 32 S. E. 1 18 ; Flanagan v. Scott, 102 Ga. 399, 31 S. E. 23; Cheshire v. Williams, 101 Ga. 814, 29 S. E. 191; State v. Bramble, 121 N. C. 603, 28 S. E. 269; Huskey v. Lanning, 8 Baxt. (Tenn.) 187; Creamer v. Ford, 1 Heisk. (Tenn.) 307; Stewart v. Heidenheimer, 55 Tex. 644; Wooldridge v. Roller, 52 Tex. 447; Ewell v. Anderson, 49 Tex. 697 ; and see also 2 Cent. Dig. tit. "Appeal and Error," § 2074. Description of judgment. — The appeal will be dismissed where the affidavit fails to de- scribe the judgment appealed from. McShir- ley v. Hoard, (Tex. Civ. App. 1898) 46 S. W. 373; Dixon v. Southern Bldg., etc., Assoc, (Tex. Civ. App. 1894) 28 S. W. 58; Perry v. Seott, 68 Tex. 208, 7 S. W. 384; Vestal v. Reese, (Tex. Civ. App. 1894) 28 S. W. 54. Amendment of affidavit. — In Tennessee, it has been decided that the affidavit, if defec- tive or untrue, may be amended or supplied, as in the case of an insufficient bond. Morris v. Smith, 11 Humphr. (Tenn.) 133. But, un- der the Georgia statute, the affidavit is not amendable unless it is shown that an omis- sion therein occurred through accident or mistake. Truitt v. Shumate, 107 Ga. 235, 33 S. E. 48; Josey v. Sheorn, 106 Ga. 204, 32 S.E.I 18; Mize ». Brewer, 99 Ga. 322, 25 S. E. 700. 84. Lester v. Haynes, 80 Ga. 120, 5 S. E. 250; Fuller v. Montague, 53 Fed. 206. Agent or attorney. — It has been decided that the affidavit can be made neither by the attorney of the appellant (Elder v. White- head, 25 Ga. 262), nor by a person acting as agent for appellant, where it does not appear that such person was authorized by any war- rant of attorney to execute it (Lester v. Haynes, 80 Ga. 120, 5 S. E. 250). Where a husband and wife are joint par- ties, the former only need take the oath pre- scribed by statute for appeal in forma pau- peris. McPhatridge v. Gregg, 4 Coldw. (Tenn.) 324. Where there are several appellants an affi- davit made by one only of them is insufficient. Taylor v. New England Mortg. Security Co., 95 Ga. 571, 20 S. E. 636; Grills v. Hill, 2 Sneed (Tenn.) 710. 85. Sasser v. Adkins, 108 Ga. 228, 33 S. E. Vol. II 881; Graves v. Warner, 26 Ga. 620; Russell v. Hearne, 113 N. C. 361, 18 S. E. 711; Stell v. Barham, 86 N. C. 727 ; Davis v. Wilson, 85 Tenn. 383, 5 S. W. 285; State v. Gannaway, 16 Lea (Tenn.) 124; Harvey v. Cummings, 62 Tex. 186 ; Hearne v. Prendergast, 61 Tex. 627 ; Stewart v. Heidenheimer, 55 Tex. 644; Lam- bert v. Western Union Tel. Co., 19 Tex. Civ. App. 415, 47 S. W. 476, 45 S. W. 1034; Thomp- son v. Hawkins, (Tex. Civ. App. 1896) 38 S. W. 236 ; and see also 2 Cent. Dig. tit. "Ap- peal and Error," § 2075. A substantial compliance, however, is, it seems, sufficient. State v. Gannaway, 16 Lea (Tenn.) 124; Thompson v. Hawkins, (Tex. Civ. App. 1896) 38 S. W. 236. Thus, an ap- peal, without an appeal bond being given, will not be dismissed because the proof of the ap- pellant's inability to give such bond was taken before the trial judge at a term subsequent to that in which the judgment was rendered. Ostrom v. Arnold, (Tex. Civ. App. 1900) 58 S. W. 630; Cox v. Hightowell, 19 Tex. Civ. App. 536, 47 S. W. 1048. 86. Hines v. Rosser, 27 Ga. 85. 87. Affidavit, when filed under the Texas statute, is subject to contest as to its truth. Newton v. Leal, (Tex. Civ. App. 1900) 56 S. W. 209; Thompson v. Hawkins, (Tex. Civ. App. 1896) 38 S. W. 236; Brock v. Aber- crombie, 3 Tex. Civ. App. 342, 24 S. W. 667. In other jurisdictions it has been held that the duties of the officers designated by stat- ute to take affidavits are merely ministerial, and if appellants make the affidavits it is not within their power to refuse the appeals, even though they may believe the affidavit to be false. Walsh v. Ford, 8 Kulp (Pa.) 220; Morris v. Smith, 11 Humphr. (Tenn.) 133; and see also 2 Cent. Dig. tit. "Appeal and Error," § 2076. 88. Illinois.— Tedricks v. Wells, 152 111. 214, 38 N. E. 625; Propeller Niagara v. Mar- tin, 42 111. 106; Fay v. Seator, 88 111. App. 419. See also Howe v. Forman, 68 111. App. 398. Louisiana. — Penny's Succession, 14 La. Ann. 194. Michigan. — Matter of Dickinson, 2 Mich. 337. Mississippi. — Hardaway v. Biles, 1 Sm. & M. (Miss.) 657. New York.— Ex p. Lassell, 8 Cow. (N. Y.) 119. APPEAL AND ERROR 827 (ii) Sevebal Appellants. An appeal bond for costs need not be signed by all of several appellants, although all must join in the appeal. It is sufficient if the bond appears to be executed on behalf of all. 89 It has been held, however, Rhode Island. — Townsend v. Hazard 9 R I 254. Texas. — Morris v. Morgan, (Tex. Civ. App 1898) 46 S. W. 667. See 2 Cent. Dig. tit. "Appeal and Error," § 2017 et seq. Bond executed by stranger ia not the bond of appellant, and is not sufficient. Propeller Niagara v. Martin, 42 111. 106; Leach v. Drake, 16 Pick. (Mass.) 203; Matter of Dick- inson, 2 Mich. 337 ; Hardaway v. Biles, 1 Sin. & M. (Miss.) 657 ; Ex p. Brooks, 7 Cow. (N. Y.) 428 ; Townsend v. Hazard, 9 R. I. 254. Additional appellee. — When appellant files a supplemental petition, for the purpose of having one of the appellees cited who had been omitted in the original petition of ap- peal, no additional bond need be furnished. Borde v. Erskine, 33 La. Ann. 873, 29 La. Ann. 822. An intervener is a separate independent party to a suit, and must himself give a bond. State v. New Orleans, 27 La. Ann. 469. Appeal by one of several judgment defend- ants.— When a judgment has been obtained against several persons, and only one of them appeals, only the person appealing need exe- cute the appeal bond. People v. Judges, 1 Wend. (N. Y.) 90. Bond executed by a minor, against whom a judgment has been rendered, and by a sub- stantial freeholder, is sufficient although the minor's guardian ad litem did not join in the bond. Andruss v. Stewart, 10 N. J. L. 160. Bond of one in an official capacity, by and through whom a suit is brought by an organi- zation styling itself a corporation, is a bond furnished by appellant, and fulfils the require- ments of the law. St. Patrick's Church v. Consumers' Ice Co., 44 La. Ann. 1021, 11 So. 682. On appeal taken by a board of county com- missioners, the appeal bond must be executed in the name of the board, and not by the mem- bers individually. Boulder County v. King, (Colo. 1887) 13 Pac. 539. Married women. — Under an Alabama stat- ute, if a married woman appeals from a judg- ment in an action at law against herself and husband, it has been held that she may exe- cute an appeal bond in her own name, without joining her husband. Childress v. Taylor, 33 Ala. 185. And the same is true in Louisiana, except it seems that the husband must author- ize the wife to sign the appeal bond (De Gruy v. Aiken, 43 La. Ann. 798, 9 So. 747; Barnabe v. Snaer, 16 La. Ann. 84; Nolasco v. Lurty, 13 La. Ann. 100) ; and such authority will be inferred where the action is against both husband and wife and they appear and defend it. Hill v. Tippett, 10 La. Ann. 554. See also Barnabg v. Snaer, 16 La. Ann. 84. An appeal will be dismissed, however, where the real appellant is a married woman, and the bond is signed only by her husband, who is not interested in the suit. Day v. Gordon, 9 La. Ann. 183 ; Allen v. Landreth, 7 La. Ann. 650 ; Wood v. Wall, 5 La. Ann. 179. Subsequent appellants joining in an appeal after original notice under Wash. Acts (1893) p. 121, § 5, must file an appeal bond in addi- tion to that filed by the parties first appeal- ing. Stans v. Baitey, 9 Wash. 115, 37 Pac. 316. . Where an action is brought by a nominal plaintiff for the use of another, the appeal bond, it seems, may be executed by the real, instead of the nominal, party (McBarnett v. Breed, 6 Ala. 476; Ex p. Lassell, 8 Cow. (N. Y.) 119) ; still, it has been held that the beneficial plaintiff cannot perfect the appeal by filing a bond in his own name, when the appeal is prayed for by the nominal plaintiff, and allowed to him (Tedrick v. Wells, 152 111. 214, 38 N. E. 625 ; Gates v. Thede, 91 111. App. 603. See also Propeller Niagara v. Martin, 42 111. 106). When a personal representative appeals as such, a bond given by him as an individual will not suffice (Thibodeaux v. Thibodeaux, 45 La. Ann. 1126, 13 So. 805; Love v. Francis, 63 Mich. 181, 29 N. W. 843, 6 Am. St. Rep. 290 [but see supra, VII, D, 1, c, (v)]) ; and when the judgment is against defendant both personally and in a representative character, an appeal bond, given in a representative ca- pacity exclusively, will not support the appeal (Crawford v. Alexander, 14 La. Ann. 708). See also Beardsley v. Hill, 61 111. 354, as to the manner of signing bond by administrator. Where appeal was prayed by two defend- ants from decree against only one of them, an appeal bond executed by he party against whom the decree was rendered is not invalid because it was also executed by him in the name of the other party without the lat- ter's. authority. Willenborg v. Murphy, 40 111. 46. Who are obligors or sureties, and who are principals, need not appear on the face of the bond. Cullen v. Lee, 50 Ala. 494. 89. Alabama. — Deslonde v. Carter, 28 Ala. 541; Crump v. Wallace, 27 Ala. 277. Indiana. — Hinkle v. Holmes, 85 Ind. 405 ; Railsback v. Greve, 58 Ind. 72. Louisiana. — Laf ranee v. Martin, 17 La. Ann. 77. Michigan. — Warner v. Whittaker, 5 Mich. 241. Mississippi. — Hudson v. Gray, 58 Miss. 589 ; Thompson v. Toomer, 50 Miss. 394. United States. — Scruggs v. Memphis, etc., R. Co., 131 U. S. cciv, appendix, 26 L. ed. 741 ; Brockett v. Brockett, 2 How. (U. S.) 238, 11 L. ed. 251. Where cases have been consolidated, par- ties dissatisfied with the judgment rendered may join in one appeal bond. Schlieder v. Martinez, 38 La. Ann. 847 ; Pasley v. MeCon- nell, 38 La. Ann. 470. Vol. II 828 APPEAL AND ERROR that, where an appeal is allowed jointly to several parties, all these parties must join in the execution of the bond. 90 b. Obligees 91 — (i) In General. Unless otherwise provided by statute, the bond or undertaking on appeal or writ of error should run in favor of the party or parties whose interest is adverse to that of the party or parties appealing. 92 90. Hileman v. Beale, 115 111. 355, 5 N. E. 108; Blood v. Harvey, 81 111. App. 187; Robe- son v. Lagow, 73 111. App. 665. But see Campbell v. Equitable Securities Co., 12 Colo. App. 544, 56 Pao. 88; Weeks v. Sego, 9 Ga. 199 — to the effect that the bond might avail the party signing and executing it. Bond executed by one appellant, and recit- ing an appeal by him alone where several de- fendants pray an appeal jointly, is irregular and the appeal will be dismissed. Andre v. Jones, 1 Colo. 489. Judgment in solido. — Where a judgment has been rendered against two defendants in solido, and only one defendant is mentioned in the bond, the appeal will be dismissed. Cotton v. Stirling, 19 La. Ann. 137. But on appeal from such a judgment, if all defend- ants join as principals in the appeal bond and bind themselves to satisfy whatever judg- ment shall be rendered against them, it is not necessary that the bond shall expressly stipu- late a solidary liability. De Gruy v. Aiken, 43 La. Ann. 798, 9 So. 747. 91. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 2011 et seq.; and cases cited infra, notes 92, 93. 92. Alabama. — Cooper v. Maclin, 25 Ala. 298, holding that the bond should be made payable to infant appellee, net to his next friend. Illinois. — Nashville v. Weiser, 54 111. 245; First Presb. Church v. Lafayette, 42 Ind. 115. Louisiana. — Knox v. Duplantier, 20 La. Ann. 328; Twichell v. Avegno, 19 La Ann. 294. Missouri. — Price v. Halsed, 3 Mo. 461. New York. — Ex p. Hawks, 7 Cow. (N. Y.) 492; Kellinger v. Roe, 7 Paige (N. Y.) 362; Black's Estate, Tuck. Surr. (N. Y.) 3-39; Pa- tullo's Goods, Tuck. Surr. (N. Y.) 106. Pennsylvania. — Boal's Apper.l, 2 Rawle, (Pa.) 37. Texas. — Greenwade v. Smith, 57 Tex. 195 (holding that upon appeal by an intervener, the bond should run to both plaintiff and de- fendant) ; Kosminsky t'. Hamburger, 20 Tex. Civ. App. 291, 48 S. W. 1107; Hamblen v. Tuck, (Tex. Civ. App. 1898) 45 S. W. 175; Smith v. Parks, 55 Tex. 82. Washington. — Seattle Trust Co. v. Pitner, 17 Wash. 365, 49 Pac. 505, holding that a garnishee is not the adverse party on appeal in the principal action. Wisconsin. — Fehland's Estate, 49 Wis. 349, 5 N. W. 813; Mullins' Appeal, 40 Wis. 154 (to the effect that a special administrator, appointed before probate of a will, is the " ad- verse party" to whom the bond on appeal from an order admitting the will to probate should run; and that this is certainly so where the special administrator is also the proponent of the will and the executor named Vol. II in it) ; Nelson v. Clongland, 15 Wis. 392 (holding that on an appeal from an order denying the probate of a will, the heir at law of the decedent is the party adversely inter- ested ) . United States. — Davenport v. Fletcher, 16 How. (U. S.) 142, 14 L. ed. 879. Municipality. — On appeal from an assess- ment of a municipal corporation the bond snould be executed to the city, or to the people of the state for the use of the city. Nash- ville v. Weiser, 54 111. 245; Griffin v. Belle- ville, 50 111. 422. But see First Presb. Church v. Lafayette, 42 Ind. 115, wherein it was held that on appeal from a precept issued to en- force the collection of an assessment for the improvement of a street, the appeal bond should be payable to the contractor who did the work, and for whose benefit the precept was issued, and not to the city. Name of defendant unnecessary. — Under the Texas statutes an appeal bond, payable to the defendant, without naming him, is valid. Masterson v. Young, (Tex. Civ. App. 1899) 48 S. W. 1109. Original party dead. — A bond payable to the original party to the suit, which party has died and whose representatives are par- ties to the proceeding, and not payable to any of the substituted parties to the suit, is a nullity, and does not confer jurisdiction. Smith v. Parks, 55 Tex. 82 ; Johnson v. Robe- son, 27 Tex. 526; Dial v. Rector, \i Tex. 99. See also Futch v. Palmer, 11 Tex. Civ. App. •191, 32 S. W. 566. State or United States. — Unless the stat- ute so directs an appeal bond, made payable to », state or the United States in an action or proceeding in which the state or United States has no interest, is insufficient. U. S. v. Dra- per, 19 D. C. 85 ; Price v. Halsed, 3 Mo. 461 ; Patullo's Goods, Tuck. Surr. (N. Y.) 106; Dorsey v. Raleigh, etc., R. Co., 91 N. C. 201; White v. Moerlidge, 7 Ohio Cir. Ct. 348. An appeal bond, given in the alternative to the state or to a relator, is good. Spalding v. People, 2 How. (U. S.) 66, 11 L. ed. 181. In proceeding to contest an election, an appeal bond may be made payable to the s.ate instead of to the adverse party. Corey v. Lugar, 62 Ind. 60. Strangers. — If the bond on appeal runs in favor of one not a party to the judgment, such bond is insufficient. Howard v. Malsch, 52 Tex. 60; Davenport v. Fletcher, 16 How. (U. S.) 142, 14 L. ed. 879. Unnecessary obligees. — It cannot affect the validity of an appeal bond that other parties besides the one in whose favor the decree ap- pealed from was rendered are named in it as obligees. Hill v. Chicago, etc., R. Co. 129 U- S. 170, 9 S. Ct. 269, 32 L. ed. 651 When payable to clerk of court.— It is APPEAL AND ERROR 829 (n) Several _ Pasties Interested. And when there are several parties interested in having the judgment remain undisturbed, all of such parties must be made obligees. 93 e. Sureties — (i) Necessity and Number. It is usual for statutes to require an appeal bond, with a surety or sureties. 94 Such statutory requirements must be sometimes provided by statute that the un- dertaking shall be made payable to the clerk of the court or judge of probate. Bailey v. Woodworth, 9 Conn. 388; Nugent v. McCaf- frey, 33 La. Ann. 271; Esehert v. Harrison, 29 La. Ann. 860; Alexander v. Smith, 4 Sm. & M. (Miss.) 258; Harper v. Archer, 4 Sm. & M. (Miss.) 99, 43 Am. Dec. 472. But in Louisiana the name of the clerk need not be mentioned in the bond. Gaudet v. Dumoulin, 49 La. Ann. 984, 22 So. 622; Schlieder v. Martinez, 38 La. Ann. 847. In the absence of any name as obligee of the bond, the court will supply it by considering the bond as pay- able to tne person whom the law designates — namely, the clerk. Nugent v. McCaffrey, 33 La. Ann. 271 [distinguishing Marks v. Her- man, 21 La. Ann. 756, in which the bond was made payable to the plaintiffs]. An appeal bond payable to the clerk and to the appellees is good. Ogier v. Marchand, 22 La. Ann. 133; Nelson v. Scott, 21 La. Ann. 203. Georgia statute. — Ga. Civ. Code, § 4466, pro- vides that, in all cases in the court of ordi- nary, the party desiring to appeal shall give " bond and security to the ordinary for such further costs as may accrue by reason of such appeal." It was held that this section does not require that the bond shall be made pay- able to the ordinary, but that the proper obli- gee is the appellee. Sims v. Walton, 111 Ga. 866, 36 S. E. 966. See also Hogg v. Mobley, 8 Ga. 256. 93. Brown v. Levins, 6 Port. (Ala.) 414; Weigel's Succession, 21 La. Ann. 149; Rice v. Levy, 20 La. Ann. 348; Welge v. Jackson, (Tex. Civ. App. 1895) 32 S. W. 371; Bauer v. Adkins, (Tex. Civ. App. 1895) 28 S. W. 1009; Grant v. Collins, 5 Tex. Civ. App. 45, 23 S. W. 994. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 2013 et seq. But see supra, note 92, to the effect that under the present practice in Louisiana the clerk of court is the proper obligee. Co-defendants of appellant should be made obligees in the appeal bond. Snow v. East- ham, (Tex. Civ. App. 1898), 46 S. W. 866. Joint or separate bonds. — "Where two or more persons have a common interest in re- sisting the reversal of the decree, or the modi- fication which is sought for by the appellant, a joint bond to all of those respondents is a sufficient compliance with the statute and the rule of the court relative to appeals. It is not necessary, in such a case, for the appel- lant and his sureties to execute separate ap- peal bonds to each of the respondents. But where there are several respondents having entirely distinct and conflicting interests in relation to the object sought for by the ap- peal, separate appeal bonds should be given, to make the appeal valid and effectual in ref- erence to such adverse parties respectively." Thompson v. Ellsworth, 1 Barb. Ch. (N. Y.) 624. See also Bickham v. Hutchinson, 50 La. Ann. 765, 23 So. 902. Parties against whom action dismissed. — An appeal bond must be made payable to all parties interested adversely to appellant, and where an action is dismissed as to some of the defendants, and judgment is had therein for the others, the defendants against whom the action is dismissed must be made obligees in the bond. Terry v. Cutler, (Tex. Civ. App. 1893) 21 S. W. 726. Parties not appearing. — Where a suit is dismissed as to one defendant, and judgment rendered against the other three defendants, only two of whom appeal, it is proper to make the appeal bond payable not only to the plain- tiffs, but also to the two defendants who do not appeal. Stafford v. Blum, 7 Tex. Civ. App. 283, 27 S. W. 12. Under the term " and others," parties to an action not expressly named may be considered as included among the obligees in the bond. Conery v. Webb, 12 La. Ann. 282; Lebeau v. Trudeau, 10 La. Ann. 164; Bacchus v. Moreau, 4 La. Ann. 313; Smith v. Montreil, 26 Mo. 578. 94. Alabama. — Cooper v. Maclin, 25 Ala. 298. Connecticut. — Ripley v. Merchants' Nat. Bank, 41 Conn. 187. Georgia. — Benson v. Shines, 107 Ga. 406, 33 S. E. 439; Gordon v. Robertson, 26 Ga. 410. Indiana. — Harris v. Millege, 151 Ind. 70, 51 N. E. 102; McVey v. Heavenridge, 30 Ind. 100. Maine. — Bartlett, Appellant, 82 Me. 210, 19 Atl. 170. Maryland. — Harris v. Regester, 70 Md. 109, 16 Atl. 386. Massachusetts. — Henderson v. Benson, 141 Mass. 218, 5 N. E. 314. Michigan. — Beebe v. Young, 13 Mich. 221. Mississippi. — Hudson v. Gray, 58 Miss. 591; Baskiri v. May, 9 Sm. & M. (Miss.) 373. New York. — Van Wezel v. Van Wezel, 3 Paige (N. Y.) 38. North Carolina. — Syme v. Badger, 91 N. C. 272; Gibson v. Lynch, 5 N. C. 495; Clark's Code Civ. Proc. N. C. (1900), § 552. Ohio. — Roberts v. Wheeler, Wright (Ohio) 697. Texas.— Pevito v. Rodgers, 52 Tex. 581; Hooper v. Brinson, 10 Tex. 296. Washington. — Smith v. Beard, 21 Wash. 204, 57 Pac. 796. Canada. — Fiola v. Hamel, 4 Quebec 52. See 2 Cent. Dig. tit. "Appeal and Error," § 2022 et seq. Additional surety.— In Bergen v. Stewart, 28 How. Pr. (N. Y.) 6, it was held that the court had a right to require an additional surety before directing an entry to be made by the clerk on the docket of a judgment " se- cured by appeal." Vol. II 830 APPEAL AND ERROR strictly complied with. Thus, where a bond with sureties or securities is required, a single surety will not suffice. 95 (n) Competency— (a) Appellants^ The general rule is that an appellant is not a competent surety on an appeal bond. 97 Bond without surety. — In Martin v. Den- nie, 16 Pick. (Mass.) 202, it was held that where a statute required that a bond should be given, such bond to be approved by the judge of probate, but was silent on the sub- ject of sureties, a bond so approved, although not signed by a surety, was sufficient. Limitation of liability. — In Bastable v. Denegre, 22 La. Ann. 124, it was held that, under a statute requiring bond with surety, several persons might sign as sureties, each surety limiting his liability to an amount less than the bond required, provided that to- gether they became bound for the amount of the bond. To the same effect see Guturrez v. Croner, 29 La. Ann. 827; State v. Judge, 21 La. Ann. 730; State v. Judge, 21 La. Ann. 443; New Orleans Ins. Co. v. E. D. Albro Co., 112 U. S. 506, 5 St. Ct. 289, 28 L. ed. 809. 95. Maine. — Bartlett, Appellant, 82 Me. 210, 19 Atl. 170. Maryland. — Harris v. Regester, 70 Md. 109, 16 Atl. 386. Michigan. — Beebe v. Young, 13 Mich. 221. Mississippi. — Hudson i?. Gray, 58 Miss. 591; Baskin v. May, 9 Sm. & M. (Miss.) 373. New York. — Van Wezel v. Van Wezel, 3 Paige (N. Y.) 38. North Carolina. — Gibson v. Lynch, 5 N. C. 495; Jones v. Sykes, 5 N. C. 281. Texas. — Pevito v. Bodgers, 52 Tex. 581; Hooper v. Brinson, 10 Tex. 296. Compare Riley v. Mitchell, 38 Minn. 9, 35 N. W. 472 (in which it is said that such a non-compliance is only an irregularity, which may be waived by appellee or as to which the bond may be amended by leave of court) ; and also Dane v. Dane, 67 N. H. 552, 39 Atl. 433 (in which it was held that a bond with one sufficient surety is a compliance with N. H. Pub. Stat. c. 200, § 3, which requires appel- lant from a decree of a judgment of probate to give bond " with sufficient surety " to prose- cute his appeal ) . Bond given by fidelity company. — It has been decided that N. Y. Laws (1881), e. 486, permitting a fidelity company to become surety upon bonds, does not repeal N. Y. Code Civ. Proe. § 1334, requiring two sureties upon an appeal bond. Nichols v. MacLean, 98 N. Y. 458 {overruling Hurd v. Hannibal, etc., R. Co., 67 How. Pr. (N. Y.) 516, 33 Hun (N.Y.) 189]. 96. See infra, VII, D, 2 c, (n), (a)-(f) ; and 2 Cent. Dig. tit. "Appeal and Error," § 2023 et seq. A bond executed by an Indian as surety is valid in Quebec if it is established by affi- davit that he is in possession, as proprietor, according to the customary Indian law, of cer- tain real estate, situated and lying within the tract of land appropriated to the uses of the tribe to which he belongs. Nianentsiasa c. Akwirente, 3 L. C. Jur. 316. Vol. II 97. Connecticut. — Ripley v. Merchants' Nat. Bank, 41 Conn. 187. Georgia. — Benson v. Shines, 107 Ga. 406, 33 S. E. 439; Gordon v. Robertson, 26 Ga. 410. Indiana. — MeVey v. Heavenridge, 30 Ind. 100. Mississippi. — Hudson v. Gray, 58 Miss. 591. New York. — Nichols v. MacLean, 98 N. Y. 458; Morss v. Hasbrouek, 10 Abb. N. Cas. (N. Y.) 407, 63 How. Pr. (N. Y.) 84. Texas. — Labadie v. Dean, 47 Tex. 90. Washington. — Smith v. Beard, 21 Wash. 204, 57 Fr,c. 796. See 2 Cent. Dig. tit. "Appeal and Error," § 2024. Agent. — A person who has no interest in the case, and is a party thereto only in his capacity as agent for appellant, is a compe- tent surety. Montan v. Whitley, 12 La. Ann. 175. Appellants in consolidated action. — Where a proposed highway affects the respective lands of several persons, and each of such per- sons brings an action for damages, each may file an appeal bond, with plaintiffs in the other actions as sureties, and, after the con- solidation of such cases in the circuit court, the appeal will not be dismissed because the appeal bond is not signed by any one other than the other plaintiffs. Leffel v. Oberchain, 90 Ind. 50 [distinguishing Scotten v. Divel- biss, 46 Ind. 301; McVey v. Heavenridge, 30 Ind. 100]. Co-defendant and competent sureties. — Where there were three sureties in an appeal bond, one of whom was a co-defendant with appellants in the court below, the court re- fused to dismiss the appeal on that ground, but said that the receiving of a co-defendant as a surety was highly objectionable, as it may be possible that his sufficiency, and not that of the actual sureties, was the real ground of approval. Hollis v. Border, 10 Tex. 277. Executors cannot be received, in their pri- vate capacity, as sureties on an appeal taken from a judgment given against them in their representative character. State v. Judge, 2 Rob. (La.) 449; Lafon v. Lafon, 2 Mart.N. S. (La.) 571. Party not appealing. — In Thompson v. Valarino, 3 Den. (N. Y.) 179, it was held that where one of several defendants prosecutes a writ of error alone, the other defendants were competent sureties for the plaintiff in error. See also Syme v. Badger, 91 N. C. 272, hold- ing that an objection that the undertaking was not signed by any surety, but only by the parties to the record, could not be sustained where it appeared from the record that the judgment appealed from did not affect the party signing as surety. But in Croft v. Bailey, 1 Lea (Tenn.) 369, it was decided that, upon writ of error by two of three par- APPEAL AND ERROR 831 _(b) Attorneys and Court Officers. Under the rules of the court in some i^^CSS&S^ 8igned by an attomey98 or officer of the «^ (o) GorporaUons. The offer of a corporation to become surety on an appeal bond should not be accepted if there is any doubt as to the power of the corpoS- tion to act in that capacity. 1 * (d) Non-Residents As a general rule non-residents cannot become sureties 3 (e) Partnership. It has been decided that an appeal bond signed with a partnership name as surety is not sufficient. 3 (f) Sureties on Other Bonds. Upon the question whether one who has previously signed some bond, made necessary in the action or proceeding prior to the appeal, is a competent surety upon the appeal bond the decisions' are not harmonious. 4 ties to the judgment below, the other judg- ment debtor, alone on the bond, would not meet the requirements of the statute. To the same effect see Labadie v. Dean, 47 Tex. 90. Under the Louisiana practice of requiring appeal bonds to be made payable to the clerk and constituting all parties appellees who are not appellants, a necessary party, either appellee or appellant, is not competent to sign an appeal bond as surety. Barrow v. Clack, 45 La. Ann. 478, 12 So. 631 [reviewing and distinguishing French v. Davidson, 32 La. Ann. 718; State v. Judge, 27 La. Ann. 234; and other cases]. Compare, however, Shiff v. Wilson, 3 Mart. N. S. (La.) 91 ; Riley v. Riley, 27 La. Ann. 248, for limitations of this rule. 98. Florida. — Nash v. Haycraft, 34 Fla. 449, 16 So. 324. Minnesota. — Schuek v. Hagar, 24 Minn. 339. New York.— Craig v. Scott, 1 Wend. (N. Y.) 35. Compare Studwell v. Palmer, 5 Paige (N.Y.) 57. Ohio. — Hays v. Rush, 5 Cine. L. Bui. 328. Pennsylvania. — See Wise v. Pennsylvania Hard- Vein Slate Co., 3 Pa. Dist. 564. Canada. — Lamelin v. Larue, 10 L. C. Rep. 190; Beckitt v. Wragg, 1 Ch. Chamb. (U. C.) 5. Compare Fournier v. Cannon, 6 Quebec 228. See 2 Cent. Dig. tit. "Appeal and Error," § 2025. In Nebraska, under Nebr. Comp. Stat. c. 10, § 14, an attorney is not a proper surety; yet if he executes the undertaking as surety, and it is approved by the proper officer, it is a valid obligation. Chase v. Omaha, etc., L. & T. Co., 56 Nebr. 358, 76 N. W. 896. See also Luce v. Foster, 42 Nebr. 818, 60 N. W. 1027 ; Tessier v. Crowley, 17 Nebr. 207, 22 N. W. 422. In North Carolina, by rule of court, bail or sureties on prosecution, or appeal, or other bond in the action are disabled to appear as counsel in such proceeding. Clark's Code Civ. Proc. N. C. (1900), pp. 951, 953. Limits and exceptions to rule. — It has been decided that such a rule does not apply to an attorney who has relinquished the practice of the law for a number of years, and has en- gaged in other business. Stringham v. Stew- -rt, 8 N. Y. Civ. Proc. 420. And, in Texas, it seems that an appeal bond is not bad because one of the sureties is an attorney in the case: Morgan v. Richardson, (Tex. Civ. App. 1894) 25 S. W. 171; Kohn v. Washer, 69 Tex. 67, 6 S. W. 551, 5 Am. St. Rep. 28. 99. It seems that, where it is the duty of the clerk of the court to approve the appeal bond, such clerk cannot become a surety thereto. Jourdan v. Chandler, 37 Tex. 55. But where the clerk, does not approve the bond, it seems that, in the absence of a rule of court forbidding it, he may become surety. Walker v. Simon, 21 La. Ann. 669; Russell v. Sprigg, 10 La. 421. 1. Black v. Black, 53 Fed. 985. See also McGean v. MacKellar, 67 How. Pr. (N. Y.) 273, to the effect that, when a cor- poration is offered as a surety, it is the duty of the officer required to pass upon the bond in each particular case to exercise his dis- cretion as to whether the actual state of the corporation's business justifies the approval of the undertaking. 2. Snedicor v. Barnett, 9 Ala. 434; State v. Judge, 30 La. Ann. 582; State v. Judge, 29 La. Ann. 776; Van Wezel v. Van Wezel, 3 Paige (N. Y.) 38; Ulrich v. Farrington Mfg. Co., 69 Wis. 213, 34 N. W. 89; Smith v. Chi- cago, etc., R. Co., 19 Wis. 89. See also 2 Cent. Dig. tit. "Appeal and Error," § 2028. Residence in the county, however, may not be necessary. Bushong v. Graham, 4 Ohio Cir. Ct. 138, 2 Ohio Cir. Dec. 464; Moodie v. Ash- land Bank, 1 Wkly. Notes Cas. (Fa.) 324. Under N. Y. Code Civ. Proc. §§ 812, 1326, " householder " includes one who is engaged in the milling business, and who rents and occupies a mill within the state, and owns the machinery in such mill. Delamater v. Byrne, 59 How. Pr. (N. Y.) 71. 3. Buchard v. Cavins, 77 Tex. 365, 14 S. W. 388 [overruling Boney v. Waterhouse, 35 Tex. 178]; Frees v. Baker, (Tex. 1887) 6 S. W. 563. See also Donnelly v. Elser, 69 Tex. 282, 6 S. W. 563; and compare Allen v. Cary, 32 La. Ann. 1125; and see also 2 Cent. Dig. tit. "Appeal and Error," § 2026. 4. Thus, it has been decided that sureties on a bond given merely to secure the costs of a suit (Sampson V. Solinsky, 75 Tex. 663, 13 S. W. 67; Long v. Kruger, 4 Tex. Civ. App. 145, 23 S. W. 242) ; sureties upon a replevin or forthcoming bond (Trammell v. Trammell, 15 Tex. 291; Cobb v. Morris, 2 Tex. App. Civ. Cas. § 668 ; Lee v. Lord, 75 Wis. 35, 43 N. W. Vol. II 832 APPEAL AND ERROR (in) Sufficiency — (a) In General. The object of an appeal bond is to protect the party in whose interest such bond is required, and he has a right to require with such sureties a bond which shall be clearly sufficient for this purpose. 5 If the proffered surety has sufficient tangible property susceptible of seizure at the time of signing the bond to answer for the amount of the obligation assumed by him, this is all that is required. He need not be the owner of real estate. 6 (b) Who Must Determine. The question as to the solvency and ability of the sureties on an appeal bond is one that the trial court must determine. 7 (iv) Justification — (a) When Necessary — (1) Upon Signing. The statu- tory enactments of some states require that the surety shall justify at the time when he signs the bond, 8 and it has generally been decided that such provisions 799, 44 N. W. 771 ; Bonesteel v. Orvis, 20 Wis. 646) may become sureties on an appeal bond. But it has also been held that a surety on a supersedeas bond who is also a party to the judgment appealed from (Davis v. MeCamp- bell, 37 Ala. 609) ; a surety on a bond given to dissolve a garnishment, when a judgment was obtained against him below (Eufauia Home Ins. Co. v. Plant, 36 Ga. 623) ; or a surety on an injunction.bond, when judgment has been rendered against such surety as well as against appellant (Daniels v. Larendon, 49 Tex. 216 [quwre in Sampson v. Solinsky, 75 Tex. 663, 13 S. W. 67 ; and see infra, this note, for the Louisiana rule] ) , is not a competent surety upon the appeal bond. See 2 Cent. Dig. tit. "Appeal and Error," § 2027. In Louisiana, a surety on an injunction bond is incompetent to act as a surety on a bond for an appeal from a judgment dissolv- ing the injunction and for damages against the principal and surety in solido, such surety being a necessary party to the appeal. Bar- row v. Clack, 45 La. Ann. 478, 12 So. 631; Bowman v. Kaufman, 30 La. Ann. 1021; Bauer v. Loehte, 30 La. Ann. 685; Dumas v. Mary, 29 La. Ann. 808; Cimeo v. Daner- wheim, 18 La. Ann. 659. Compare Pasley v. McConnell, 39 La. Ann. 1097, 3 So. 484, 485; Moussier v. Gustine, 25 La. Ann. 36. But see Mehnert v. Dietrich, 36 La. Ann. 390; Verret v. Bonvillain, 32 La. Ann. 29, for limitations of this rule. 5. State v. Rightor, 36 La. Ann. 711; La- fon v. Lafon, 2 Mart. N. S. (La.) 511; Bar- num v. Raborg, 2 Md. Ch. 516; Kirby v. Collins, 5 Wash. 682, 32 Pae. 769. See also 2 Cent. Dig. tit. "Appeal and Error," § 2029 et seq. Burden of proof. — In attacking the suffi- ciency of an appeal bond, a mere prima facie showing on the part of appellee will cast the burden of showing the responsibility of sure- ties upon appellant. Kirby v. Collins, 5 Wash. 682, 32 Pae. 769. See also State v. Judge, 35 La. Ann. 737. 6. State v. Rightor, 36 La. Ann. 711 [over- ruling State v. Judge, 28 La. Ann. 884] ; State v. Judge, 23 La. Ann. 279 ; Moodie v. Ashland Bank, 1 Wkly. Notes Cas. (Pa.) 324. But in Quebec, if there is only one surety such surety must justify on real estate. Fiola v. Hamel, 4 Quebec 52 ; Dawson v. Defosses, 1 Quebec 121; Marshall v. Coffing, 7 Rev. Leg. 575. Vol. II A person against whom the sheriff holds two executions, to satisfy which executions the sheriff cannot find property, is not a suffi- cient surety on an appeal bond. Squier v. Stockton, 5 La. Ann. 741. Mortgaged property. — Where a surety was approved because of his representation that certain land was freed from encumbrance, but it was afterward discovered that the property had been secretly mortgaged, the approval may be vacated. Kaufman v. Hirsch, 9 Wkly. Notes Cas. (Pa.) 347. An appeal bond is in- sufficient if the surety has not sworn that the immovables which he has mortgaged belong to him. Stuart v. Scott, 1 L. C. Rep. 218, 2 R. J. R. Q. 467. Property out of the state. — Where the evi- dence showed that the existing liabilities pf a surety on an appeal bond exceeded his assets in the state, but he testified that he had in another state property worth » sum much larger than all his liabilities, it was held that he was a good surety. State v. Judge, 27 La. Ann. 685 ; State v. Judge, 27 La. Ann. 662. Security, on appeal, on real estate, the title-deed to which is not registered, is insuffi- cient. Prince v. Morin, 18 L. C. Jur. 208. 7. Indiana. — Midland R. Co. v. Wilcox, 111 Ind. 561, 12 N. E. 513. Louisiana. — De Gruy v. Aiken, 43 La. Ann. 798, 9 So. 747; State v. Judge, 30 La. Ann. 1014. Michigan. — Moore v. Olin, 6 Mich. 328. New York. — Delamater v. Byrne, 59 How. Pr. (N. Y.) 71, 57 How. Pr. (N. Y.) 170. Pennsylvania. — Snyder v. Zimmerman, 1 Penr. & W. (Pa.) 293. Tennessee. — Stewart v. Wilcox, 1 Lea (Tenn.) 81. If there is any reasonable doubt of the abil- ity of the party offering to act as surety to adequately secure the appellee, such surety should be rejected. Kirby v. Collins, 5 Wash. 682, 32 Pae. 769 ; Black v. Black, 53 Fed. 985. 8. McDonald v. Ellis, (Ariz. 1894) 36 Pae. 37 ; Witt v. Long, 93 N. C. 388 ; State v. Wag- ner, 91 N. C. 521 ; Hyatt v. Lewis, 20 Wash. 303, 55 Pae. 217; Glover v. Cove, 16 Wash. 323, 47 Pae. 737; Johnston v. Northwestern Live Stock Ins. Co., 107 Wis. 337, 83 N. W. 641; and see 2 Cent. Dig. tit. "Appeal and Error," § 2031 et seq. Justification must be made by the surety himself.— The affidavit of another as to the pecuniary reputation of the surety will not answer the demands of the law. Morphew v. Tatem, 89 N. C. 183. APPEAL AND ERROR 833 are mandatory and that the appeal, to be valid, must be perfected in accordance with their requirements. 9 (2) Upon Exception — (a) Ik General. In some states a surety need not justify until appellee excepts to him as such surety. 10 (b) Notice of Exception. Appellant must be duly notified of the exception to the sureties offered by him. 11 (c) Time of Exception. The exception to sureties must be taken within the time provided by statute. 18 (b) Time of Justification. The time within which sureties who are excepted to must appear and justify is generally regulated by statute ; 13 and it has been decided that the time so fixed cannot be shortened u or extended. 15 (c) Notice of Justification. Appellee must have notice of the time of jus- tification, as he has a right to be present and question the sureties. 16 9. Northern Counties Invest. Trust Co. v. Hender, 12 Wash. 559, 41 Pac. 913 {.distin- guishing Warburton v. Ralph, 9 Wash. 537, 38 Pac. 140 ; McEachern v. Braekett, 8 Wash. «52, 40 Am. St. Rep. 922, 36 Pac. 690]. In Kansas, however, a statute of this kind has been construed to be merely directory. St. Louis, etc., R. Co. v. Wilder, 17 Kan. 239. 10. Swasey v. Adair, 83 Cal. 136, 23 Pac. 284; Hill v. Finnigan, 54 Cal. 311; Schacht v. Odell, 52 Cal. 447; Kelsey v. Campbell, 14 Abb. Pr. (N. Y.) 368; Chamberlain v. Demp- sey, 13 Abb. Pr. (N. Y.) 421; Moody v. Baker, 5 Cow. (N. Y.) 413; Holcomb v. Teal, 4 Oreg. 352 (holding that while the justifica- tion need only be made after exception to the sufficiency of the sureties, the statutory affi- davit as to the qualifications of the sureties must be filed contemporaneously with the fil- ing of the undertaking; and to the same effect see State v. McKinmore, 8 Oreg. 207; Pen- cinse v. Burton, 9 Oreg. 178; Alberson v. Mahaffey, 6 Oreg. 412) ; Dunn v. National Bank, 11 S. D. 305, 77 N. W. Ill; Hazeltine v. Browne, 9 S. D. 351, 69 N. W. 579. See 2 Cent. Dig. tit. "Appeal and Error," § 2031 et seq. " It is not the practice of the high court of chancery of Maryland to require the sureties in an appeal bond, when excepted to, to jus- tify in order to ascertain their sufficiency, in analogy to the practice at law in the case of liail. Ringgold's Case, 1 Bland (Md.) 5; Bar- num v. Raborg, 2 Md. Ch. 516. Surety companies. — When a surety com- pany guarantees an undertaking on appeal, the officers of such company may be examined •as to its assets as a basis for the discretion of the judge in approving or disapproving the security. When excepted to, such company must justify as in the case of any other surety. Hurd v. Hannibal, etc., R. Co., 6 N. Y. Civ. Proc. 386; McGean v. MacKellar, 6 N. Y. Civ. Proc. 169, 67 How. Pr. (N. Y.) 273. The effect of failure to justify. — In New York it has been decided that if the sureties proffered on an undertaking on appeal fail to justify when excepted to by the appellee, the appeal becomes a nullity (Kelsey v. Campbell, 14 Abb. Pr. (N. Y.) 368; Chamberlain v. Dempsey, 13 Abb. Pr. (N. Y.) 421) ; but in California it has been decided that such fail- [53] ure does not justify a dismissal of the appeal, but only affects the stay of execution (Swasey v. Adair, 83 Cal. 136, 23 Pac. 284; Wittram v. Crommelin, 72 Cal. 89, 13 Pac. 160; Gooby v. Hanson, (Cal. 1886) 11 Pac. 489; Hill v. Finnigan, 54 Cal. 311; Schacht v. Odell, 52 Cal. 447). When appellant files a new undertaking in the supreme court, such new undertaking be- ing approved by one of the justices, respond- ent cannot require the sureties in the substi- tuted undertaking to justify. Stevenson v. Steinberg, 32 Cal. 373. 11. Rouch v. Van Hagen, 17 Cal. 121; Davelin v. Post Falls Woolen-Mills Co., (Ida. 1896) 44 Pac. 554; Liddy v. Long Island City, 102 N. Y. 726, 7 N. E. 904; Jackson v. Wise- burn, 5 Wend. (N. Y.) 136; Hazeltine v. Browne, 9 S. D. 351, 69 N. W. 579. Notice of exception must be "to the sure- ties " and not " to the undertaking." Young v. Colby, 2 Code Rep. (N. Y.) 68. Notice to appellant's attorney was held to be sufficient under an act allowing the giving of such notice to an agent of appellant. Cum- mings v. Forsman, 6 Pa. St. 194. 12. Blake v. Lyon, etc., Mfg. Co., 75 N. Y. 611; Webster v. Stevens, 5 Duer (N. Y.) 682, 3 Abb. Pr. (N. Y.) 227; Culliford v. Gadd, 2 Misc. (N. Y.) 574, 22 N. Y. Suppl. 539, 51 N. Y. St. 609; Hays v. Armstrong, 7 Ohio 247 ; Lewis v. Lewis, 4 Oreg. 209. 13. Davelin v. Post Falls Woolen-Mills Co., (Ida. 1896) 44 Pac. 554; Hees t\ Snell, 8 How. Pr. (N. Y.) 185; Campbell v. Gregg, Brightly (Pa.) 440 ; and 2 Cent. Dig. tit. "Ap- peal and Error," § 2033. Irregular justification. — Sureties who have justified in time, but have done so irregularly, may be allowed to justify anew even if the time for justification is, past. Kelly v. Moody, 7 Hill (NY.) 156. On application for extension of the time for justification of bail on appeal, the merits of the case will not be considered. Bradley v. Hall, 1 Cal. 199. 14. Chemin v. East Portland, 19 Oreg. 512, 24 Pac. 1038. 15. Roush v. Van Hagen, 17 Cal. 121; Jack- son v. Wiseburn, 5 Wend. (N. Y.) 136. 16. Stark v. Barrett, 15 Cal. 361 ; Davelin v. Post Falls Woolen-Mills Co., (Ida. 1896) 44 Pac. 554; Dresser V. Brooks, 5 How. Pr. Vol. II 834 APPEAL AND ERROR (d) Manner of Justifying. In justifying, the sureties must comply with the statutory requirements as to the method of justification." (e) Must Justify in What Amount. The amount in which a surety must, justify is provided for by statute in most of the states, and is usually fixed at double the amount of the bond. 18 S. Amount — a. In General. The bond or undertaking must be for the amount required by statute or fixed by the court when the court is empowered to name the penalty, and varies in the several states, and in amount in different actions and proceedings. 19 The forum in which to trv (N. Y.) 75; Cook v. Albina, 20 Oreg. 190, 25 Pac. 386. Compare Barnett v. Pardow, 10 Wend. (N. Y.) 615; and see 2 Cent. Dig. tit. "Appeal and Error," § 2034. Day named in notice. — Security in appeal cannot be legally given, in the absence of the opposite party, on a day different to that stated in the notice. Charbonneau v. Davis, 20 L. C. Jur. 167. But an appeal will not be dismissed merely because the security was put in one day sooner than that stated in the no- tice served on respondent if no objections be made to the sureties themselves. Canada Invest., etc., Co. v. Hudon, 25 L. C. Jur. 227. Hour named in notice. — In Lower v. Knox, 10 Cal. 480, appellant gave notice that the justification would take place on a certain day between the hours of ten A. M. and five p. M. It was held that it was proper for the clerk to refuse to take the justification until the hour last-named. 17. Boyce v. Superior Ct, 110 Cal. 401, 42 Pac. 892 (before proper officer) ; Tevis v. O'Connell, 21 Cal. 512 (proper place for jus- tification) ; Roush v. Van Hagen, 18 Cal. 668; Barnett v. Pardow, 10 Wend. (N. Y.) 615 (by affidavit) ; Bonnell v. Esterly, 30 Wis. 549 (venue for justification); Hobson V.John- son, 4 Biss. (U. S.) 505, 12 Fed. Cas. No. 6,553 (insufficiency of affidavit alone) ; Hatch v. Coddington, 5 Blatchf. (U. S.) 523, 11 Fed. Cas. No. 6,205 (by affidavit). 18. California. — Mokelumne Hill Canal, etc., Co. v. Woodbury, 10 Cal. 185. New York.— Hill v. Burke, 62 N. Y. Ill; Newton v. Harris, Code Rep. N. S. (N. Y.) 191; Rich V. Beekman, 2 Code Rep. (N. Y.) 63; Eldridge v. Howell, 4 Paige (N. Y.) 457. North Carolina. — Bailey v. Rutjes, 91 N. C. 420; McCanless v. Reynolds, 91 N. C. 244; Turner v. Quinn, 91 N. C. 92 ; Lytle v. Lytle, 90 N. C. 647; Hemphill v. Blaekwelder, 90 N. C. 14; McMillan v. Nye, 90 N. C. 11; Har- shaw v. McDowell, 89 N. C. 181. Ohio.— Winkler v. State, 20 Ohio Cir. Ct. 360, 11 Ohio Cir. Dec. 123; Orr v. Orr, 5 Cine. L. Bui. 711. Oregon. — Holcomb v. Teal, 4 Oreg. 352. South Dakota. — Tolerton, etc., Co. v. Cas- person, 7 S. D. 206, 63 N. W. 908. Justifying in an amount more than twice the amount specified in the undertaking does not affect the validity of such undertaking. Hill v. Burke, 62 N. Y. Ill; Ex p. Easta- brooks, 5 Cow. (N. Y.) 27. Stating that surety is worth double the amount specified in the bond, without stating Vol. II that such amount is over and above his lia- bilities and homestead and other exemptions allowed by law, is a sufficient justification under Clark's Code Civ. Proc. N. C. (1900), § 560; Witt v. Long, 93 N. C. 388. The jus- tification of two sureties to the effect that each is worth the amount of the bond is not sufficient, the statute requiring the justifica- tion of one surety in double the amount of the bond. Anthony v. Carter, 91 N. C. 229. 19. A laoama. — Briarfield Iron Works Co. v. Foster, 54 Ala. 622; Barnett v. State, 34 Ala. 260. Arizona. — Johnston v. Letson, (Ariz. 1892) 29 Pac. 893; Crowley v. Reilley, (Ariz. 1891) 29 Pac. 14. California. — Gardiner v. California Guar- antee Invest. Co., 129 Cal. 528, 62 Pac. 110. Colorado. — Standley v. Hendrie, etc., Mfg. Co., 25 Colo. 376, 55 Pac. 723. Florida. — Scott v. Milton, 26 Fla. 52, T So. 32 ; Montgomery v. Knox, 22 Fla. 575. Georgia.— King v. Cook, T. U. P. Charlt. (Ga.) 286, 4 Am. Dee. 715. Illinois. — Ennor v. Galena, etc., R. Co., 104 111. 103; McCall v. Moss, 100 111. 461. See- Hurd's Rev. Stat. 111. (1899), c. 110, § 68. Indiana. — Shannon v. Spencer, 1 Blackf. (Ind.) 120; Merchants' etc., Sav. Bank V- Fraze, (Ind. App. 1893) 34 N. E. 749. Louisiana. — Ray v. Shehee, 34 La. Ann.. 1106; Rawle v. Feltus, 33 La. Ann. 421. Maryland. — Ringgold's Case, 1 Bland (Md.) 5. Michigan. — Richardson v. Richardson, 82' Mich. 305, 46 N. W. 670; Michie v. Ellair, 60 Mich. 73, 26 N. W. 837. Minnesota. — See Minn. Stat. (1894), § 6141. Mississippi. — Swann v. Home, 54 Miss. 337. Missouri. — State v. Klein, 137 Mo. 673, 39 S. W. 272 ; Reed v. Leffingwell, 30 Mo. 543. New York. — Jesup v. Carnegie, 45 N. Y. Super. Ct. 310; Coithe v. Crane, 1 Barb. Ch. (N. Y.) 21; and see N. Y. Code Civ. Proc. § 1326. North Carolina. — Hemphill v. Blaekwelder, 90 N. C. 14 ; McCanless v. Reynolds, 90 N. C. 648. Clark's Code Civ. Proc. N. C. (1900), § 552, requires appellant to execute an appeal bond, and in such sum as may be ordered by the court, not to exceed the sum of two hun- dred and fifty dollars. This is in addition to the bond to stay execution required by sec- tion 554. McCanless v. Reynolds, 91 N. C 244; Harshaw v. McDowell. 89 N. C. 181;. Bledsoe v. Nixon, 69 N. C. 81. APPEAL AND ERROR 835 the question of the sufficiency of the penalty of an appeal bond, in a case Ohio. — Branch v. Dick, 14 Ohio St. 551; Oliver v. Pray, 4 Ohio 175, 19 Am. Dee. 595, 5 Ohio 326. Oregon. — The undertaking must not be limited in amount, and must provide for the payment of all damages, costs, and disburse- ments which may be awarded against appel- lant. State v. McKinmore, 8 Oreg. 207. Pennsylvania. — Quick v. Miller, 103 Pa. St. 67 ; Churchman v. Parke, 2 Pa. St. 406. Tennessee. — Ing v. Davey, 2 Lea (Tenn.) 276; Staub v. Williams, 1 Lea (Tenn.) 36; Mason v. Anderson, 12 Heisk. (Tenn.) 38 (for damages and costs only on appeal from judgment on open account) ; State v. Wright, 5 Heisk. (Tenn.) 612 (for costs only on ap- peal for usurpation of office) ; Davis v. Jack- son, (Tenn. Ch. 1897) 39 S. W. 1067. Texas.^- Scott v. Allen, 1 Tex. 508; Ham- blen v. Tuck, (Tex. Civ. App. 1898) 45 S. W. 175; Cowen v. Bloomberg, 15 Tex. Civ. App. 364, 39 S. W. 947. Washington. — Sumner v. Rogers, 21 Wash. 361, 58 Pac. 214; Pierce v. Willeby, 20 Wash. 129, 54 Pac. 999; Kirby v. Collins, 5 Wash. 682, 32 Pac. 769. Wisconsin. — Eureka Steam Heating Co. v. Sloteman, 67 Wis. 118, 30 N. W. 241 ; JEtna L. Ins. Co. v. McCormick, 20 Wis. 265. United States. — Swan v. Hill, 155 U. S. 394, 15 S. Ct. 178, 39 L. ed. 197; Wheeling Bridge, etc., R. Co. v. Cochran, 68 Fed. 141, 25 U. S. App. 306, 15 C. C. A. 321. Canada.— Taylor v. Gavin, 18 Nova Scotia 296; Brooke v. Dallimore, 20 L. C. Jur. 176, holding security for costs alone sufficient in case of appeal from a judgment ordering ap- pellant to render an account. See 2 Cent. Dig. tit. "Appeal and Error," § 2036 et seq. In England. — Such deposit or other security for the costs to be occasioned by any appeal shall be made or given as may be directed un- der special circumstances by the court of ap- peals. Costa Rica v. Erlanger, 3 Ch. D. 6,2; Hastings v. Ivall, L. R. 9 Ch. 758, 43 L. J. Ch. 728, 22 Wkly. Rep. 783, 31 L. T. Rep. N. S. 262. See also Grant v. Banque Franco- Egyptienne, 2 C. P. D. 430, 26 Wkly. Rep. 68 ; Judd v. Green, 4 Ch. D. 784, 46 L. J. Ch. 257, 35 L. T. Rep. N. S. 873, 25 Wkly. Rep. 293. Failure of judge to fix amount. — When the amount of the bond for an appeal, such ap- peal being taken by motion in open court, is not fixed by the judge, the appeal is defective and the amount of the bond cannot subse- quently be fixed and the appeal perfected by an order rendered at chambers on the petition of appellant. Fournet v. Van Wickle, 33 La. Ann. 1108. Judgments for specific sums of money. — As to the amount of the bond when the judg- ment is for a specific sum of money see: Indiana. — Shannon v. Spencer, 1 Blackf. (Ind.) 120. Maryland. — Ringgold's Case, 1 Bland (Md.) 5. -Richardson v. Richardson, 82 Mich. 305, 46 N. W. 670; Michie v. Ellair, 60 Mich. 73, 26 N. W. 837. New York.— Coithe v. Crane, 1 Barb. Ch. (N. Y.) 21. Ohio. — In re Winterfeldt, 2 Ohio Dec. 473; Pray v. Oliver, 5 Ohio 326, 4 Ohio 175, 19 Am. Dec. 595 ; White v. Moerlidge, 7 Ohio Cir. Ct. 348. Tennessee. — Watkins v. Clifton Hill Land Co., 91 Tenn. 683, 20 S. W. 246; Wilson v. Edwards, 5 Coldw. (Tenn.) 238. Personal representatives. — As to the amount of the appeal bond to be given by a personal representative see the following cases: Georgia. — Hobbs v. Cody, 45 Ga. 478. Iowa. — Matter of Pierson, 13 Iowa 449. Louisiana. — Frye's Succession, 32 La. Ann. 1308. New York. — Mills v. Forbes, 12 How. Pr. (N. Y.) 466. Tennessee. — Goine v. Henderson, 5 Yerg. (Tenn.) 197; Patterson v. Gordon, 3 Tenn. Ch. 18. See 2 Cent. Dig. tit. "Appeal and Error," § 2040. Real actions. — As to the amount of the bond in actions concerning real property see the following cases: State v. Meacham, 6 Ohio Cir. Ct. 31; Watkins v. Clifton Hill Land Co., 91 Tenn. 683, 20 S. W. 246; Rogers v. Newman, 5 Lea (Tenn.) 255; Staub v. Wil- liams, 1 Lea (Tenn.) 36; Kinsey v. Stanton, 6 Baxt. (Tenn.) 92; McCoy v. Jones, 9 Tex. 363; and see 2 Cent. Dig. tit. "Appeal and Error," § 2041. Right to decrease or increase amount. — If, in fixing the amount, the judge has been mis- led, he probably may modify the order fixing the amount, and require an additional under- taking (Eureka Steam Heating Co. v. Slote- man, 67 Wis. 118, 30 N. W. 241 ; Holbrook v. Holbrook, 32 La. Ann. 13) ; and before an appeal is completed he may reduce the amount of the bond (Immanuel Presb. Church v. Riedy, 104 La. 314, 29 So. 149). So, it has been held that the amount of the bond given to secure costs may be increased by the court because of the length of the record. Boswell v. Kilborn, 13 Moore (Quebec) 476, 7 L. C. Jur. 150. Specific amount. — It has been held that if no penalty is inserted in an appeal bond the appeal must be dismissed. Henry v. Gam- ble, Minor (Ala.) 6. See also Warner v. Howard, 121 Mass. 82. In Eschert v. Harri- son, 29 La. Ann. 860, it is said that a failure to set forth specifically the amount is not ground to dismiss the appeal, it being pre- sumed that the bond was given for the amount prescribed in the order of the court granting the appeal. See also Stille v. Beauchamp, 13 La. Ann. 604; Mason v. Fuller, 12 La. Ann. 68. And under Tex. Rev. Stat. art. 2201, re- quiring an appellant to file a bond payable to the judge and "conditioned to prosecute his appeal," but not requiring it to be given in any sum, the bond is not void because given for a stated amount, and the appeal on which Vol. II 836 APPEAL AND ERROR appealed in term, is the court which is called upon to receive and approve the bond. 20 b. In Exeess of Amount Required. The execution of an undertaking in a sum which exceeds that fixed by the statute or the court does not affect the validity of the undertaking. 21 e. Supersedeas Instead of Appeal Bond. A bond, although conditioned as supersedeas bonds usually are, if in the amount prescribed by the statute or the court, is sufficient as an appeal bond. 22 An undertaking for appeal, and also to secure a stay of execution, may be effectual for the appeal although insufficient for supersedeas. 23 4. Conditions. An appeal bond must contain the conditions required by the statute or the order of court for the security of the rights of the appellee. 24 If, it is given should not for that reason be dis- missed. Howard v. Russell, 75 Tex. 171, 12 is. W. 525; Hicks v. Oliver, 71 Tex. 776, 10 S. W. 97. 20. Midland R. Co. v. Wileox, 111 Ind. 561, 12 N. E. 513. 21. Zoller v. McDonald, 23 Cal. 136; Le- vesque v. Anderson, 6 Mart. N. S. (La.) 293; Stapleton v. Pease, 2 Mont. 508 ; Ex p. Easta- brooks, 5 Cow. (N. Y.) 27; Coil v. Davis, Wright (Ohio) 164; Johnson v. Noonan, 16 Wis. 687. See 2 Cent. Dig. tit. " Appeal and Error,'' § 2037. It has been held, however, that a bond executed in an amount in excess of the statute is defective and possibly void. Sutherland v. Putnam, (Ariz. 1890) 24 Pac. 320; Janes v. Langham, 29 Tex. 413. 22. McCollum v. McCollum, 33 Ala. 711; Minden Bank v. Lake Bisteneau Lumber Co., 47 La. Ann. 1432, 17 So. 832; Anderson v. Bigelow, 16 Wash. 198, 47 Pae. 426; State v. Seavey, 7 Wash. 562, 35 Pac. 389. See also infra, VIII. 23. Dobbins v. Dollarhide, 15 Cal. 374; Cruger v. Douglass, 8 Barb. (N. Y.) 81, 2 Code Rep. (N. Y.) 123; Zapp v. Michaelis, 56 Tex. 395. See also Reid v. Norfolk City R. Co., (Va. 1894) 21 S. E. 27. In Louisiana, if, by order of court, a sus- pensive appeal has been allowed upon appel- lant furnishing a bond in an amount fixed by the court, which amount is not sufficient for a suspensive appeal, and the bond has been furnished in that amount, it will not be dis- missed because it cannot be maintained as a suspensive appeal. Though not good as a suspensive, it stands good as a, devolutive, appeal. Weil v. Schwartz, 51 La. Ann. 1547, 26 So. 475; Stempel v. Fulton, 51 La. Ann. 468, 25 So. 270; Morgan's Louisiana, etc., R., etc., Co. v. Pecot, 50 La. Ann. 737, 23 So. 948 ; Michenor v. Reinach, 49 La. Ann. 360, 21 So. 552. See also McCarthy v. McCarthy, 44 La. Ann. 146, 11 So. 77. But unless given in the sum fixed by the court the bond will not sup- port either a suspensive or devolutive appeal. Keenan v. Whitehead, 15 La. Ann. 333; Mc- Call's Succession, 19 La. Ann. 507. Compare Nichols v. Marshall, 10 La. 110. And where no order fixing the amount is found in the record, the mere fact that appellant has at- tempted to give a suspensive appeal bond, but failed as to the amount required, does not give appellant a right to a devolutive ap- peal. Woodville v. Klasing, 51 La. Ann. 1057, Vol. II 25 So. 635; Dwight v. Barrow, 25 La. Ann. 424. 24. Alabama. — Henson v. Preslor, 27 Ala. 643. Arizona. — Johnston v. Letson, (Ariz. 1892) 29 Pac. 893. Arkansas. — Ballard v. Noaks, 1 Ark. 133. California. — Carter v. Butt Creek Gold Min., etc., Co. 131 Cal. 350, 63 Pac. 667; Dun- can v. Times-Mirror Co., 109 Cal. 602, 42 Pac. 147. Delaware. — Miller v. Holding, 5 Houst. (Del.) 494. Georgia. — Seymore v. Howard, 15 Ga. 110. Illinois. — Terre Haute, etc., R. Co. v. Pe- oria, etc., R. Co., 61 111. App. 405. Kentucky. — Talbot v. Morton, 15 Litt. (Ky.) 326. Louisiana. — Prudhomme v. Williams, 45 La. Ann. 484, 12 So. 628; Calhoun's Succes- sion, 35 La. Ann. 363. Maine. — French v. Snell, 37 Me. 100; Owen v. Daniels, 21 Me. 180. See also Merrick v. Farwell, 33 Me. 253. Massachusetts. — Harrington v. Brown, 7 Pick. (Mass.) 232. Mississippi. — Swann v. Home, 54 Miss. 337; Warren v. African Baptist Church, 50 Miss. 223. Montana.- — ■ Nolan v. Montana Cent. R. Co., 24 Mont. 327, 61 Pac. 880; Coleman V. Perry, 24 Mont. 237, 61 Pac. 129. New York. — Langley v. Warner, 1 Code Rep. (N. Y.) Ill, 3 How. Pr. (N. Y.) 363, 1 N. Y. 606; Drexel v. St. Amant, 47 Hun (N. Y.) 520; Hollister ?;. McNeill, 31 Hun (N. Y.) 629; Moras v. Hasbrouck, 10 Abb. N. Cas. (N. Y.) 407, 63 How. Pr. (N. Y.) 84, 201. North Carolina. — Oakley v. Van Noppen, 100 N. C. 287, 5 S. E. 1; Orr v. McBryde, 7 N. C. 235. Ohio. — The Propeller Ogontz v. Wick, 12 Ohio St. 333. Pennsylvania. — Com. v. Wistar, 142 Pa. St. 373, 28 Wkly. Notes Cas. (Pa.) 97, 21 Atl. 871. Tennessee. — Patrick v. Nelson, 2 Head (Tenn.) 506; Jones v. Parson, 2 Yerg. (Tenn.) 320. Texas. — Perkins v. Bates, 61 Tex. 190; Reid is. Fernandez, 52 Tex. 379. Wisconsin. — Drinkwine v. Eau Claire, 83 Wis. 428, 53 N. W. 673; Northwestern Mut. Life Ins. Co. v. Park Hotel Co., 37 Wis. 125. APPEAL AND ERROR 837 however, the conditions of an appeal bond, although not literally in conformity to the statute or the order of court, yet substantially cover the requisite stipula- tions and contain no defect which, according to a fair construction, might be prejudicial to the interests of the appellee, the bond is sufficient » 5. Form and Contents— a. In General. Although an appeal bond may not be in the exact statutory form, or contain all the proper recitals, or is erroneous in some ot its _ recitals, it may still sustain the appeal. Mere clerical or gram- matical errors in either form or contents will not render the bond defective* United States.— Swan v. Hill, 155 U. S. 394, 15 S. Ct. 178, 39 L. ed. 197. See 2 Cent. Dig. tit. " Appeal and Error," § 2042 et seq. Injunctions. — As to the conditions in a bond given upon appeal from a judgment dissolving an injunction see McWilliams v. Morgan, 70 111. 62; Talbot v. Morton, 5 Litt. (Ky.) 326; State v. King, 40 La. Ann. 841, 6 So. 108; Coleman v. Rowe, 4 Sm. & M. (Miss.) 747; McKay v. Hite, 4 Rand. (Va.) 564; and 2 Cent. Dig. tit. "Appeal and Error," § 2045. Judgments as to realty. — As to the condi- tions which are necessary in a bond on an appeal from a judgment concerning real prop- erty see Firemen's Ins. Co. v. Bay, 3 How. Pr. (N. Y.) 424, 2 Code Rep. (N. Y.) 3; Grow v. Snell, 4 N. Y. Civ. Proc. 334; Duncan v. Mo- bile, etc., R. Co., 3 Woods (TJ. S.) 597, 8 Fed. Cas. No. 4,139, and see also 2 Cent. Dig. tit. " Appeal and Error," § 2044. Personal representatives. — The following cases have been decided as to the conditions necessary in a bond given by a personal repre- sentative. Mason v. Johnson, 24 111. 159, 76 Am. Dee. 740; Mitchell v. Mount, 19 Abb. Pr. (N. Y.) 1; People v. Judges, 1 Wend. (N. Y.) 29; Munzesheimer v. Wickham, 74 Tex. 638, 12 S. W. 751; and see also 2 Cent. Dig. tit. "Appeal and Error," § 2043. Where the bond contains no condition what- ever it will be dismissed. Jeffery v. Marshall, 1 Ark. 47 ; Mygatt v. Ingham, Wright ( Ohio ) 176. 25. Alabama. — Richards v. Griffin, 5 Ala. 195. Florida.— Kilbee v. Myrick, 12 Fla. 416. Indiana. — Carmichael v. Holloway, 9 Ind. 519. Iowa. — Whitehead v. Thorp, 22 Iowa 425. Kentucky. — Cobb v. Com., 3 T. B. Mon. (Ky.) 391. Louisiana. — Biekham v. Hutchinson, 50 La. Ann. 765, 23 So. 902. Minnesota. — Anderson v. Meeker County, 46 Minn. 237, 48 N. W. 1022; Riley v. Mit- chell, 38 Minn. 9, 35 N. W. 472. Mississippi. — Swann v. Home, 54 Miss. 337. Missouri. — American Brewing Co. v. Tal- bot, 125 Mo. 388, 28 S. W. 585 ; Smith v. Mon- treil, 26 Mo. 578. Montana. — Ramsey v. Burns, 24 Mont. 234, 61 Pac. 129. New York. — Doolittle v. Dininny, 31 N. Y. 350; Foster v. Foster, 7 Paige (NY.) 48. Ohio. — Bentley v. Dorcas, 11 Ohio St. 398; Creighton v. Harden, 10 Ohio St. 579; Myres v. Parker, 6 Ohio St. 501. Texas. — Jordan v. Moore, 65 Tex. 363; Robinson v. Brinson, 20 Tex. 438. Wisconsin.— C. & J. Michel Brewing Co. v. Wightman, 97 Wis. 657, 73 N. W. 316; West v. Eau Claire, 89 Wis. 31, 61 N. W. 313; Kas- son v. Brocker, 47 Wis. 79, 1 N W. 418. United States. — Gay v. Parpart, 101 TJ. S. 391, 25 L. ed. 841. See 2 Cent. Dig. tit. "Appeal and Error," § 2048. Mere clerical or grammatical errors in the condition of an appeal bond will not invali- date it. Swain v. Graves, 8 Cal. 549; Schill v. Reisdorf, 88 111. 411; People v. Judges, 1 Wend. (NY.) 28; Farrell v. Finch, 40 Ohio St. 337, 9 Am. L. Rec. 412; Wood v. Gamble, (Tex. Civ. App. 1895) 32 S. W. 368; Wallace v. Dart, (Tex. Civ. App. 1895) 32 S. W. 239; Horton v. McKeehan, 1 Tex. App. Civ. Cas. § 468. 26. Alabama. — Satterwhite v. State, 28 Ala. 65. Illinois. — Bragg v. Fessenden, 11 111. 544. Louisiana. — Broussard v. Babin, McGloin (La.) 286. North Carolina. — -Walker v. Williams, 88 N. C. 7. Texas. — Lewis v. Sproles, (Tex. Civ. App. 1894) 28 S. W. 94; Brown v. Shelton, (Tex. Civ. App. 1893) 23 S. W. 483. United States.- — Smith v. Walker, Hempst. (U. S.) 289, 22 Fed. Cas. No. 13,123a. See 2 Cent. Dig. tit. "Appeal and Error," § 2049 et seq. Consideration necessary. — It has been de- cided that where an undertaking on appeal from a judgment is not in the form prescribed by statute a consideration must be shown. Goodwin v. Bunzl, 50 N. Y. Super. Ct. 441, 6 N. Y. Civ. Proc. 226 ; Robert v. Donnell, 10 Abb. Pr. (N. Y.) 454. See infra, IX, A, 2. The distinction existing between a bond and an undertaking or a recognizance has been in some cases recognized and insisted upon. Thus, it has been decided that a bond to prosecute an appeal from the court of pro- bate must be given in the usual form of bonds, and if given in the form of a recognizance, the process will abate even after continuance (Brown v. Hinman, Brayt. (Vt.) 20) ; that in a proceeding by a writ of error, where the bond, intended to be a cost bond for writ of error, was in terms a bond for an appeal, a motion to dismiss should be granted ( Thomp- son v. Pine, 41 Tex. 171); but it, has been decided, however, that although the statute required a recognizance, and not a bond on ap- peal, a bond would be a sufficient compliance therewith, as it was as effectual as the other Vol. II 838 APPEAL AND ERROR An appeal bond, if it is filed in time, is not fatally defective The bond should state the name of the court b. Date of Bond. because not dated. w e. Naming Appellate Court. to which the appeal is prayed. 28 d. Parties — (i) Oblioobs. It seems that the omission of the name of an obligor from the body of the bond is no substantial objection to such bond. 29 (n) Obligees. It would seem that if no obligee is named in the undertaking the latter is defective ; m but where the obligee is sufficiently designated the bond will not be held deficient because of a slight mistake in his name. 31 (in) Subeties. It is not necessary that the sureties be named in the body of the band. 32 e. Reeital of Judgment — (i) In Genebal. The bond, must so describe the judgment as to identify it as the one from which the appeal is taken, otherwise the bond will be insufficient. 33 (Dean v. Hemphill, Hempst. (U. S.) 154, 7 Fed. Cas. No. 3,7 36a). In Wilson v. Morrell, 5 Wash. 654, 32 Pac. 733, it was decided that, under the statutory direction to the courts to look at the substance rather than the form in interpreting appeal bonds, the fact that such an instrument was in the form of an under- taking instead of that of a bond did not in- validate it. In some jurisdictions undertakings on ap- peal are by statute put on the same footing as bonds. Canfield v. Bates, 13 Cal. 606; Mat- ter of Brown, 35 Minn. 307, 29 N. W. 131 — holding a recognizance to be a kind of a bond. 27. Byers v. Gilmore, 10 Colo. App. 79, 50 Pac. 370. The day of the month in the date of the bond need not be specified therein. Bills v. Stanton, 69 111. 51; Eschert v. Harrison, 29 La. Ann. 860 ; Guez v. Dupuis, 152 Mass. 454, 25 N. E. 740. 28. Merserole v. Merserole, 13 N. J. L. 239; Smith v. Walker, Hempst. (U. S.) 289, 22 Fed. Cas. No. 13,123a. But the mere fact that the bond recited that an appeal had been prayed to the supreme court doss not prevent the court of appeals from acquiring jurisdic- tion of the appeal, as such defect is at most a, formal one, which would have been amend- able in the appellate court. Pershing v. Wolfe, 8 Colo. App. 82, 44 Pac. 754. 29. Hirams v. Coit, Dall. (Tex.) 148. See also Chamblee v. Baker, 95 N. C. 98 ; and also 2 Cent. Dig. tit. " Appeal and Error," § 2055. A slight variation between the signature of the obligor and his name as it appears in the body of the appeal bond is therefore imma- terial. Guez v. Dupuis, 152 Mass. 454, 25 N. E. 740. 30. Arizona. — Johnston v. Letson, (Ariz. 1892) 29 Pac. 893; Sutherland v. Putnam, (Ariz. 1890) 24 Pac. 320. Louisiana. — Michael v. Babin, 19 La. Ann. 197 ; Voelkel v. Voelkel, 18 La. Ann. 639; Percy v. Millaudon, 6 La. 584. But see Nugent v. McCaffrey, 33 La. Ann. 271, decided under the Louisiana act of Jan. 30, 1869. North Carolina. — See, contra, Clark v. Huff- steller, G7 N. C. 449. Ohio. — Compare Job v. Harlan, 13 Ohio St. 485. Rhode Island. — Garrett v. Shove, 15 R. I. 538, 9 Atl. 901. Vol. II Tennessee. — Eason v. Clark, 2 Yerg. (Tenn.) 521. Texas. — Whiting v. Pettus, 1 Tex. 191. 31. Homer College v. Vaughn, 18 La. Ann. 525 ; .Morris v. Covington, 2 La. Ann. 259 ; Mc- Laughlin v. Richardson, 2 La. Ann. 78 ; Pleas- ants v. Botts, 5 Mart. N. S. (La.) 127; Inter- national, etc., R. Co. v. Vanden, 7 Tex. Civ. App. 258, 26 S. W. 767 ; Newbauer v. Joseph, 1 Tex. App. Civ. Cas. § 86 ; Mullins' Appeal, 40 Wis. 154. 32. California. — Dore v. Covey, 13 Cal. 502. Louisiana. — See also Coyle v. Creevy, 34 La. Ann. 539; Union Bethel African M. E. Church v. Civil Sheriff, 33 La. Ann. 1461; Vignie v. Brady, 35 La. Ann. 560. Massachusetts. — Guez v. Dupuis, 152 Mass. 454, 25 N. E. 740. New York — Ex p. Fulton, 7 Cow. (N. Y.) 484. Texas. — Baldridge v. Penland, 68 Tex. 441, 4 S. W. 565 ; Cooke v. Crawford, 1 Tex. 9, 46 Am. Dee. 93. See 2 Cent. Dig. tit. "Appeal and Error," § 2054. Omission from condition of bond. — The omission of the name of one of several sureties from the condition of an appeal bond when such name appears in the penal clause, and was duly signed to the bond, is an immaterial clerical error. Del Bondio v. New Orleans Mut. Ins. Assoc, 28 La. Ann. 139. Residence and occupation of surety. — An undertaking without a statement as to the place of residence and occupation of the sure- ties, where such statement is required by law, is insufficient to render an appeal effectual. Dobbins v. Dollarhide, 15 Cal. 374; Blood v. Wilder, 6 How. Pr. (N. Y) 446. Compare Northrup v. Sullivan, 47 La. Ann. 715, 17 So. 259 ; State v. Alta Silver Mining Co., 24 Nev. 230, 51 Pac. 982. And it has been held, un- der a statute requiring at least one surety to be a freeholder in the county, that the county in which the surety resides should be specified in the appeal bond. Merserole v. Merserole, 13 N. J. L. 239. When two sureties sign an appeal bond it is sufficient if only one of them is named in the body of the bond. Briant v. Herbert, 30 La. Ann. 1127. 33. Alabama. — Dumas v. Hunter, 30 Ala. 188; Satterwhite v. State, 28 Ala. 65; Wil- APPEAL AND ERROR 839 (n) Amount. If the judgment is otherwise sufficiently described, an incorrect statement ol the amount thereof seems to constitute only an immaterial defect. 34 (in) Bate of Judgment. A misrecital of the date of the judgment should not necessarily be held fatal to the bond, provided the other elements of the description show with reasonable certainty that it can be no other than the judg- ment appealed from. 35 (it) Pamties. The bond should give the names of all parties to the judgment. 36 liams v. State, 26 Ala. 85. See also Street v. Street, 113 Ala. 333, 21 So. 138. Arizona. — Sutherland v. Putnam, (Ariz. 1890; 24 Pac. 320. Florida. — Forbes v. Porter, 23 Fla. 47, 1 So. 336. Illinois. — Best Brewing Co. v. Klassen, 85 111. App. 464. Louisiana. — Thibodeaux v. Thibodeaux, 45 La. Ann. 1126, 13 So. 805; People's Brewing Co. v. Boebinger, 40 La. Ann. 277, 4 So. 82. Ohio. — Wilson v. Holeman, 2 Ohio 253. Terns. — Hicks v. Oliver, 71 Tex. 776, 10 S. W. 97; Matter of O'Hara, 60 Tex. 179; Dut- ton v. Norton, 1 Tex. App. Civ. Cas. § 358. Virginia. — Acker v. Alexandria, etc., R. Co., 84 Va. 648, 5 N. E. 688. United States. — Benjamin v. Hart, 4 Ben. . McCartney, 131 U. S. xeviii, appendix, 19 L. ed. 757. And see supra, VI; and 2 Cent. Dig. tit. " Appeal and Error," § 2139. Term-time appeals. — Where the court fixed the penalty on an appeal bond, and named the sureties therein, and the bond was filed in va- cation but within the time allowed by the court, the appeal is a term-time appeal, and no notice is necessary to co-parties not appealing. Thompson v. Connecticut Mut. L. Ins. Co., 139 Ind. 325, 38 N. E. 796. 38. California. — French v. McCarthy, 110 Cal. 12, 42 Pac. 302; Warren v. Ferguson, 108 Cal. 535, 41 Pac. 417 [following Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 39 Pac. 758]. Indiana. — Klingensmith v. Kepler, 41 Ind. 341; Hildebrand v. Sattley Mfg. Co., (Ind. App. 1900) 57 N. E. 594. Iowa. — Ward v. Walker, 111 Iowa 611, 82 N. W. 1028 ; Wolfe v. Jaffray, 88 Iowa 358, 55 N. W. 91 ; Laprell v. Jarosh, 83 Iowa 753, 49 N. W. 1021. Louisiana. — Webb v. Keller, 39 La. Ann. 55, 1 So. 423. New York. — Brown v. Richardson, 4 Rob. (N. Y.) 603. Oregon. — Bennett v. Minott, 28 Oreg. 339, 39 Pac. 997, 44 Pac. 288 ; Osborn v. Logus, 28 Oreg. 302, 37 Pac. 456, 38 Pae. 190, 42 Pac. 997. See 2 Cent. Dig. tit. "Appeal and Error," § 2139. Questions affecting appellant alone. — Though Iowa Code (1873), § 3174, provides that, where a part of several co-parties appeal, those appealing must serve notice of appeal on all other co-parties, yet the failure to do this does not deprive the supreme court of its jurisdic- tion, but it may determine any question affect- ing only appellant and the adverse party. Kellogg v. Colby, 83 Iowa 513, 49 N. W. 1001. Parties against whom no judgment is ren- dered. — It is improper to serve with notice of appeal, under Ind. Code, § 551, persons who, although made parties defendant in the com- plaint in order to answer as to their interest in the subject-matter of the action, have not ap- peared in the lower court, and against whom no judgment has been rendered, so that they APPEAL AND ERROR 865 e. Form and Requisites — (i) In General. JSTo particular form of words is necessary; but the notice is sufficient if it clearly shows that an appeal is intended, and the judgment or decree appealed from. 39 It need not state the term for hearing the appeal. 40 (n) In Writing. Except where an appeal is taken in open court upon ren- dition of the judgment or order appealed from, 41 notice of appeal should be served in writing. 4 * (m) Decisions, Included. A notice of appeal should merely include the cannot be affected by the judgment rendered on appeal. Keller v. Boatman, 49 Lnd. 101. See also Alexander v. Gill, 130 lnd. 485, 30 N. E. 525; Koons v. Mellett, 121 lnd. 585, 23 N. E. 95, 7 L. R. A. 231; Essency v. Esseney, 10 Wash. 375, 38 Pac. 1130. Judgment by default. — It is not necessary, "where one defendant appeals, to serve notice of appeal, on other defendants, where the lat- ter by default admit the averments of the com- plaint. Boob v. Hall, 107 Cal. 160, 40 Pac. 117. See also Wright v. Mahaffey, 76 Iowa 96, 40 N. W. 112. Similarly where a judgment, by consent of counsel of all parties, is rendered in an action of damages for trespass against three defend- ants, and one of the latter appeals from an order denying his motion to vacate such judg- ment, notice need not be served on his co-de- fendants. Jackson v. Brown, 82 Cal. 275, 23 Pac. 142. Notice of intention to appeal. — Under a statute requiring the appellants, in case some only of several co-parties appeal, to " serve notice thereof " upon the others, if, on the day when the appeal is taken, appellants serve a notice on their co-parties that they " will on this day " appeal, and the co-parties accept service of the notice, and decline to join in the appeal, that is sufficient; and the appeal should not be dismissed for want of notice of an appeal already taken. Ex p. Parker, 120 U. S. 737, 7 S. Ct. 767, 30 L. ed. 818. 39. California. — Sharon v. Sharon, 68 Cal. 326, 9 Pac. 187. Florida. — Bauknight v. Sloan, 17 Fla. '281. Indiana. — Tate v. Hamlin, 149 lnd. 94, 41 N. E. 356; Dougherty v. Brown, 21 lnd. App. 115, 51 N. E. 729. Iowa. — Bickel v. Chicago, etc., R. Co., (Iowa 1900) 83 N. W. 957 ; Geyer v. Douglass. 85 Iowa 93, 52 N. W. 111. Minnesota. — Anderson v. Meeker County, 46 Minn. 237, 48 N. W. 1022 ; Baberick v. Mag- ■ner, 9 Minn. 232. Missouri. — Runkle v. Hagan, 3 Mo. 234. Nevada. — Bliss v. Grayson, 24 Nev. 422, 56 Pac. 231. New York.— Matter of Stewart, 135 N. Y. 413, 32 N. E. 144, 48 N. Y. St. 434; Silsbee V. Gillespie, 9 Abb. Pr. N. S. (N. Y.) 139. And see Clapp v. Struglanz, 23 Misc. (N. Y.) 641, 52 N. Y. Suppl. 156. Ohio. — Hirsh v. Kilsheimer, 12 Ohio Cir. Ct. 291. Oregon. — State v. Hanlon, 32 Oreg. 95, 48 Pac. 353; Thomas v. Bowen, 29 Oreg. 258, 45 [55] Pac. 768 ; Neppaeh v. Jordan, 13 Oreg. 246, 10 Pac. 341. South Dakota. — McConnell v. Spieker, 13 S. D. 406, 83 N. W. 435. See Starkweather v. Bell, 12 S. D. 146, 80 N. W. 183. Texas. — Teas v. Robinson, 11 Tex. 774; Dutton v. Norton, 1 Tex. App. Civ. Cas. § 357. Washington. — McConnell v. Kaufman, 4 Wash. 229, 29 Pac. 1053. Wisconsin. — Messmer v. Block, 100 Wis. 664, 76 N. W. 598. See 2 Cent. Dig. tit. "Appeal and Error," § 2140 et seq. Change of statute. — A notice of appeal, given in accordance with the practice in vogue at the time the appeal is taken, is sufficient even though the statutory requirements re- garding such notices be changed before the appeal is perfected. Sapp v. Laughead, 6 Ohio St. 174. Fact of appeal. — The notice should state that appellants do appeal, not that they will appeal. Simpson v. Ogg, 18 Nev. 28, 1 Pac. 827. Forms of notices of appeal may be found set out in whole, in part, or in substance in Hahn v. Chicago, etc., R. Co., 43 Iowa 333; Wilmarth v. Reed, 83 Mich. 44, 46 N. W. 1031; Dietritch v. Steam Dredge, etc., 14 Mont. 261, 36 Pac. 81; Forrest v. Forrest, 6 Duer (N. Y.) 111. 40. Harrison v. Palo Alto County, 104 Iowa 383, 73 N. W. 872. See also Geyer v. Doug- lass, 85 Iowa 93, 52 N. W. Ill; Miekley v. Tomlinson, 79 Iowa 383, 41 N. W. 311, 44 N. W. 684. 41. Elma v. Carney, 4 Wash. 418, 30 Pac. 732. An ambiguous or imperfect entry on the judge's docket, such entry indicating an ap- peal, cannot be held to be a notice of appeal, given in open court and entered of record. Forrest v. Rawlings, 40 Tex. 502. 42. Montana. — Cornell v. Latta, 1 Mont. 714. New York. — People v. Eldridge, 7 How. Pr. (N. Y.) 108; Potter v. Baker, 4 Paige (N. Y.) 290. Ohio. — Bradford v. Watts, Wright (Ohio) 495. South Carolina.— Barnwell v. Marion, 56 S. C. 54, 33 S. E. 719. Contra, First Nat. Bank v. Gary, 14 S. C. 571. Washington.— Cole v. Price, 22 Wash. 18, 60 Pac. 153 ; Myers v. Landrum, 4 Wash. 762, 31 Pac. 33. See 2 Cent. Dig. tit. "Appeal and Error,' § 2141. Vol. II 866 APPEAL AND ERROR judgment or order appealed from, and two judgments or orders included in one notice of appeal will, in certain jurisdictions, cause dismissal. 43 (iv) Description of Judgment on Order. The notice of appeal must always sufficiently describe the judgment or order appealed from, so as to leave no doubt as to its identity. 44 Thus, a notice of appeal which fails to state the date of the rendition or entry of the judgment or decree appealed from is insufficient. 45 43. California. — Williams v. Dennison, 86 Cal. 430, 25 Pae. 244; People v. Center, 61 Cal. 191. Idaho. — See, contra, McCoy v. Oldham, 1 Ida. 465. Iowa. — Gulliher v. Chicago, etc., R. Co., 59 Iowa 416, 13 N. W. 429. Montana. — Steuffen v. Jefferis, 9 Mont. 66, 22 Pac. 152; Sperling v. Calfee, 7 Mont. 514, 19 Pac. 204. New York. — French v. Row, 77 Hun (N. Y.) 380, 28 N. Y. Suppl. 849, 60 N. Y. St. 396; Whitman v. Foley, 63 Hun (N. Y.) 626, 19 N. Y. Suppl. 910, 43 N. Y. St. 969; Whitman v. Foley, 61 Hun (N. Y.) 623, 10 N. Y. Suppl. 23; Hymes v. Van Cleef, 61 Hun (N. Y.) 618, 15 N. Y. Suppl. 341, 39 N. Y. St. 810; Mc- Riekard v. Flint, 13 Daly (N. Y.) 541, 1 N. Y St. 608; Pfeffer v. Buffalo R. Co., 4 Misc. (N. Y) 465, 24 N. Y. Suppl. 490, 54 N. Y. St. 342. Compare Tyler v. Simmons, 6 Paige (N. Y.) 127. Ohio. — Branch v. Dick, 14 Ohio St. 551. Wisconsin. — Olinger v. Liddle, 55 Wis. 621, 13 N. W. 703 ; Ballou v. Chicago, etc., R. Co., 53 Wis. 150, 10 N. W. 87. But see Fehring v. Swineford, 33 Wis. 550; Chamberlain v. Sage, 14 Wis. 193. See 2 Cent. Dig. tit. " Appeal and Error," § 2144. Extent of rule. — But the fact that the no- tice of appeal also includes an appeal from a non-appealable judgment or order will not de- feat the appeal as to the appealable judgment or order (Bryant v. Davis, 22 Mont. 534, 57 Pac. 143; Brown V. Edmonds, 5 S. D. 508, 59 X. W. 731, and see also Woodside v. Hewel, 107 Cal. 141, 40 Pac. 103 ) ; and, where there are several appeals in a case, the different no- tices may be contained in one instrument, if the several appeals are distinctly designated (Sharon v. Sharon, 68 Cal. 326, 9 Pac. 187; and see Winter v. McMillan, 87 Cal. 256, 25 Pac. 407, 22 Am. St. Rep. 243). 44. California. — Meley v. Boulon, 104 Cal. 263, 37 Pae. 931; Gruell v. Spooner, 71 Cal. 493, 12 Pac. 511. Iowa. — Geyer v. Douglass, 85 Iowa 93, 52 N. W. Ill; Weiser v. Day, 77 Iowa 25, 41 N. W. 476. And see Clark v. Van Loon, 108 Iowa 250, 79 N. W. 88, 75 Am. St. Rep. 219. Minnesota. — Gregg v. Uhless, 25 Minn. 272. Missouri. — Smith Drug Co. v. Hill, 1 Mo. App. Rep. 447. Nevada. — -Paul v. Cragnas, (Nev. 1900) 59 Pac. 857, 47 L. R. A. 540. New York. — Guarantee Trust, etc., Co. v. Philadelphia, etc., R. Co., 160 N. Y. 1, 54 N. E. 575; Ansonia Brass, etc., Co. v. Conner, 98 N. Y. 574; Francis v. Tilyon, 26 N. Y. App. Div. 340, 49 N. Y. Suppl. 799. Vol. II Oregon. — Hamilton v. Butler, 33 Oreg. 370, 54 Pac. 200; Mendenhall v. Elwert, 36 Oreg. 375, 52 Pac. 22, 59 Pac. 805; Duffy v. Mc- Mahon, 30 Oreg. 306, 47 Pac. 787; Crawford v. Wist, 26 Oreg. 596, 39 Pac. 218. South Carolina. — Grayson v. Harris, 37 S. C. 606, 16 S. E. 154; Boylston v. Crews, 2 S. C. 422. Washington. — Roberts v. Skelton South- western R. Co., 21 Wash. 427, 58 Pac. 576; Matter of Day, 18 Wash. 359, 51 Pac. 474; Parker v. Denney, 2 Wash. Terr. 176, 2 Pac. 351. Wisconsin. — German Mut. Farmers' F. Ins. Co. v. Decker, 74 Wis. 556, 43 N. W. 500; Ir- vin v. Smith, 68 Wis. 220, 31 N. W. 909. See 2 Cent. Dig. tit. "Appeal and Error," § 2145. Form of notice. — "You are hereby notified that plaintiff has appealed from the judgment of the district court in this case " refers to the final judgment, and is a sufficiently spe- cific notice of appeal. Searles v. Haag, 85 Iowa 754, 52 N. W. 328 [distinguishing Weiser v. Day, 77 Iowa 25, 41 N. W. 476]. See also Lesure Lumber Co. v. Mutual F. Ins. Co., 101 Iowa 514, 70 N. W. 761. Construction of notice. — Where a notice of appeal speaks of a judgment appealed from, but refers to the decision denying a new trial, and may fairly be construed to read that de- fendant appeals from the judgment and the decision denying a new trial, and its meaning is apparent, the notice is sufficient. Van In- gen v. Snyder, 24 Hun (N. Y.) 81. Surplusage. — Where the notice of appeal properly describes the judgment from which the appeal is taken, the addition of other words indicating that the appeal is taken from an order dismissing the action, on which order the judgment is founded, should be treated as surplusage, and does not invalidate the appeal. Nevada Cent. R. Co. v. Lander County Dist. Ct., 21 Nev. 409, 32 Pac. 673. See also Sands v. Cruikshank, 12 S. D. 1, 80 N. W. 173. 45. California. — Swasey v. Adair, 83 Cal. 136, 23 Pac. 284; Anderson v. Goff, 72 CaL 65, 13 Pac. 73, 1 Am. St. Rep. 34. Florida. — Lenfesty v. Coe, 26 Fla. 49, 7 So. 2. Minnesota. — Anderson v. Meeker County, 46 Minn. 237, 48 N. W. 1022; Galloway v. Litchfield, 8 Minn. 188. New York. — People v. American L. & T. Co., 62 Hun (N. Y.) 622, 17 N. Y. Suppl. 76, 43 N. Y. St. 332 ; Curtis v. Ritzman, 7 Misc. (N. Y.) 400, 27 N. Y. Suppl. 971, 58 N. Y. St. 58: Oregon. — Luse v. Luse, 9 Oreg. 149. But see State v. Hanlon, 32 Oreg. 95, 48 Pac. 353. APPEAL AND ERROR 867 (y) Statement of Cause. So long as the cause appealed from is sufficiently stated in the notice of appeal to give appellee full notice of the cause appealed, it is sufficient. 46 (ti) Specification of Interlocutory Judgments on Orders. As a rule, upon appeal from a final judgment, interlocutory jndgments or orders will be reviewed without being specifically designated. 47 (vn) Specification of Errors. The jiotice of appeal, under the provisions of some statutes, should specify all errors intended to be relied upon, unless such errors relate to the sufficiency of the complaint or the jurisdiction of the lower court, in which case they will be examined whether specified or not. 48 (vm) Siona ture. The notice of appeal should be signed by appellant's attor- ney of record. 49 " Washington. — British Bark Latona v. Mc- Allep, 3 Wash. Terr. 3326, 19 Pae. 131. Wisconsin. — Atkinson v. Chicago, etc., R. Co., 69 Wis. 362, 34 N. W. 63. See 2 Cent. Dig. tit. " Appeal and Error," § 2146. 46. California. — Butler v. Ashworth, 100 Cal. 334, 34 Pac. 780; Herrlich v. McDonald, 72 Cal. 579, 14 Pac. 357. Colorado. — Cody v. Filley, 4 Colo. 342. Iowa. — Conklin v. Keokuk, 73 Iowa 343, 35 N. W. 444. Minnesota. — Matter of Allen, 25 Minn. 39. Missouri. — McGinniss, etc., Hardware Co. v. Taylor, 22 Mo. App. 513. New York.— Wolf v. Horn, 12 Misc. (N. Y.) 100, 33 N. Y. Suppl. 173, 66 N. Y. St. 860. South Dakota. — Marshall v. Harney Peak Tin Min., etc., Co., 3 S. D. 473, 54 N. W. 272, 1 S. D. 350, 47 N. W. 290. Wisconsin. — Jefferson County Bank v. Bob- bins, 67 Wis. 68, 29 N. W. 209, 893. 47. Warren v. Stoddart, (Ida. 1899) 59 Pac. 540; Matter of Day, 18 Wash. 359, 51 Pac. 474. See also State v. Hunter, 4 Wash. 637, 30 Pac. 673. In New York, however, if appellant intends to bring up for review an interlocutory judg- ment or an intermediate order, he must, in the notice of appeal, distinctly specify the inter- locutory judgment or intermediate order to be reviewed. N. Y. Code Civ. Proc. § 1301. See also Bieh v. Manhattan E. Co., 150 N. Y. -542, 44 N. E. 1097; Taylor v. Smith, 24 N. Y. App. Div. 519, 49 N. Y. Suppl. 41 ; Crouch v. Moll, 55 Hun (N. Y.) 603, 8 N. Y. Suppl. 183, 28 N. Y. St. 48; Dick v. Livingston, 41 Hun (N. Y.) 455; Lyons v. Chamberlin, 25 Hun (1ST. Y.) 49; Townshend v. New York, 59 N. Y. Super. Ct. 573, 20 N. Y. Civ. Proc. 200, 12 N. Y. Suppl. 464, 35 N. Y. St. 465; Church v. American Rapid Tel. Co., 47 N. Y. Super. Ct. 558; Richards v. Brice, 15 Daly (N. Y.) 144, 16 N. Y. Civ. Proc. 398, 3 N. Y. Suppl. 941, 22 N. Y. St. 289; Fraser v. Alpha Com- bined Heating, etc., Mfg. Co., 25 Misc. (N. Y.) 422, 54 N. Y. Suppl. 1087; Purton v. Watson, 2 N. Y. Suppl. 661, 19 N. Y. St. 6. 48. Michigan. — Michigan Air-Line R. Co. v. Barnes, 44 Mich. 222, 6 N. W. 651. New York. — Matter of Davis, 91 Hun (N. Y.) 53, 36 N. Y. Suppl. 822, 71 N. Y. St. 625; Begley v. Chose, 4 Daly (N. Y.) 157; Kelty e. Jenkins, 1 Hilt. (N. Y.) 73; Lee v. Schmidt, 6 Abb. Pr. (N. Y.) 183, 1 Hilt. (N. Y.) 537; Irwin v. Muir, 4 Abb. Pr. (N. Y.) 133, 13 How. Pr. (N. Y.) 409; Gray v. Han- nah, 30 How. Pr. (N. Y.) 155; Loomis v. Hig- bie, 29 How. Pr. (NY.) 232; Forsyth v. Fer- guson, 27 How. Pr. (N. Y.) 67. North Carolina. — Ferrell v. Thompson, 107 N. C. 420, 12 S. E. 109, 10 L. R. A. 361. Oregon. — Emison v. Owyhee Ditch Co., 37 Oreg. 577, 62 Pac. 13; Osmun v. Winters, 30 Oreg. 177, 46 Pac. 780; Cameron v. Wasco County, 27 Oreg. 318, 41 Pac. 160. South Carolina. — Talbott v. Padgett, 30 S. C. 167, 8 S. E. 845; Weinges v. Cash, 15 S. C, 44. But see, contra, Bacon v. Lamb, 4 Colo. 474; Krewson v. Purdon, 13 Oreg. 563, 11 Pac. 281; Lewis v. Lewis, 4 Oreg. 209. See 2 Cent. Dig. tit. "Appeal and Error,'' § 2148. Decree in equity.— The notice of appeal from a decree in equity need not specify the grounds of error. Lewis v. Lewis, 4 Oreg. 209. 49. Cockrill v. Hall, 76 Cal. 192, 18 Pae. 318; Harrigan v. Bolte, (Cal. 1885) 8 Pac. 184; Pensa v. Pensa, 3 Misc. (NY.) 417, 23 N. Y. Suppl. 186, 52 N Y. St. 447 [disapprov- ing Webb v. Milne, 10 N Y. Civ. Proc. 27] ; Poppleton v. Nelson, 10 Oreg. 437; Carstens v. Gustin, 18 Wash. 90, 50 Pac. 933; and see 2 Cent. Dig. tit. "Appeal and Error," § 2143. Signature by appellant. — In Poppleton v. Nelson, 10 Oreg. 437, it was held that a notice signed by appellant himself was insufficient where the record did not show that he had substituted himself for his attorney. Delegation of authority by attorney. — In Wood v. Walsh, 7 N. D. 376, 75 N. W. 767, it was held that the signature to a notice of ap- peal is valid when made by another by author- ity of the attorney. Change in attorneys. — In Shirley v. Burch, 16 Oreg. 1, 18 Pac. 344, it was held that it is no ground for dismissing an appeal that the notice was signed by different attorneys from those originally in the lower court. But see Harrigan v. Bolte, (Cal. 1885) 8 Pac. 184. And see Pensa v. Pensa, 3 Misc. (N. Y.) 417, 23 N. Y. Suppl. 186, 52 N. Y. St. 447, in which it was held that a notice of appeal, signed by an attorney who has not been formally substi- tuted as the attorney for appellant, is insuffi- cient, and a motion to compel the attorney of Vol. II 868 APPEAL AND ERROR (ix) Defects, Objections, and Amendments. Mere informalities in a notice of appeal do not vitiate the notice so long as they do not mislead, and the notice gives the necessary information to the proper parties. In such cases amendments are freely allowed, in the discretion of the court ; w but where there is an entire absence of notice, and it is not merely a question of defective notice, the appellate court has no power of amendment. 51 d. Service of Notice — (i) In General. The service and filing of notices of appeal is essential to give the appellate court jurisdiction. 52 (n) Who May Serve. Service of notice can only be made by some person duly authorized by statute to do so. 53 (in) Persons to Be Served. The persons to be served with notice are specified by the statutes of the different states, the provisions of such statutes the adversary party to accept service thereof will be denied. Waiver of objection. — In Livermore v. Webb, 56 Cal. 489, respondent's attorneys ad- mitted, in writing, the service ft a copy of a notice of appeal, without objecting that it was signed by an attorney other than the at- torney of record of appellant, and it was held that the objection was thereby waived. 50. California. — Matter of Nelson, 128 Gal. 242, 60 Pac. 772; Swasey v. Adair, 83 Cal. 136, 23 Pac. 284. Georgia. — Chappell v. Smith, 17 Ga. C8. Iowa. — State Sav. Bank v. Ratcliffe, 111 Iowa 662, 82 N. W. 1011. Nevada. — Killip v. Empire Mill Co., 2 Nev. 34. New York. — Gutbrecht v. Prospect Park, etc., R. Co., 28 Hun (N. Y.) 497; Mott v. Lansing, 5 Lans. (N. Y.) 516; Coppernoll v. Ketcham, 56 Barb. (N. Y.) Ill; Kent v. Sib- ley, 15 Dalv (ST. Y.) 298, 5 N. Y. Suppl. 447, 25 N. Y. St. 741; Chatfield v. Reynolds, 18 N. Y. Civ. Proc. 378, 56 Hun (N. Y.) 648, 9 N. Y. Suppl. 880, 31 N. Y. St. 195; Irwin v. Muir, 4 Abb. Pr. (N. Y.) 133, 13 How. Pr. (N. Y.) 409: Ten Eiek v. Simpson, 11 Paige (N. Y.) 117; Praser v. Ward, 2 N. Y. City Ct. 345. Washington. — Sadler v. Niesz, 5 Wash. 182, 31 Pac. 630, 1030; Parker v. Denney, 2 Wash. Terr. 176, 2 Pac. 351. Wisconsin. — Black v. Chicago, etc., R. Co., 18 Wis. 208. See 2 Cent. Dig. tit. "Appeal and Error," § 2149. Amendment after time for taking appeal. — In Fry v. Bennett, 7 Abb. Pr. (N. Y.) 352, 16 How. Pr. (N. Y.) 385, it was held that the court might not allow an amendment of a no- tice of appeal from a judgment so as to make the appeal also an appeal from an order deny- ing a new trial after the time of appeal from such order had expired, and so, in effect, allow a new trial. See also, to like effect, Lavalle v. Skelly, 90 N. Y. 546 ; Piper v. Van Buren, 27 Hun (to. Y.) 384; Patterson v. MeCunn, 9 N. Y. Civ. Proc. 122, 38 Hun (N. Y.) 531. Amendment of date of order appealed from. — A notice of appeal from an order cannot be amended by inserting therein the date of an- other and different order from that therein mentioned. Bryant v. Bryant, 4 Abb. Pr. N. S. (N. Y.) 138, 7 Rob. (N. Y.) 49. Vol. II Notice given at chambers.— In Ex p. Par- ker, 131 U. S. 221, 9 S. Ct. 708, 33 L. ed. 123, it was held that it is no objection to the notice of appeal that it was given at the chambers of the trial judge while he was without the ter- ritorial limits of his district, but at the place where the supreme court, of which he was a member, and which he was attending, was in session. Omission to affix a revenue stamp upon the notice of appeal can only be questioned on a motion to dismiss the appeal. Cole v. Bell, 48 Barb. (N. Y.) 194. And the omission can- not be cured after the motion to dismiss for the want of a stamp. Lewis v. Randall, 1 Abb. Pr. N. S. (N. Y.) 135. But see, contra, Kil- lip v. Empire Mill Co., 2 Nev. 34. Abandonment of imperfect notice. — A party who files an imperfect notice of appeal can abandon the attempted appeal, serve another notice, and perfect his appeal through the lat- ter, instead of the former notice. Fisher v. Tomlinson, (Oreg. 1900) 60 Pac. 390. 51. Larson v. Utah, etc., R. Co., (Utah 1888) 19 Pac. 196. 52. California. — Whipley v. Mills, 9 Cal. 641. Colorado. — Peyton v. Gregory, 4 Colo. 269. Dakota.— Matter of Gold St., 2 Dak. 39, 3 N. W. 311. Iowa. — Flagler v. Cameron, 99 Iowa 744, 68 N. W. 580. Nevada. — Gaudette v. Glissan, 11 Nev. 184. South Dakota.— Pierre Sav. Bank i. Ellis, 9 S. D. 251, 68 N. W. 545. Texas. — Western Union Tel. Co. v. O'Keefe, 87 Tex. 423, 28 S. W. 945. Washington. — Parker v. Denny, 2 Wash. Terr. 360, 7 Pac. 892. See 2 Cent. Dig. tit. "Appeal and Error," § 2150 et seq. Where notices of appeal are voluntarily withdrawn, the case stands as if they had never been served. Zeigler v. Jennison, 4 Greene (Iowa) 561. 53. Draper v. Taylor, 47 Iowa 407 ; Marion County v. Stanfield, 8 Iowa 406 ; Tiffin v. Mill- ington, 3 Mo. 418; and see 2 Cent. Dig. tit. "Appeal and Error," § 2151. Service by attorney. — In Oregon and Wash- ington service may be made by appellant's at- torney. Wheeler v. Cragin, 25 Oreg. 602, 38 Pac. 308; Horr v. Aberdeen Packing Co.. 7 Wash. 354, 35 Pac. 125. APPEAL AND ERROR 869 being mandatory Service of notice being jurisdictional, a failure to serve on the persons specified is fatal. 54 (iv) Time of Smvicn— (a) In General. The notice of appeal must be served within the statutory time. 55 54. Iowa. — American Emigrant Co. v. Lon<*. 105 Iowa 194, 74 N. W. 940; Bruner v. Wade, 85 Iowa G66, 52 N. W. 558; Shoemaker v. Smith, 80 Iowa 655, 45 N. W. 744. Michigan. — McCurdy v. Bowman, 27 Mich. 214. New York. — Clark v. Snyder, 40 Hun (N. ¥.) 330; Williams v. Tradesmen's F. Ins. Co., 1 Daly (N. Y.) 322; Daniels v. Rogers, 36 How. Pr. (N. Y.) 230; Coates v. Carroll, 28 How. Pr. (N. Y.) 436; Ellsworth v. Fulton, 24 How. Pr. (N. Y.) 20. Oregon. — Fisher v. Tomlinson, (Oreg. 1900) 60 Pac. 390. Washington. — Howard v. Shaw, 10 Wash. 151, 38 Pac. 746. See also Home Sav., etc., Assoc, v. Burton, 20 Wash. 688, 56 Pac. 940. Wisconsin. — Eureka Steam Heating Co. v. Sloteman, 67 Wis. 118, 30 N. W. 241. See supra, VII, E, 4, b. Attorneys. — California. — Thompson v. Al- ford, 128 Cal. 227, 60 Pac. 686; In re Seott, 124 Cal. 671, 57 Pac. 654; Jones v. McGarvey, (Cal. 1899) 56 Pac. 896; Lacoste v. East- land, 117 Cal. 673, 49 Pac. 1046. Colorado. — Lake City First Nat. Bank v. Bernard, 4 Colo. 71. Illinois. — Hartman v. Belleville, etc., R. Co., 64 111. 24. Indiana. — Hazleton v. De Priest, 143 Ind. 368, 42 N. E. 751; Tate v. Hamlin, 149 Ind. 94, 41 N. E. 356; Richardson v. Pate, 93 Ind. 423, 47 Am. Rep. 374. Compare O'Mara v. Wabash R. Co., 150 Ind. 648, 50 N. E. 821. Kansas. — Henderson v. McAfee, (Kan. 1897 ) 48 Pac. 37. Minnesota. — Nobles County v. Sutton, 23 Minn. 299. Missouri. — Jordan v. Bowman, 28 Mo. App. 608. Montana. — Mantle v. Largey, 15 Mont. 116, 41 Pac. 1077. Nebraska. — Comstock v. Cole, 28 Nebr. 470, 44 N. W. 487 ; Kinney v. Hiekox, 24 Nebr. 167, 38 N. W. 816. New York. — Tuehband v. Chicago, etc., R. Co., 53 Hun (N. Y.) 629, 16 N. Y. Civ. Proc. 241, 5 N. Y. Suppl. 493, 24 N. Y. St. 236; Fuchs v. Pohlman, 2 Daly (N. Y.) 210; Earll v. Chapman, 3 E. D. Smith (N. Y.) 216; Graves v. Graham, 18 Misc. (N. Y.) 600, 43 N. Y. Suppl. 508; Loescher v. Nordmeyer, 3 Abb. Pr. (N. Y.) 244; Tripp v. De Bow, 5 How. Pr. (N. Y.)' 114. Oregon. — Neuberger v. Boyce, 29 Oreg. 458, 45 Pac. 908; Wheeler v. Cragin, 25 Oreg. 602, 38 Pac. 308; Butler v. Smith, 20 Oreg. 126, 25 Pac. 381 [following Lindley v. Wallis, 2 Oreg. 203]. South Carolina. — McLure v. Vernon, 2 Hill (S. C.) 433. Texas.— Hughes v. Burleson, 10 Tex. 290; James v. Gray, 3 Tex. 514. Washington. — Hendricks v. Edmiston, 15 Wash. 687, 47 Pac. 29; Cornell University v. Denny Hotel Co., 15 Wash. 433, 46 Pac. 654; Tacoma Mill Co. v. Sherwood, 11 Wash. 492, 39 Pac. 977. United States. — Scruggs v. Memphis, etc., R. Co., 131 U. S. cciv, appendix, 26 L. ed. 741. See 2 Cent. Dig. tit. "Appeal and Error," § 2152. Attorney of decedent. — Notice of appeal, served on the attorney of a party who has died, is insufficient where such attorney has not been retained by decedent's administrator, who has been substituted as a party. Holt v. Idle- man, 34 Oreg. 114, 54 Pac. 279. Clerk of court. — California. — Siiva v. Serpa, 86 Cal. 241, 24 Pac. 1013. Iowa. — Ainslie t'. Wynn, (Iowa 1895) 65 N. W. 401; Smith v. Des Moines, 85 Iowa 725, 51 N. W. 253. North Dakota. — Hoffman v. Minot Bank, 4 N. D. 473, 61 N. W. 1031. Oregon. — Holladay v. Elliott, 7 Oreg. 483. Wisconsin. — North Hudson Mut. Bldg., etc., Assoc, -v. Childs, 86 Wis. 292, 56 N. W. 870; Eureka Steam Heating Co. v. Sloteman, 67 Wis. 118, 30 N. W. 241. See 2 Cent. Dig. tit. "Appeal and Error," § 2154. Deputy clerk. — A notice of appeal may be served on a deputy clerk even though the clerk is accessible at the time. Cullison v. Lindsay, 108 Iowa 124, 78 N. W. 847. Partners. — Where it appears from the plead- ings that two parties to an action are partners, and that their claim in the suit belongs to them as partners, service of notice of appeal on one partner binds both. Shirley v. Burch, 16 Oreg. 1, 18 Pac. 344. City officials. — In an action against a city and its board of equalization, notice of appeal served on the mayor or city clerk is a sufficient service as to both defendants when such per- sons are ex officio officers of the board. Farm- ers' L. & T. Co. v. Newton, 97 Iowa 502, 66 N. W. 784. See also Municipal Corpora- tions. Corporations. — In an appeal from a railroad right-of-way assessment, service of notice of the appeal upon a director of the railroad com- pany is sufficient. Robertson r. Eldora R., etc., Co., 27 Iowa 245. See also Oregon, etc., Co. v. Swinburne, 26 Oreg. 262, 37 Pac. 1030. Non-resident appellee. — In appeal cases, where a party to be served with a notice is not a resident of the county, and appeared on the trial below by agent or attorney, service of the notice should be on such agent or attorney. Where there is no agent or attorney in the case, notice should be sent by mail to the party himself, if his residence can be ascertained. Chamberlain v. O'Keefe, 2 Mich. 357. 55. Alabama. — Lecat v. Salle, 1 Port. (Ala.) 287. Arizona. — Zeckendorf v. Zeckendorf , 1 Ariz. 401, 25 Pac. 648; Ruff v. Hand, (Ariz. 1890) 24 Pac. 257. Vol. II 870 APPEAL AND ERROR (b) Notice in Open Court. Notice of appeal given in open court should be given during the term at which the judgment, order, or decree appealed from is rendered; 56 though it has been held that a notice given within the time allowed by law, though at a subsequent term of the court, even when appellees are not present, is sufficient. 57 California. — Houser, etc., Mfg. Co. v. Har- grove, 129 Cal. 90, 61 Pac. 660; Dinan v. Stew- art, 48 Cal. 567. Colorado. — But see Coe v. Britton, 5 Colo. App. 85, 37 Pac. 37. Idaho. — Arthur v. Mounce, (Ida. 1895) 42 Pac. 509. Illinois. — MacLachlan v. McLaughlin, 126 111. 427, 18 N. E. 544; Mason v. Gibson, 13 111. App. 463. Indiana. — Clutter v. Riddle, 124 Ind. 500, 25 N. E. 6; Joyce v. Dickey, 104 Ind. 183, 3 N. E. 252; State v. Ruff, 6 Ind. App. 38, 33 N. E. 124. Iowa. — McNider v. Sirrine, 84 Iowa 58, 50 N. W. 200; Brier v. Chicago, etc., R. Co., 66 Iowa '602, 24 N. W. 232. Kansas. — Dowell v. Caruthers, 26 Kan. 720. Kentucky. — Houston v. Ducker, 86 Ky. 123, 9 Ky. L. Rep. 421, 5 S. W. 421. Louisiana. — Untereiner v. Miller, 29 La. Ann. 435. Massachusetts. — De Bang v. Scripture, 168 Mass. 91, 46 N. E. 406. Michigan. — Tucker v. Stone, 92 Mich. 298, 52 N. W. 302; Moore v. Ellis, 18 Mich. 77. Mississippi. — Weir v. Killian, 59 Miss. 520. Missouri. — Buelterman v. Meyer, 132 Mo. 474, 34 S. W. 67 ; Randolph v. Mauck, 78 Mo. 468. Montana. — Richter v. Eagle L. Assoc, 24 Mont. 346, 61 Pac. 878 ; Territory v. Harris, 7 Mont. 429, 17 Pac. 557. Nebraska. — Hendrickson v. Sullivan, 28 Nebr. 790, 44 N. W. 1135; Witte v. Gilbert, 10 Nebr. 539, 7 N. W. 288. New York. — Clapp v. Hawley, 97 N. Y. 610 ; Sheridan v. Andrews, 81 N. Y. 650; Bishop v. Empire Transp. Co., 33 N. Y. Super. Ct. 17; Morris v. Morange, 17 Abb. Pr. (N. Y.) 86, 26 How. Pr. (N. Y.) 247; Elias v. Babcoek, 12 Abb. Pr. N. S. (N. Y.) 288. North Carolina. — Badger v. Daniel, 82 N. C. 468. Ohio. — Twenty-fourth Ward Loan Co. v. Jos.eph, 8 Ohio Cir. Ct. 227. Pennsylvania. — Overseers of Poor v. Over- seers of Poor, 96 Pa. St. 528; Westmoreland County v. Conemaugh Tp., 34 Pa. St. 231 ; Johnson's Appeal, 3 Phila. (Pa.) 264, 15 Leg. Int. (Pa.) 357. South Carolina.— Appleby v. South Caro- lina, etc., R. Co., 58 S. C. 33, 36 S. E. 109; Archer v. Long, 46 S. C. 292, 24 S. E. 83; Brayton v. Bacon, 33 S. C. 605, 12 S. E. 365. Compare Molair v. Port Royal, etc., R. Co., 31 S. C. 510, 10 S. E. 243. Tennessee. — Spurgin v. Spurgin, 3 Head (Tenn.) 22. Texas. — Glavaeeke v. Delmas, 13 Tex. 495; Burr v. Lewis, 6 Tex. 76. Vol. II Virginia. — Lee v. Frame, 1 Hen. & M. (Va.) 22. Washington. — King County v. Hiel, 1 Wash. 63, 23 Pac. 926; Stark v. Jenkins, 1 Wash. Terr. 421. Wisconsin. — Stevens v. Wheeler, 43 Wis. 91; Jarvis v. Hamilton, 37 Wis. 87; Rose v. Tyrrell, 25 Wis. 563, in which it was held that a statute extending the time in » par- ticular case was unconstitutional. United States. — U. S. v. Curry, 6 How. (U. S.) 106, 12 L. ed. 363; Kidder v. Fidelity Ins., etc., Co., 105 Fed. 821. See 2 Cent. Dig. tit. "Appeal and Error," § 2155 et seq. Computation of time. — Iowa. — State v. Jones, 11 Iowa 11. Michigan. — Maynard v. Pemiiman, 7 Mich. 333. Nevada. — Simon v. Matson, (Nev. 1900) 61 Pac. 478. New Jersey. — State v. Hoboken Dist. Ct., 49 N. J. L. 537, 13 Atl. 43. New York. — Westcott v. Piatt, 1 Code Rep. (1ST. Y.) 100. Ohio. — Taylor v. Wallace, 2 Cine. L. Bui. 115. South Carolina. — Walters v. Laurens Cot- ton Mills, 53 S. C. 155, 31 S. E. 1 ; First Nat. Bank v. Gary, 14 S. C. 571. See 2 Cent. Dig. tit. "Appeal and Error," § 2157. Premature service. — The supreme court ac- quires no jurisdiction by a summons in error issued before the petition in error has been filed with the transcript of the district court record. Brownville v. Middleton, 1 Nebr. 10. See also 2 Cent. Dig. tit. "Appeal and Error," § 2158. And a notice of appeal, given to the appel- lee's solicitor before the appeal has been actually entered with the clerk, is irregular. Ten Ei'ck v. Simpson, 11 Paige (N. Y.) 177. Laches of officer is not imputable to the ap- pellant. Arrington v. Arrington, 114 N. C. 113, 19 S. E. 105. Intermediate proceedings. — The require- ment that notice of appeal must be served within a certain time after entry of judg- ment or order appealed from does not apply to intermediate proceedings which the notice states will also be brought up for review on the appeal. Moyer v. Moyer, 7 N. Y. App. Div. 523, 40 N. Y. Suppl. 258. 56. Northern Counties Invest. Trust v. Hender, 12 Wash. 559, 41 Pac. 913; Cusick v. Beyers, 5 Wash. 98, 31 Pac. 422; Ex p. Parker, 131 U. S. 221, 9 S. Ct. 708, 33 L. ed. 123; and see 2 Cent. Dig. tit. "Appeal and Error," § 2156. 57. McMillan v. Mau, 1 Wash. 26, 23 Pac. 441. APPEAL AND ERROR 871 (o) Time Determined by Time of Filing Notice or TTnoZertdkimg. The statutes, as a rule, require the service of notice to be after, or at least contempora- neous with, the filing of the notice, 58 and either to precede or be contemporaneous with the filing of the undertaking. 59 (d) Excuse for Delay. The appellate court, in its discretion, may relieve appellant from the consequences of failing to serve notice within the statutory time, where his failure is due to fraud, accidents, or excusable mistakes. 60 (v) Mode and Sufficiency of Service. Where a mode of service of notice of appeal is prescribed by statute or by the order allowing the appeal, that mode must be pursued. In ths absence of a special mode of service, the notice must be served in the manner pointed out by the general statutes relating to the service of process. 61 58. California. — Lynch v. Dunn, 34 Cal. 518; Foy v. Domec, 33 Cal. 317. But see Galloway v. Rouse, 63 Cal. 280; Dinan v. Stewart, 48 Cal. 567. Colorado. — Daniels v. Daniels, 9 Colo. 133, 10 Pac. 657; Willoughby v. Brown, 4 Colo. 120. Idaho. — Slocum v. Sloeum, 1 Ida. 589. Montana. — Courtright v. Berkins, 2 Mont. 404. Nevada. — Spafford v. White River Valley Land, etc., Co., 24 Nev. 184, 51 Pac. 115; Reese Gold, etc., Min. Co. v. Rye Patch Con- sol. Mill, etc., Co., 15 Nev. 341 ; Lyon County v. Washoe County, 8 Nev. 177. Washinyton. — Contra, Littlejohn v. Miller, 5 Wash. 399, 31 Pac. 758 ; Sadler v. Niesz, 5 Wash. 182, 31 Pac. 630, 1030. See 2 Cent. Dig. tit. "Appeal and Error," § 2159. As to the requirement that service and no- tice must be on the same day see Mokelumne Hill Canal, etc., Co. v. Woodbury, 10 Cal. 185. Under Ida. Rev. Stat. § 4838, providing that appeal is taken from a probate court by filing a notice of appeal with the judge and serv- ing a copy on the adverse party, it has been held that the order in which such acts are done is immaterial. Hence, a, motion to dis- miss an appeal on the ground that the no- tice of appeal had not been served, because the only service was prior to the riling of the notice of appeal, will not be sustained. Rey- nolds v. Corbus, (Ida. 1901) 63 Pac. 884. 59. Columbet v. Paeheco, 46 Cal. 650; Sweeney v. Reilley, 42 Cal. 402; Cody v. Fil- ley, 4 Colo. 342 ; Johnson v. Badger Mill, etc., Co., 12 Nev. 261; Peran v. Monroe, 1 Nev. 484; Weiss v. Jackson County, 8 Oreg. 529. But see Heil v. Simmonds, 17 Colo. 47, 28 Pac. 475; Straat V. Blanchard, 14 Colo. 445, 24 Pac. 561. 60. Westfield Bank v. Inman, 133 Ind. 287, 32 N. E. 885; Hutts v. Martin, 131 Ind. 1, 30 N. E. 698, 31 Am. St. Rep. 412; Surgi v. New Orleans, 13 La. Ann. 32; Barton v. Kavan- augh, 12 La. Ann. 332; Garrett v. Litchfield, 10 Mich. 451 ; Zinsser v. Seiler, 7 Daly (N. Y.) 464; Claflin v. Dubois, 48 Hun (N. Y.) 620, 14 N. Y. Civ. Proc. 290, 1 N. Y. Suppl. 150, 15 N. Y. St. 963 ; Crittenden v. Adams, 5 How. Pr. (N. Y.) 310. See also Coburn v. Whit- aker, etc., Lumber Co., 12 Ind. App. 340, 38 N. E. 1094, where, however, relief was re- fused. But sea Republican Valley R. Co. v. Sayer, 13 Nebr. 280, 13 N. W. 404; Baker v. Sloss, 13 Nebr. 230, 13 N. W. 212; Wallace v. Carter, 30 S. C. 610, 9 S. E. 659. In New York there is a conflict of authority. It would seem that N. Y. Code Civ. Proc. § 1303 [Code Proc. § 327] would readily con- trol the question, but even in cases directly under this section there has been a conflict difficult to understand. See, in addition to the cases above cited, Clapp v. Hawley, 97 N. Y. 610; Livingston v. New York El. R. Co., 19 N. Y. Civ. Proc. 258, 58 Hun (N. Y.) 131, 11 N. Y. Suppl. 359, 33 N. Y. St. 818; Durant v. Abendroth, 8 N. Y. Civ. Proc. 87 ; Sails v. Butler, 27 How. Pr. (N. Y.) 133; Peo- ple v. Eldridge, 7 How. Pr. (N. Y.) 108; Westcott v. Piatt, 1 Code Rep. (N. Y.) 100. Mere ignorance of the existence of a rule of court is not an excusable mistake. Baker v. Terrell, 8 Minn. 195. 61. California. — Nathan v. Sutphen, 68 Cal. 267, 9 Pac. 162. Dakota.— Peck v. Phillips, 4 Dak. 430, 34 N. W. 65. Illinois. — Cameron v. Savage, 40 111. 124. Indiana. — Wolfe v. Pierce, 23 Ind. App. 591, 55 N. E. 872; Shoefer v. Nelson, 17 Ind. App. 489, 46 N. E. 1021. Michigan. — Hosey v. Ionia Cir. Judge, 120 Mich. 280, 79 N. W. 177; Simpson v. Mans- field, etc., R. Co., 38 Mich. 626. Minnesota. — State v. Klitzke, 46 Minn. 343, 49 N. W. 54; Baberick v. Magner, 9 Minn. 232. Missouri. — Tiffin v. Millington, 3 Mo. 418 ; Fuller v. McClure, 25 Mo. App. 418. Nevada. — Clark v. Strouse, 11 Nev. 76. New Fork. — Earll v. Chapman, 3 E. D. Smith (N. Y.) 216; Livingston v. New York El R. Co., 19 N. Y. Civ. Proc. 258, 58 Hun (N. Y.) 131, 11 N. Y. Suppl. 359, 33 N. Y. St. 818 [affirmed in 125 N. Y. 695, 26 N. E. 751, 34 N. Y. St. 1011] ; Anonymous, 1 Cow. (N. Y.) 197; Hardenbergh v. Thompson, 1 Johns. (N. Y.) 61. Oregon.— Long Creek Bldg. Assoc, v. State Ins. Co., 29 Oreg. 569, 46 Pac. 366. South Dakota.— Pierre Sav. Bank v. Ellis, 9 S. D. 251, 68 N. W. 545; Valley City Land, etc., Co. v. Schone, 2 S. D. 344, 50 N. W. 356. Washington.— Cornell University v. Denny Hotel Co., 15 Wash. 433, 46 Pac. 654. Vol. II 872 APPEAL AND ERROR (vi) Return or Proof of Service. The return or proof of service must show that all the statutory requisites as to the service of the notice of appeal have been complied with, and in case of substituted service the existence of all the con- ditions necessary must be shown. 62 Where the statute does not provide a mode of proving service, proof thereof may be made by affidavit of appellant himself, 6 * or of a third party. e. Filing — (i) Necessity. By statute in some jurisdictions it is provided that in order for the appellate court to obtain jurisdiction, the notice of appeal must be filed with the clerk of the court below. 65 (n) Time of. The time within which the notice of appeal must be filed is Wisconsin. — Black v. Chicago, etc., R. Co., 18 Wis. 208. And see, generally, Process; and 2 Cent. Dig. tit. "Appeal and Error," § 2162 et seq. Service by mail. — Service by mail can only be bad under the exact circumstances pro- vided for by, and in strict compliance with, the provisions of the statute. Heinlen v. Heilbron, 94 Cal. 636, 30 Pac. 8; Luck v. Luck, 83 Cal. 574, 23 Pac. 1035; Murdock v. Clarke, 73 Cal. 25, 14 Pac. 385; Thorsonv. St. Paul F. & M. Ins. Co., 32 Minn. 434, 21 N. W. 471 ; Powell v. McCormick, 5 How. Pr. (N. Y.) 337; Crittenden v. Adams, Code Rep. N. S. (N. Y.) 21, 3 Code Rep. (N. Y.) 145, 5 How. Pr. (N. Y.) 310; Horr v. Aberdeen Packing Co., 7 Wash. 354, 35 Pac. 125. See also 2 Cent. Dig. tit. "Appeal and Error," § 2163. Service by publication must be in strict ac- cord with the statutory provisions on the subject. Illinois. — Cameron v. Savage, 40 111. 124. Indiana. — Tate v. Hamlin, (Ind. 1895) 41 N. E. 1035. Iowa. — McClellan v. McClellan, 2 Iowa 312. New Hampshire. — Clough v. Sanders, 53 N. H. 618. Tennessee. — Fitzsimmons v. Johnson, 90 Tenn. 416, 17 S. W. 100. United States. — Nations v. Johnson, 24 How. (TJ. S.) 195, 16 L. ed. 628. And see, generally, Process; and 2 Cent. Dig. tit. "Appeal and Error," § 2164. Service of a copy of the notice of appeal, in- stead of the original notice, is sufficient. Peck v. Agnew, 126 Cal. 607, 59 Pac. 125. 62. California. — Linforth v. White, 129 Cal. 188, 61 Pac. 910; Modesto Bank v. Owens, 121 Cal. 223, 53 Pac. 552 ; Pacific Mut. L. Ins. Co. v. Shepardson, 76 Cal. 376, 18 Pac. 398. Iowa. — Western Stage Co. v. Bixby, 10 Iowa 592. Minnesota. — Graham v. Conrad, 66 Minn. 471, 69 N. W. 334. Missouri. — Williams v. Beck, 63 Mo. App. 149. Nevada. — Elder v. Frevert, 18 Nev. 278, 3 Pac. 237 ; Lambert v. Moore, 1 Nev. 344. New York. — Durant v. Abendroth, 53 'N. Y. Super. Ct. 15; Haight v. Moore, 36 N. Y. Super. Ct. 294. Oregon. — Moffitt v. McGrath, 25 Oreg. 478, 36 Pac. 578 ; Sloper v. Carey, 9 Oreg. 511. South Dakota. — Houser v. Nolting, 11 S. D. 483, 78 N. W. 955. Washington. — Puekett v. Moody, 17 Wash. 609, 50 Pac. 494;' Fairfield v. Binnian, 13 Vol. II Wash. 1, 42 Pac. 632; Port Blakely Mill Co. v. Clymer, 1 Wash. Terr. 607. See 2 Cent. Dig. tit. "Appeal and Error," § 2165. Admission of service of notice of appeal within the time required by law for service of notice is equivalent to service. Wilson v. Wil- son, (Ida. 1899) 57 Pac. 708. Admission of service need not be as exact as proof of service (Cody v. Filley, 4 Colo. 342; Lillienthel v. Caravita, 15 Oreg. 339, 50 Pac. 280) ; but an admission by an agent is not sufficient where there is nothing to show that he acted as an attorney below ( Cremer v. Hartmann, 34 Minn. 97, 24 N. W. 341 ) . Presumption in favor of official act. — In Roy v. Horsley, 6 Oreg. 270, it was held that, the presumption being that an officer performs an official act within his precinct or jurisdic- tion, a sheriff's return of service of notice of appeal, which fails to designate the county in which service was made, may be sustained by the intendment that he served it within his county. See also Ellis v. Wait, 4 S. D. 31, 54 N. W. 925. But see Hermann v. Hutcheson, 33 Oreg. 239, 53 Pac. 489. Burden of proof. — Where respondent, by af- fidavit, denies that notice was served in time, appellant has the burden of showing service in time. Allen v. Stokes, 19 S. C. 602. Amendment of return. — The return of ser- vice of notice of appeal, if imperfect, may be amended so as to conform to the facts. Barbre v. Goodale, 28 Oreg. 465, 38 Pac. 67, 43 Pac. 378. See also Perri v. Beaumont, 88 Cal. 108, 25 Pac. 1109; Dolph v. Nickum, 2 Oreg. 202. 63. Mendioca v. Orr, 16 Cal. 368. But see Marion County v. Stanfield, 8 Iowa 406. Actual service must be shown. — An affidavit of service of notice which simply states that affiant " alleges and believes " that he served the notice is fatally defective, as not stating positively the fact of service. Pacific Mut. L. Ins. Co. v. Shepardson, 76 Cal. 376, 18 Pac. 398. 64. Moore v. Besse, 35 Cal. 183. Where two contradictory affidavits of no- tices of appeal are filed by appellant, the court may properly disregard both. Bucholz v. Windhorst, 7 Mo. App. 584. 65. Bonds v. Hickman, 29 Cal. 460; Oliver v. Harvey, 5 Oreg. 360 ; Bonnell V. Van Cise, 8 S. D. 592, 67 N. W. 685; In ra Madden, 104 Wis. 61, 80 N. W. 100; and see 2 Cent. Dig. tit. " Appeal and Error," § 2166. Compare Keck v. Douglass, 6 Ohio Cir. Ct. 649, construing Ohio Rev. Stat. § 6407, relat- ing to appeals from probate courts. APPEAL AND ERROR 873 dependent upon statutory enactment, and, to be effectual, such notice must be filed within the prescribed time. 66 , (hi) What Constitutes. The filing of a notice of appeal is at least the actual delivery thereof to the clerk, and a mere deposit of the notice in the post-office, directed to the clerk, does not constitute delivery thereof. 67 .When written notice of appeal is served and filed within the proper time, the appeal will not be defeated by the failure of the clerk to enter the notice in the journal of the court below. 68 5. Effect of Failure to Serve Process or to Give Notice. The general effect of a failure to serve process or to give notice is to cause a dismissal of the appellate proceedings on motion ; 69 and where the appellate court has, in 66. Circleville Bank v. Bowsher, 15 Ohio Cir. Ct. 114; Miller v. Albright, 12 Ohio Cir. Ct. 533, 5 Ohio Cir. Dec. 585; Van Dusen v. Kelleher, 20 Wash. 716, 56 Pac. 35; Hibbard v. Delanty, 20 Wash. 539, 56 Pac. 34 ; De Ytur- bide v. U. S., 22 How. (U. S.) 290, 16 L. ed. 342 ; and see 2 Cent. Dig. tit. " Appeal and Error," § 2167. Date of payment of fees. — When the clerk, upon receiving a notice of appeal, at once no- tified appellant's attorney that the same would not be iiled until the fees were paid, the date of the payment of such fees, and not the date on which the notice was received, will be con- sidered the date of filing the notice. Boyd v. Burrel, 60 Cal. 280. Effect of immaterial amendment. — See Comstock's Appeal, 54 Conn. 116, 6 Atl. 196, construing Conn. Acts (1882), c. 50, § 4. Extension of time. — See Beard's Appeal, 64 Conn. 526, 30 Atl. 775, construing Conn. Gen. Stat. (1882), §§ 1130, 1131. Filing before or after service. — In Colorado and Nevada, it has been held that the filing of the notice of appeal must precede or be con- temporaneous with the service thereof. Daniels v. Daniels, 9 Colo. 133, ID Pac. 657; Bacon v. Lamb, 4 Colo. 474; Willoughby v. Brown, 4 Colo. 120; Alvord v. McGauhy, 4 Colo. 97; Brooks v. Nevada Nickel Syndicate, 24 Nev. 264, 52 Pac. 575 ; Reese Gold, etc., Min. Co. v. Rye Patch Consol. Mill, etc., Co., 15 Nev. 341 ; Johnson v. Badger Mill, etc., Co., 12 Nev. 261 ; Lyon County v. Washoe County, 8 Nev. 177. Under Cal. Code Civ. Proc. § 940, the notice of appeal may be filed on a, day subsequent to that upon which service upon the adverse party was made. Bobinson v. Templar Lodge No. 17, etc., 114 Cal. 41, 45 Pac. 998; Noonan v. Nunan, 76 Cal. 44, 18 Pac. 98; Galloway v. Rouse, 63 Cal. 280; Boyd v. Burrel, 60 Cal. 280. Under Cal. Prac. Act (1851), § 33, it was held that the notice must be filed before service or at the same time therewith. Moul- ton v. Ellmaker, 30 Cal. 527; Buffendeau v. Edmondson, 24 Cal. 94; Hastings v. Halleck, 10 Cal. 31. Filing notice and proof of service. — Bal- linger-s Anno. Codes & Stat., Wash. (1897), § 6503, provides that, within five days after service of notice of appeal, appellant shall file with the clerk of the superior court the origi- nal or a copy of such notice, with proof of the service thereof. Best v . Best, It Wash. 695, 60 Pac. 58; Howard v. Shaw, 10 Wash. 151, 38 Pac. 746; Watson v. Pugh, 9 Wash. 665, 38 Pac. 163. Notice filed before undertaking. — In Buck- holder v. Byers, 10 Cal. 481, it was held that the notice of appeal must be filed before the undertaking, as there must be some appeal to give effect to the undertaking. 67. Brooks ;;. Nevada Nickel Syndicate, 24 Nev. 264, 52 Pac. 575. Entered with the clerk. — A requirement that the notice of appeal shall be entered with the clerk is not complied with by handing the notice to the clerk at his residence, or to one employed as a janitor in the office of the clerk. Kiehborth v. Bernard, 2 Cine. L. Bui. 171; Taylor v. Wallace, 2 Cine. L. Bui. 115. Entry of a notice of appeal on the judge's docket is not sufficient under a statute requir- ing that the notice of appeal shall be entered of record, as the judge's docket is no part of the records of the court. Circleville Bank v. Bowsher, 15 Ohio Cir. Ct. 114; Moore v. Brown, 10 Ohio 197. 68. Dahl v. Tibbals, 5 Wash. 259, 31 Pac. 868. See also Western Union Tel. Co. v. O'Keefe, 87 Tex. 423, 28 S. W. 945. A notice of intention to appeal is sufficiently entered upon the record at the time a proper entry thereof is formulated, and given to the clerk to be entered of record. Miller v. Al- bright, 12 Ohio Cir. Ct. 533, 5 Ohio Cir. Dee. 585. 69. Dismissal. — California. — Matter of Scott, 124 Cal. 671, 57 Pac. 654. Florida.— Pyles v. Beall, 37 Pla. 549, 20 So. 775; Ellsworth v. Haile, 29 Fla. 256, 10 So. 612. Indiana. — Doak v. Root, etc., Co., (Ind. App. 1900) 58 N. E. 444. Iowa. — State Sav. Bank v. Ratcliffe, 111 Iowa 662, 82 N. W. 1011; Baxter v. Rollins, 110 Iowa 310, 81 N. W. 586; Pratt v. Pratt, (Iowa' 1897) 69 N. W. 1128. Missouri. — Tiernan v. Richards, 7 Mo. App. 597. Nevada — Gaudette v. Glissan, 11 Nev. 184. Washinaton. — Best v. Best, 22 Wash. 695, 60 Pac. 58~; Smith v. Beard, 21 Wash. 204, 57 Pac. 796 ; Old Nat. Bank v. O. K. Gold Min. Co., 19 Wash. 194, 52 Pac. 1065. Compare Wiseman v. Eastman, 21 Wash. 163, 57 Pac. 398. United States.— Monger v. Shirley, 131 U. S. ex, appendix, 20 L. ed. 635. But see Cooper v. Maclin, 25 Ala. 298. See 2 Cent. Dig. tit. "Appeal and Error," § 2173 et seq. Failure to serve a notice of appeal required only by rule of the court is not a ground to Vol. II 874 APPEAL AND ERROR ignorance of the fact that no notice has been served, either allowed the submission of the cause or rendered a decision, it will, on motion, annul such action.' 6. Waiver of Process or Defects Therein — a. By Agreement. It has been said that neither notice of appeal, nor the serving nor filing thereof, can be waived, even by express agreement, such requirements being jurisdictional. 71 It has been held, however, that no citation is necessary in a case where, in point of fact, by agreement of parties, actual notice of an intention to appeal appears on the record, 72 and it seems that service of summons in error may be waived by an agreement, made publicly in open court or in writing duly signed. 73 b. By Aeeepting Service. Service of citation or notice, 74 and irregularities in dismiss the appeal; for a court cannot, by a rule, deprive itself of a jurisdiction conferred upon it by law. Shook v. Proctor, 26 Mich. 283. Where a case is docketed in time it will not be dismissed for want of the citation until time has been given to cite appellee. Brown v. McConnell, 124 U. S. 489, 8 S. Ct. 559, 31 L. ed. 495. Appeal in chancery. — Want of notice of the appeal itself does not necessarily require the dismissal of an appeal in chancery, the notice being merely to enable appellee to prepare for the appeal, and he being, besides, entitled to a notice of hearing. Simpson v. Mansfield, etc., R. Co., 38 Mich. 626. See also, as to writs of error in Texas, Lacey v. Ashe, 21 Tex. 394. 70. Johnson v. Miller, 43 Ind. 29; Ex p. Crenshaw, 15 Pet. (U. S.) 119, 10 L. ed. 682. 71. California. — Bonds v. Hickman, 29 Cal. 460. Dakota. — Matter of Gold St., 2 Dak. 39, 3 N. W. 311. Iowa. — State Sav. Bank v. Ratcliff e, 111 Iowa 662, 82 N. W. 1011. New York.— People v. Eldridge, 7 How. Pr. (N. Y.) 108. Oregon. — Oliver v. Harvey, 5 Oreg. 360. Texas. — San Antonio, etc., R. Co. v. Mc- Donald, (Tex. Civ. App. 1895) 31 S. W. 72; Western Union Tel. Co. v. O'Keefe, 87 Tex. 423, 28 S. W. 945 ; Burr v. Lewis, 6 Tex. 76. Washington. — Sawtelle v. Weymouth, 14 Wash. 21, 43 Pac. 1101; Marsh v. Degeler, 3 Wash. 71, 27 Pac. 1073. United States. — Kelsey v. Forsyth, 21 How. (U. S.) 85, 16 L. ed. 32. Compare McDonough v. Daly, 3 Mo. App. 606, and McDonald v. Penniston, 1 Nebr. 324. See 2 Cent. Dig. tit. "Appeal and Error," § 2168 et seq. But see Daley v. Francis, 153 Mass. 8, 26 N. E. 132, construing Mass. Pub. Stat. (1882), c. 156, § 9. Applications of the rule. — The right to ob- ject that the notice of appeal was not served within the time fixed by law is not waived by a stipulation extending the time to serve a proposed case on appeal (Durant v. Abend- roth, 8 N. Y. Civ. Proe. 87 ) ; or to file briefs (Brooks v. Nevada Nickel Syndicate, .24 Nev. 264, 52 Pac. 575) ; nor by stipulation that no execution shall issue until the determina- tion of the appeal (Moulton v. Ellmaker, 30 Cal. 527 ) . The issuance and service of a writ Vol. II of error and citation is not waived by an agreement between cross-appellants to use one transcript of the record on appeal (Pon- tier v. Jeffares, 25 Fla. 844, 6 So. 830) ; nor by filing in the lower court a stipulation of the parties that certain exhibits need not be printed for the purposes of review ( Chisum v. Ayer, 4 N. M. 48, 12 Pac. 697). If it is stipulated in the transcript that no- tice of appeal was filed in the court below and served, the appellate court cannot re- ceive evidence contradicting the stipulation, and will not dismiss the appeal on the ground that no notice was in fact filed. Bonds v. Hickman, 29 Cal. 460. Waiver of citation cannot be proved as a matter in pais by an affidavit of the clerk. It must appear of record or, at least, be es- tablished by the party's written admission. Plauche v. Marigny, 6 La. 111. 72. U. S. v. Gomez, 1 Wall. (U. S.) 690, 17 L. ed. 677. 73. Haylen v. Missouri Pac. R. Co., 28 Nebr. 660, 44 N. W. 873. After plaintiffs in error have made and served a case-made, and it has been settled and certified by the trial judge, the attorney for defendants in error may, prior to the fil- ing of the petition in error, waive in writing the issuance and service of summons in error. Taylor v. Riggs, (Kan. App. 1898) 52 Pac. 910. In South Carolina, it was decided that where, after the expiration of the time al- lowed appellant for furnishing the trial judge with notice of the appeal, the appellee, in ig- norance of the failure of appellant to furnish such notice, signed an agreement as to what papers should constitute the record of appeal, and as to when the record should be served, the right to take advantage of the failure to furnish notice was not waived. Gibbes V. Greeneville R. Co., 14 S. C. 385. 74. Bliss v. Stevens, 13 Ga. 401. " A mere notice, signed by solicitors for ap- pellants, to solicitor for appellees that they have taken an appeal from a decree of the circuit court to a designated term of this court, upon which solicitor for appellees has indorsed ' I accept service of a copy hereof,' is not sufficient to give this court jurisdic- tion of the persons of the appellees. Such no- tice is not equivalent to the judicial writ of citation, and such acceptance of service does not waive the issuing and service of a cita- tion. The appellees never having appeared in APPEAL AND ERROR 875 appeal process or in the service thereof, may be waived by accepting or acknowl- edging service. 75 e. By Appearanee. Appeal process, or defects therein, and service thereof, or irregularities in the service, may be waived by a voluntary appearance of appellee or defendant in error in the appellate court, or by his doing some act which amounts to an appearance. 76 d. By Failure to Object in Time. Failure to object in time to want of proper process, or because of irregularities therein or in the service thereof, may operate as a waiver of such objection. 77 this court, we have no jurisdiction over them, and cannot enter any judgment affecting their rights." Dillard v. Agnew, 37 Fla. 56, 19 So. 338. 75. Bowman v. Metzger, 27 Oreg. 23, 39 Pac. 3, 44 Pac. 1090 ; Holloman v. Middleton, 23 Tex. 537 ; Bigler v. Waller, 12 Wall. (U. S.) 142, 20 L. ed. 260. Objection as to time of service waived. — Struver v. Ocean Ins. Co., 9 Abb. Pr. (N. Y.) 23. Compare Studer v. Federle, 57 Mo. App. 534. Waiver of want of signature. — Cella v. Schnairs, 42 Mo. App. 316. Compare Doerr v. Southwestern Mut. L. Assoc, 92 Iowa 39, 60 N. W. 225. • Citation waived. — In Hill r. Bowden, 3 La. Ann. 258, it was held that where an appellee, by his attorney, wrote at the foot of the peti- tion of appeal and the order granting it the words " Service accepted," this included a waiver of citation. Acknowledgment of notice to take deposi- tion. — In Gluck v. Diebold, 1 Mo. App. 265, it was held that the acknowledgment of notice for the taking of depositions in the cause, with the waiver of dedimus, was not a waiver of notice of appeal. Two petitions of appeal. — Although there are two distinct petitions of appeal, return- able at different times, and two distinct cita- tions, of different dates and with different return-days, yet, where there is but one tran- script, and either citation is sufficient, and upon one citation appellee's counsel has in- dorsed : " Service accepted and cognizance of the appeal taken," the appeal will not be dis- missed. Littleton v. Pratt, 10 La. Ann. 487. 76. California. — Hibernia Sav., etc., Soc. V. Lewis, 111 Cal. 519, 44 Pac. 175. " Florida.— State v. Canfield, 40 Fla. 36, 23 So. 591, 42 L. R. A. 72; Pyles v. Beall, 37 Fla. 549, 20 So. 775. Iowa. — Morrow v. Carpenter, 1 Greene (Iowa) 469. Kentucky. — Mudd v. German Ins. Co., ( Ky. 1900) 56 S. W. 977. Louisiana. — State v. Graham, 25 La. Ann. 440; Dunbar v. Owens, 10 Rob. (La.) 139. Missouri. — Kenner v. Doe Run Lead Co., 141 Mo. 248, 42 S. W. 683. Nebraska. — McDonald v. Penniston, 1 Nebr. 324. New York. — Tripp v. De Bow, 5 How. Pr. (N. Y.) 114. Texas. — See Morrison v. Lewis, 13 Tex. 64. See 2 Cent. Dig. tit. "Appeal and Error," i 2168 et seq. By a submission of the cause without objec- tions, want of notice to co-parties and non- compliance with statutory requirements as to process and service are waived. Talburt v. Berkshire L. Ins. Co., 80 Ind. 434 ; Dobbins v. Baker, 80 Ind. 52; Hill v. Burke, 62 N. Y. 111. Effect of death of defendant in error. — The waiver of process and entry of appearance upon a petition in error prior to the filing of the same by the attorneys of record of the defendant in error takes effect as of the filing of the petition, and where, after such indorse- ment of such appearance is made, and before the petition is filed, the defendant in error dies the waiver and entry of appearanee is of no legal effect. McGuire v. Ranney, 49 Ohio St. 372, 34 N. E. 719. Filing of a brief on the merits of an appeal amounts to a full appearance, and waives process or defects therein. Cambria Iron Co. v. Union Trust Co., 154 Ind. 291, 55 N. E. 745, 56 N. E. 665, 48 L. R. A. 41 ; Loucheim v. Seelev, 151 Ind. 665, 43 N. E. 646; Hazle- ton v. De Priest, 143 Ind. 368, 42 N. E. 751 ; Truman v. Scott, 72 Ind. 258 ; Ricker v. Col- lins, 81 Tex. 662, 17 S. W. 378 ; Hayworth v. Rogan, 77 Tex. 362, 14 S. W. 70; Talbert v. Barbour, 16 Tex. Civ. App. 63, 40 S. W. 187. Motion to dismiss. — Objections as to proc- ess and service are waived by an appearance and a motion to dismiss the appeal on other grounds. Grady v. Newman, 1 Indian Terr. 284, 37 S. W. 54; Woods v. Walsh, 7 N. D. 376, 75 N. W. 767; Overton v. Terry, 49 Tex. 773; Andrews v. National Foundry, etc., Works, 77 Fed. 774, 46 U. S. App. 619, 23 C. C. A. 454, 36 L. R. A. 139. Question of damages argued. — Although a respondent comes before the court on appeal, with the statement at the outset that the cause comes up on appeal from the judgment, but argues the question whether the damages are excessive, and permits the adverse party to argue similar questions, which are appro- priate only to an appeal from an order deny- ing a new trial, such respondent does' not thereby waive the objection that there was no notice of appeal from such order. Fry v. Bennett, 7 Abb. Pr. (N. Y.) 352. Where appellee has joined issue on the merits it will amount to a waiver of any ob- jections on account of want of citation or the insufficiency of the appeal bond. Carmichael v. Armor, 1 Rob. (La.) 197. 77. Alabama.— Goss v. Davis, 21 Ala. 479. California. — See De Pedrorena v. Hotch- kiss, 95 Cal. 636, 30 Pac. 787; Matter of Vol. II 876 APPEAL AND ERROR e. By Fraud. An appellee who lias fraudulently prevented the service of notice by the concealment of material facts and a failure to enter his objection to the jurisdiction of the court at the proper time, and who, for the fraudulent pur- pose of preventing the proper service of the same, has delayed making his objection until it is too late to remedy the defect, is estopped to deny the due service of the notice. 78 F. Entry on Docket of Appellate Court — 1. Necessity for Entry. A cause transferred from a trial court does not come regularly before the appellate court for action until it has been entered on the appellate court docket, 79 provided that such entry be required by rule of court or by statute. 80 2. Sufficiency of Entry — a. Manner and Form of Entry. An entry is effected by direction of appellant, or of one duly authorized by him, to the clerk of the appellate court, 81 or by appellee, to procure a dismissal or affirmance. 82 If a precise form of entry or other requirement is prescribed it must be followed 5 s3 Castle Dome Min. Soc, etc., Co., 79 Cal. 246, 21 Pac. 746, construing rule of California su- preme court. Iowa. — Morrow v. Carpenter, 1 Greene (Iowa) 469. Louisiana. — Dunbar v. Owens, 10 Rob. (La.) 139. Michigan. — Smith v. Mitchell, 9 Mich. 261. Montana. — Townsley v. Hornbuckle, 2 Mont. 580. Texas. — International, etc., R. Co. v. Brett, 61 Tex. 483; Toler v. Ayres, 1 Tex. 398. See 2 Cent. Dig. tit. "Appeal and Error,'' § 2170. 78. Moyle v. Landers, 78 Cal. 99, 20 Pac. 241, 12 Am. St. Rep. 22. But an appeal will not be dismissed for want of citation when the failure to give the cita- tion was caused by the fault of appellee. An- derson v. Birdsall, 19 La. 441. 79. Colorado. — Tierney v. Campbell, 7 Colo. App. 299, 44 Pac. 948. Florida. — - Garrison v. Parsons, 41 Fla. 143, 25 So. 336. Georgia. — Road Com'rs v. Griffin, etc., Plankroad Co., 9 Ga. 487. Iowa.— Scott v. Lasell, 71 Iowa 180, 32 N. W. 322, appeal from road supervisor's ac- tion in condemning land for highway. Kentucky. — Sweeney v. Coulter, (Ky. 1900) 57 S. W. 254. Massachusetts. — Burlingame v. Bartlett, 161 Mass. 593, 37 N. E. 748. New Hampshire. — Smith v. MeDaniel, 15 N. H. 474. N ew York. — Hymann v. Cook, 2 Den. (N. Y.) 201. North Carolina. — Avery v. Pritchard, 93 N. C. 266. Texas. — Roberts v. Landrum, 3 Tex. 16. United States.— Green v. Elbert, 137 U. S. 615, 11 S. Ct. 188, 34 L. ed. 792; Grigsby v. Purcell, 99 U. S. 505, 25 L. ed. 354. See 2 Cent. Dig. tit. "Appeal and Error," § 2176. 80. In Massachusetts, an appeal in equity from a final judgment of a single justice of the supreme court, and entered on the docket of the court for the county in which the cause is pending, is " thereupon pending be- fore the full court," without further entry; Vol. II though the provision is otherwise in case of appeals at common law. Cobb v. Rice, 128 Mass. 11, 12. In Ohio, the jurisdiction of the supreme court does not depend upon the docketing, by the clerk, of a proceeding in error. King v. Penn, 43 Ohio St. 57, 1 N. E. 84. In case of a cross-appeal or assignment of cross-errors by appellee or defendant in error, there is no necessity for a second entry. Smith v. Wright, 71 111. 167; Coleman v. Keels, 31 S. C. 601, 9 S. E. 735. 81. An attorney, without authority to en- ter an appeal, cannot effect an entry which will be recognized when the lack of authority is shown. Road Com'rs v. Griffin, etc., Plank- road Co., 9 Ga. 487. See, generally, Attor- ney and Client. 82. Failure of appellee to enter the cause on the appellate court docket will prevent him from obtaining a dismissal or affirmance. Sweeney v. Coulter, (Ky. 1900) 57 S. W. 254. Entry to confess error. — The case not hav- ing been entered by appellant, the appellee may enter for an affirmance, but he may not be allowed to enter for the purpose of moving to confess error. Cherpin v. Tillotson, 6 Ala. 638. 83. Payment of the docket-fee, or security therefor, is usually made a condition prece- dent of the procurement of an entry; and where the fee is not prepaid the clerk is justi- fied in refusing to docket the appeal. Colorado. — Tierney v. Campbell, 7 Colo. App. 299, 44 Pac. 948. Georgia. — McAlister v. Eastman, 92 Ga. 448; 17 S. E. 675. Massachusetts. — Knapp v. Lambert, 3 Gray (Mass.) 377. North Carolina. — West v. Reynolds, 94 N. C. 333. United States. — Green v. Elbert, 137 U. S. 615, 11 S. Ct. 188, 34 L. ed. 792; Edwards v. U. S., 102 TJ. S. 575, 26 L. ed. 293; Van Rens- selaer v. Watts, 7 How. (TJ. S.) 784, 12 L. ed. 913. See 2 Cent. Dig. tit. "Appeal and Error," § 2182. ^ In the District of Columbia, an entry on the minutes of the special term of an appeal to the general term is all that is necessary (U. S. v. Hood, 19 D. C. 372), or an entry in APPEAL AND ERROR 8YT otherwise the intention to enter the particular case may appear by such acts as are reasonably calculated to effect an entry. 84 b. Time of Entry — (i) Premature Entry. Until the appeal is otherwise perfected it cannot be entered on the docket of the appellate court 85 except by the appellee for the purpose of dismissal or affirmance ; 86 nor can a valid entry be made prior to a time fixed for that purpose. 87 (n) Entry Beyond Time Limit — (a) Inexcusable Deoay. Whenever a limit of time is fixed within which entry must be made, 88 delay beyond such time will subject appellant to suffer the penalty prescribed for such delay — as the loss of a claim against an insolvent estate, 89 a continuance for the term, 90 dismissal of the appeal. 91 It has also been held that delay by the appellant in the entry of the writing in the clerk's office [In re Askins, 20 D. C. 10). 84. "The entry should be so made as to show who the parties are that are litigating; that the appellants and appellees should oc- cupy upon the docket the position of plain- tiffs and defendants, according to their true relation to the matter in controversy, and that all their names should thus appear on the docket." Spaulding's Appeal, 33 N. H. 479, 481. Sufficient entries. — A single entry for sev- eral appellants (Spaulding's Appeal, 33 N. H. 479 ) ; filing a petition of appeal ( Piatt v. Preston, 19 Blatchf. (U. S.) 312, 8 Fed. 182). Insufficient entries. — Under a different name (Lewis v. Minthorn, 73 Iowa 80, 34 N. W. 607) ; title of cause not named (Garrison v. Parsons, 41 Ma. 143, 25 So. 336. 85. Kentucky, etc., Mut. Ins. Co. v. Harri- son, 5 Ky. L. Rep. 601 ; Hurst v. Cassiday, 5 Ky. L. Rep. 248 ; Allen v. Marchand, 4 Ky. L. Eep. 410; Stowell v. Richardson, 1 Allen (Mass.) 401. A mistake of the clerk by entering an ap- peal on the docket to a preceding term, at which it would have been premature, is not ground for a dismissal. Lower Augusta Tp. v. Howard Tp., 1 Pa. Co. Ct. 373. Before the time when the writ of error is re- turnable the cause cannot be entered. Ken- ney v. Wallace, 87 Ga. 506, 13 S. E. 554. Where a specified notice to appellee of ap- peal is required, entry cannot be made until after the expiration of such time. New York Hospital Soc. v. Knox, 57 Miss. 600. 86. In the United States supreme court, the docketing of a cause by appellee in advance of the return-day of the appeal will not prevent appellant from doing what is necessary, while the appeal is alive, to give it full effect. Davies v. U. S., 113 U. S. 687, 5 S. Ct. 696, 28 L. ed. 1149. 87. A premature entry is a nullity, and will in no way prejudice the right of appellant to make a valid entry at the proper time. Garrison v. Parsons, 41 Fla. 143, 25 So. 336; Planchet's Succession, 29 La. Ann. 520. 88. Georgia. — Jones v. Payne, 41 Ga. 32; Armstrong v. Oglethorpe Bridge, etc., Co., 18 Ga. 607. Massachusetts. — Burlingame v. Bartlett, 161 Mass. 593, 37 N. E. 748 (relating to equity appeals) ; Reed v. Home Sav. Bank, 130 Mass. 443, 39 Am. Rep. 468 (relating to reports of superior courts on questions of law) ; Robin- son v. Durfee, 7 Allen (Mass.) 242 (relating to probate appeals) ; Boyle v. Burnett, 9 Gray (Mass.) 251 (relating to exceptions in pro- ceedings in error). Mississippi. — Apperson v. Fant, 42 Miss. 252. North Carolina. — An appeal, taken from the superior court held during a term of the su- preme court, may be docketed at the term next ensuing. Suiter v. Brittle, 90 N. C. 19 ; How- erton v. Henderson, 86 N. C. 718. And if, through no fault of appellant, the entry is not made at such succeeding term, it is appellant's duty to apply for a certiorari at that term, in default of which the appeal will be lost. Causey v. Snow, 116 N. C. 497, 21 S. E. 179; Joyner -v. Hines, 108 N. C. 413 note, 12 S. E. 901; Rodman v. Archbell, 108 N. C. 413 note, 13 S. E. Ill; Hinton v. Pritchard, 108 N. C. 412, 12 S. E. 838. Pennsylvania. — Houk v. Knop, 2 Watts (Pa.) 72; Wilson v. Hathaway, 8 Phila. (Pa.) 235,28 Leg. Int. (Pa.) 68. Rhode Island. — Pearsons v. Webster, 17 R. I. 86, 20 Atl. 230. Texas. — Walea v. McLean, 14 Tex. 18; Weathered v. Lee, 3 Tex. 189; Roberts v. Lan- drum, 3 Tex. 16. United States.— Green V. Elbert, 137 U. S. 615 11 S. Ct. 188, 34 L. ed. 792; Richardson v. Green, 130 U. S. 104, 9 S. Ct. 443, 32 L. ed. 872; Radford v. Folsom, 123 U. S. 725, 8 S. Ct. 334 31 L. ed. 292; Killian r. Clark, 111 U. S. 784, 4 S. Ct. 700, 28 L. ed. 599. See 2 Cent. Dig. tit. "Appeal and Error," § 2181. The limit of time for appeal is, of necessity, the limit of time within which an entry may be allowed, where entry is a prerequisite of a per- fect appeal. Fowler v. Hamill, 139 U. S. 549, 11 S. Ct. 663, 35 L. ed. 266; Green v. Elbert, 137 U. S. 615, 11 S. Ct. 188, 34 L. ed. 792; U. S. v. Certain Hogsheads of Molasses, 1 Curt. (TJ. S.) 276, 25 Fed. Cas. No. 14,766. 89. Smith v. McDaniel, 15 N. H. 474. 90. Sweeney v. Coulter, (Ky. 1900) 57 S. W. 254; Tauziede v. Jumel, 16 N. Y. Suppl. 377, 38 N. Y. St. 1018; Gregory v. Cryder, 9 Abb. Pr. N. S. (NY.) 89. 91. The penalty of dismissal is effected by permitting appellee to enter, upon default of the appellant, for the purpose of moving there- for. Hinton v. Pritchard. 108 N. C. 412, 12 S. E. 838; Ex p. Berry, 107 N C. 326, 12 S. E. 125; Rose v. Shaw, 105 N. C. 126, 10 S. E. 1055 ; Fayolle v. Texas Pac. R. Co., 124 U. S. Vol. II APPEAL AND ERROR appeal beyond such time is ground for an affirmance of the judgment below, 92 or for disregarding the appeal 93 or striking it off the docket. 94 (b) Excusable Delay .^ The court is powerless to excuse a delay beyond the time limit in entering an appeal where the penalty is expressly prescribed by statute and the case comes within the terms of the statute. 96 But where the statute is not mandatory, or where the penalty is prescribed by rule of court, the circumstances of the delay may sometimes permit the party in default to appeal to the discretionary power of the court to save the appeal ; 97 and this power has been exerted where the parties, in good faith, acted under a misapprehension ; * where the delay was due to neglect of the clerk, 99 the unexpected indisposition of the clerk or other officer, 1 to fraud, 2 to an order of the lower court, 3 to rigorous weather, 4 or to a mistake of a justice ; 5 but not where the delay was due to appellant's ignorance of the rules, 6 alleged oversight, 7 519, 8 S. Ct. 588, 31 L. ed. 533; State v. Demarest, 110 U. S. 400, 4 S. Ct. 25, 28 L. ed. 191; In re McEwen, 9 Biss. (U. S.) 368, 4 Fed. 13; In re Coleman, 7 Blatchf. (TJ. S.) 192, 6 Fed. Cas. No. 2,979. The court, on its own motion, may dismiss where the fact of entry is not jurisdictional. Grigsby v. Purcell, 99 U. S. 505, 25 L. ed. 354. In South Carolina, the appellant's default in entering on the docket has been held to constitute an abandonment equivalent to a dis- missal, without any action by appellee or the court. Guilleaume v. Miller, 14 Rich. (S. C.) 118. 92. Affirmance upon motion of appellee is sometimes provided for in case of an insuffi- cient entry. Webb v. Robbins, 77 Ala. 176; Sweeney v. Coulter, (Ky. 1900) 57 S. W. 254. In the United States supreme court, a mo- tion to affirm may be united with a motion to dismiss, but a motion to affirm will not be en- tertained unless there appears on the record at least some color of right to a dismissal. Da- vies v. TJ. S., 113 U. S. 687, 5 S. Ct. 696, 28 L. ed. 1149. 93. Colorado. — Tierney v. Campbell, .7 Colo. App. 299, 44 Pac. 948. Massachusetts. — Knapp v. Lambert, 3 Gray (Mass.) 377. North Carolina. — Avery v. Pritchard, 93 N. C. 266. Rhode Island. — Pearsons v. Webster, 17 R. I. 86, 20 Atl. 230. South Carolina.- — Guilleaume v. Miller, 14 Rich. (S. C.) 118; Tongue v. Gist, 1 Nott & M. (S. C.) 110. Texas. — Roberts v. Landrum, 3 Tex. 16. 94. Houk v. Knop, 2 Watts (Pa.) 72; Wil- son v. Hathaway, 8 Phila. (Pa.) 235, 28 Leg. Int. (Pa.) 68; Berry v. Blankenship, 30 Tex. 380. 95. See 2 Cent. Dig. tit. "Appeal and Er- ror," § 2180. 96. Colorado. — Tierney v. Campbell, 7 Colo. App. 299, 44 Pac. 948. Kentucky. — Bacon v. Brown, 3 Bibb (Ky.) 35. Massachusetts. — Knapp v. Lambert, 3 Gray (Mass.) 377. New Hampshire. — Smith v. McDaniel, 15 N. H. 474 [criticizing Dyer v. Stanwood, 6 N. H.411]. Texas. — Walea v. McLean, 14 Tex. 18. 97. Sears v. Kirksey, 81 Ala. 98, 2 So. 90 ; Webb v. Robbins, 77 Ala. 176. But compare Vol. II York v. Noyes, 4 Mass. 645; Dean v. Dean, 2 Mass. 150; Jackson v. Goddard, 1 Mass. 230, construing an old statute. A statute fixing a time-limit for entering appeals is not mandatory where the jurisdic- tion of the appellate court is not made to de- pend upon it. Hintermeister v. Brady, 70 Minn. 437, 73 N. W. 145. 98. Dyer v. Stanwood, 6 N. H. 411. 99. Mutual L. Ins. Co. v. Phinney, 178 U. S. 327, 20 S. Ct. 906, 44 L. ed. 1088. Failure of clerk to demand fees, or to notify appellant that such fees must be paid, has been held a sufficient excuse for non-payment of the docket-fee, and a, sufficient reason for permitting entry of appeal from justice of the peace to be made two terms thereafter, when the failure to enter came first to ap- pellant's knowledge. West v. Reynolds, 94 N. C. 333. Neglect of clerk to enter, where appellant has done all that is required of him, will not defeat the appeal. Georgia. — Holt v. Edmondson, 31 Ga. 357. New Jersey. — Thompson v. Pippitt, 18 N. J. L. 176. North Carolina. — Simmons v. Allison, 119 N. C. 556, 26 S. E. 171; West v. Reynolds, 94 N. C. 333. Ohio.— King v. Penn, 43 Ohio St. 57, 1 N. E. 84. United States. — Mutual L. Ins. Co. v. Phin- ney, 178 U. S. 327, 20 S. Ct. 906, 44 L. ed. 1088. Neglect of clerk to prepare transcript has been held to excuse a failure to docket in time. Continental Bldg., etc., Assoc, v. Mills, 44 Nebr. 136, 62 N. W. 478. Contra, Houk v. Knop, 2 Watts (Pa.) 72. Appellant must show he is free from all laches. Brown v. House, 119 N. C. 622, 26 S. E. 160. 1. Howerton v. Henderson, 86 N. C. 718; Wilson v. Hathaway, 8 Phila. (Pa.) 235, 28 Leg. Int. (Pa.) 68. 2. U. S. v. Gomez, 3 Wall. (TJ. S.) 752, 18 L. ed. 212. 3. Ableman v. Booth, 21 How. (U. S.) 506, 16 L. ed. 169. 4. Bennet v. Whitney, 1 Tyler (Vt.) 59. 5. Shrope v. Cauley, 12 Pa. Co. Ct. 217, 2 Pa. Dist. 48. 6. Green v. Elbert, 137 U. S. 615, 11 S. Ct. 188, 34 L. ed. 792. 7. Robinson v. Durfee, 7 Allen (Mass.) 242. Aliter where the oversight was made good be- APPEAL AND ERROR 879 want of diligence, 8 undue reliance on misinformation or promises of officers of the lower court, 9 or the illness of counsel where such counsel had assistance. 10 3. Waiver of Insufficient Entry 11 — a. In General. Provisions for entry are in the public interest and for the benefit of the courts, not specially in the interest or for the benefit of appellee. Therefore, when the penalty for non-compliance is not the loss of the appeal, courts will not usually permit appellee to waive appellant's default in that respect. 12 And where the appeal has not been and can- not be otherwise perfected, consent of appellee cannot effect a valid entry. 13 b. Waiver by Estoppel. An estoppel to claim an insufficient entry may be established by such words or acts on the part of appellee as will reasonably war- rant appellant, through reliance thereon, in refraining from entering his appeal. 1 * e. Implied Waiver — (i) In General. Waiver of an insufficient entry may be implied by such subsequent action on the part of appellee as will be incon- sistent with an intention to take advantage of the insufficiency. 15 (n) By Appearance. Where the jurisdiction of the appellate court over appellee depends upon the fact of a sufficient entry within time, a general appear- ance of appellee will be a waiver of entry. 16 But where entry is not such juris- dictional fact, appearance is not a waiver, if objection be made before the hearing. 17 4. Nunc Pro Tunc Entry. A mmcjpro tunc entry is one allowed by the court as of a prior time within the time limit, where entry within such time is necessary to save appellant's rights, and a failure to enter within time has been excused or waived. 18 fore objections. Webb v. Robbing, 77 Ala. 176 ; Edwards v. U. S., 102 U. S. 575, 26 L. ed. 293. 8. Grigsby v. Pureell, 99 U. S. 505, 25 L. ed. 354. Absence of counsel will not excuse a failure to enter where such absence was known to ap- pellant in time to procure other counsel. Brendle v. Gorley, 13 Pa. Co. Ct. 654. Laches causing no prejudice. — -In a case of unusual delay in bringing up and entering a case, a motion of appellee for leave to issue execution — as in case of an abandoned ap- peal — was denied, it appearing that there had been no opportunity for a trial, so that the hearing was not delayed by the appellant's laches. Hamilton v. The Walla Walla, 44 Fed. 4. To the same effect is Chambers v. Fisk 20 Tex. 343. 9.'Houk v. Knop, 2 Watts (Pa.) 72; Wil- son v. Hathaway, 8 Phila. (Pa.) 235, 28 Leg. Int. (Pa.) 68. Agreement of clerk of lower court to file the record on appeal in the appellate court, ,and his failure so to do, will not excuse a failure to docket in time. Fayolle v. Texas Pac. R. Co., 124 U. S. 519, 8 S. Ct. 588, 31 L. ed. 533. Failure of trial judge to settle case in time has been held no excuse for a default in enter- ing an appeal within time. Parker v. South- ern R. Co., 121 N. C. 501, 28 S. E. 347; Pitt- man v. Kimberly, 92 N. C. 562. 10. State v. Louisiana Debenture Co., 52 La. Ann. 597, 27 So. 88. 11. See cases cited infra, notes 12, 13; and 2 Cent. Dig. tit. "Appeal and Error," § 2184 et seq. 12. Palmer v. Allen, 1 Conn. 100. Express consent to a suspension of the rule requiring entry for oral argument was held not effective to permit argument, though the court offered to allow a submission without argument instead of the penalty of a continu- ance for the term. Gregory v. Cryder, 9 Abb. Pr. N. S. (N. Y.) 89. 13. Joyner v. Hines, 108 N. C. 413 note, 12 S. E. 901; Walea v. McLean, 14 Tex. 18. 14. Hintermeister v. Brady, 70 Minn. 437, 73 N. W. 145; King v. Penn, 43 Ohio St. 57, 1 N. E. 84. 15. This waiver has been held to arise when appellee made a motion for a new bond (Wal- dron v. Waldron, 156 U. S. 361, 15 S. Ct. 383, 39 L. ed. 453) ; omitted to move for an affirm- ance or dismissal until after the entry has been made (Webb v. Robbins, 77 Ala. 176; Perryman v. Burgster, 4 Port. (Ala.) 505; Richardson v. Green, 130 U. S. 104, 9 S. Ct. 443, 32 L. ed. 872; Edwards V. U. S., 102 U. S. 575, 26 L. ed. 293; but see, contra, Hinton v. Pritchard, 108 N. C. 412, 12 S. E. 838) ; or accepted service of the appeal after time limit (Veeche v. Grayson, 1 Mart. N. S. (La.) 133). In Texas, though, after the term, no excuse will avail to save an appeal which has not been docketed during the term and after the last day fixed for entering appeals, yet if no motion for judgment has been made and the appellee will not be prejudiced, a, motion to docket may be allowed. Berry v. Blanken- ship, 30 Tex. 380 ; Chambers v. Fisk, 20 Tex. 343; Walea v. McLean, 14 Tex. 18. 16. Garrison v. Parsons, 41 Fla. 143, 25 So. 336 ; Suiter v. Brittle, 90 N. C. 19 ; and see. 2 Cent. Dig. tit. "Appeal and Error," § 2184. 17. Grigsby v. Pureell, 99 U. S. 505, 25 L. ed. 354. 18. Georgia. — Holt v. Edmondson, 31 Ga. 357. Massachusetts. — York v. Noyes, 4 Mass. 645. Neio Jersey. — Thompson v. Rippitt, 18 N. J. L. 176. Vol. II 880 APPEAL AND ERROR G. Appearance in Appellate Court 19 — l. Appearance for Hearing. When a case is called, and neither the appellant nor appellee appear, it is usual to dis- miss the appeal; 20 and where appellant does not appear the appeal will be dis- missed, 21 or, upon motion of appellee, the judgment may be affirmed. 22 "Where appellee fails to appear, the hearing will be exjparteP 2. General Appearance of Appellee — a. Requisites of a General Appearance. A general appearance is effected by causing an entry thereof, without specifying that the appearance is special for a particular purpose, 24 or by taking such action as precludes the claim of a special appearance 25 — for example, a joinder of Pennsylvania. — Shrope v. Cauley, 12 Pa. Co. Ct. 217, 2 Pa. Dist. 48. Texas. — Morse v. State, 39 Tex. Crim. 566, 50 S. W. 342, 47 S. W. 645. United States. — Van Rensselaer v. "Watts, 7 How. (U. S.) 784, 12 L. ed. 913. Nunc pro tunc entry not necessary. — Where a large number of cases have intervened and appellant's rights will not be prejudiced, the entry may be allowed, but not nunc pro tunc, the failure to enter not being a mere clerical omission, though appellee consent to a nunc pro tunc entry. Van Rensselaer v. Watts, 7 How. (U. S.) 784, 12 L. ed. 913. 19. See cases cited infra, notes 20-23; and 2 Cent. Dig. tit. "Appeal and Error," § 2184 et seq. 20. De Loach v. Richards, 94 Ga. 730, 19 S. E. 717; Radford v. Craig, 5 Cranch (U. S.) 289, 3 L. ed. 104. 21. Brice v. Chapman, 95 Ga. 799, 22 S. E. 525; MeAlister v. Eastman, 92 Ga. 448, 17 S. E. 675; Bourne v. Mackall, 1 Harr. & G. (Md.) 86; Holmes v. Boston, etc., Lumber Co., 40 S. C. 545, 18 S. E. 889; Scott v. Car- penter, 13 S. C. 44. 82. Stiles v. Chapman, 7 Ga. 1; Wood- ward v. Chester, 42 Mich. 461, 4 N. W. 167. 23. Delaware. — Vandegrift v. Page, 5 Harr. (Del.) 439. Louisiana. — -Lavigne v. May, 2 Mart. N. S. (La.) 628. New York. — Waters v. Travis, 8 Johns. (N. Y.) 566; Stiles v. Burch, 5 Paige (N. Y.) 132; Bellony v. Alexander, 1 Sandf. (N. Y.) 734. Vermont. — Winn v. Sprague, 35 Vt. 243. United States. — U. S. v. Yates, 6 How. (U. S.) 605, 12 L. ed. 575. But see Butts v. Fenelon, 38 Wis. 664, 665, where the cause not having been submitted for defendant in error and no counsel having appeared for him, the court declined to hear argument for plaintiff in error, or to consider the merits at the request of the latter's coun- sel, and under a rule of court reversed the judgment below as of course, the court say- ing : " It is dangerous to pass upon grave questions, such as are presumably involved in cases brought here, upon ex parte arguments ; and the court is unwilling to do so when it can be avoided." A later appearance of appellee, before the hearing, was held sufficient to permit him to maintain a motion to dismiss the appeal for want of an appeal bond. Lavigne v. May, 2 Mart. N. S. (La.) 628. Vol. II 24. Illinois. — Dinet v. People, 73 111. 183; Mitchell v. Jacobs, 17 111. 235. Indiana. — Newman v. Railway Officials', etc., Ace. Assoc, 15 Ind. App. 29, 42 N. E. 650. Kentucky. — German Ins. Co. v. Ingram, 12 Ky. L. Rep. 191. Louisiana. — Foute v. New Orleans, 20 La. Ann. 22. New York. — Schaffer v. Jones, 1 Misc. (N. Y.) 74, 20 N. Y. Suppl. 531, 48 N. Y. St. 408. North Carolina. — Suiter v. Brittle, 90 N. C. 19. South Dakota. — Holden v. Haserodt, 2 S. D. 220, 49 N. W. 97. Washington. — Yesler v. Oglesbee, 1 Wash. Terr. 604. Wisconsin. — Kemp v. Hein, 48 Wis. 32, 3 N. W. 831. United, States. — Farmers L. & T. Co. v. Longworth, 83 Fed. 336, 48 U. S. App. 560, 27 C. C. A. 541. An appearance, general in form, and which does not state that it is for any special pur- pose, but evidently for the sole purpose of moving to dismiss because of a want of juris- diction of the person, has been held not a gen- eral appearance. Lecat v. Salle, 1 Port. (Ala.) 287; Law v. Nelson, 14 Colo. 409, 24 Pac. 2; Spurrier v. Wirtner, 48 Iowa 486. An appearance special in terms, though not limited to any particular purpose, is a gen- eral appearance. Renaud v. Abbott, 116 U.S. 277, 6 S. Ct. 1194, 29 L. ed. 629. Appearance of attorney-general in United States supreme court. — In the United States supreme court, it has always been the prac- tice for the clerk to enter the appearance of the United States attorney-general in all cases wherein the United States is a party, at the first term to which the appeal or writ of er- ror is returnable, and at the same term he may withdraw such appearance or move to strike it off; but if he lets it pass to the next term the appearance is conclusive. Farrar v. U. S., 3 Pet. (U. S.) 459, 7 L. ed. 741. An appearance by the district attorney may be repudiated and set aside by the attorney-gen- eral. Castro v. U. S., 3 Wall. (U. S.) 46, 18 L. ed. 163. 25. A motion to dismiss for want of juris- diction of the person is not a general appear- ance, and does not waive the defect of which it seeks to take advantage. Lecat v. Salle, 1 Port. (Ala.) 287; Spurrier v. Wirtner, 48 Iowa 486; McMicken v. Smith, 5 Mart. N. S. (La.) 427; Seymour v. Judd, 2 N. Y. 464; APPEAL AND ERROR 881 error, filing an answer, 37 obtaining, asking, consenting to or arguing a motion for a continuance, 28 noticing the appeal for argument or trial, 29 submitting argument, 30 obtaining a rule for justification of sureties, 31 waiving service of motion to perfect the transcript, 83 submitting a brief on the merits, 33 waiving the filing of briefs, 34 filing a cross-petition, 35 acknowledging service of a case-made, 86 stipulating for an amended abstract, 37 applying to withdraw a transcript for the purpose of testing Seybold v. Boyd, 14 Tex. 460. Contra, MoBee r. McBee, 1 Heisk. (Tenn.) 558, which holds that notice of a writ of error is waived by appearance and moving to dismiss for want of notice. See also Libbey v. Mcintosh, 60 Iowa 329, 14 N. W. 354; and Robertson v. Eldora R., etc., Co., 27 Iowa 245. A motion to set aside a default for want of notice of appeal, and an appearance for that purpose only, is not a general appearance. Houk v. Barthold, 73 Ind. 21. A plea in abatement, and appearance for the purpose of filing it, is not a general ap- pearance. Fare v. Gunter, 82 Mo. 522. Entry of attorney's name in appearance docket for convenience merely, as attorney for appellee, and inquiries by him about the ease, has been held not a general appearance. Hal- ford v. Coe, 4 Kan. 561 ; Fisher v. Anderson, 101 Mo. 459, 14 S. W. 620. No intention to appear generally. — Where there was no formal entry of appearance, but the parties both announced themselves ready for jury trial at the calling of the docket on the first day of the term, appellee not really intending to appear generally and the cause not being set for trial, it was held that appellee had not waived the right to move for an affirmance for failure to take the appeal in time and to give statutory notice thereof. Hayes v. James, 1 Colo. App. 130, 27 Pac. 894 [distinguishing Coby v. Halthusen, 16 Colo. 10, 26 Pac. 148, and Robertson v. O'Reilly, 14 Colo. 441, 24 Pac. 560]. 26. Alabama. — Robinson v. Murphy, 69 Ala. 543 ; Boiling v. Jones, 67 Ala. 508 ; McDonald v. McMahon, 66 Ala. 115; Alexander v. Nel- son, 42 Ala. 462; Thompson v. Lea, 28 Ala. 453. Colorado. — Haley v. Elliott, 20 Colo. 199, 37 Pac. 27. Illinois.— Smith v. Wright, 71 111. 167; Robinson v. Magarity, 28 111. 423 ; Matson v. Connelly, 24 111. 142; Bolton v. McKinley, 19 111. 404; Cheltenham Imp. Co. v. Whitehead, 26 111. App. 609. Indiana. — Lowe v. Turpie, 147 Ind. 652, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 233; State v. Walters, 64 Ind. 226. Iowa. — Romain v. Muscatine County, Morr. (Iowa) 357. Louisiana. — Gayoso de Lemos v. Garcia, 1 Mart. N. S. (La.) 324. Pennsylvania. — Downing v. Baldwin, 1 Serg. & R. (Pa.) 298. Washington. — Although a joinder of error was not necessary to a submission of the cause. Schwabacher v. Wells, 1 Wash. Terr. 506. 27. Planchet's Succession, 29 La. Ann. 520; Rogers v. Cruger, 3 Johns. (N. Y.) 564; Val- entine v. Valentine, 2 Barb. Ch. (N. Y.) 430. [56] 28. California. — McLeran v. Shartzer, 5 Cal. 70, 63 Am. Dec. 84. Colorado. — Coby v. Halthusen, 16 Colo. 10, 26 Pac. 148; Robertson v. O'Reilly, 14 Colo. 441, 24 Pac. 530. Compare Hayes v. James, l.Colo. App. 130, 27 Pac. 894. 'Illinois. — Mitchell v. Jacobs, 17 111. 235. Iowa. — Roundy v. Kent, 75 Iowa 662, 37 N. W. 146 ; Wilgus v. Gettings, 19 Iowa 82. Nebraska. — Steven v. Nebraska, etc., Ins. Co., 29 Nebr. 187, 45 N. W. 284. New York. — Overseers of Poor v. Overseers of Poor, 5 Cow. (N. Y.) 363. Pennsylvania. — Wilson v. Kelly, 81 Pa. St. 411. Texas. — Lewis v. Mills, 29 Tex. 124. 29. Robertson v. O'Reilly, 14 Colo. 441, 24 Pac. 560; Coppernoll v. Ketcham, 56 Barb. (N. Y. ) 111; Pearson v. Lovejoy, 53 Barb. (NY.) 407, 35 How. Pr. (N. Y.) 193; Silsbee v. Gillespie, 9 Abb. Pr. N S. (N. Y.) 139; Holden v. Haserodt, 2 S. D. 220, 49 N. W. 97. 30. DeHaven v. DeHaven, 77 Ind. 236; Roundy v. Kent, 75 Iowa 662, 37 N W. 146; Griffin'tf. Cranston, 5 Bosw. (N. Y.) 658; King v. Penn, 43 Ohio St. 57, 1 N. E. 84; Cleveland, etc., R. Co. v. Mara, 26 Ohio St. 185. Though the submission includes a protest against the exercise of jurisdiction. Pickersgill v. Read, 7 Hun (N Y.) 636. 31. Schnell v. North Side Planing Mill Co., 89 111. 581. 32. Yesler v. Oglesbee, 1 Wash. Terr. 604. 33. Schmidt v. Wright, 88 Ind. 56; Magee v. Hartzell, 7 Kan. App. 489, 54 Pac. 129; Louisville v. Clark, 20 Ky. L. Rep. 1265, 49 S. W. 18. Compare Brier v. Chicago, etc., R. Co., 66 Iowa 602, 24 N W. 232. Brief by attorney not admitted. — Where no appearance is made for plaintiff in error other than by the filing of a brief by an attorney who, at the time the case to which such brief relates is called in its order for a hearing, is not a licensed practitioner at the bar of the supreme court, the appeal will be dismissed for want of prosecution. Brice v. Chapman, 95 Ga. 799, 22 S. E. 525. In Washington, filing a brief in the supreme court is not an appearance, because the prac- tice of that court has been settled otherwise. Yesler v. Oglesbee, 1 Wash. Terr. 604. But see, contra, N. C. Supreme Court Rules, No. 12. 34. Stephenson v. Chappell, 12 Tex. Civ. App. 296, 33 S. W. 880, 36 S. W. 482. . 35. Robinson Female Seminary v. Camp- bell, 60 Kan. 60, 55 Pac. 276. 36. Taylor v. Riggs, (Kan. App. 1898) 52 Pac. 910. 37. Price v. Pittsburgh, etc., R. Co., 40 111. 44. Vol. II 882 APPEAL AND ERROR it, 38 consenting to a reference, 39 or moving to affirm or dismiss for reasons other than a want of jurisdiction of the person.* b. Waiver of Jurisdictional Defects — (i) Jurisdiction of the Person — (a) In General. The appellate court having jurisdiction of the subject-matter of the appeal, an entry of general appearance by appellee will give the court jurisdic- tion of the person of appellee, which it would not have had but for the appearance. 41 (b) Objections to Appeal. A general appearance waives an objection to an appeal, otherwise regular, that it was not instituted within the time limited, 42 or at all, 43 or by motion where petition and citation should have been used ; u that it was made returnable in vacation, 45 or generally, instead of to the proper term ; ** that there was an irregularity in granting the appeal ; 47 that the statutory affidavit on appeal is not shown in the record ; a that the petition of appeal does not con- tain the reasons of appeal, 49 or does not name all the respondents ; x that an 38. Williams v. La Penotiere, 26 Ma. 333, 7 So. 869. 39. Mason v. Alexander, 44 Ohio St. 318, 7 N. E. 435. 40. A special appearance can be only for objection to jurisdiction of the person; other- wise all such objections are waived, the ap- pearance to dismiss for another purpose being general. Florida. — Oppenheimer v. Guckenheimer, 34 Fla. 13, 15 So. 670. Illinois. — Long v. Trabue, 8 111. App. 132. Louisiana. — Baumgarden's Succession, 35 La. Ann. 127; Morton v. Graham, 11 La. 449; State v. Montegut, 7 Mart. (La.) 447. Missouri. — Rector v. St. Louis County Cir. Ct., 1 Mo. 607. Texas. — Hall v. La Salle County, (Tex. Civ. App. 1898) 46 S. W. 863. Wisconsin. — Perkins v. Shadbolt, 44 Wis. 574. Contra, Callahan v. Jennings, 16 Colo. 471, 27 Pac. 1055; Radford v. Folsom, 123 U. S. 725, 8 S. Ct. 334, 31 L. ed. 292. 41. Alabama. — Thompson v. Lea, 28 Ala. 453. Colorado. — Las Animas County v. Stone, 11 Colo. App. 476, 53 Pac. 616. Florida. — Garrison v. Parsons, 41 Fla. 143, 25 So. 336. Illinois. — Jarrett v. Phillips, 90 111. 237; Dinet v. People, 73 111. 183; Mitchell v. Ja- cobs, 17 111. 235. Indiana. — Goodrich v. Stangland, (Ind. 1900) 58 N. E. 148; Indianapolis Union R. Co. v. Ott, (Ind. App. 1893) 35 M. E. 517; Newman v. Railway Officials', etc., Ace. Assoc, 15 Ind. App. 29, 42 N. E. 650. Iowa. — Wilgus v. Gettings, 19 Iowa 82; Des Moines Branch State Bank v. Van, 12 Iowa 523. Massachusetts. — Santon v. Ballard, 133 Mass. 464. Nebraska. — Steven v. Nebraska, etc., Ins. Co., 29 Nebr. 187, 45 N. W. 284. Tennessee. — Chester v. Embree, Peck (Tenn.) 370. United States. — Dillingham v. Skein, Hempst. (U. S.) 181, 7 Fed. Cas. No. 3,912a. In McKoy v. Allen, 36 111. 429, it is held that the appellate court must have original juris- diction of the subject-matter in order to en- title appellant to claim a waiver of jurisdic- tion of the person by appearance of appellee. Vol. II As to waiver of objections to sufficient docket-entry see supra, VII, F, 3, e, (n). 42. Alabama. — Boiling v. Jones, 67 Ala. 508; McDonald v. McMahon, 66 Ala. 115. Illinois. — Price v. Pittsburgh, etc., R. Co., 40 111. 44; Pearce v. Swan, 2 111. 266. Indiana. — Newman v. Railway Officials', etc., Ace. Assoc, 15 Ind. App. 29, 42 N. E. 650. Montana. — Payne v. Davis, 2 Mont. 381. New York. — Pearson v. Lovejoy, 53 Barb. (N. Y.) 407, 35 How. Pr. (N. Y.) 193. Contra, King v. Penn, 43 Ohio St. 57, 1 N. E. 84; Dias v. Munos, 17 Tex. 518, where the distinction is made that, though by a gen- eral appearance the instituting of a proceed- ing in error beyond time cannot be waived, yet that where appellee has by his acts in- duced appellant to prepare for the hearing, he will be estopped to claim a want of jurisdic- tion. Distinction between appeals and proceed- ings in error. — It has been held that though a statutory appeal could not in any event be maintained if taken after the time limited by law, because it is the creature of the statute, yet the objection that a proceeding in error was not instituted in time could be waived by a general appearance, because " at common law a writ of error is generally regarded as a writ of right," and is the commencement of a new suit — not the continuation of an old one. Haley v. Elliott, 20 Colo. 199, 202, 37 Pac. 27. 43. Roundv v. Kent, 75 Iowa 662, 37 N. W. 146. 44. Planchet's Succession, 29 La. Ann. 520; Chicago, etc., R. Co. v. Blair, 100 U. S. 661, 25 L. ed. 587. 45. Farrar v. V. S., 3 Pet. (U. S.) 459, 7 L. ed. 741. 46. Robinson v. Murphy, 69 Ala. 543. Con- tra, In re Shelton St. R. Co., 70 Conn. 329, 39 Atl. 446. 47. Indianapolis Union R. Co. v. Ott, (Ind. App. 1893) 35 N. E. 517; Louisville v. Clark, 20 Ky. L. Rep. 1265, 49 S. W. 18 [ap- proved in Louisville r. Cassady,20 Ky. L. Rep. 134S, 49 S. W. 194] ; German Ins. Co. v. In- gram, 12 Ky. L. Rep. 191; Foute v. New Or- leans, 20 La. Ann. 22. 48. Wilson v. Kellv, 81 Pa. St. 411. 49. Rogers v. Cruger, 3 Johns. (N. Y.) 564. 50. As to respondents named, the right to object that the petition of appeal did not con- tain the names of other respondents is waived APPEAL AND ERROR 883 improper return-day was fixed; 51 that the cause was discontinued in the trial court ;" that there is a defect of parties; 58 that the appeal bond was not filed in time, 54 or at all; 5 " that the transcript was not filed in time; 56 that the cause was brought _ up by appeal instead of by error; 57 or that the court below had not jurisdiction of the person of appellee. 58 (c) Objections to Process. The appeal having been perfected, a general appearance waives any objection to the summons, notice, or citation on account of its non-existence, defectiveness, or want of proper service thereof upon appellee. 59 by answering the petition. Valentine v. Val- entine, 2 Barb. Ch. (N. Y.) 430. 51. Gayoso de Lemos v. Garcia, 1 Mart. N. S. (La.) 324; Shute v. Keyser, 149 U. S. 649, 13 S. Ct. 960, 37 L. ed. 884; Farrar v. U. S., 3 Pet. (U. S.) 459, 7 L. ed. 741. 52. Phillips v. Hood, 85 111. 450. 53. Illinois. — Robinson v. Magarity, 28 111. 423; Hodson v. MeConnel, 12 111. 170. Indiana. — De Haven v. De Haven, 77 Ind. 236; Field v. Burton, 71 Ind. 380. Louisiana.- — • Dyson v. Brandt, 9 Mart. (La.) 493. Utah. — Belleville Pump, etc., Works v. Samuelson, 16 Utah 119, 51 Pac. 150. Wisconsin. — Kemp v. Hein, 48 Wis. 32, 3 N. W. 831. Contra, Goodrich v. Stangland, (Ind. 1900) 58 N. E. 148. Appearance of necessary party after motion to dismiss. — After a motion to dismiss on the ground that a third party who was not made a party was a necessary party to the appeal, the third party, without notice to any one, en- tered its general appearance. The appearance having been overlooked, the motion to dismiss was sustained ; but thereafter a rehearing was granted for this reason alone, and appellant secured a reversal. Farmers' L. & T. Co. v. Longworth, 83 Fed. 336, 48 U. S. App. 560, 27 C. C. A. 541. 54. Mitchell v. Jacobs, 17 111. 235. 55. Thompson v. Lea, 28 Ala. 453 ; Dilling- ham v. Skein, Hempst. (U. S.) 181, 7 Fed. Cas. No. 3,912a. Contra, McKoy v. Allen, 36 111. 429; Santom v. Ballard, 133 Mass. 464. 56. Williams v. La Penotiere, 26 Fla. 333, 7 So. 869; Jarrett v. Phillips, 90 111. 237; State v. Walters, 64 Ind. 226; Steven v. Ne- braska, etc., Ins. Co., 29 Nebr. 187, 45 N. W. 2S4. 57. Bolton v. McKinley, 19 111. 404. 58. Cheltenham Imp. Co. v. Whitehead, 26 111. App. 609; Dyson v. Brandt, 9 Mart. (La.) 493; Cleveland, etc., R. Co. v. Mara, 26 Ohio St. 185. 59. Alabama. — De Sylva v. Henry, 3 Port. (Ala.) 132; Naylor v. Phillips, 3 Stew. (Ala.) 210. California. — Hibernia Sav., etc., Soc. v. Lewis, 111 Cal. 519, 44 Pac. 175; MeLeran v. Shartzer, 5 Cal. 70, 63 Am. Dec. 84. Colorado. — Coby v. Halthusen, 16 Colo. 10, 26 Pac. 148; Robertson v. O'Reilly, 14 Colo. 441, 24 Pac. 560. Florida. — Oppenheimer v. Guckenheimer, 34 Fla. 13, 15 So. 670 ; Williams v. La Penotiere, 26 Fla. 333, 7 So. 869. Idaho. — Moore v. Koubly, 1 Ida. 55. Illinois. — Schnell v. North Side Planing Mill Co., 89 111. 581; Burns v. Nichols, 89 111. 480. , Indiana. — Lowe v. Turpie, 147 Ind. 652, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 233; Schmidt v. Wright, 88 Ind. 56; Beck v. State, 72 Ind. 250. Iowa. — Morrow v. Carpenter, 1 Greene, (Iowa) 469. Contra, Ash v. Ash, 90 Iowa, 229, 57 N. W. 862, which holds that the omis- sion of some of the appealing defendants to serve a notice of appeal on their co-defendants could not be remedied by filing in the appellate court the entries of appearance of such co-de- fendants. Kansas. — Robinson Female Seminary v. Campbell. 60 Kan. 60, 55 Pac. 276 ; Magee v. Hartzell, 7 Kan. App. 489, 54 Pac. 129. Louisiana. — Baumgarden°s Succession, 35 La. Ann. 127; Richardson v. Cramer, 28 La. Ann. 357 ; Foute v. New Orleans, 20 La. Ann. 22. Michigan. — Durfee v. McClurg, 5 Mich. 532. Missouri. — Rector v. St. Louis County Cir. Ct., 1 Mo. 607 ; Deatley v. Potter, 29 Mo. App. 222. Montana. — Payne v. Davis, 2 Mont. 381. Nebraska. — Minneapolis Harvester Works v. Hedges, 11 Nebr. 46, 7 N. W. 531 ; McDonald v. Penniston, 1 Nebr. 324. New York. — Pickersgill v. Read, 7 Hun (N. Y.) 636; Coppernoll v. Ketcham, 56 Barb. (N. Y.) Ill; Silsbee v. Gillespie, 9 Abb. Pr. N. S. (N. Y.) 139; Overseers of Poor v. Over- seers of Poor, 5 Cow. (N. Y.) 363. Ohio. — Mason v. Alexander, 44 Ohio St. 318, 7 N. E. 345 ; King v. Penn, 43 Ohio St. 57, 1 N. E. 84; Hammond v. Hammond, 21 Ohio St. 620. Rhode Island. — Sprague v. Luther, 7 R. I. 581. South Dakota. — Holden v. Haserodt, 2 S. D. 220, 49 N. W. 97. Texas.— Lewis v. Mills, 29 Tex. 124; Hall v. La Salle County, (Tex. Civ. App. 1898) 46 S. W. 863. Washington. — Schwabacher v. Wells, 1 Wash. Terr. 506. Wisconsin. — Kasson v. Brocker, 47 Wis. 79, 1 N. W. 418; Perkins v. Shadbolt, 44 Wis. 574. United States. — Richardson v. Green, 130 U. S. 104, 9 S. Ct. 443, 32 L. ed. 872; Renaud v. Abbott, 116 U. S. 277, 6 S. Ct. 1194, 29 L. ed. 629; Pierce v. Cox, 9 Wall. (U. S.) 786, 19 L. ed. 786; U. S. v. Yates, 6 How. (U. S.) 605, 12 L. ed. 575; U. S. v. Hopewell, 51 Fed. 798, 5 U. S. App. 137, 2 C. C. A. 510; Freeman v. Vol. II 884 APPEAL AND ERROR (n) Jurisdiction of the Subject -Matter. A general appearance by appellee cannot give the appellate court jurisdiction of the subject-matter of the appeal. 60 There is no jurisdiction of the subject-matter where no appeal is taken, 61 though an appeal be attempted, 63 except where the attempted appeal results in a trial de novo. 63 In any case, jurisdiction of the subject-matter implies that Clay, 48 Fed. 849, 2 U. S. App. 151, 1 C. C. A. 115. See 2 Cent. Dig. tit. " Appeal and Error," § 2188 et seq. Before the expiration of time for notice of appeal, it has been held, an appearance does not waive the want of such notice. Brier v. Chicago, etc., R. Co., 66 Iowa 602, 24 N. W. 232. The abatement of an attorney's authority by death of an appellee for whom the attor- ney had indorsed on the appeal an entry of appearance, such abatement occurring before the filing of the appeal in the appellate court, prevents the appearance from taking effect as a waiver of process. McGuire v. Ranney, 49 Ohio St. 372, 34 N. E. 719. 60. Alabama. — Thompson v. Lea, 28 Ala. • 453. Colorado. — Las Animas County v. Stone, 11 Colo. App. . Boorom, 7 Bush (Ky.) 399. But see Seattle Coal, etc., Co. v. Lewis, 1 Wash. Terr. 488, wherein it was held that, to have an appeal operate as a supersedeas, entry of the allowance thereof must be made. Presumption of award. — Where an appeal was docketed in the appellate court, and no entry or record appears as to whether simply an appeal, or an appeal with supersedeas, was granted, it may be inferred by the appellate court that a supersedeas was awarded where the circumstances show that both parties acted on that hypothesis. Baltimore, etc., R. Co. v. Vanderwarker, 19 W. Va. 265. 74. Whitman r. Johnson, 10 Misc. (N. Y.) 730, 31 N. Y. Suppl. 805, 64 N. Y. St. 613. Manner of service.— In Kentucky, it is not necessary that an order of supersedeas should be served as a summons. Rodman v. Moody, 14 Ky. L. Rep. 202. Necessity of service. — A writ of error and order to stay does not stay the issuing of an alias execution, where defendant has been ar- rested on the first one, unless the order was served on defendant's attorney, who issued the first execution. Campbell v. Clark, 2 How. Pr. (N. Y.) 257. APPEAL AND ERROR 887 2. Perfection of Appeal or Writ of Error. 73 To operate as a supersedeas the appeal must be perfected or the writ of error sued out and served within the time prescribed by statute. 76 It has, however, been held that where irreparable injury might result by carrying the judgment instantly into effect, a reasonable time for nhng the appeal may be allowed before the judgment is executed 77 D. Judgments or Orders Which May Be Superseded or Stayed— l. in General. The rule obtains in some states that it is only from orders or judg- ments which command or permit some act to be done, 78 or which are of a Presumption of service. — Where no evidence of the non-issuance of a supersedeas appears in the record, the appellate court may pre- sume that the appellee has been notified of the supersedeas. Whitehead v. Boorom, 7 Bush (Ky.) 399. 75. As to time of giving supersedeas bond see infra, VIII, H, 4. 76. Alabama. — Crowder v. Morgan, 72 Ala. 535. California. — Dulin v. Pacific Wood, etc., Co., 98 Cal. 304, 33 Pac. 123. Illinois. — Anonymous, 40 111. 115. Indiana. — McKinney v. Hartman, 143 Ind. 224, 42 N. E. 681; Hadley v. Hill, 73 Ind. 442. Iowa — Oyster v. Bank, 107 Iowa 39, 77 N. W. 523 ; Chicago, etc., R. Co. v. Grinnell, 53 Iowa 55, 3 N. W. 819; Pratt v. Western Stage Co., 26 Iowa 241. Kentucky. — Hunt v. Berryman, 2 Mete. (Ky.) 239 ; Saddler v. Glover, 1 B. Mon. (Ky.) 50. Louisiana. — Gagneaux v. Desonier, 104 La. Ann. 648, 29 So. 282; State v. Judge, 27 La. Ann. 697. Montana. — Helena First Nat. Bank v. Mc- Andrews, 7 Mont. 434, 17 Pac. 554. New Hampshire. — Grant v. Lathrop, 23 1ST. H. 67. New York. — Guilfoyle v. Pierce, 22 N. Y. App. Div. 131, 47 N. Y. Suppl. 899 ; Barley v. Roosa, 59 Hun (1ST. Y.) 617, 13 N. Y. Suppl. 209, 35 N. Y. St. 898; Rogers v. Paterson, 4 Paige (N. Y.) 450. Pennsylvania. — Pennsylvania R. Co. v. Com., 39 Pa. St. 403; Dawson v. Ryan, 4 Watts & S. (Pa.) 403; Thomas' Appeal, 4 Kulp (Pa.) 449. Tennessee. — Compare Claiborne v. Crock- ett, Meigs (Tenn.) 607. Texas. — Shapard v. Bailleul, 3 Tex. 26. Wyoming. — Glafcke v. O'Brien, 1 Wyo. •316. United States. — Western Air-Line Constr. Co. v. McGillis, 127 U. S. 776, 8 S. Ct. 1390, 32 L. ed. 324; Crane Iron Co. v. Hoagland, 105 U. S. 701, 26 L. ed. 1109; Kitchen v. Randolph, 93 U. S. 86, 23 L. ed. 810; Boise County v. Gorman, 19 Wall. (U. S.) 661, 22 L. ed. 226; Western Union Tel. Co. v. Eyser, 19 Wall. (U. S.) 419, 22 L. ed. 43; Rodd v. Heartt, 17 Wall. (U. S.) 354, 21 L. ed. 627; O'Dowd v. Russell, 14 Wall. (U. S.) 402, 20 L. ed. 857; Bigler v. Waller, 12 Wall. (U. S.) 142, 20 L. ed. 260; French v. Shoemaker, 12 Wall. (U. S.) 86, 20 L. ed. 270; Baltimore, etc., R. Co. v. Harris, 7 Wall. (U. S.) 574, 19 L. ed. 100 ; Washington v. Dennison, 6 Wall. ., 7 N. J. Eq. 629, 51 Am. Dec. 267; Chegary v. Scofield, 5 N. J. Eq. 525. New Tori:.— Messonnier v. Kauman, «s 894 APPEAL AND ERROR appeal to the court of last resort has been perfected, an intermediate appellate court cannot direct a supersedeas to the trial court. 97 It has also been held that one judge cannot, after appeal from an order of another judge vacating an attach- ment, make an order staying the proceedings pending the determination of the appeal. 98 Of course, an inferior court has no power to grant an order for a super- sedeas to a judgment or decree of a superior court. 99 3. When Allowed — a. In General. An order staying the execution of a judgment will only be granted on good cause shown. 1 b. Irreparable Injury to Appellant. A stay should be granted where the enforcement of the judgment or decree pending the appeal will result in irrepar- able injury to appellant if he is successful in his appeal/ 4. Application — a. Manner of Application. An application for a stay ot pro- ceedings pending appeal may be made by motion. 3 N. C. 476 (wherein it was held that an ap- pellate court cannot supersede the process of a trial court unless the, writ of supersedeas is auxiliary to the appellate jurisdiction of the former) ; Ex p. Ralston, 119 U. S. 613, 7, S. Ct. 317, 30 L. ed. 506 (wherein it was held that an appellate court cannot allow a super- sedeas except as an incident to an appeal ac- tually taken, or a writ of error actually sued out ) . See also Carit v. Williams, 67 Cal. 580, 8 Pac. 93, wherein it was held that, pending an appeal from an order made after final judg- ment, the appellate court has no authority to grant a stay of execution upon the judgment, where no appeal has been taken from such judgment. 97. In re Life Assoc, of America, 12 Mo. App. 584. 98. Hammacher v. Morse, 15 N. Y. Civ. Proc. 321. 99. Dibrell v. Eastland, 3 Yerg. (Tenn.) 506. 1. Texas Bldg. Assoc. No. 2 v. Aurora F. & M. Ins. Co., 34 Ohio St. 291. In Florida, it has been held that, where the damage which may result from a supersedeas to a decree is of such a character that it can be compensated in money, a supersedeas will be granted. Tampa St. R., etc., Co. v. Tampa Suburban R. Co., 30 Fla. 400, 11 So. 908; Jacoby v. Shoemaker, 26 Fla. 502, 7 So. 855. In New York, a stay will not be granted pending an appeal to the court of appeals from a judgment which has been unanimously affirmed by the appellate division. Connolly v. Manhattan R. Co., 40 N. Y. Suppl. 1007, 75 N. Y. St. 391. Annexation of territory to city. — Pending appeal from a judgment declaring territory annexed to a city, the supreme court will not stay the exercise by the city of governmental functions over the annexed territory, and re- strain consideration of the judgment of an- nexation in the elections, taxation, and in- ternal improvements of the city, the exercise of none of such acts being alleged to be in- convenient, except that of the voting by the residents of the annexed territory at an ap- proaching election, and there being no imme- diate and imperious necessity for interference as to the other acts. Forsythe v. Hammond, 137 Ind. 426, 37 N. E. 537. Opportunity to put in bail. — A court will Vol. II not stay execution in order to give time to plaintiff in error to put in bail. Den v. Ham- ilton, 3 N. J. L. 446. Overruling doctrine of decision. — An order staying proceedings should be granted where, since the judgment appealed from has been rendered, the doctrine on which it was founded has been overruled by the appellate court. Sixth Ave. R. Co. v. Gilbert El. R. Co., 3 Abb. N. Cas. (N. Y.) 53. Where it is doubtful whether an order ap- pealed from be appealable, the appellate court will not, on application, stay proceedings pending the appeal. Gelpeke v. Milwaukee, etc., R. Co., 11 Wis. 454. 2. Georgia. — Lindsey v. Lindsey, 14 Ga. 657. Louisiana. — State v. Lewis, 42 La. Ann. 847, 8 So. 602; State v. Judge, 39 La. Ann. 225, 1 So. 417. Maryland. — Thompson v. MeKim, 6 Harr. & J. (Md.) 302. New Jersey. — Riehle v. Hulings, 38 N. J. Eq. 83; Jewett v. Dringer, 29 N. J. Eq. 199; Ratzer v. Ratzer, 29 N. J. Eq. 162 ; Van Walk- enburgh v. Rahway Bank. 8 N. J. Eq. 725. New York. — Hart v. Albany, 3 Paige (N. Y.) 381; Jewett v. Albany City Bank, Clarke (N. Y.) 59. Pennsylvania. — Woodward v. Wilkes-Barre, 4 Kulp (Pa.) 138. Wisconsin. — Waterman v. Raymond, 5 Wis. 185. ' England. — Walford v. Walford, L. R. 3 Ch. 812. Canada. — See McDonald v. Murray, 9 Ont. Pr. 464. See 2 Cent. Dig. tit. " Appeal and Error." § 2253. 3. Eno v. New York El. R. Co., 15 N. Y. App. Div. 333, 44 N. Y. Suppl. 61 ; 2 Daniels Ch. Pr. 1470. See also McMahon v. Allen, 13 Abb. Pr. (N. Y.) 126, wherein it was held that the only way in which a stay of proceed- ings can be procured in the court below, after an order for a new trial has been made by the general term, is by motion directly for that purpose. Costs. — It seems that the applicant must pay the costs of the application. Topham v. Portland. 1 De G. J. & S. 603, 66 Ens. Ch. 603; Willan v. Willan. 16 Ves. Jr. 216: Waldo v. Caley, 16 Ves. Jr. 206; Merry v. Nickalls, APPEAL AND ERROR 895 b. Notice. In the absence of a statute requiring it, notice need not be given to the adverse party of an application to a justice of the supreme court for a stay of proceedings pending appeal. 4 e. Matters Determinable. It has been held that it is neither necessary nor proper for a judge, on application for a supersedeas, to consider the merits of the appeal except so far as to see whether the appeal is frivolous. 5 5. Imposition of Terms. As the allowance of a stay is a matter of discre- tion, it follows that the court may, in allowing the stay, affix such conditions as in its judgment are necessary for the protection of the parties. 6 It has, however, been held that any insufficiency of a bond, filed under an order directing a stay of proceedings pending an appeal on the giving of a bond, does not impair the order. 7 H. Upon Security — 1. Necessity — a. in General. It is a very general statutory requirement that security must be given to effect a stay of proceedings on appeal or writ of error. 8 L. R. 8 Ch. 205. But see Burdick v. Garrick, L. R. 5 Ch. 453; Shrewsbury v. Trappes, 2 De G. F. & J. 172, 63 Eng. Ch. 172. Motion to dismiss appeal. — Whether ap- pellants are entitled to have the execution of the judgment stayed until the determination of an appeal from an order denying a new trial cannot be considered on a motion to dismiss the appeal from the judgment. Kirman v. Hunnewill, 91 Cal. 157, 2. Pac. 587. To whom made. — In New York, an appli- cation for a stay of proceedings, pending an appeal from the appellate division to the court of appeals, should be made to the appellate di- vision rather than to the special term. Eno v. New York El. R. Co., 15 N. Y. App. Div. 336, 44 N. Y. Suppl. 61. See also In re Ciancimino, 13 N. Y. Suppl. 836, wherein it was held that it is proper practice, upon an appeal taken from an order of a judge to the general term, where it is sought to stay execution, to make the application to the court in or from which the appeal is taken, or a judge thereof, for such stay. 4. Matthews v. Nance, 49 S. C. 389, 27 S. E. 100; Salinas v. Aultman, 49 S. C. 378, 27 S. E. 407. But see Grand Trunk R. Co. v. Ontario, etc., R. Co., 9 Ont. Pr. 420, wherein it was held that application should not be made ex parte. Sufficiency of notice. — On a motion for a stay of execution, pending an appeal, the or- dinary notice is sufficient. Heenan v. Dewar, 3 Ch. Chamb. (U. C.) 199. 5. Jacoby v. Shomaker, 26 Fla. 502, 7 So. 855; Williams v. Hilton, 25 Fla. 608, 6 So. 452; Saxon v. Gamble, 23 Fla. 408, 2 So. 664. See 2 Cent. Dig. tit. "Appeal and Error," § 2254. 6. California. — McClatchy v. Sperry, 126 Cal. xvii, 58 Pac. 529; Hill v. Finnigan, 54 Cal. 493. "Nebraska — Home F. Ins. Co. V. Duteher, 48 Nebr. 755, 67 N. W. 766. New York. — Kager v. Brenneman, 52 N. Y. App. Div. 446, 65 N. Y. Suppl. 129; New York Security, etc., Co. v. Saratoga Gas, etc., Co., 5 N. Y. App. Div. 535, 39 N. Y. Suppl. 486; Winterhoff v. Siegert, 13 Abb. Pr. (N. Y.) 182; Sixth Av. R. Co. v. Gilbert El. R. Co., 3 Abb. N. Cas. (N. Y.) 53; Bradt v. Kirk- patrick, 7 Paige (N. Y.) 62; Gregory v. Dodge, 3 Paige (N. Y.) 90. Oklahoma.— In re Epley, (Okla. 1901) 64 Pac. 18. South Carolina. — Matthews v. Nance, 49 S. C. 389, 27 S. E. 100; Salinas v. Aultman, 49 S. C. 378, 27 S. E. 407. Wisconsin. — Whereatt v. Ellis, 103 Wis. 348, 79 N. W. 416, 74 Am. St. Rep. 865. England. — Monkhouse v. Bedford, 17 Ves., Jr., 380. Canada. — Heward v. Heward, 2 Ch. Chamb. (U. C.) 245. See 2 Cent. Dig. tit. "Appeal and Error," § 2257. Estoppel to question conditions. — Where the court required defendants to stipulate that they " would contest the plaintiffs' rights in this action only," as a condition precedent to granting a stay of an injunction, pending an appeal, defendants, having obtained the stay of the injunction, cannot say that the court had no power to impose such a. condi- tion American Bank Note Co. v. Manhattan R. Co., 66 Hun (N. Y.) 627, 20 N. Y. Suppl. 819, 49 N. Y. St. 375. Payment of sheriff's fees.— Where an ap- peal was entered and the appeal bond per- fected after execution was levied, but before it was fully executed, the execution will not be set aside, so as to destroy the lien on the goods of the appellant, except on condition that the sheriff's fees on the execution be paid. Clark v. Clark, 7 Paige (N. Y.) 607. . , Rights of intervener.— A third person wno intervenes to prosecute an appeal has no claim to a stay upon more favorable terms than the judgment debtor. State v. Judge, 22 La. Ann. 115 7. Dell v. Marvin, 31 Fla. 152, 12 So. 216. In Harmon v. Wagener, 33 S. C. 487, 12 S. E. 98 it was held that where an executor ob- tains an order from a. justice of the supreme court, staying all proceedings under the or- der appointing a receiver, on condition that such executor give bond within a certain time, which he fails to do, the order staying the proceedings becomes a nullity, and the court may proceed to enforce the delivery of the property to the receiver because, in such case, the condition precedent is not complied with. 8. See the statutes of the several states and the following cases : ' n. Monroe, 45 La. Ann. 1322, 14 So. 59, wherein it was held that the right to bond property sequestered is not suspended by a suspensive appeal from a judgment in which that right was not involved. Proceedings in suit. — A stay on appeal is confined to proceedings in the suit in which the judgment or decree appealed from is made. State v. Thayer, 80 Mo. 436; Tipton Bank v. Cochel, 27 Mo. App. 529; Missouri Pac. R. Co. v. Atkison, 17 Mo. App. 484; State v. Ramsey, 50 Nebr. 166, 69 N. W. 758 ; Welch v. Cook, 7 How. Pr. (N. Y.) 282; Hart v. Al- bany, 3 Paige (N. Y.) 381. See also Bowman v. Cornell, 39 Barb. (N. Y.) 69, wherein it was held that when a right of action has ac- crued against a sheriff for neglecting to re- turn an execution, such right cannot, be di- vested by an appeal being taken from the judg- ment by defendant therein, even though the APPEAL AND ERROR 911 the property ; w it does not discharge from custody a defendant arrested and com- mitted before its service; 61 it does not extend the lien of the iudcment beyond the time prescribed by statute ; 63 it does not prevent a rule nisi for nude-merit ; « it does not prevent respondent from tiling transcripts of the judgment appealed from ;•* it does not prevent the prosecution of collateral or independent proceed- ings ; and it does not prohibit the clerk below from issuing his fee-bills to collect appeal is brought prior to the commencement o? the action, as such action is not " a pro- ceeding upon the judgment." Proceedings subsequent to judgment. — An appeal from a decision overruling a motion to set aside proceedings subsequent to judgment does not supersede the proceedings under the principal judgment. Hayden v. Herbert, Hard. (Ky.) 143. Recoiding of mandate of affirmance. — A judgment of the trial court which has been affirmed by the appellate court is not sus- pended by a writ of error with supersedeas, prosecuted to reverse the order of the trial court permitting the mandate of affirmance to be recorded. Taylor v. Tibbatts, 13 B. Mon. (Ky.) 177. • The term " execution," with reference to a stay of " execution " during proceedings on appeal, comprehends not merely the ordinary writ of execution to collect money, but also any and all process to enforce any affirmative command of a judgment, whatever its nature. State v. Klein, 137 Mo. 673, 39 S. W. 272. The enforcement of an interlocutory order for the appointment of a receiver is within the scope of the term " execution." State v. Hir- zel, 137 Mo. 435, 37 S. W. 921, 38 S. W. 961. 60. Goode v. Wiggins, 12 Ohio St. 341. Appointment of receiver. — -As a stay ex- tends only to proceedings under the judgment, it is no violation of a stay pending an appeal from a judgment of foreclosure for respondent to obtain the appointment of a receiver of the mortgaged premises. Mackellar v. Farrell, 57 N. Y. Super. Ct. 398, 8 N Y. Suppl. 307, 29 N. Y. St. 350. Discharge of receiver. — Notwithstanding a stay of proceedings on a judgment, the court below has power to discharge a receiver whose appointment was ordered before judgment as a provisional order. Ireland v. Nichols, 9 Abb. Pr. N. S. (N. Y.) 71. Preservation of property. — A receiver in whose hands the court places property is not guilty of contempt in dealing with the prop- erty pending an appeal and supersedeas on the order appointing him receiver. Bristow v. Home Bldg. Co., 91 Va. 18, 20 S. E. 946, 947; Grant v. Phoenix Mut. L. Ins. Co., 121 U. S. 118, 7 S. Ct. 849, 30 L. ed. 909. See also Hitz v. Jenks, 16 App. Cas. (D. C.) 530, wherein it was held that a court which appoints a re- ceiver may continue to make all proper orders for the 'conservation of the fund, notwith- standing an appeal. 61. Campbell v. Clark, 2 How. Pr. (NY.) 257; Sherrill v. Campbell, 21 Wend. (NY.) 287. But see Wilson v. Ryder, 13 N. Y. Civ. Proc. 69, wherein it was held that, upon the recovery of final judgment in favor of defend- ant who had been arrested on an order of ar- rest and discharged by making » deposit in lieu of bail, the deposit must be refunded to him, though plaintiff has appealed from the judgment and given security to stay proceed- ings. 62. Christy v. Flanagan, 87 Mo. 670 [af- firming 14 Mo. App. 253] ; Chouteau v. Nuck- olls, 20 Mo. 442 ; Merchants' Mut. Ins. Co. v. Hill, 17 Mo. App. 590. Revival of judgment.— The time within which it is necessary, by statute, to sue out a scire facias to revive a judgment begins to run, where there is a stay of execution, from the expiration of the period during which the execution was suspended. Pennock v. Hart, 8 Serg. & R. (Pa.) 369. But the pendency of a suspensive appeal from a judgment in ap- pellant's favor will not prevent the latter from instituting proceedings to revive the judgment. Weiller v. Blanks, McGloin (La.) 296. 63. Moran v. Dawes, 4 Cow. (N Y.) 22. 64. Bulkley v. Keteltas, Code Rep. N. S. (N. Y.) 119. 65. Line v. State, 131 Ind. 468, 30 N. E. 703 ; State v. Krug, 94 Ind. 366 ; Mull v. Mc- Knight, 67 Ind. 525; Randies v. Randies, 67 Ind. 434 ; State v. Chase, 41 Ind. 356 ; Burton v. Burton, 28 Ind. 342; Burton v. Reeds, 20 Ind. 87; Nili v. Comparet, 16 Ind. 107, 79 Am. Dec. 411. But see Johnson v. Williams, 82 Ky. 45, wherein it was held that, after a judgment has been obtained and a supersedeas bond has been executed by defendant, it is not proper for plaintiff to bring an action upon the judgment and take out an attachment against defendant's property. Bond answerable for judgment. — The fact that an appeal has been taken from a judg- ment, and security given to stay proceedings, is no bar to an action on a special bond or agreement to be answerable for the judgment. Rice r. Whitlock, 16 Abb. Pr. (N. Y.) 225. Bond to discharge from arrest. — The insti- tution of proceedings in error, and the giving of a supersedeas bond, will not prevent plain- tiff below from maintaining an action upon a bond given to secure the discharge of defend- ant from arrest in the original case. Heizer v. Pawsey, 47 Kan. 33, 27 Pac. 125. Bond to transfer case. — Pending an appeal with supersedeas from a judgment dismissing a stay, appellee cannot proceed against the surety on the bond given by appellant in transferring the case to equity. Daugherty v. Ringo, 1 Ky. L. Rep. 272. Garnishment. — Plaintiff in a judgment which has been oarried by certiorari to a Su- perior court does not place himself in con- tempt of the latter court by suing out a gar- Vol. II 912 APPEAL AND ERROR the costs in the cause. 68 But a notice of the entry of judgment is a proceeding in the cause within the meaning of an order staying proceedings on the judg- ment, and will be set aside as irregular. 67 And so long as there is an order of court in force staying execution on the judgment against a party who has appealed, the sureties on his appeal bond cannot be sued. 68 It has also been held that an appeal by remonstrants, from an order granting a license to retail liquors, operates to suspend the order and the right to sell under the license. 69 b. Accounting. An appeal from a decree directing an account to be taken will not stay the accounting. 70 It has, however, been held that where an account is ordered to be taken before a master on principles laid down in the decree, the court will refuse to allow the account to be taken pending an appeal from the decree. 71 nishment upon that judgment during the pen- dency of the certiorari. Miller v. Gay, 98-Ga. 53G, 25 S. E. 577. 66. Carr r. Miner, 40 111. 33 ; State v. Em- merson, 74 Mo. 607; Curtis v. Leavitt, 19 Barb. (N. Y.) 530. But see Adams v. Mis- souri Pac. R. Co., 18 Mo. App. 373, wherein it was held that where the right of a person to demand of defendant in the judgment pay- ment of any costs rests upon the judgment alone, that right can be enforced only by an execution issued in pursuance of the judg- ment, and is therefore suspended by a super- sedeas. Cost bonds. — Defendant cannot prosecute the bond, given by plaintiff as security for costs on commencing the action, after pro- ceedings on the judgment against plaintiff have been stayed on appeal. Van Vleeck v. Clark, 24 How. Pr. (N. Y.) 190. 67. White v. Klinken, 16 Abb. Pr. (N. Y.) 109; Bagley v. Smith, 2 Sandf. (N. Y.) 651. See also St. Paul, etc., R. Co. v. Hinckley, 53 Minn. 102, 54 N. W. 940, wherein it was held that an appeal from an order granting or re- fusing a new trial, and the filing of the pre- scribed bond, suspends the right to proceed to the entry of judgment. And see Gassett v. Cottle, 10 Gray (Mass.) 375, wherein it was held that after judgment has been rendered in the superior court and exceptions allowed, though not entered in the supreme court, the superior court cannot enter final judgment. An attempt to collect alimony by a writ of execution is a " proceeding upon the judg- ment," and, pending the appeal, is stayed by giving the undertaking required by statute. Anderson v. Anderson, 123 Cal. 445, 56 Pac 61. Default judgment.— An appeal from an or- der refusing to open a default and allow an answer to be made does not stay the entry of judgment upon the default. Exley V. Berry- hill, 37 Minn. 182, 33 N. W. 567. Stay after notice of entry. — A stay of pro- ceedings for a specified time, after notice of entry of judgment, operates only in case judg- ment is entered, and does not prevent the suc- cessful party from moving to dismiss an ap- peal, taken before such entry, from an order denying a motion for a new trial. Kenney v. Sumner, 12 Misc. (N. Y.) 86, 33 ST. Y. Suppl. 95, 66 N. Y. St. 696. 68. Parnell v. Hancock, 48 Cal. 452. Vol. II Bond in trial of right of property. — Pend- ing an appeal from a judgment against claim- ant in a trial of the right of property, no for- feiture of the claimant's bond can be declared. Davis v. Hart, 1 Tex. App. Civ. Cas. § 1143. A forthcoming or delivery bond, executed to procure the release of attached property, re- mains in force notwithstanding an appeal has been taken and a supersedeas bond given. State v. McGlothlin, 61 Iowa 312, 16 N. W. 137; Williams v. Robiso i, 21 Iowa 498. See also Spencer v. Pilcher, 10 Leigh (Va. ) 512, wherein it was held that the right to move for judgment on a forthcoming bond is not suspended by a supersedeas to the original judgment. Sheriff's bond. — Where a sheriff appeals from a judgment against him for failure to return an execution, and gives the statutory undertaking to stay all proceedings upon the judgment pending such appeal, the court will not allow an action to be brought upon his official bond until such appeal is decided. People v. Conner, 8 Hun (N. Y.) 533. 69. Molihan v. State, 30 Ind. 266. But see Lantz v. Hightstown, 46 N. J. L. 102, wherein it was held that a writ of error, to review the judgment of the supreme court dismissing a writ of certiorari bringing up certain proceedings of a common council con- cerning the revocation of a license, does not stay that body from proceeding after the dis- missal of the writ of certiorari from the point at which they were stayed by its allowance. 70. Morton v. Beach, 56 N. J. Eq. 791, 41 Atl. 214 [distinguishing Pennsylvania R. Co. v. National Docks, etc., R. Co., 54 N. J. Eq. 647, 35 Atl. 433] ; Ratzer v. Ratzer, 29 N. J. Eq. 162; Burdick v. Garrick, L. R. 5 Ch. 453; Nerot i. Burnand, 2 Russ. 56, 3 Eng. Ch. 56; 2 Daniel Ch. Pr. 1470; 2 Smith Ch. Pr. 70. See also Cheney v. Gleason, 125 Mass. 166. Supplemental account. — Where an appeal has been taken from a decree in an accounting, a hearing on a supplemental account, filed by one of the parties after the appeal, is prop- erly denied. Petrie v. Dickerman, 98 Mich. 130, 56 N. W. 1108. 71. Green v. Winter, 1 Johns. Ch. (N. Y.) 77. See also Guibert v. Saunders, 13 N. Y. Civ. Proc. 220, wherein it was held that a judgment directing an accounting in an action to determine title to real property, and a sale of certain premises, may be stayed. APPEAL AND ERROR 913 e. Orders Relating to Injunctions. Though there are decisions which hold that taking an appeal and giving bond has the effect of staying and suspending the operation of a decree granting or dissolving an injunction, 73 by the great weight of authority an appeal from such a decree does not disturb its operative force.' 3 And this has been held to be true even in cases where the party corn- Reference to state account. — On appeal, in an action to set aside a deed obtained by fraud, from an interlocutory judgment in fa- vor of plaintiff and referring the case to a referee to state an account of rents received and payments made, a stay of proceedings should be granted. Coleman v. Phelps, 24 Hun (NY.) 320. 72. Kentucky. — Elizabethtown, etc., E. Co. v. Ashland, etc., St. R. Co., 94 Ky. 478, 22 S. W. 855 ; Kentacky, etc., Bridge Co. v. Krie- ger, 91 Ky. 625, 13 Ky. L. Rep. 219, 16 S. W. 824 ; Smith v. Western Union Tel. Co., 83 Ky. 269; Yocom v. Moore, 4 Bibb (Ky.) 221. Compare Roberts i". Jenkins, 4 Ky. L. Rep. 648. Louisiana. — A suspensive appeal on bond lies from an order dissolving an injunction when the commission of the acts enjoined will cause irreparable injury. State v. Monroe, 41 La. Ann. 241, 6 So. 21; Schmidt v. Foucher, 37 La. Ann. 174; State v. Judge, 33 La. Ann. 760 ; State v. Judge, 25 La. Ann. 666. Maryland. — Hamilton v. State, 32 Md. 348 ; Gelston v. Sigmund, 27 Md. 345 ; Northern Cent. R. Co. v. Canton Co., 24 Md. 500; Ful- lerton v. Miller, 22 Md. 1; Blondheim v. Moore, 11 Md. 365. Minnesota. — State v. District Ct., 78 Minn. 464, 81 N. W. 323 ; State v. Duluth St. R. Co., 47 Minn. 369, 50 N. W. 332. Compare State v. District Ct., 52 Minn. 283, 53 N. W. 1157; Sullivan v. Weibeler, 37 Minn. 10, 32 N. W. 787. Mississippi. — Kimball v. Alcorn, 45 Miss. 145; Penrice v. Wallis, 37 Miss. 172. Missouri. — Lewis v. Leahey, 14 Mo. App. 564. Texas.— Gulf, etc., R. Co. v. Ft. Worth, etc., R. Co., 68 Tex. 98, 2 S. W. 199, 3 S. W. 564; Williams v. Pouns, 48 Tex. 141. Virginia. — Turner v. Scott, 5 Rand. (Va.) 332. See also Graves v. Graves, 2 Hen. & M. (Va.) 22. West Virginia. — State v. Harness, 42 W. Va. 414, 26 S. E. 270; State v. Harper's Ferry Bridge Co., 16 W. Va. 864. 73, Alabama. — Griffin v. Huntsville Branch Bank, 9 Ala. 201; Boren i. Chisholm, 3 Ala. 513. Arkansas. — Payne r. MeCabe, 37 Ark. 318. California. — Rogers v. Superior Ct., 126 Cal. 183, 58 Pae. 452 ; Dulin v. Pacific Wood, etc., Co., 98 Cal. 304, 33 Pac. 123. District of Columbia. — Carrington v. Sweeny, 2 MacArthur (D. C.) 68. Florida. — An appeal from an order dissolv- ing an injunction does not of itself reinstate the injunction ; but an order directing the ap- peal to operate as a supersedeas, and a com- pliance with the terms of the order, give it such effect. Powell v. Florida Land, etc., Co., 41 Fla. 494, 26 So. 700; Bacon v. Green, 36 [58] Fla. 313, 18 So. 866; Jacoby v. Shomaker, 26 Fla. 502, 7 So. 855 ; McMichael v. Eckman, 26 Fla. 43, 7 So. 365. But a supersedeas so per- fected does not retroact so as to deprive strangers to the litigation of intervening rights bona fide acquired. Smith v. Whit- field, 38 Fla. 211, 20 So. 1012. Georgia. — Maccochee Hydraulic Min. Co. v. Davis, 40 Ga. 309; Powell v. Parker, 38 Ga. 644. See also Ryan v. Kingsbery, 88 Ga. 361, 14 S. E. 596. Illinois. — Bressler v. McCune, 56 111. 475, wherein it was held that where the court be- low has awarded a temporary injunction, which is continued to the final hearing and is then dissolved and the bill dismissed, and the party prays for and perfects his appeal, such appeal will operate to suspend the decree dis- solving the injunction. But, if the injunc- tion is dissolved by an interlocutory order, and the cause afterward proceeds to a final judgment, the appeal will not operate to re- vive the injunction. Iowa. — Lindsay v. Clayton Dist. Ct., 75 Iowa 509, 39 N. W. 817, wherein it was held that the taking of an appeal from a decree abating and enjoining a liquor nuisance, and the filing of a supersedeas bond, does not sus- pend the injunction, but only the abatement of the nuisance. Michigan. — Brevoort v. Detroit, 24 Mich. 322. New Jersey. — National Docks, etc., R. Co. v. Pennsylvania R. Co., 54 N. J. Eq. 167, 33 Atl. 936 ; Chegary v. Seofield, 5 N. J. Eq. 525. New York. — Gardner v. Gardner, 87 N. Y. 14; Sixth Ave. R. Co. v. Gilbert El. R. Co., 71 N. Y. 430 ; Hoyt v. Carter, 7 How. Pr. (N. Y.) 140; Howe v. Searing, 6 Bosw. (N. Y.) 684; Stone V: Carlan, 2 Sandf. (N. Y.) 738; Hoyt v. Gelston, 13 Johns. (N. Y.) 139; Graves v. Maguire, 6 Paige (N. Y.) 379; Wood v. Dwight, 7 Johns. Ch. (NY.) 295. North Carolina. — James v. Markham, 125 N. C. 145, 34 S. E. 241 ; Fleming v. Patterson, 99 N. C. 404, 6 S. E. 396. South Carolina. — Klinek v. Black, 14 S. C. 241. Tennessee. — Baird v. Cumberland, etc., Turnpike Co., 1 Lea (Tenn.) 394; Park v. Meek, 1 Lea (Tenn.) 78. Utah.— Elliot v. Whitmore, 10 Utah 238, 37 Pac. 459, holding, however, that where de- fendant, by means of a ditch, appropriated to his own use the water in a stream, and plain- tiff obtained a judgment entitling him to the use of a part of the water, and secured an in- junction restraining defpndant from taking more than a certain amount, defendant is en- titled to a supersedeas to stay the injunction pending appeal, as such judgment is one di- recting the delivery of possession of property. United States. — Knox County v. Harshman, Vol. II 914: APPEAL AND ERROR plaining of the decree has complied in all respects with the requirements for a supersedeas or stay of proceedings. 74 d. Orders Relating to Receivers. There is also diversity in judicial utterance as to the effect of an appeal from an order appointing a receiver. In some states it is held that such an appeal stays proceedings under the order upon giving the proper undertaking. 75 In other states the contrary view obtains. 76 132 U. S. 14, 10 S. Ct. 8, 33 L. ed. 249; Leon- ard v. Ozark Land Co., 115 U. S. 465, 6 S. Ct. 127, 29 L. ed. 445 ; Slaughter House Cases, 10 Wall. (U. S.) 273, 19 L. ed. 915; Interstate Commerce Commission ». Louisville, etc., R. Co., 101 Fed. 146 ; Whitney v. Mowry, 2 Bond (U. S.) 45, 29 Fed. Cas. No. 17,592; Grundy v. Young, 1 Cranch C. C. (U. S.) 443, 11 Fed. Cas. No. 5,850-. Canada. — McLaren v. Caldwell, 29 Grant Ch. (TJ. C.) 438. But see McGarvey v. Strath- roy, 6 Ont. 138. See 2 Cent. Dig. tit. "Appeal and Error," §§ 2277, 2278. Emergency restraining order.— - Where, on the ground of emergency, a restraining order has been granted without notice to the adverse party, and an order made requiring the ad- verse party to show cause on a day certain why a temporary injunction should not be granted, but, before hearing upon the applica- tion for the temporary injunction, the court dismisses the cause, such restraining order cannot be kept in force pending appeal from the judgment of dismissal. Coleman v. Co- lumbia, etc., R. Co., 8 Wash. 227, 35 Pac. 1077; State v. Lichtenberg, 4 Wash. 407, 30 Pac. 716. Mandatory injunction. — An appeal from a mandatory injunction is stayed and suspended in its effect by an appeal from the order grant- ing the same. Mane v. Superior Ct., 129 Cal. 1, 61 Pac. 436; Foster v. Superior Ct., 115 Cal. 279, 47 Pac. 58 ; Schwarz v. Superior Ct., Ill Cal. 106, 43 Pac. 580; Dewey v. Superior Ct., 81 Cal. 64, 22 Pac. 333. 74. Central Union Telephone Co. v. State, 110 Ind. 203, 10 N. E. 922, 12 N. E. 136; State v. Chase, 41 Ind. 356; Lindsay v. Clayton Dist. Ct., 75 Iowa 509, 39 N. W. 817; Hovey t>. Mc- Donald, 109 U. S. 150, 3 S. Ct. 136, 27 L. ed. 888; Interstate Commerce Commission v. Louisville, etc., R. Co., 101 Fed. 146 ; Whitney v. Mowry, 2 Bond (U. S.) 45, 29 Fed. Cas. No. 17,592. See also State v. Greene, 48 Nebr. 327, 67 N. W. 162, wherein it was held that where a temporary injunction has never been operative because of the failure to give the bond required by statute, the giving of a su- persedeas bond upon the dismissal of the suit will not give the order of injunction any validity. Committal for breach of injunction. — A de- fendant in equity having appealed from an order directing his committal for breach of an injunction, a stay of proceedings under the order, pending the appeal, will be refused. Gamble v. Hcwland, 3 Grant Ch. (U. C.) 281. Grant by court. — On appeal from an order granting an injunction, the court has power to grant a stay of respondent's proceedings upon the order. Genin v. Chadsey. 12 Abb. Pr. (N. Y.) 69. See also supra, VIII, G. Vol. n 75. Connecticut. — Catlin v. Baldwin, 47 Conn. 173. Florida. — State v. Johnson, 13 Fla. 33. Indiana. — Wabash B. Co. v. Dykeman, 133 Ind. 56, 32 N. E. 823. Iowa. — Cook v. Cole, 55 Iowa 70, 7 N. W. 419. Louisiana. — Metropolitan Bank v. Commer- cial Soap, etc., Manufactory, 48 La. Ann. 1383, 20 So. 899. Maryland. — Everett v. State, 28 Md. 190. Minnesota. — Farmers' Nat. Bank v. Backus, 63 Minn. 115, 65 N. W. 255. Mississippi. — Buckley v. George, 71 Miss. 580, 15 So. 46. Missouri. — State v. Hirzel, 137 Mo. 435, 37 S. W. 921, 38 S. W. 961. Texas. — People's Cemetery Assoc, v. Oak- land Cemetery Co., (Tex. Civ. App. 1901) 60 S. W. 679; Carter v. Carter, (Tex. Civ. App. 1897) 40 S. W. 1030. Virginia. — Virginia, etc., Steel, etc., Co. v. Wilder, 88 Va. 942, 14 S. E. 806. Washington. — State v. Superior Ct., 12 Wash. 677, 679, 42 Pac. 123. United States. — Tornanses r. Melsing, 106 Fed. 775. See 2 Cent. Dig. tit. " Appeal and Error," § 2279. See also Stanton l>. Heard, 100 Ala. 515, 14 So. 359, wherein it was held that the lien ac 1 quired by the appointment of a receiver of a debtor's property by the register of the chan- cery court, and by the taking of possession by the receiver, is not abrogated by the debtor's appeal to the chancellor from the register's order, and the execution of a supersedeas bond. Proceedings in lower court. — Where an ap- peal from a decree appointing a receiver for a corporation is perfected, such appeal be- comes in effect a supersedeas, and operates to prevent airy distribution or application by the trial court of the assets of the corpora- tion. Continental Invest., etc., Soc. v. Mc- Kay, 69 111. App. 72. See also Harris v. Peo- ple, 66 111. App. 306. Receiver appointed under judgment. — An appeal from a judgment vacates such judg- ment, and hence vacates the appointment of a receiver previously made under such judg- ment. Allen v. Chadburn, 3 Baxt. (Tenn.) 225. See also Havemeyer v. Superior Ct., 84 Cal. 327, 24 Pac. 121, 18 Am. St. Rep. 192, 10 L. R. A. 627. Receiver in possession of litigated property. — If at the time a supersedeas is awarded a receiver is in possession of the property in liti- gation, he is not thereby removed. Bristow v. Home Bldg. Co., 91 Va. 18, 20 S. E. 946, 947. 76. Swing v. Townsend, 24 Ohio St. 1; Haught v. Irwin, 166 Pa. St. 548, 31 Atl. APPEAL AND ERROR 915 e. Previous Levy. Taking an appeal and giving the security prescribed by statute do not operate to discharge a previous levy, nor supersede an execution issued before the appeal was taken. 77 In such case the court, either trial 78 or appellate, 79 may, in its discretion, make an order recalling or staying proceedings under the execution until the determination of the appeal. 80 But a sale on execu- tion, made before the perfection of an appeal, cannot be confirmed afterward. 81 K. Proceedings in Violation of Stay. Any action or proceeding in disre- gard and defiance of the force and effect of a supersedeas or stay is a contempt of the authority and jurisdiction of the appellate court, 82 and such action or pro- 260. See also Matter of Real Estate Asso- ciates, 58 Cal. 356, wherein it appeared that, in an involuntary proceeding against an in- solvent, a receiver was appointed, and after- ward an appeal was taken from an order ad- judicating him an insolvent. It was held that the functions of the receiver were not suspended during the appeal. In Nebraska, under the doctrine that a supersedeas can be had as a matter of right only where it is affirmatively provided for by statute, a supersedeas cannot be had as a mat- ter of right to an order appointing a receiver. State v. Scott, (Nebr. 1900) 82 N. W. 320; Lowe v. Riley, 57 Nebr. 252, 77 N. W. 758; State v. Stull, 49 Nebr. 739, 69 N. W. 101 ; Home F. Ins. Co. v. Duteher, 48 Nebr. 755, 67 N. W. 766. In Tennessee it has been held that an order appointing a receiver is not such an inter- locutory order or decree as can be superseded. Roberson v. Roberson, 3 Lea (Tenn.) 50; Baird v. Cumberland, etc., Turnpike Co., 1 Lea (Tenn.) 394; Bramley v. Tyree, 1 Lea (Tenn.) 531. Compare Cone v. Paute, 12 Heisk. (Tenn.) 506. 77. California. — Ewing v. Jacobs, 49 Cal. 72. Maryland. — Beatty v. Chapline, 2 Harr. & J. (Md.) 7; Slusser v. Chapline, 4 Harr. & M. (Md.) 221. Michigan. — Peterson v. Wayne Cir. Judge, 108 Mich. 608, 66 N. W. 487. Minnesota. — Robertson v. Davidson, 14 Minn. 554 ; Hastings First Nat. Bank v. Rog- ers, 13 Minn. 407, 97 Am. Dec. 239. New York.— Matter of Berry, 26 Barb. (N. Y.) 55; Cook v. Dickerson, 1 Duer (N. Y.) 679; Smith r. Allen, 2 E. D. Smith (N. Y.) 259; Strieker v. Wakeman, 13 Abb. Pr. (N. Y.) 85; Rathbone v. Morris, 9 Abb. Pr. (N. Y.) 213; Blunt v. Greenwood, 1 Cow. (N. Y.) 15; Kinnie v. Whitford, 17 Johns. (N. Y.) 34; Burr v. Burr, 10 Paige (N. Y.) 166. Com- pare Delafield v. Sandford, 3 Hill (N. Y.) 473. Ohio. — Bassett v. Daniels, 10 Ohio St. 617 ; Arnold v. Fuller, 1 Ohio 458. Wisconsin. — Tilley v. Washburn, 91 Wis. 105, 64 N. W. 312. United States. — Boyle v. Zaeharie, 6 Pet. (U. S.) 648, 8 L. ed. 532. Canada.— Gilmour ». Hall, 10 U. C. Q. B. 508. ' A supersedeas has no retroactive operation so as to deprive the judgment of its force and authority from the beginning, but only sus- pends them after and while it is itself effec- tual. Runyon v. Bennett, 4 Dana (Ky.) 598, 29 Am. Dec. 431. 78. Livingstone v. New York El. R. Co., 21 N. Y. Civ. Proc. 210, 15 N. Y. Suppl. 191, 39 N. Y. St. 535 ; Bentley v. Jones, 8 Oreg. 47. 79. Strieker v. Wakeman, 13 Abb. Pr. (N. Y.) 85; Burr v. Burr, 10 Paige (N. Y.) 166; Tilley v. Washburn, 91 Wis. 105, 64 N. W. 312. 80. Return of property. — In some states the practice obtains, on a supersedeas after levy, to return, as of course, the property to defendant. Kentucky. — Keith v. Wilson, 3 Mete. (Ky.) 201; Eldridge v. Chambers, 8 B. Mon. (Ky.) 411. Mississippi. — Walker v. McDowell, 4 Sm. & M. (Miss.) 118, 43 Am. Dec. 476. North Carolina. — Hamilton v. Henry, 27 N. C. 218. Tennessee. — Conway v. Jett, 3 Yerg. (Tenn.) 481, 24 Am. Dec. 590. Virginia. — Rucker v. Harrison, 6 Munf. (Va.)' 181. Wisconsin. — Ela v. Welch, 9 Wis. 395. 81. Bassett v. Daniels, 10 Ohio St. 617. 82. Florida,. — Continental Nat. Bldg., etc., Assoc, v. Scott, 41 Fla. 421, 26 So. 726; State v. Johnson, 13 Fla. 33. Iowa. — Lindsay v. Clayton Dist. Ct., 75 Iowa 509. 39 N. W. 817. Kentucky. — Smith v. Caldwell, Ky. Dec. 341. Virginia. — McLaughlin v. Janney, 6 Gratt. (Va.) 609. West Virginia. — State *. Harper's Ferry, Bridge Co., 16 W. Va. 864. United States. — In re McKenzie, 180 U. S. 536, 21 S. Ct. 468, 45 L. ed. 468. See, generally, Contempt ; and 2 Cent. Dig. tit. "Appeal and Error," § 2281. See also Deming Invest. Co. v. Fanss, (Okla. 1897) 50 Pac. 130, wherein it was held that the only way by which a supersedeas may be set aside is by direct attack. It can- not be ignored or execution issued so long as it remains on record. And see Balkum v. Harper, 50 Ala. 372, wherein it was held that where an execution on a judgment at law has been enjoined, and the injunction, though dissolved by the chancellor, has been restored pending an appeal from his decree, the issue of another execution before the appeal_ has been determined is a violation of the injunc- tion and punishable as a contempt of the chancery court. Advice of counsel.— It is no answer to a proceeding, as for a contempt for the breach of a supersedeas order, that the breach was committed under the advice of counsel. Con- Vol. II 916 APPEAL AND ERROR ceeding has been held to be punishable by the appellate court and not by the trial court. 83 L. Effect of Failure to Obtain Supersedeas or Stay. A failure to super- sede a judgment, or to stay process upon it, in no way affects the right of plaintiff in error to a review of the proceedings which resulted in it. 84 M. Counter Bond for Restitution. In some states, by statute, a judgment for plaintiff in an action on a contract for the payment of money may be enforced by execution, though an appeal therefrom is pending wherein a supersedeas bond was filed, if defendant in error gives security to make restitution in case the judg- ment is reversed. 85 IX. LIABILITY ON APPEAL BONDS. 86 A. Validity of the Bond — 1. Defective Instrument — a. The Execution — (i) Generally '--(a) The Signing. One cannot be charged with liability upon an appeal bond which he does not execute. 87 Therefore, an appellant who fails tinental Nat. Bldg., etc., Assoc, v. Scott, 41 Fla. 421. 26 So. 726; State v. Harper's Ferry Bridge Co., 16 W. Va. 864. 83. Continental Nat. Bldg., etc., Assoc, r. Scott, 41 Fla. 421, 26 So. 726; State f. Har- per's Ferry Bridge Co., 16 W. Va. 864, wherein it was held that where there is a dissolution of an injunction, and an appeal and supersedeas, contempt proceedings for a violation of the supersedeas must be had in the appellate court. But see State v. Har- ness, 42 W. Va. 414, 26 S. E. 270, wherein it was held that where the order of the lower court does not dissolve, but refuses to dis- solve, an injunction, and an appeal and su- persedeas is taken, proceedings for a violation of the injunction must be had in the trial court. See also Russell v. Kinney, 10 Paige (N. Y.) 315, wherein it was held that, if a decree is appealed from and security given to make the appeal » stay of proceedings, and the party in whose favor the decision was made proceeds upon the decree notwithstand- ing the appeal, an application to set aside his proceedings for irregularity should be made to the vice-chancellor, and not to the chancellor. An appeal will not be dismissed on the ground that the appellant has violated a stipulation by which he obtained a stay of proceedings pending the appeal. Baker r. Stephens. 10 Abb. Pr. N. S. (N. Y.) 1. An execution issued in the court below, after a writ of error has been sued out and bond given, may be quashed, either in the court below, or in the appellate court. Stock- ton v. Bishop, 2 How. (TJ. S.) 74, 11 L. ed. 184. So a sale under such an execution may be set aside. Loomis v. McKenzie, 57 Iowa 77, 8 N. W. 779, 10 N. W. 298. The execution is irregular, but not void. Shirk r. Metropo- lis, etc., Gravel Road Co., 110 111. 661 ; Briggs v. Shea, 48 Minn. 218, 50 N. W. 1037; Bow- man r. Tallman, 28 How. Pr. (N. Y.) 482. 84. Creighton r. Keith, 50 Nebr. 810, 70 N. W. 406 ; State v. Ramsey, 50 Nebr. 166, 69 N. W. 758 ; Parker v. Courtnay, 28 Nebr. 605, 44 N. W. 863, 26 Am. St. Rep. 360 ; McAus- land r, Pundt, 1 Nebr. 211, 93 Am. Dec. 358; Logan r. Goodwin, 104 Fed. 490. Vol. II 85. American Cent. Ins. Co. v. Cox, 54 Kan. 502, 38 Pac. 558 ; Commercial Union Assur. Co. v. Norwood, 54 Kan. 500, 38 Pac. 557; Bentley v. Brown, 37 Kan. 17, 14 Pac. 435; Grant v. Dabney, 19 Kan. 390; Bodewig v. Standard Cattle Co., 56 Nebr. 217, 76 N. W. 580; Ah Lep v. Gong Choy, 13 Oreg. 429, 11 Pac. 72. See 2 Cent. Dig. tit. "Appeal and Error," § 2280. Implied contract. — A judgment on an im- plied as well as on an express contract for the payment of money is within the meaning of the statute, and may be thus enforced. St. Louis, etc., R. Co. v. Kirkpatrick, 52 Kan. 201, 34 Pac. 804; Water-Power Co. v. Brown, 23 Kan. 695. In Ohio, it has been held that a motion for leave to issue execution, notwithstanding a petition in error and a supersedeas obtained, is addressed to the judicial discretion of the court or judge. The motion must be in writing, accompanied with a copy of the rec- ord, the undertaking proposed to be given, and proof that a written notice of the motion, and of the time and place of its hearing, has been served on plaintiff in error. Gardner v. Cline, 2 Ohio Dec. 301. The motion will be granted where the amount of the judgment is plainly divisible, and the error applies to one part only, provided the moving party agree9 to stay execution as to that part in dispute. Valley Bank v. West, 2 Handy (Ohio) 60. See also Going r. Schnell, 5 Cine. L. Bui. 423. 86. See infra, IX, A-D; and 3 Cent. Dig. tit. " Appeal and Error," § 4724 et seq. 87. Proof of execution. — In order to au- thorize a summary judgment against a surety, upon affirmance of the appealed judgment, the fact that the surety signed the appeal bond must appear in the record. It is not enough that the fact is stated in the bill of exceptions. Hydraulic Press-Brick Co. v. Zeppenfeld, 9 Mo. App. 595. Secondary evidence of signature. — In case of the loss of an appeal bond, the signature of an obligor may be proved by secondary evi- dence, either written or oral. Cincinnati Ins. Co. v. Harrison, 25 La. Ann. 1. APPEAL AND ERROR 917 to sign his appeal bond cannot be bound thereby, although it be binding on his sureties, who do sign. 88 ° (b) The Delivery/ 9 Delivery of an appeal bond is a necessary part of the contract ; so, where it appears that there was no delivery, there is no bond and no liability^ Statutes usually provide for the filing of appeal bonds with certain omcers, and in such case tiling constitutes delivery. 91 (c) Alterations. Material alterations of the terms of a bond, enlarging the °!n5 a £?. n8 °t the ob % ors without their consent, will discharge the latter from all liability thereunder. 93 Execution is admitted by failure to deny execution after it has been properly alleged. Robert v. Good, 36 N. Y. 408. An immaterial variance. — A suit against an obligor under the name of " Barnabas," upon an appeal bond signed " Barney," was upheld notwithstanding the variance, it being admitted that the latter name was a nick- name of the former. McGregor v. Balch, 17 Vt. 562. Admissible without proof of execution. — Where a plea of non est factum is interposed but not verified, the appeal bond is admissi- ble in evidence without preliminary proof of execution. Anderson v. Sloan, 1 Colo. 484. Failure of plea of non est factum. — The plea of non est factum puts in issue only the execution, and, upon failure of such plea, other defenses cannot be urged. Sugden v. Beasley, 9 111. App. 71; Commercial Bank v. Harrison, 24 La. Ann. 361. Evasive plea. — Where the allegation was that the appeal bond was signed by " T. G. Anderson, Edwin Scudder, and A. C. Hunt," a verification to a plea of non est factum, signed " Thomas G. Anderson, Edwin Scud- der, and A. C. Hunt," and averring that de- fendants did not make their said supposed writing obligatory, was held insufficient and properly stricken out on motion as evasive. Anderson v, Sloan, 1 Colo. 484. Execution on Sunday. — The fact that an appeal bond is executed on Sunday does not invalidate it, where it is later delivered by filing with the clerk on a week-day. Babcock v. Carter, 117 Ala. 575, 23 So. 487, 67 Am. St. Bep. 193. Signing a printed form with blanks is nevertheless a good execution, unless it ap- pears that blanks were material and were afterward filled out, and that the person fill- ing them did so without authority from the signer. Franklin Bank v. Bartlet, Wright (Ohio) 741. Issue of fact as to execution. — See Waite v. Ward, 93 Ala. 271, 9 So. 227. Names of sureties need not be in body of instrument. — Dore v. Covey, 13 Cal. 502; Hyatt p. Washington, 20 Ind. App. 148, 50 ST. E. 402; Scott v. Whipple, 5 Me. 336; Ex p. Fulton, 7 Cow. (N. Y.) 484. 88. Appellant who does not sign not bound, though sureties bound (Gleason's Estate, 8 Pa. Dist. 46 ) , notwithstanding a statute that no appeal bond shall be invalid " for want of form or substance " ( Supreme Coun- cil, etc., r. Boyle, 15 Ind. App. 342, 42 N. E. 827, 44 N. E. 56. Firm-name of principal obligor regarded as surplusage.— In the case of an appeal from a judgment against a firm where one member signed the firm-name and also his own, the firm-name was disregarded as sur- plusage, the individual member was held as bound, and the sureties liable for any judg- ment rendered against him. Anderson v. Ar- nette, 30 La. Ann. 72. 89. See 3 Cent. Dig. tit. " Appeal and Er- ror," § 4733 et seq. 90. No bond without delivery. — Riegel v. Fields, (Kan. App. 1900) 59 Pae. 1088; Howard v. Hess, 63 Mich. 725, 30 N. W 333. Production on trial of an appeal bond is prima facie evidence of its delivery. Byers v. Gilmore, 10 Colo. App. 79, 50 Pac. 370. Revocation after delivery. — At any time before final delivery the execution of a bond may be revoked by sufficient notice of that intention to the officer with whom the bond is afterward filed; and where the notice of revocation reaches the officer whose duty it is to receive and approve the bond, before the latter is received by him, there is no valid delivery. But it is otherwise if the notice is not received until after the bond is re- ceived and approved, although the notice had previously been communicated to the princi- pal. Covert •». Shirk, 58 Ind. 264. After delivery and before approval — In- sufficient answer. — Where an answer to a suit on an appeal bond alleged that, on the same day of the delivery of the bond to the clerk and before approval by him, a notifica- tion of withdrawal of the execution was given the clerk by the sureties, the answer was held bad on demurrer for want of facts, it/ appearing that the court had, and on mo- tion of appellants, subsequently, bv formal order, approved the bond. Irwin v. Crook, 11 Colo. App. 172, 52 Pac. 683. 91. Filing constitutes delivery. — Babcock v. Carter, 117 Ala. 575, 23 So. 487, 67 Am. St. Bep. 193; Holmes v. Ohm, 23 Cal. 268; Dore v. Covey, 13 Cal. 502; Riegel v. Fields, (Kan. App. 1900) 59 Pac. 1088. 92. Anselm v. Groby, 62 Mo. App. 421. See, generally, Alterations of Instru- ments. Evidence of alteration and consent thereto. — Where a bond was shown to have been ma- terially altered in a manner fatal to the va- lidity of such bond unless the alterations were made with the consent of the sureties, it was held reversible error to exclude evi- dence that the alterations were made in the Vol. II 918 APPEAL AND ERROR (n) Incapacity of Obligor. Where, by statute, certain persons are wholly incapacitated from becoming sureties on appeal bonds, one of such persons can- not, in the face of the statute, assume any liability by executing a bond as such surety. 93 (in) Conditional Executiox. The conditional execution of a bond is incomplete and amounts to no execution at all until the condition is fulfilled, nnless the circumstances of the case be such that it may be said that no valid con- dition exists, as where the obligee has no knowledge of the condition, 94 and is not put on inquiry about it by facts appearing on the face of the bond. 95 (iv) Mistake or Fraud ix Execution. Mistake or fraud in the execution handwriting of the approving judge, with the knowledge of, and without objection from, the sureties. Brand v. Johnrowe, 60 Mich. 210, 26 N. W. 883. Addition of another surety. — Where a bond as executed was rejected as insufficient, and, with the knowledge of, and without ob- jection from, the surety, the bond was taken and executed by another surety, and thus ap- proved, the first signer was held not dis- charged. Tiernan r. Fenimore, 17 Ohio 545. Subsequent interlineation of the date of an order denying a new trial, in a bond given on appeal from such order as well as from the judgment entered, was held fatal to the obligation of the bond where, without the alteration, the bond was partially insufficient. Clarke v. Mohr, 125 Cal. 540, 58 Pac. 176. Filling blanks, by the principal, in a bond executed in blank by the surety, the bond as filled out creating a greater obligation than that agreed on with such surety, will not, if the obligee has no notice of the fraud, prevent liability according to the terms of the bond after the blanks are filled. Chalaron r. McFarlane, 9 La. 227. 93. Absolute disability — Married woman. — Cruger i\ McCracken, 87 Tex. 584, 30 S. W. 537, where it was held that, after en- try of summary judgment, against a married woman as surety, whose marriage did not appear of record, the court would entertain a motion to vacate. Disability not absolute — Attorneys at law. — Ullery v. Kokott, (Colo. App. 1900) 61 Pac. 189; Short r. Rudolph, 1 Pittsb. (Pa.) 50; McKellar v. Peck, 39 Tex. 381. Non-residents. — Dore v. Covey, 13 Cal. 502. Corporations — Ultra vires — Estoppel. — "The general rule is that a corporation can do only those acts which are within the scope of its charter, and if the signing of the bond in question, as surety, was an act not orisrinallv within the express or neces- sarily implied powers of the corporation it is void, and no subsequent act could make it valid, by way of estoppel. . . . Prima facie, the signing, by the company, of an appeal bond in such a suit was an act beyond the purpose for which it was organized, and con- sequently illegal. If it had been shown that it was executed clearly for the purpose of promoting or protecting its own business ... it would have been within the scope of the corporate power." Per Wilkin, J., in Vol. II Beat Brewing Co. v. Klassen, 185 111. 37, 39, 57 X E. 20, 76 Am. St. Bep. 26, 50 L. R. A. 765. 94. No valid condition without knowledge of obligee.— Wilson i. King, 59 Ark. 32, 26 S. W. 18, 23 L. R. A. 802; Allen v. Marney, 65 Ind. 398, 32 Am. Rep. 73; Ney v. Orr, 2 Mont. 559; Grimwood r. Wilson, 31 Hun (N Y.) 215, 66 How. Pr. (N. Y.) 283.. 95. In a bond regular on its face, though purporting to be signed and delivered on con- dition that it be executed by others, there ia nothing to put the obligee upon inquiry about the manner of its execution, and, if obligee have no actual knowledge of the condition, the signers will be liable. Tidball v. Halley, 48 Cal. 610; Webb v. Baird, 27 Ind. 368, 89 Am. Dec. 507 ; Deardorff v. Foresman, 24 Ind. 481; Nash r. Fugate, 24 Gratt. (Va.) 202, 18 Am. Rep. 640; Dair r. U. S., 16 Wall. (TJ. S.) 1, 21 L. ed. 491. Erasure of name before delivery has been held not to affect this rule ; and in the same case it was also held that the officer accept- ing and approving such bond is, for that pur- pose, agent of the obligee. Allen p. Marney, 65 Ind. 398, 32 Am. Rep. 73. Obligee, it has been held, is put on inquiry by an insufficient conditional execution of the bond (Grimwood v. Wilson, 31 Hun (N. Y.) 215, 66 How. Pr. (N. Y.) 283), or by the fact that the principal (Ney v. Orr, 2 Mont. 559), or one named as co- obligor, did not sign the bond (Allen v. Mar- ney, 65 Ind. 398. 32 Am. Rep. 73; Davis v. Brvant, 23 Ind. App. 376, 55 N. E. 261). It is no ground for demurrer to a complaint in an action on a bond that it contains the name of an obligor not signing, because such fact is not an invalidity and no defense in itself, but only a fact to charge the obligee with notice of a conditional execution; and such conditional execution not appearing in the allegations of the complaint must be pleaded as a defense. Davis r. Brvant. 23 Ind. App. 376. 55 N. E. 261 : Supreme Council, etc. r. Boyle. 15 Ind. App. 342. 44 N. E. 56; Hentig' r. Collins, 1 Kan. App. 173, 41 Pac. 1057; Harrison r. State Bank, 3 J. J. Marsh. (Kv.) 375; Gleeson's Estate, 192 Pa. St. 279, 44 Wkly. Notes Cas. (Pa.) 321, 43 Atl. 1032, 73 Am. St. Rep. 808. So the signing by one only of two appellants is no defense. Railsback v. GreVe. 58 Ind. 72; Gleeson's Estate, 8 Pa. Dist. 46. The burden of proving conditional execu- APPEAL AND ERROR 919 of a bond, whereby the obligors execute a bond different from the one intended, is available as a defense only in case the obligee was a party to the fraud or mistake. 96 . b. Omissions and Irregularities — (i) In Terms of Bond — (a) Necessary Elements Omitted. An omission from the terms of a bond of a substantial element thereof, whereby evidence dehors the record is required to lend cer- tainty to its terms, deprives the bond of all validity, and such instrument imposes no liability ; 97 as where a wrong appellee is named, 98 an avoiding clause omitted, 99 the appellant not made a party to the bond, 1 or where the bond does not show in whose favor the judgment appealed from was rendered. 2 (b) Inconsequential Defects. Where the intention can be gathered from the terms of the bond and the record without the aid of extrinsic evidence, minor omissions and irregularities may be disregarded and the bond upheld ; as where the obligation of the bond is absolute to pay the judgment ; 8 the appellant's name is omitted from the bond ; 4 the bond bears a date antecedent to its execu- tion ; 5 where there is an error in the description of the judgment appealed from ; tion, in defense to an action on an appeal bond, is on the obligor alleging it. Glee- son's Estate, 8 Pa. Dist. 46. 96. Mistake must be mutual. — In a case of a judgment and order of attachment, both being appealed from, where appellant in- tended to supersede only the order of attach- ment, but the clerk, by mistake, made the bond so as to also supersede the judgment, this additional obligation to pay the judg- ment after affirmance was enforced, the ap- pellee having had no knowledge of the mis- take. Gaines v. Griffith, 13 Ky. L. Rep. 263. Mutuality is a question of fact. — Burnett v. Nicholson, 86 N. C. 728. Misinformation by officer — Stay not in- tended. — Where one signs a bond condi- tioned for the satisfaction of a judgment, which bond is necessary to secure a stay pend- ing an appeal, and the stay is effected, the fact that the officer taking the bond informed the signer that it was security only for costs, without a stay, will not constitute a. defense in the absence of knowledge of the mistake on the part of appellee. McMinn v. Patton, 92 N. C. 371. Partial stay intended. — That the obligors intended only a partial stay of execution will not avail them where the bond, by its terms, applies to the whole judgment, and the obligee is not responsible for the mistake. Brown p. Brown, 17 Ky. L. Rep. 1143, 33 S. W. 830. Different bond. — Where a surety executed a proper bond he was held liable, though he thought he was executing a different bond, owing to a mistake of the clerk taking it. Watson v. Johnson, 13 Ky. L. Rep. 336. 97. Defects cured by statute. — Where a bond is made in view of a statute in exist- ence at the time, so that it may be said that the statute is a part of the bond, and the statute purports to supply defects " of form, or substance, or recital, or condition," such defects as might otherwise be fatal or limit liability have been held to be cured. Stults v. Zahn, 117 Ind. 207 "0 N. E. 154; Opp v. Ten Evek, 99 Ind. U5; Bitting r. Ten Eyck, 85 Ind. 357; Smock v. Harrison, 74 Ind. 348; Broden v. Thorpe Block Sav., etc., Assoc, 20 Ind. App. 684, 50 N. E. 403. 98. A mistake in the name of appellee of such a nature that no record could be pro- duced showing a judgment rendered in favor of the appellee named, has been held to pre- vent a recovery on the bond. Block v. Blum, 33 111. App. 643. 99. Omission of avoiding clause. — Where a bond omitted to state that if the appellant performed the judgment of the appellate court the obligation was to be void, it was held that there could be no recovery thereon. Waller v. Pittman, 1 N. C. 237. 1. A bond by one other than the appellant has been held void as against public policy. Reid v. Quigley, 16 Ohio 445. 2. Brown v. McLaughlin, 8 Humphr. (Tenn.) 140. 3. An absolute condition to pay the judg- ment, considered in connection with the other language used, the record, the situation of the parties, and surrounding circumstances, was held alternative and conditioned to prose- cute the appeal in Field v. Schricher, 19 Iowa 119. See also Hawes v. Sternheim, 57 III. App. 126, where it was claimed that the con- dition was absolute, but the language was construed to mean that the obligors would be liable only in the event of affirmance or dismissal. To the same effect, the language differing only in punctuation, see Daggitt v. Mensch, 141 111. 395, 31 N. E. 153 [affirming 41 111. App. 403]. 4. Appellant's name omitted from the bond has been held to be curable by proper aver- ment and proof of identification. Wile v. Koch, 54 Ohio St. 608, 44 N. E. 236. 5. Date antecedent to execution.— An ap- peal bond dated August 13th, but reciting proceedings as having occurred in court on August 16th, and filed on September 1st, has been held good, the date of the bond bemg disregarded, because the bond took effect only from the date of its filing. Pray v. Wasdell, 146 Mass. 324, 16 N. E. 266. 6. A mistake in describing the judgment .appealed from, by inserting a wrong date of its rendition, is of no consequence if the Vol. II 920 APPEAL AND ERROR an omission to cite the name of the court to which the appeal is taken, 7 or the names of sureties, 8 or appellant ; 9 making one only of several joint appellees obligee in the bond ; 10 failing to state a maximum penalty ; u and, generally, all incorrect recitals which arc unnecessary, 12 and recitals of facts not substantially inaccurate. 18 (n) In Performance of Requirements — (a) Mandatory Provisions. The omission to perform such requirements in regard to the making of appeal bonds as are mandatory — that is, which relate to the jurisdiction of the court — cannot be waived, and because of their non-fulfilment the bond is void, no valid or legal result can be secured by it, and it imposes no liability. 14 Such has been held to be the case in respect to the taking and approval of bonds by one not authorized, 15 at a prohibited time, as in vacation, 16 or after the time limited for judgment is otherwise described sufficiently for identification. Handy v. Burrton Land, etc., Co., 59 Kan. 395, 53 Pac. 67 ; Blanchard v. Gloyd, 7 Rob. (La.) 542. The same is true where the date of its rendition is left blank. Bills v. Stanton, 69 111. 51. So, also, where the judgment was stated to be against the appellant in his personal, instead of offi- cial, capacity. Sturgis v. Rogers, 26 Ind. 1. Also where the judgment was for " interest and attorneys' fees," and the bond recited " interest and costs." Landa v. Heermann, 85 Tex. 1, 19 S. W. 885. 7. Omitting to state name of appellate court has been held not a substantial omis- sion, because " said judgment could be af- firmed only by the supreme court, and hence said undertaking was certain enough in this respect." Stillings v. Porter, 22 Kan. 17, 19. 8. Names of sureties omitted from bond does not invalidate it, provided it be duly executed. Cooke v. Crawford, 1 Tex. 9, 46 Am. Dee. 93. 9. Name of appellant omitted. — Where a bond was given by one to stay execution of a judgment against another not a party to the bond, this was held a sufficient considera- tion, conceding that such a bond would not be a compliance with the statute. Martin v. Davis, 2 Colo. 313. But see Reid v. Quigley, 16 Ohio 445. 10. One only of several joint appellees named as obligee. — : Lynch v. Lynch, 150 Pa. St. 336, 24 Atl. 625; Shroyer v. Simons, 14 Ind. App. 631, 43 N. E. 275, 276, in which last case it is said : " By virtue of the ap- peal, Shroyer held the possession of the farm, and the appellees were deprived of the use and rental of said property during the year 1893. Under the circumstances disclosed in the complaint, the defect in the bond growing out of the omission of the name of Dorinda J. Simons therein will be regarded as cured." 11. Maximum penalty need not be stated where the obligation otherwise required by statute is sufficiently expressed (Wile v. Koch, 54 Ohio St. 608, 44 N. E. 236 ; Johnson v. Noonan, 16 Wis. 687), and where a blank was left for that purpose it was presumed to have been left in order to ascertain the amount by calculation (Stille v. Beauchamp, 13 La. Ann. 604). 12. An incorrect recital of the time of re- turn of writ of error may be disregarded in determining the validity of the bond, it being Vol. II held that such recital is unnecessary. Riggs v. State Bank, 11 Ala. 160. 13. Recitals held not substantially inac- curate have no effect upon the obligation of the bond, as where a recognizance upon " bill of exceptions " recited that the excepting party had " appealed " and bound himself to prosecute the " appeal." Merrick v. Farwell, 33 Me. 253. Also where, through a clerical error, the amount of the judgment is stated as " twn " hundred instead of " two " hun- dred dollars. Ten Hopen v. Taylor, 103 Mich. 178, 61 N. W. 265. 14. Contrary view — Estoppel to deny non-compliance with mandatory provisions. — Though, because of non-compliance with some mandatory provision of the statute, a bond is insufficient to effect the purpose for which it was intended, wherefore it cannot be said that such purpose has been effected by it nor that there was any consideration for it, yet the doctrine of estoppel has here been held to apply to prevent a denial of such in- tended result where the result has been ef- fected through the forbearance of the obligee. Gille v. Emmons, 61 Kan. 217, 59 Pac. 338; Mix v. People, 86 111. 329 ; Courson tij Brown- ing, 78 111. 208. And, again, it has been held that the bond is good notwithstanding it is conceded that it could not and did not produce the intended result. Mitchell v. Thorp, 5 Wend. (N. Y.) 287. Omission supplied by statute. — Where a bond is made in view of a statute providing for the curing of any omission of a statutory requirement, such a bond has been held to embrace the provision by virtue of the stat- ute, if the omission be suggested in the com- plaint. Gavisk v. McKeever, 37 Ind. 484. 15. Bond taken or approved by one not authorized held void. — Ham v. Greve, 41 Ind. 531; Ingram v. Greenwade, 12 Ky. L. Rep. 942 ; Keen v. Whittington, 40 Md. 489 ; Gross v. Bouton, 9 Daly (N. Y.) 25. Contra, Irwin v. Crook, 17 Colo. 16, 28 Pac. 549: Buchanan ». Milligan. 125 Ind. 332, 25 N. E. 349; Smock v. Harrison, 74 Ind. 348; Jones v. Droneberger. 23 Ind. 74; Soooner r,. Best, 8 Ky. L. Rep. 185; Gopsill v. Decker, 67 Barb. (N. Y.) 211, 4 Hun (N. Y.) 625; Hooker v. Townsend, 66 How. Pr. (N. Y.) 349. 16. Bond taken in vacation held void. — Julian v. Rogers, 87 Mo. 229. APPEAL AND ERROR 921 that purpose ; " receiving and filing stay-bond without service of writ of error ; 18 condition made much less onerous than required ; 19 failing to execute a superse- deas bond in the clerk's office; 30 and failing to return the bond to the appellate court ; 21 or file it in the court below. 22 (b) Directory Provisions — (1) Capable of Being Waived. Provisions for the making of appeal bonds which are directory merely — that is, which are intended for the benefit of the obligee or beneficiary — may be waived by him, and, when so waived, non-compliance with such provisions will not avail the obligors as a defense in an action on such defective bond. 23 This has been held with respect to the following provisions : That the sureties justify; 24 that the residence and occupation of sureties be stated ; ^ that the penalty be in an ascertained amount, as double the amount of the judgment appealed from, 26 or as fixed by the 17. Bond given after time limited held void. — Mueller v. Kelly, 8 Colo. App. 527, 47 Pac. 72; Duckwall v. Rogers, 15 Ohio St. 544. Contra, Mitchell v. Thorp, 5 Wend. (N. Y.) 287. 18. Stay-bond filed without service of writ of error held void. — Howard v. Hess, 63 Mich. 725, 30 N. W. 333. But see Stillings v. Porter, 22 Kan. 17. 19. Less onerous bond than required by statute. — Where the statute required a con- dition to pay the judgment, damages, and costs, a bond for costs only was held to im- pose no liability, though the appeal had been perfected and decided. Orr v. McBryde, 7 N. C. 235. Contra, Van Deusen v. Hayward, 17 Wend. (N. Y.) 67. 20. Mills v. Conner, 1 Blackf. (Ind.) 5. Place of execution is a question of fact to be proved or disproved like any other fact, and need not appear on the bond or in the clerk's certificate. Woodburn v. Fleming, 1 Blackf. (Ind.) 4. 21. Patterson v. Goldsmith, 9 Gray (Mass.) 258; Tarbell v. Gray, 4 Gray (Mass.) 444. 22. Nul tiel record is not a proper plea to an action on an appeal bond, though the borid be required to be filed in the court below. Herrick v. Swartwout, 72 111. 340. 23. Directory provisions waived — Non- compliance no defense. — .Dore p. Covey, 13 Cal. 502, 509 (wherein the court said: " The respondent's argument that the undertaking shall not stay execution unless made in pre- cise conformity with the statutory rules, is answered by the authorities cited, which hold, in effect, that these provisions are intended for the benefit of the other party, and that he may waive them, just as if the statute declared that no judgment should be ren- dered without service of process; but the de- fendant might waive the process or service. This waiver was made by the plaintiff below. He considered the appeal as regularly made, made no motion to dismiss, issued no execu- tion, and suffered the undertaking to have the full effect of a regularly executed instru- ment"); Murdock v. Brooks, 38 Cal. 596, 602 (wherein it was said: "The provisions of the statute which require the residence and occupation of the sureties to be stated, the penalty of the undertaking to be double the amount of the judgment, and the affi- davit of the sureties that they are worth the amount specified in the undertaking over and above all their just debts and liabilities, ex- clusive of property exempt from execution, are directory, and a compliance therewith may be waived by the respondent, either ex- pressly or impliedly, by failing to take ad- vantage of their non-observance, and treating and accepting the undertaking as suffi- cient " ) ; Van Deusen v. Hayward, 17 Wend. (N. Y.) 67. Must allege either statutory bond or waiver. — In Ham v. Greve, 41 Ind. 531, 537, a case of a bond held void because not ap- proved according to law, the court said: " We are not required, in the present case, to decide to what extent defects may be waived by the obligee in an appeal bond, as the party who sues on such a bond must either show that it has been executed accord- ing to the statute, or that such defect has been either expressly or by implication waived." 24. Justification of sureties may be waived. — Murdock v. Brooks, 38 Cal. 596; Hill v. Burke, 62 N". Y. Ill: Gopsill v. Decker, 67 Barb. (N. Y.) 211, 4 Hun (N. Y.) 625; Gibbons v. Berhard, 3 Bosw. T. Y. Leg. Obs. 95. 46. Two bonds for same purpose — First bond void. — A bond, given to supersede an order appointing a receiver, on appeal there- from was found to be insufficient because of non-compliance with the statute, and the court permitted the obligors to remain in possession of the property pending the appeal upon the making of a second bond. In an action on the second bond it was held to be supported by a sufficient consideration, the first bond having been void. Lowe v. Riley, 57 Nebr. 252, 77 ST. W. 758. Partial consideration sufficient to support bond. — Where, at the time of the issuance of a supersedeas on appeal for the purpose of superseding a judgment of attachment, the attachment had been issued and returned and the return-day had passed, it was neverthe- less held that there was a consideration for the bond and the supersedeas not wholly in- effectual, in that, the judgment being still in force, the appellee's right to all the coercive final process in the power of the chancellor for its enforcement was ended pending the appeal. Rodman v. Moody, 14 Ky. L. Rep. 202. 47. Void bond not made valid by estoppel. — An unauthorized and ineffectual stay-bond, given for the purpose of staying the collection of a tax. on appeal from a decision that the tax was legal, was held void and without any liability, though the collection was actually prevented by the obligee's reliance thereon. Roberts v. Jenkins, 4 Ky. L. Rep. 648. No estoppel to plead want of consideration. — Matter of Kennedy, 129 Cal. 384, 389, 62 Pac. 64, wherein the court, by Temple, J., said : " When want of consideration is pleaded there is no estoppel, whatever the terms of the instrument may be, which can interfere with that defense. The idea of such estoppel comes down to us from the days of sealed instruments." Test: Could bond legally operate? — In Ham v. Greve, 41 Ind. 531, 535, where a stay- bond was held void because not legally ap- APPEAL AND ERROR 925 many cases, it has been held that recovery may be had on an appeal bond, other- wise void for want of consideration, because of estoppel to deny the considera- tion Where an appeal bond does not comply with the statute requiring it or the bond itself is not required by any statute, so that it cannot be sued on as a statutory obligation, it may be binding, according to its terms, as a common-law obligation, provided it be supported by a consideration aside from the statutory requirements, 49 and is not contrary to a mandatory statute, 50 nor prohibited by eration. ... In this case no consideration appears. The undertaking was only for ap- peal. It was given within the time required, but both parties after it had been given ne- glected to take further action in the case, until this suit was brought. The appeal never had any existence, and the parties to the judgment were left to enforce it as if no appeal had ever been attempted." Contract for stay. — In Duckwall v. Rogers, 15 Ohio St. 544, 546 [citing State v. Findley, 10 Ohio 51 ; Barret v. Reed, 2 Ohio 409 ; Croy v. State, Wright (Ohio) 135; U. S. v. Linn, 15 Pet. (U. S.) 290, 10 L. ed. 742; U. S. v. Bradley, 10 Pet. (U. S.) 343, 9 L. ed. 448], it was said: "Although the period had elapsed, within which a statutory stay of execution could be procured, the parties to the judgment were competent to secure the same thing in substance, by contract. Such a contract would be neither immoral nor il- legal, and might be a valid common-law con- tract, though not a good statutory under- taking." Agreement for stay to support insufficient bond. — In Carter v. Hodge, 150 N. Y. 532, 538, 44 N. E. 1101, it was said: "The under- taking cannot be enforced as a common-law contract. The plaintiff refused to regard it as effectual to stay proceedings. There is nothing from which a mutual agreement of the parties can be inferred that proceedings on the judgment should be stayed in consid- eration of the undertaking, or from which a request of forbearance acted upon by the plaintiff, can be implied." But in Goodwin v. Bunzl, 102 N. Y. 224, 6 N". E. 399 1 citing Cook v. Freudenthal, 80 1ST. Y. 202; Decker v. Judson, 16 N". Y. 439], under a slightly different state of facts a different conclusion was reached. See also Concordia Sav., etc., Assoc, v. Read, 124 N. Y. 189, 26 N. E. 347, 35 N. Y. St. 222. Bond without any consideration for a por- tion, void pro tanto. — In Post v. Doremus, 60 N. Y. 371, 377, it was held that a bond con- ditioned to do more than the statute required in order to take an appeal was as_ to such excessive portion without consideration. See also Carter v. Hodge. 6 Misc. (N. Y.) 575. 27 N. Y. Suppl. 219, 57 N. Y. St. 785: Slack v. Heath, 4 E. D. Smith (N. Y.) 95, 101. Consent of appellee to appeal after stat- utory limit is a sufficient consideration to support the appeal bond, it being held that the appeal, through such consent, is valid. Carroll v. McGee, 25 N. C. 16, where it is said: "No consent can give jurisdiction where the law withholds it: but consent may- enlarge the time within which a legal privi- lege can be exercised." 50. See supra, IX, A, 1, b, (rr), (a). Vol. II proved, the court said : " The question is not whether execution and other proceedings were, in fact, stayed on the judgment during the pendency of the appeal in this court, but was the bond legally operative as a superse- deas ? If it was, there was a valid considera- tion; if not, then the bond was without con- sideration and void." 48. See cases cited infra, note 49 et seq. 49. Separate consideration essential. — In Powers v. Chabot, 93 Cal. 266, 269, 28 Pac. 1070, where a bond to stay execution was held void because the usual appeal bond op- erated as a stay, the court said : " The un- dertaking was not given in pursuance of any agreement between the parties, but simply to secure a statutory privilege. It did not have that effect, and was therefore wholly without consideration and void, and could not be valid as a common-law undertaking." In O'Beirne v. Cary, 34 N. Y. App. Div. 328, 332, 54 N. Y. Suppl. 337, it is said : " It cannot be denied that an undertaking upon appeal has no force at common law, and that it cannot be en- forced unless it has been effectual to accom- plish the purpose intended, and that is to stay the proceedings upon the judgment ap- pealed from." Stipulation to file bond out of time. — In Mueller v. Kelly, 8 Colo. App. 527, 47 Pac. 72, 73, the court said : " The effect of an appeal bond is to stay proceedings upon the judg- ment until the appeal is disposed of. At the solicitation of Roth & Co., a stipulation was procured from the adverse party, per- mitting them to file their appeal bond after the time allowed had expired. In pursuance of the stipulation, the bond was filed and ap- proved. It must have been filed for the pur- pose of staying proceedings upon the judg- ment. It could have been filed for no other purpose. And the defendant, when he signed the bond as surety, is presumed to have known the object it was intended to accomplish. It seems to have efficiently served the purpose for which it was designed ; and, after the full benefit of the stipulation, and of the bond executed in pursuance of it, has been taken and appropriated, it is too late to question the validity of the bond." Failure to perfect appeal. — In Gimerling v. Hanes, 40 Ohio St. 114, 116, the court said: " Counsel for plaintiff in error refer to Duck- wall v. Rogers, 15 Ohio St. 544, and upon au- thority of that case submit that the defend- ants below are liable upon the undertaking for appeal as a common-law obligation. In that case the vindertaking was for the stay of execution, and while it was in the form of a statutory undertaking for stay of execu- tion, it was supported by a distinct consid- 926 APPEAL AND ERROR public policy. 51 However, in some cases, it is held that whenever the intended purpose of the bond has been effected by the obligee's reliance upon it, this is a sufficient consideration to support it as a common-law obligation, 58 as is also the procuring of a stay of proceedings, 53 and again, also, the necessity of the dis- posal of a void appeal. 54 b. Bond Not Required by Law — (i) Voluntarily Given. A bond given on appeal to effect a purpose which by law requires no bond is, though voluntary, without any consideration other than that which its recitals import or the forbear- ance of the obligee lends, and more often, though not always, has been held to afford no basis for a recovery. 55 So, a bond given in a penal sum greater than 51. Bond contrary to public policy.— An appeal bond by a stranger to the record, in Reid v. Quigley, 16 Ohio 445, 448, was held an absolute nullity, upon which a good decla- ration could not be framed though the cause was taken to the appellate court and there decided without objection, and a considera- tion was conceded, the court saying : " The bond cannot be valid as a common-law bond, admitting the consideration which the seal imparts. It carries on its face, evidence that it is against public policy, and nothing in the record relieves it from this apparent diffi- culty. We cannot sustain it, without sanc- tioning the doctrine that one man may officiously interfere with another man's busi- ness, and appeal his causes from an inferior to a superior tribunal." 52. Obligee's reliance on bond sufficient consideration. — Colorado. — Martin v. Davis, 2 Colo. 313. Illinois. — Mix v. People, 86 111. 329. Kansas. — Gille v. Emmons, 61 Kan. 217, 59 Pac. 338, where the reasons for this doc- trine are set forth. Michigan. — Ten Hopen v. Taylor, 103 Mich. 178, 61 N. W. 265 ; Healy v. STewton, 96 Mich. 228, 55 N. W. 666. New York. — Concordia Sav., etc., Assoc, v. Read, 124 N". Y. 189, 26 X. E. 347, 35 N. Y. St. 222; Goodwin v. Bunzl, 102 N. Y. 224, 6 N. E. 399. 53. Procuring stay of proceedings. — -Where an order staying proceedings was procured by a bond not sufficient for that purpose un- der the statute, it was nevertheless held that the stay was a good consideration for the bond. Hester v. Keith, 1 Ala. 316; Ryan v. Webb, 39 Hun (ST. Y.) 435. Insufficient stay-bond — Intention of par- ties. — In Coughran v. Sundback, 13 S. D. 115, 119, 82 N. W. 507, 79 Am. St. Rep. 886, the court, by Fuller, P. J., said : " The undis- puted evidence, admitted without objection, shows that , Coughran proposed to issue exe- cution before the undertaking under consid- eration was given, and was prevailed upon to forbear by repeated assurances that an ap- peal to this court would be taken, and a suf- ficient stay-bond furnished. Consequently no steps were taken to enforce the judgment prior to the giving of the undertaking, in which the sureties justified in the sum of two thousand dollars for the evident purpose of securing payment, upon default, of the amount found to be the value of the property, Vol. II together with costs and disbursements. That such was the import of the undertaking, and that a stay had been effected, was the view that governed all subsequent conduct, and no execution issued pending the appeal. By the employment of familiar rules for the con- struction of contracts, and their application to these circumstances appearing of record, the intention of the parties to provide an un- dertaking that would operate as valid secu- rity — as a stay of all proceedings — is clearly gatherable from the writing ; and par- ties having enjoyed the benefit of the stay contemplated ought to be held amenable, pro- vided the instrument is good as a common- law obligation, although the amount was not fixed by the court, nor the conditions in ac- cordance with the requirements of the stat- ute. When execution has been actually stayed by an undertaking treated as entirely regular, though insufficient to accomplish such purpose, and the departure from the state does not tend to defeat its object, the fact that nothing is done to enforce the judg- ment has generally been regarded a sufficient consideration for a common-law obligation, from which sureties cannot escape liability, and such is our conclusion." 54. Expense of disposing of void appeal a consideration. — In Matter of Kennedy, 129 Cal. 384, 385, 62 Pac. 64, it was said: "The dismissal, under such circumstances, did not operate as an affirmance of the judgment. . . . And, moreover, since the appeal was abso : lutely void, it did not deprive the lower court of jurisdiction, and no stay of proceedings was effected. . . . The fact that an appeal was not secured did not operate to render void the undertaking given as required by law to make the appeal effectual. The sure- ties on such an undertaking agree to be liable if the appeal be dismissed, and, since the re- spondent must be at some expense to have even a void appeal disposed of, there is a con- sideration for the undertaking." 55. Supersedeas where appeal bond su- persedes judgment. — Lyon v. Lancaster, 17 Ky. L. Rep. 1169, 33 S.'W. 838, asserting the rule prior to Kentucky act of March 24, 1888. A stay-bond where appeal bond operates as stay, is without consideration because it is unnecessary (Matter of Kennedy, 129 Cal. 384, 62 Pac. 64; Central Lumber, etc., Co. v. Center, 107 Cal. 193, 40 Pac. 334 ; Mc- Callion v. Hibernia Sav., etc., Soc, 98 Cal. 442, 33 Pac. 329 ; Barnes v. Buffalo Pitts Co., APPEAL AND ERROR 927 that required by the statute is without consideration as to such excess, and so far unenforceable. 56 And so, also, in the case of a bond conditioned to perforin some- thing in addition to the requirements of the statute ; 57 but not unless the exces- sive portion be severable from the other. 58 (n) Exacted as Condition of Appeal. Where the statute does not allow (Ida. 1899) 57 Pao. 267) ; even though relied on by the obligee to his prejudice (Powers v. Chabot, 93 Cal. 266, 28 Pae. 1070, this ease assigning the reasons upon which the rule is based ) . Appeal bond given where no bond required is ordinarily void (Halsey v. Flint, 15 Abb. Pr. (N. Y.) 367; Robert v. Donnell, 10 Abb. Pr. (N. Y. ) 454), as in cases of appeals by personal representatives exempted by statute from giving appeal bonds (Buttlar v. Davis, 52 Tex. 74; Battle v. Howard, 13 Tex. 345; Tucker v. Anderson, 25 Tex. Suppl. 155; and supra, VII, D, 1, c). But an executor, ap- pealing in his individual capacity, though in relation to property under his control as ex- ecutor, has no right to claim the exemption. Guest v. Guest, 48 Tex. 210. Where, though the executor was not permitted by statute to appeal without bond, it was conceded that the bond might have been dispensed with or lim- ited because the assets in his hands were less than the amount of the judgment, yet, after an unsuccessful appeal, the obligors have been held liable for the full amount of the judgment regardless of the amount of the assets. Le Blanc v. Massien, 27 La. Ann. 324; Schmucker v. Steidemann, 8 Mo. App. 302 ; Yates v. Burch, 87 N. Y. 409 ; Knapp v. Anderson, 71 N. Y. 466. Courts of chancery exercising powers over trustees may, independently of any statute, require a bond, on appeal from a judgment in relation to trust property, which will be valid and binding. Fullerton v. Miller, 22 Md. 1. But such power does not apply to an appeal by an executor, though he be in control of trust propertv. Com. v. Wistar, 142 Pa. St. 373, 21 Atl. 871. A bond conditioned to pay rent, where ap- pellant is entitled to possession, on_ appeal from a judgment in unlawful detainer, is void. This situation arose under a statute permitting the successful plaintiff to have possession of the property upon executing a bond to cover rent in case of reversal, and he afterward demanded and procured _ from appellant the bond held void. Hawkins v. Alexander, 91 Tenn. 359, 18 S. W. 882. A stay-bond, after time allowed within which it could operate as a stay under the statute, was held void, though the execution was actually stayed. Patrick v. Driskill, 7 Yerg. (Tenn.) 140. Contra, Schmucker V. .Steidemann, 8 Mo. App. 302; Hostler v. Smith, 5 N. C. 103. 56. Excessive bond void as to excess, but not in toto. — Bentle'y v. Dorcas, 11 Ohio St. 398; Powers v. Crane, 67 Cal. 65, 66, 7 Pac. 135, where the court, by Ross, J., said: " The pretended consideration therefore was a stay of execution of the decree appealed from. And if the law itself operated a stay upon the giving of the three hundred dollar bond, it would seem that the point is well taken. That the statute did so operate was held by this court in the case of Snow v. Holmes, 64 Cal. 232, 30 Pac. 806. As the statute itself wrought the stay, there was no consideration for the sureties' promise." 57. Unnecessary portion of condition void. — Alabama. — Sanders v. Rives, 3 Stew. (Ala.) 109. Illinois. — Tomlin v. Green, 39 111. 225. Mississippi. — Conger v. Robinson, 4 Sm. & M. (Miss.) 210. Tennessee. — Mason v. Metcalf, 4 Baxt. (Tenn.) 440; Hutchinson v. Fulghum, 4 Heisk. (Tenn.) 550; Banks v. McDowel, 1 Coldw. (Tenn.) 84; Patterson v. Gordon, 3 Tenn. Ch. 18. Texas. — Landa v. Heermann, 85 Tex. 1, 19 S. W. 885; Janes v. Langham, 29 Tex. 413. Vermont. — Court of Insolvency v. Meldon, 69 Vt. 510, 38 Atl. 167. Not necessary as to damages, so far in- valid. — In Post v. Doremus, 60 N. Y. 371 [distinguishing Thompson v. Blanchard, 3 N. Y. 335], the court held invalid for want of consideration that portion of an appeal hond conditioned to pay damages in addition to the statutory condition of paying costs. Partial consideration — Appeal without stay. — Where a bond is conditioned to satisfy the judgment and also to pay costs, and the former condition is without consideration be- cause insufficient to stay the execution on the judgment, but the latter is sufficient for the purposes of a simple appeal, the obligation for costs may be enforced though that to sat- isfy the judgment be held nugatory. Byrne v. Riddell, 4 La. Ann. 3; Halsey v. Flint, 15 Abb. Pr. ( N. Y. ) 367 ; Onderdonk v. Emmons, 9 Abb. Pr. (N. Y.) 187, 2 Hill (N. Y.) 504, 17 How. Pr. (N. Y.) 545. Recital of stay. — Where one part of a bond recited that the principal had obtained a writ of error, and the condition was to satisfy the judgment, " proceedings on which 1 are stayed," it was held that the bond was sufficient to sustain a judgment thereon for the amount of the affirmed judgment, upon the theory that it had been superseded by the appeal bond. State v. Dotts, 31 W. Va. 819, 8 S. E. 391. 58. Excessive portion must be severable, else the bond is wholly void. Com. v. Wistar, 142 Pa. St. 373, 21 Atl. 871, 872; Haines v. Levin, 51 Pa. St. 412 ; Court of Insolvency v. Meldon, 69 Vt. 510, 38 Atl. 167. Where by statute the obligor might have made a good bond conditional to pay the judgment or sur- render himself into custody, a bond was never- theless held valid wherein the condition was simply to pay the judgment on affirmance. Pevey v. Sleight, 1 Wend. (N. Y.) 518. Vol. II 928 APPEAL AND ERROR an appeal as of course upon the performance of certain requirements, but requires, also, an order of court as a preliminary to the granting of the order, the exaction of a more onerous condition than the law requires renders the bond void, 59 and where some portions only of the conditions exceed the statute the bond is nevertheless void in toto. 60 And some authorities hold that it is only in cases of exactions of this kind that an unnecessary bond is void, and that if the bond be voluntary it may be upheld. 61 e. No Appeal Prosecuted — (i) No Bight of Appeal — (a) Bond Void. Where no appeal can lawfully be taken in a given case, it would seem to be clear that a bond given for no other purpose than the taking of such an appeal is wholly without consideration, and therefore void ; and it is so held by the best authorities. 62 59. More onerous terms than statute re- quires avoids bond. Com. v. Wistar, 142 Pa. St. 373, 21 Atl. 871, 872. Bonds of fiduciaries. — -Fiduciaries are di- rectly under the supervision of certain courts, and the exaction of a condition of appeal not required by statute, for the purpose of pro- tecting the trust property, has been held a valid exercise of power, not invalidating the bond. Haines v. Levin, 51 Pa. St. 412; Com. v. Judges, 10 Pa. St. 37; Chew's Appeal, 9 Watts & S. (Pa.) 151. 60. Bond void in toto, though only a por- tion unauthorized, where the bond as a whole was exacted as a condition precedent to the allowance of an appeal. Newcomb v. Wor- ster, 7 Allen (Mass.) 198; Harrington v. Brown, 7 Pick. (Mass.) 232; Dennison v. Mason, 36 Me. 431. To the same effect see Jordan v. McKenney, 45 Me. 306 ; French v. Snell, 37 Me. 100; Com. v. Wistar, 142 Pa. St. 373, 21 Atl. 871, 872. 61. Schmucker v. Steideman, 8 Mo. App. 302. 62. Ashley v. Brasil, 1 Ark. 144 ; Memmler v. Roberts, 81 Ga. 351, 8 S. E. 525; Henry v. Great Northern R. Co., 16 Wash. 417, 47 Pac. 895. In Ward r. Syme, 8 N. Y. Leg. Obs. 95, 100, Ulshoeffer, J., concurring, said: " Where a proceeding is void from the be- ginning, no steps can be founded upon it or taken afterward. The plaintiff in error was only acting in that assumed character, and was not such plaintiff in fact, and could not prosecute this writ, nor do anything with or upon it. The defendant in error was not such defendant in fact, as there was no valid process in error. The judge had no authority in the premises, because he had no jurisdic- tion, and the supposed writ of error was a nullity — not voidable, but void.' A bond given without consideration, upon a mistaken step in a, court having no jurisdiction of the subject-matter, is void, and cannot be treated as valid by either party, and the total want of consideration and jurisdiction may be shown by the obligors in defense to the ac- tion. I think that the weight of authority and principle sustains Judge Daly's opinion." Appeal from interlocutory order — Dis- cretionary jurisdiction. — In a case of a bond given upon an appeal from an interlocutory order, it was held that if the appellate court could not have taken jurisdiction of the ap- Vol. II peal, the bond would have been void; but, in- asmuch as the assumption of jurisdiction was discretionary with the appellate court, and that court had in fact assumed jurisdiction of the appeal, the bond was valid. Fulton v. Fletcher, 12 App. Cas. (D. C.) 1. Appealable order. — An assignor having appealed from a judgment confirming a sale of land, the court, upon application of the as- signee for advice, ordered him to rent the land for one year, from which order the assignor also appealed, superseding the order with the usual appeal bond. The judgment of confirmation was reversed, and the appeal from the order was dismissed for failure to prosecute. In an action on the bond given on appeal from the order, the order was held to be valid and appealable, and the dismissal a breach upon which the jury were warranted in returning damages for the rental value during the term of the order. Vanmeter v. Parker, 19 Ky. L. Rep. 1229, 43 S. W. 200. Order not appealable. — An appeal from an order refusing to vacate the dismissal of an appeal from a justice court was dismissed be- cause the order was not appealable. In an action on the appeal bond conditioned for the satisfaction of the judgment, if affirmed, it was held that there was no liability be- cause the dismissal of the appeal did not af- firm the judgment of the justice. Travelers' Ins. Co. r. Weber, 4 N. D. 135, 59 - N. W. 529. Mere findings of fact, without judgment thereon, have been held to afford no basis for an appeal, and such appeal no consideration for an appeal bond, in Brounty v. Daniels, 23 Nebr. 162, 36 N. W. 463, where the pre- vious case of Gudtner r. Kilpatrick, 14 Nebr. 347, 15 N. W. 708, which sustained an appeal bond where no right of appeal existed, and the case of Adams r. Thompson, 18 Nebr. 541, 26 N. W. 316, which sustained an appeal bond though no appeal had been taken, were distinguished. Appeal from an Indian Territory court to the circuit court for the district of Kansas, not being authorized by law, was held to in- validate an appeal bond given for that pur- pose, although the appellee forbore to issue execution pending the appeal, the judge say- ing : " The plaintiffs in the case in the terri- torial court could have sued out an execu- tion." Steele v. Crider, 61 Fed. 484, 486. APPEAL AND ERROR 929 +1, **1 B ^J alld ~ Est ojppel. It has, however, in many instances, been held that the fact that no legal right of appeal existed did not prevent a recovery on a bond given for the sole purpose of effecting such appeal, on the ground of estoppel to plead absence of consideration or want of jurisdiction. 63 And in some instances this doctrine of estoppel to plead want of jurisdiction has been applied though the court expressly recognized the fact that the bond was void except for the application of this doctrine. 64 (n) No Judgment m Lower Court— (a) In General. In case of a bond where the only consideration is an appeal, and there existed no judgment from which to appeal, there is clearly no consideration for the bond, because there could be no appeal. 65 But it has been held that the obligors may be estopped to show this fact by the recital of a judgment, 66 and by the receipt of benefits which have 63. Estoppel to show want of jurisdiction. — Ray v. Ray, 1 Ida. 705; Brown County Cooperative Assoc., etc., v. Rohl, 32 Kan. 663, 5 Pac. 1 ; Kellar v. Beeler, 4 J. J. Marsh. (Ky.) 655; Stephens v. Miller, 3 Ky. L. Rep. 523; Gudtner v. Kilpatrick, 14 Nebr. 347, 15 N. W. 708; Chase v. Smith, 4 Cranch C. C. (U. S.) 90, 5 Fed. Cas. No. 2,629. 64. Barratt v. Grimes, (Kan. App. 1901) '63 Pac. 272 [citing Grimes v. Barratt, 60 Kan. 259, 56 Pac. 472]. In Love v. Rockwell, 1 Wis. 382 [quoted with approval in Gudt- ner v. Kilpatrick, 14 Nebr. 347, 15 N. W. 708], the court, by Whiton, C. J., said : " The recog- nizance on which the suit was brought was entered into by the defendant, and the defense sought to be interposed to the action is, that the recognizance is void, because the justice before whom it was taken had no authority to take it, as no appeal lay from his decision. The plea admits that the recognizance was entered into for the purpose of perfecting an appeal of the case to the county court; but the defendant insists that no appeal lay from the decision, and that the proceedings before the justice, subsequent to the rendition of the judgment, are consequently void. We sup- pose there can be no doubt of the correctness of these positions of the defendant. The stat- ute did not authorize an appeal of the case to the county court ; and when, by law, no appeal can be had, we do not see how any legal con- sequences can follow from proceedings taken to perfect it. But this does not meet the dif- ficulty. The recognizance was entered into by the defendant, together with Abbott, and re- cites the fact of the recovery of the judgment, and that an appeal had been taken to the •county court. To allow the defendant to set up and prove these facts, to contradict his own recognizance, would be to allow him to obtain a delay in the issuing of the execution upon the judgment rendered by the justice, and then, when the delay has been obtained, insist that the recognizance whic . procured it created no legal obligation. While we think this is a case where it would be gross injustice to allow the defendant to avail him- self of the defense set up in his plea, we are equally well satisfied, that it is a case where the doctrine of estoppel applies, as laid down in the authorities. 1 Rolle Abr. 872, 873; Xainson v. Tremere, 1 A. & E. 792, 28 E. C. L. ■367; Bowman v. Taylor, 2 A. & E. 278, 29 E. [59] C. L. 142." The case of Gudtner v. Kilpat- rick, 14 Nebr. 347, 15 N. W. 708, is approved in Adams v. Thompson, 18 Nebr. 541, 26 N. W. 316, and both cases are distinguished in Brounty v. Daniels, 23 Nebr. 162, 36 N. W. 463, a case where no judgment had been en- tered in the trial court. 65. Appeal from order denying a new trial has been held not to furnish any consideration for a condition that, " if the judgment, or any part thereof, be affirmed, appellant will pay the amount directed to be paid," etc., no lia- bility arising under that condition, there be- ing no judgment appealed from. Post v. Dore- mus, 60 N. Y. 371 [modifying 1 Hun (N. Y.) 521, 3 Thomps. & C. (N. Y.) 626]. Such a bond cannot operate as a stay witnout an or- der, and, being ineffectual for any purpose, is invalid. Carter v. Hodge, 150 N. Y. 532, 44 N. E. 1101. Appeal from order on motion to set aside verdict, no judgment having been en- tered, has been held no consideration for an appeal bond, because not appealable. Gallo- way v. Yates, 10 Minn. 75. Judgment admitted. — The existence of the judgment appealed from is admitted by a plea of general performance, thus dispensing with the necessity of proving such judgment. Frantz v. Smith, 5 Gill (Md.) 280. Judgment not formally entered. — The fact that the judgment appealed from was not formally entered at the time of the execution of the bond was held no defense for want of consideration, there being at the time a rule absolute for judgment. Mechling p. Mer- chants' Bank, 3 Walk. (Pa.) 466. But where the rule absolute was afterward stricken off, and the appeal for that reason discontinued, there was held to be no liability on the appeal bond. Com. v. Krause, 23 Pa. Co. Ct. 511. Recital of a judgment in the bond, which is set out in the declaration, is a sufficient al- legation of its existence. Harding v. Kuess- ner, 172 111. 125, 49 N. E. 1001. Transcript of the judgment need not be filed with the complaint in an action on an appeal bond. Buchanan v. Milligan, 68 Ind. 118; Blair v. Kilpatrick, 40 Ind. 312; Butler v. Wadley, 15 Ind. 502. 66. Colorado. — Thalheimer v. Crow, 13 Colo. 397, 22 Pac. 779. Illinois.— Courson v. Browning, 78 III. 208. Vol. II 930 APPEAL AND ERROR accrued to them as a result of the bond that has been given by them to effectuate an appeal. 67 (b) Void Judgment — (1) General Bule. / A void judgment is the same as no judgment ; and, therefore, where the judgment appealed from is a nullity, an appeal therefrom, as a general proposition, would also be a nullity and constitute no consideration for an appeal bond. 68 On the ground of estoppel, however, the reverse of this proposition has also been held. 69 Mere defects and irregularities,. Michigan. — Healy v. Newton, 96 Mich. 228, 55 N. W. 666. Montana. — Parrott v. Kane, 14 Mont. 23, 35 Pae. 243. Oklahoma. — Richardson v. Penny, (Okla. 1900) 61 Pae. 584. Plea of no judgment is demurrable, execu- tion of bond being admitted. In Smith v. Whitaker, 11 111. 417, 418, the court, by Treat, C. J., said: "The plea alleges, in substance, that there was no such judgment before the justice, as is recited in the condition of the bond sued on. The defendant was estopped by the record from making such an allegation. The bond is set out in the declaration, and it distinctly states that a judgment had been rendered by the justice. The very object of the parties in executing the bond was to pre- vent the collection of the judgment, and have the ease re-heard in the circuit court; and the bond was expressly conditioned for the pay- ment of the judgment, in the event it should be affirmed. It was, therefore, a solemn ad- mission by the defendant that there was such a judgment. He voluntarily entered into an engagement, under his hand and seal, for the payment of the judgment; and he could not afterward deny what he asserted to be true — the existence of the judgment. The principle of estoppel is clearly applicable." Plea of nul tiel record not good. — In Kellar v. Beeler, 4 J. J. Marsh. (Ky.) 655, 656, the court, by Buekner, J., said : " The demurrer to the plea of nul tiel record, as to the decree of the circuit court, ought to have been sus- tained. The appellees, by the appeal bond ex- ecuted under their hands and seals, have ac- knowledged the existence of such a decree; and were legally estopped to deny it." See also Herrick v. Swartwout, 72 111. 340. 67. Misrecital of judgment cured by re- ceipt of benefits. — Where a bond, given on appeal from a judgment to pay fifty dollars cash and fifty dollars per month as alimony, recited the judgment appealed from as one for one hundred and fifty dollars, it was held that the bond conditioned for the payment of said judgment, was not only valia, but also binding, as to the entire judgment, because the entire judgment was in fact superseded and incapable of enforcement pending the ap- peal. Dye v. Dye, 12 Colo. App. 206, 55 Pae. 205. 68. Judgment against a non-resident, with- out personal service upon him, would be void and form no consideration for an appeal bond where the judgment is in personam; but otherwise where the judgment is in rem on attachment. Dexter v. Sayward, 84 Fed. 296. Vol. II Judgment void for want of jurisdiction. — Hessey v. Heitkamp, 9 Mo. App. 36 [citing Garnet v. Rodgers, 52 Mo. 145 ; Adams v. Wil- son, 10 Mo. 341; Moore v. Damon, 4 Mo. App„ 111]. Void judgment as to principal not void as to sureties. — In West v. Carter, 129 111. 249, 21 N. E. 782 [reversing 25 111. App. 245],, it was held that a surety on an appeal bond could not maintain an action to set aside an affirmed judgment " void," not " voidable," be- cause founded on an illegal contract, though the principal obligor might have maintained such an action as a party to the judgment. It. is interesting to observe that, by the decisions of the same court, a surety in such a cause has no recourse but to pay the judgment, since, in an action on the bond, he is estopped by the recitals thereof t- plead invalidity of the judgment. See notes immediately supra and infra. Pleading. — Jurisdiction of the trial court has been held to be a necessary allegation in an action on an appeal bond. Tarbell v. Gray, 4 Gray ( Mass. ) 444. An affidavit of defense which sets up only that the judgment appealed from was void, may be disregarded, if this defense is not sus- tained and judgment rendered as for want of an affidavit of defense. Brimmer v. Mayer, 15 Pa. Super. Ct. 454, 18 Lane. L. Rev. 52. 69. Gross v. Weary, 90 111. 256; Butler v. Wadley, 15 Ind. 502. In Mueller ». Kelly, 8 Colo. App. 527, 47 Pae. 72, 73, the court, by Thomson, J., said: "While it is true that a judgment which is absolutely void is open to collateral attack, and its character may be shown in any proceeding in which it is offered in evidence, yet it is also true that a party against whom a judgment is rendered which he regards as void may, if he so desires, seek to relieve himself of it by appeal, and its va- lidity may be tested in the appellate court. To affect the appeal, he must give an appeal bond ; and, to protect his sureties from liabil- ity upon the bond, he must prosecute his ap- peal with effect, or pay the judgment ap- pealed from. The validity of the bond does not depend upon the validity of the judg- ment." Judgment void as to one of several appel- lants, bond valid as to all. — Where a judg- ment appealed from by several persons was held void as to one of them, it was neverthe- less held that the joint and several appeal bond was valid as to all, and that the person as to whom the judgment was void had not on that account any defense, though having signed as principal only and not as surety. Gille v. Emmons, 61 Kan. 217, 59 Pae. 338. APPEAL AND ERROR 931 short of a failure of jurisdiction, will not avoid the judgment appealed from; 70 and the merits of a valid judgment cannot be reopened by the obligors in the appeal bond. 71 (2) Trial De Novo. "Where the result of an appeal is a trial de novo in the appellate court, and such trial is within the jurisdiction of such court and actually had, the question of the validity of the judgment below cannot be raised, because a proceeding de novo wipes out the former proceedings and the parties thereto submit themselves to the jurisdiction of the appellate court as for an original action. 72 (in) Appeal Dismissed for Defects — (a) In General. "When an appeal is dismissed on account of failure to comply with some statutory or judicial require- ment necessary to its perfection, the question of whether or not any liability arises on the appeal bond depends upon the terms of the condition of the bond. If the condition by its recitals presupposes the perfecting of an appeal, the greater weight of the authorities hold that there is no liability on the bond, because of its invalidity for want of consideration. 73 70. Defects and irregularities must amount to a failure of jurisdiction in order to permit the validity ot the judgment ap- pealed from to be questioned. Knight v. Wa- ters, 18 Iowa 345 ; Morris v. Hunken, 40 N. Y. App. Div. 129, 57 N. Y. Suppl. 712; Miller v. McLuer, Gilm. (Va.) 338. 71. Valid judgment conclusive. — Colorado. — Steinhauer v. Colmar, 11 Colo. App. 494, 55 Pac. 291. Illinois. — Mann v. Warde, 64 111. App. 108. Indiana. — Supreme Council, etc. v. Boyle, 15 Ind. App. 342, 44 N. E. 56, 42 N. E. 827; Pierce v. Banta, 9 Ind. App. 376, 31 N. E. 812. Kentucky. — Thixton v. Goff, 5 Ky. L. Rep. 764. Louisiana. — Murison v. Butler, 20 La. Ann. 512. Missouri. — Hydraulic Press Brick Co. v. Neumeister, 15 Mo. App. 592. New York. — Seymour v. Smith, 114 N. Y. 481, 21 N. E. 1042, 11 Am. St. Rep. 683, 24 N. Y. St. 77; Kent v. Sibley, 15 Daly (N. Y.) 298, 5 N. Y. Suppl. 44, 25 N. Y. St. 741. Wisconsin. — Ingersoll v. Seatoft, 102 Wis. 476, 78 N. W. 576, 27 Am. St. Rep. 892 ; Krall 0. Libbey, 53 Wis. 292, 10 N. W. 386. 72. Reasons. — In Butler v. Wadley, 15 Ind. 502, 504, the court, by Perkins, J., said: " But we do not think that the fact that the award, the entry of record of which was appealed from, Was void, rendered the appeal bond in- valid for want of consideration. The party knew, when he appealed from the award, that it was void, if it was so; yet he desired to appeal from the entry of it of record. He wished to remove the case it involved from the record of the secretary, a pro hoc vice jus- tice of the peace, to the Circuit Court. This removal, an appeal would effect, and would be a good consideration for the required bond. The cause would stand for trial de novo in the appellate court. Gaston v. Marion County, 3 Ind. 497; Lake Erie, etc., R. Co. v. Heath, 9 Ind. 558. The appeal would have vacated, while it stood, any award." To the same ef- fect see Knight v. Waters, 18 Iowa 345. 73. Appeal a condition of validity. — In Gregory v. Obrian, 13, N. J. L. 11, 12, the court, by Ewing, C. J., said: "The terms of the bond are predicated of an appeal and of jurisdiction in the Court of Common Pleas to> sustain it. They suppose an appeal in exist- ence, duly taken, and relate to matters subse- quent thereto. They provide for, and require the due prosecution of the appeal by the ap- pellant after it has teen granted. They den not relate either in letter or spirit to acts an- tecedent to the appeal, which are required to be performed in order to obtain it, and with- out which it could not have legal existence. No security to perform such acts could be requisite, because they are to be done prior to the appeal, and without them, the appeal ought not to be granted by the justice. An omission to perform such acts, is not, there- fore, within the condition of the bond. . . . If the appeal is dismissed for want of prose- cution in the Court of Common Pleas, if, after the appeal is granted, the appellant neglects to pursue such measures as the due prosecu- tion of the appeal requires, the bond is for- feited. If the appeal is dismissed for want of jurisdiction in the court, or for failure or omission or defect of matters antecedent to the appeal, the appellee must seek redress, not upon the bond, but in such other modes as the law has provided for him." Conditional upon dismissal. — Where the obligation of a bond was conditioned to sat- isfy " if the appeal be dismissed," and the ap- peal was dismissed for failure to serve the printed case and exceptions, and, the time not having elapsed within which an appeal might be taken, leave was granted to make service within fifteen days, which was not done, the obligors were held liable. Wheeler v. MeCabe, 47 How. Pr. (N. Y.) 283. Consent of obligee to the appeal perfected after the time allowed by law, together with the receipt of benefits of the appeal by the obligor, will estop the latter to show the de- fect in an action on the appeal bond. Carroll v. McGee, 25 N. C. 13. Failure to give a new bond when required, in consequence of which the appeal is dis- missed, under a statute providing that in such cases " the appeal must be dismissed . . as Vol. II 932 APPEAL AND ERROR (b) Recital of Appeal. In some jurisdictions, however, it has been held that even where an appeal is so defective as to require its dismissal for want of juris- diction, the obligors in a bond reciting that an appeal has been taken will be estopped by the recital to deny the fact of the appeal. 74 (c) Receipt of Benefits. Again, independently of any recital in the bond, and without reference either to whether or not the appeal was a condition of the bond or the bond a condition of the appeal, it has been held that the obligor may receive benefits from a bond where there has been no appeal, and the receipt of such benefits estops him to deny that there was an appeal. 75 And where the appeal is not dismissed because of the defect there is no failure of consideration. 76 (iv) No Attempt to Appeal. In case it appears that no attempt has been made to appeal, it would seem to be clear that a bond given because of an appeal is without consideration, and such a bond is therefore held to impose no liability. 77 if the original undertaking had not been given," has been held to release the obligors from liability for satisfaction of the judgment, though not for the costs in the appellate court. Galinger v. Engelhardt, 26 Misc. (N. Y.) 49, 55 N. Y. Suppl. 334. Failure to grant order allowing appeal within time. — Adams v. Wilson, 10 Mo. 341 [quoted with approval in Garnet v. Rodgers, 52 Mo. 145, which holds that a bond executed to procure an appeal from a default judgment before a justice of the peace, where no motion was made to set aside the default, was with- out authority of law, and therefore void]. But see, contra, Rodman v. Moody, 14 Ky. L. Rep. 202. Failure to perfect appeal by entering statutory notice. — In Estado Land, etc., Co. v. Ansley, 6 Tex. Civ. App. 185, 24 S. W. 933 [citing Trent v. Rhomberg, 66 Tex. 249, 18 S. W. 510; Perez v. Garza, 52 Tex. 571], the court, by James, C. J., said : " The appeal with reference to which the bond sued on was given was not perfected, owing to the fact that the notice of appeal was not entered of record. R ". Stat., art. 1387; Messner v. Lewis, 17 Tex. 519. In view of this, was the bond an obligation upon which a recovery could be had? ... So far as we have been able to find, there can be no breach of the con- dition of an appeal bond where no appeal has ever existed, and where, therefore, the appel- late court referred to in the bond has had no jurisdiction." To the same effect see Probate Ct. v. Gleed, 35 Vt. 24. Mistake of surety as to existence of order. — In Louisiana, the fact that there was no legal order granting an appeal at the time of the making of the bond is held to be good de- fense to an action on the bond; and the fact that the obligors at the time supposed such order had been made is an additional reason for absolving the sureties from liability. Sears v. Bearsh, 7 La. Ann. 539, where the court, by Post, J., said : " It is said that, un- der the view which we take of the law. debt- ors, by obtaining informal orders oi appeal, may delay the pursuit of their creditors with- out 'endangering their sureties. The order of appeal is under the direction of the judge, and it is not to be presumed that he will con- nive with litigants to frustrate the ends of justice." Vol. II 74. Thalheimer v. Crow, 13 Colo. 397, 22 Pae. 779; Meserve v. Clark, 115 111. 580, 4 N. E. 770; Mix v. People, 86 111. 329; Wal- ton v. Develing, 61 111. 201; Terre Haute, etc., R. Co. v. Peoria, etc., R. Co., 81 111. App. 435; Fearons v. Wright, 6 Ky. L. Rep. 747. 75. California. — Matter of Kennedy, 129, Cal. 384, 62 Pac. 64; Hathaway v. Davis, 33 Cal. 161. Colorado. — Creswell v. Herr, 9 Colo. App. 185, 48 Pac. 155. Kentucky. — Rodman v. Moody, 14 Ky. L. Rep. 202. Nebraska. — Flannagan v. Cleveland, 44 Nebr. 58, 62 N. W. 297 ; Adams v. Thompson, 18 Nebr. 541, 26 N. W. 316. Utah. — Pratt v. Gilbert, 8 Utah 54, 29 Pac. 965. United States. — Dexter v. Sayward, 84 Fed. 296. 76. Appeal not dismissed — Defect of par- ties appellant. — Where one of several de- fendants alone appealed, without making his co-defendants parties to the appeal, and the defect of parties was not insisted on, and the appeal was decided on its merits, resulting in an affirmance of the judgment, it was held that an action would lie upon the superse- deas bond given by defendant in error. Bulk- ley v. Stephens, 29 Ohio St. 620. 77. Failure to allege that appeal was granted held subject to demurrer in an ac- tion on a supersedeas bond. Jones v. Green, 12 Bush (Ky.) 127. Trial court abolished the day after judg- ment appealed from is not sufficient to in- validate a bond given on appeal therefrom. Colquitt v. Oliver, 49 Ga. 284. Where appellant failed to file a transcript of the case in the appellate court within the time prescribed by law, the court held that " the appeal never had any existence," that " the parties to the judgment were left to enforce it as if no appeal had ever been at- tempted," and that, consequently, there was no consideration for, and no liability on, the appeal bond. Gimperling r. Hanes, 40 Ohio St. 114. To the same effect see Lutkenhoff r. Lutkenhoff, 12 Ky. L. Rep. 90. But see, to the contrary, in California, Ellis v. Hull, 23 Cal. 160 [approved in Chase v. Beraud, 29 Cal. 138]. Wrong appellate court named.— A bond APPEAL AND ERROR 933 Nevertheless, it has been held in such case, as in the case of an appeal dismissed for defects, that a recital of an appeal, 78 or the receipt of benefits by the princi- pal obligor, 79 estops the principal and sureties to show the fact of no appeal. B. Breach of the Condition — l. Condition to Prosecute to Effect — a. Meaning of Terms. A condition to prosecute to effect the appeal with refer- ence to which the bond is given means that appellant binds himself not only to prosecute his appeal, 80 but to secure a reversal of the judgment appealed from, 81 or such a modification of the judgment as amounts to a successful issue of the appeal. 83 But a condition merely to prosecute will be broken only in the event of dismissal for failure to prosecute. 83 b. Judgment of Affirmance — (i) Necessity for Final Affirmance. Before a breach of the condition to prosecute to effect can be maintained there must have been a final judgment of the appellate court, dismissing the appeal or affirming the judgment appealed from, 84 which judgment must be alleged and given on an appeal to the supreme court of Missouri recited that the appeal was taken to the court of appeals of St. Louis, and on a petition for judgment on the bond, it appearing that no appeal had been taken to the court named in the bond and that an appeal had been taken to the supreme court by means of the bond, the bond was held void, and the doctrine of estoppel not appli- cable. Keaton v. Boughton, 83 Mo. App. 158. Evidence of appeal. — A remittitur from the appellate court is conclusive evidence of an appeal and that all of the preliminary statutory steps necessary to perfect an ap- peal were taken. Hill v. Burke, 62 N. Y. 111. 78. Reynolds v. Rogers, 5 Ohio 169; Car- ver p. Jackson, 4 Pet. (U. S.) 1, 7 L. ed. 761. Recital authorizing amendment of record. — Where the record did not show that an ap- peal had been prayed and granted, it was held that the defect might be supplied by amend- ment to conform to a recital to that effect in the appeal bond, though the recital would not of itself have been sufficient to give juris- diction. Cooly v. Julin, 5 Yerg. (Tenn.) 438. 79. Reliance of obligee on bond. — In Healy v. Newton, 96 Mich. 228, 231, 55 N. W. 666, the court, by McGrath, J., said: "The bond is in the form prescribed by How. Anno. Stat. Mich., § 8679. An order staying pro- ceedings for 60 days had been entered at the instance of the principal obligor, conditioned upon the execution within 20 days of a bond. The bond was filed and acquiesced in by plaintiff, who relied upon Newton's expressed intention to take out a, writ of error. For six months thereafter Newton pursued a course indicating an intention to take the case to this court. . . . Plaintiff, after the execution and delivery of the bond, had one of two courses open to him: to wit, move to have the order staying proceedings set aside, or acquiesce and rely upon the bond. Under the facts found in the present case, he will be presumed to have elected to take the latter course. The breach complained of is the fail- ure to take out and prosecute the writ to effect." 80 A condition merely to prosecute, with- out the use of the words " to effect " or " with effect," is fully performed by an unsuccessful prosecution which results in an affirmance of the judgment appealed from. Albertson v. McGee, 7 Yerg. (Tenn.) 106. 81. Meaning of " prosecute with effect." — In Karthaus v. Owings, 6 Harr. & J. (Md.) 134, 138, the court, by Dorsey, J., said: " On the part of the appellant, it was contended that the words ' prosecute with effect ' mean that the party praying the appeal shall prosecute it to final judgment, while the other side insisted that these words imposed on the appellant the necessity of prosecuting the appeal to a successful termination, or a reversal of the judgment. This Court are of the opinion that the construction adopted by the appellee's counsel is the correct one." "With effect" means "with success." — "An appeal cannot be said to be prosecuted at all, which is dismissed for want of prose- cution, nor can it be said, with reference to the accepted meaning of the words, that the appeal is prosecuted with effect if the judg- ment remains, after the appeal is disposed of, the same as it was before." Trent v. Rhom- Wg, 66 Tex. 249, 254, 18 S. W. 510; Bailey v. James, 64 Tex. 546; Robinson v. Brinson, 20 Tex. 438. Where a nonsuit of appellee was set aside by agreement of /parties, and the judgment appealed from was afterward affirmed, it was t held that there had been no performance of condition, nor were the sureties discharged by the nonsuit. McGimpse v. Vail, 5 N. C. 408. Where intention is only to pay costs. — •Where the condition was that the appellant " shall prosecute his appeal with effect, and pay all costs that may be adjudged against him," there was held to be no liability except for costs upon dismissal of the appeal. Com. v. Wistar, 142 Pa. St. 373, 21 Atl. 871 872 To the same effect see Hobart v. Hilhard, 11 Pick. (Mass.) 143. Contra, under same con- dition, Philbrick v. Buxton, 40 N. H. 384. 82. Partial success sufficient.— We thinK that an appeal can be said to have been 'prosecuted with effect' only when it results successfully as to part, at least, of the judg- ment appealed from." Blair v. Sanborn, 82 Tex. 686, 689, 18 S. W. 159. 83. Young v. Mason, 8 111. 55 84. Admiision in pleading of final deter- mination was held to have been sufficiently Vol. II 934 APPEAL AND ERROR proved. 85 When once shown to exist, neither the judgment affirmed nor the judgment of affirmance are subject to question except for absolute invalidity of the judgment, 86 or fraudulent collusion between the principal obligor and the obligee in procuring the affirmance. 87 (n) What Constitutes Affirmance — (a) In General. A final judgment of affirmance in the appellate court is such a judgment as precludes appellant from further delaying the execution of the judgment appealed from. 88 The judgment of affirmance is not, therefore, final until it is made final in the lower court, when the appellant becomes absolutely liable to pay it. 89 Such a judgment effected by an allegation of the payment of the costs in the case in which the appeal was taken. Jayne v. Herring, (Tex. Civ. App. 1896) 33 S. W. 1090. An affirmance is not sufficiently alleged by alleging the rendition of a judgment in the appellate court between the same parties named in the petition and in the bond. The judgment must be sufficiently identified. North v. Merchant, 2 Ohio Dec. 69. Judgment on trial de novo. — The legal effect of the words in an appeal bond that the obligor will pay the amount of " judg- ment, costs, interest, and damages rendered and to be rendered against him," is that he shall pay the judgment already rendered against him, and such judgment as shall be rendered against him by the supreme court in case the judgment appealed from shall be affirmed. Such words do not include a judg- ment thereafter rendered upon new evidence, on a hearing de novo as to the subject of such judgment. Huntington v. Aurand, 67 111. App. 260. Suit prematurely brought. — In Heath •!'. Hunter, 72 Me. 259, 260, the court, by Wal- ton, J., said : " The condition is as follows : ' Now if the said Hunter shall prosecute his said suit with effect, and satisfy the judg- ment rendered therein, then this obligation to be void, otherwise to remain in full force.' It appears from the docket entries and the certificate of the clerk that, although the defendants in error prevailed in the suit, and were entitled to a judgment for costs . . and, perhaps, to an affirmance of the judg- ment sought to be reversed, . . . still they have never taxed their costs, . . . have never obtained from the court an order affirming their former judgment, and have never had any determination or hearing as to the amount of the damages they shall recover for the delay. Under these circumstances, we think the action must be regarded as pre- maturely commenced." 85. Must be allegation of affirmance. — Where the breach assigned, in an action on an appeal bond, was in effect that the defend- ant did not prosecute his appeal according to the condition of said bond, but therein wholly failed, the declaration was held bad on de- murrer. Malone r. McClain, 3 Ind. 532. So, also, where the allegation was that the appel- lant " did not prosecute her said appeal with effect, and that said suit was finally terani- nated by order of said circuit court." Dag- gitt i . Mensch, 141 111. 395, 31 N. E. 153. One allegation for several breaches. — One Vol. II allegation of affirmance, in a count alleging two breaches, is sufficient. Sanger v. Nadle- hoffer, 34 111. App. 252. Original judgment instead of affirmance. — Where, on appeal, instead of an affirmance an original judgment is entered against the ap- pellant, a declaration that the judgment ap- pealed from was affirmed is not sufficient. O'Neil v. Nelson, 22 111. App. 531. Insufficient averment cured. — An aver- ment of a breach of a condition to prosecute to effect, insufficient as stating a conclusion, will be cured by verdict upon failure to de- mur. Fulton v. Fletcher, 12 App. Cas. (D. C.) 1. Proof- — The clerk's docket, containing en- tries of the proceedings during the progress of the suit till final judgment, " is the record of the Court until the record is fully ex- tended." Pierce v. Goodrich, 47 Me. 173. An allegation of affirmance is admitted by a plea of payment, since such plea is one of confession and avoidance. Smith r. Lozano, 1 111. App. 171. Partial proof. — Where the appeal was from an order denying a new trial, and also from the judgment, and the bond was con- ditioned to satisfy " if the said judgment or any part thereof be affirmed," proof that only the order denying a new trial was af- firmed was held insufficient. McCallion r. Hibernia Sav., etc., Soc, 83 Cal. 571, 23 Pac. 798. 86. See supra, IX, A, 2, c, (n), (b). 87. See infra, IX, B, 1, c, (rv), (b). 88. Final decree. — Where a bond was con- ditional for the payment of the " final de- cree " in the case, a decree of a United States circuit court pursuant to a decree of affirm- ance of the United States supreme court was held such " final decree " within the meaning of the bond. Jordan v. Agawam Woolen Co., 106 Mass. 571. Affirmance, with leave to answer, in a case of an appeal from a ruling on a demurrer to the complaint, is not such a final judgment. Poppenhusen v. Seeley, 3 Keyes (N. Y.) 150. Quashing the writ of error has been held not to impose liability to pay the judgment where the liability was conditioned upon dis- missal of the writ, because the writ was quashed for mere formal defects, after which a new writ might be allowed, whereas a dis- missal meant a termination of the proceeding. Bosley v. Bruner, 24 Miss. 457. 89. Affirmance must be final in lower court. — " Unless the case be in such a con- dition as that the plaintiff might have issued APPEAL AND ERROR 935 or decree as would be appealable has been held to be such a final -judgment as will effect a breach of the condition. 60 (b) Substantial Affirmance. A substantial affirmance of the judgment appealed from will be sufficient to accomplish a breach. It has been so held where, besides affirming, the case was remanded for liquidation of items recog- nized in the original judgment ; 91 where a decree for payment to one person was changed by decreeing payment to another ; 92 where the judgment was against two instead of one in the judgment appealed from; 93 where the judgment was reversed and a corrected judgment entered; 94 where affirmance was only after a new trial in the appellate court ; 95 where the judgment on appeal was for a greater amount ; % and where there were immaterial omissions/ 7 But it has been held that there was no affirmance where a different form of judgment was rendered by the appellate court, 98 or where the cause was referred back an execution against the principal, had he de- sired to do so, he cannot proceed against the sureties on the appeal. To hold that he could, would be to place the sureties in a position apparently less favorable than that occupied by their principal." Parnell v. Hancock, 48 Cal. 452, 455. Contra. — It has been held that suit upon the bond may be instituted immediately upon affirmance in the appellate court (Daintry v. Johnston, 3 Yeates (Pa.) 148), without the filing of a certified copy of the order of affirmance (Perkins v. Klein, 62 111. App. 585). Filing remittitur — Order for judgment. — In Seacord v. Morgan, 17 How. Pr. (N. Y.) 394, it was held that no recovery could be had upon an appeal bond for condition broken by affirmance until the judgment of the court of appeals be " brought formally to the notice of the court below, and be made one of its judgments," though the remittitur had been received and filed. Order for execution held not necessary to maintain a breach of condition, the mandate having been sent down and filed in lower court. Davis v. Patrick, 57 Fed. 909, 12 U. S. App. 629, 6 C. C. A. 632. Presumption by lapse of time. — After the lapse of ten years from the time of affirm- ance it was presumed that a certified copy of the judgment of affirmance had been filed in the lower court. Buchanan v. Milligan, 125 Ind. 3??, 25 N. E. 349. An allegation of filing order of affirmance in lower court has been held to be essential. A simple averment that the order was sent to the lower court has been held insufficient - ! Railsback v. Greve, 49 Ind. 271. 90. Fulton v. Fletcher, 12 App. Cas. (D. C.) 1. 91. Hivert v. Lacaz, 7 Rob. (La.) 470. 92. Decree of payment to different per- son — for example, to a receiver instead of to a member of a firm whose accounts were in process of settlement — has been held a substantial affirmance. Knight v. Waters, 15 Iowa 420. 93. Judgment against two, instead of one, joint makers of a promissory note was held a substantial affirmance of the judgment against the one, though of course it could not operate upon the other for want of jurisdic- tion. Helt v. Whittier, 31 Ohio St. 475. 94. Sanders v. Rives, 3 Stew. (Ala.) 109. 95. Affirmance after new trial. — Where a defendant appealed, obtained a new trial in the appellate court, was defeated, again ap- pealed, upon which appeal the judgment was affirmed, it was held that the condition of a bond given on the first appeal " that if judg- ment be rendered against the appellant on said appeal, and execution be returned un- satisfied, in whole or in part," he would pay the amount unsatisfied, was held to have been broken. Lowry v. Tew, 25 Hun (N. Y.) 257. 96. Judgment for greater amount. — Statutory damages of five per cent, added by the appellate court, by authority of a statute passed after the execution of the bond, was held not to discharge the obligors in the ap- peal bond. Horner v. Lyman, 4 Keyes (N. Y.) 237. Sureties not liable for increase. — But in case of an increase of the judgment of the lower court the sureties cannot be held for the increase unless the condition of the bond be to satisfy the judgment of the appellate court. Mitchell v. Shuert, 17 Mich. 65. 97. Immaterial omissions. — An omission to state that the damages were du= for wages as " laborer and servant," in affirming a judg- ment for such damages, was held immaterial. Foster v. Epps, 27 111. App. 235. So, also, where the condition was, " if, on said appeal, said ruling is affirmed, and said lien declared and held valid," and the ruling was affirmed, but the lien not in terms held valid. Oakley v. Van Noppen, 100 N". C. 287, 5 S. E. 1. So, too, where the appellate court omitted to award damages. Gilpin v. Hord, 85 Ky. 213, 8 Ky. L. Rep. 904, 3 S. W. 143. 98. Judgment de bonis testatoris against an executor is not an affirmance of a judgment against him de bonis propriis. Bowman v. Green, 6 T. B. Mon. (Ky.) 339. Judgment different in effect, entered, by consent of the parties, after a reversal of the judgment appealed from, is not a breach of the condition. Miller v. Ryan, 13 Ohio Cir. Ct. 278. Contra, where the condition was that the sureties will " satisfy any judgment or or- der which the Court of Appeals may render, Vol. II 936 APPEAL AND ERROR for settlement before a master," or for the purpose of definitely fixing the amount. 1 (c) Partial Affirmance — (1) As to Parties — (a) Several Success on Joint Appeal. In the case of a joint appeal by several appellants from a judgment against all, a reversal as to one or more, and affirmance as to others, will be a breach of condition affecting those as to whom the affirmance was rendered, 2 unless liability on such a contingency is contrary to the terms of the bond} 3 in which case, all of co-principals are individually bound for the judgment affirmed if, by the terms of the bond, they can be regarded as co-sureties 4 — otherwise not. 5 (b) Several Appeals from Joint Judgment. Where one of several defendants or order to be rendered by the inferior court." Hobbs v. King, 3 Mete. (Ky.) 249. Judgment different in form, though not in effect, held no affirmance. Kibble v. Butler, 27 Miss. 586. See also Chase v. Ries, 10 Cal. 517. Substituting money for property. — ■ Where a judgment in a divorce case was ren- dered for a portion of defendant's real estate and two hundred dollars, and on appeal it was ordered that a money judgment for three thousand two hundred dollars be substituted, it was held that this did not constitute an af- firmance of the judgment appealed from suf- ficient to establish a breach of condition. Rice v. Rice, 13 Ind. 562. 99. Smith v. Huesman, 30 Ohio St. 662. 1. Remandment for definite amount held not a final judgment of affirmance, though ap- pellee's right to recover was recognized. Wil- son i\ Churchman, 6 La. Ann. 468. 2. Affirmance as to a some and reversal as to others accomplishes a breach pro tanto as against the former. Arkansas. — Porter v. Singleton, 28 Ark. 483. California. — Wood v. Oxford, 56 Cal. 157. Georgia. — Lewis v. Maulden, 93 Ga. 758, 21 S. E. 147. Illinois. — Ives v. Hulce, 17 111. App. 35. Kansas. — Lutt v. Sterrett, 26 Kan. 561. Kentucky. — Gilpin v. Hord, 85 Ky. 213, 8 Ky. L. Rep. 904, 3 S. W. 143, 7 Ky. L. Rep. 608 ; Bridgford v. Fogg, 12 Ky. L. Rep. 570, 14 S. W. 600. Louisiana. — Culver v. Leovy, 27 La. Ann. 58. Missouri. — Hood v. Mathis, 21 Mo. 308. Nebraska. — Johnson v. Reed, 47 Nebr. 322, 66 N. W. 405. New York. — Seacord v. Morgan, 3 Keyes (N. Y.) 636, 35 How. Pr. (N. Y.) 487, 17 How. Pr. (N. Y.) 394; Fritehie v. Holden, 57 Hun (N. Y.) 585, 11 V Y. Suppl. 171, 32 N. Y. St. 276; Johnstone v. Conner, 13 N. Y. Civ. Proe. 19; Burrall v. Vanderbilt, 6 Abb. Pr. CN T . Y.) 70, 1 Bosw. (N\ Y.) 637; Ford v. Townsend, 1 Abb. Pr. N. S. (N. Y.) 159, 1 Rob. (N. Y.) 39. North Carolina. — Brown v. Conner, 32 N. C. 75. Ohio.— Alber v. Froehlich, 39 Ohio St. 245 ; Bentley v. Dorcas, 11 Ohio St. 398; Macneale, r. Fa elder, 3 Cine. L. Bui. 11. Terns. — McFarlane r. Howell, 91 Tex. 218, 42 S. W. 853; Blair v. Sanborn, 82 Tex. 686, Vol. II 18 S. W. 159; Landa v. Moody, (Tex. Civ. App. 1900), 57 S. W. 51; Missouri, etc., R. Co. v. Lacy, 13 Tex. Civ. App. 39, 35 S. W. 505; Dignowity v. Staacke, (Tex. Civ. App. 1894) 25 S. W. 824. Wisconsin. — Vandyke v. Weil, \Z Wis. 277. Insolvency of one of several appellants, against whom, alone, a judgment of affirmance has been rendered, does not alter the rule. Gilpin v. Hord, 85 Ky. 213 , 8 Ky. L. Rep. 904, 3 S. W. 143, 7 Ky. L. Rep. 608. Suit on note — -Breach in favor of payee; performance as to surety. — The payee of a note obtained judgment against both the maker and surety, and in the same suit the surety was given judgment against the maker. On appeal, the judgment of the payee was af- firmed and that of the surety reversed; and it was held that the condition of the appeal bond was broken in favor of the payee, and performed as to the surety. Dignowity v. Staacke, (Tex. Civ. App. 1894) 25 S. W. 824. 3. Terms of bond — Liability only for affirmance as to all. — Where the condition of the bond was that if the judgment should be affirmed against " them," the obligors would satisfy " such " judgment, the use of these words was held to mean that the obligors had not contracted to satisfy » judgment af- firmed against only a part of appellants, and it was held that there had been no breach upon an affirmance as to only a part of ap- pellants. Marsh v. Byrnes, 7 Cine. L. Bui. 345. Judgment against partnership — Affirm- ance as to one partner.— Upon an appeal by a partnership, the appeal bond being con- ditioned that the partners, by firm-name, " shall prosecute their appeal, and shall sat- isfy whatever judgment may be rendered against them," etc., it was held that an af- firmance as to only one partner, for the entire amount, was not a breach of condition. Grieff r. Kirk, 17 La. Ann. 25. 4. Co-principals held as co-sureties. — Lewis v. Maulden. 93 Ga. 758. 21 S. E. 147; Young v. Ditto , 2 J. J. Marsh. (Ky.) 72. 5. Landa v. Moody, (Tex. Civ. App. 1900) 57 S. W. 51. Appeal only to protect separate interest. — Where one of the principals in a bond given on appeal in a chancery suit had an interest dis- tinct from that of the other appellants, and joined only to protect such separate interest, and the appellate court reversed the judgment APPEAL AND ERROR 937 appeals from a joint and several judgment, the appeal bond is security for the entire judgment upon affirmance. 6 (2) As to Subject-Matter. Whether or not a particular affirmance as to the subject-matter will work a breach depends upon whether or not the matter affirmed and the matter reversed were separate and distinct, and also upon whether or not the condition of the bond covered the partial affirmance. Thus, there is generally no breach where the appellate court finds due the appellee a sum less than the judgment appealed from, 7 unless the bond contained a condition to satisfy whatever judgment may be rendered ; 8 or where, in an appeal by an adminis- trator, he has judgment for costs, though appellee take a judgment quando ; 9 or where, on appeal from a judgment decreeing a mechanic's lien, a part of the land is released from the lien. 10 And a breach occurs upon affirmance of the principal judgment, though an order sustaining an attachment in the same case is reversed. 11 And the same has been held where an administrative order as to personal property was affirmed, and another about realty was reversed ; 12 as well as where a judg- ment against an executor, in his individual capacity, was reversed, and, as against him in his representative capacity, was affirmed. 13 (3) Conditional Affirmance. Where the affirmance is upon condition that something be done by appellee, there is no breach of condition, because it may be that the matter to be performed as a condition of affirmance was the only ground of the appeal. 14 But the contrary has been held where the only ground of the appeal was that there was no evidence to sustain the judgment to any extent ; 15 and where, by statute, the judgment on appeal goes against the sure- 10. Releasing part of land from mechan- ic's lien, though decree of lien be affirmed as to remainder, works no breach. Deatherage v. Sheidley, 50 Mo. App. 490. 11. Reversal of attachment does not pre- vent a breach by affirmance of the principal judgment. Krone v. Cooper, 43 Ark. 547. 12. Bern v. Shoemaker, 7 S. D. 510, 64 N. W. 544. 13. Reversed as to individual, affirmed as to representative. — Where a bond was con- ditioned to prosecute to effect an appeal from a judgment against an executor, both in his individual and in his representative capacity, and the judgment was reversed as to the in- dividual portion and affirmed as to the repre- sentative portion, the two being distinct and severable, the condition was held to have been broken pro tanto, because the executor had not prosecuted the entire judgment to effect. Cook v. Ligon, 54 Miss. 625. 14. Remittitur — Where a judgment is re- versed with directions that the reversal be set aside on the filing of a remittitur in a special amount, and an affirmance thereupon entered, there was held to have been no breach. Hein- len v. Beans, 71 Cal. 295, 12 Pac. 167 ; Sey- mour v. Gregory, 10 Biss. (U. S.) 13, 21 Fed. Cas. No. 12,686. Contra, Harding v. Kuess- ner, 70 111. App. 355 [affirmed in 172 111. 125, 49 N. B. 1001]. 15. Orr v. Hopkins, 3 N. M. 142, 3 Pac. 61 [affirmed in 124 U. S. 510, 8 S. Ct. 590, 31 L. ed. 523]. Assignment of another judgment.— Where the condition of the affirmance was that the assignment of another judgment be made to appellant, it was held that the obligee could not maintain an action on the bond until the prescribed condition was performed. Parnell v. Hancock, 48 Cal. 452. Vol. II as to her, she was held not liable on the bond as a surety for the other appellants as to whom judgment was affirmed. Warner v. Cameron, 64 Mich. 185, 31 N. W. 42. 6. One appellant is liable for the entire judgment, in case it is a joint and several judgment, and therefore his appeal bond as- sumes the same obligation. Drake v. Smythe, 44 Iowa 410; Young v. Ditto, 2 J. J. Marsh. (Ky.) 72; Brown v. Hancock, 13 Tex. 21. 7. No breach where judgment reduced; though appellee files remittitur for amount of reduction, and judgment of affirmance is there- upon entered. Heinlen v. Beans, 71 Cal. 295, 12 Pac. 167; Feemster v. Anderson, 6 T. B. Mon. (Ky.) 537; Seymour v. Gregory, 10 Biss. (U. S.) 13, 21 Fed. Cas. No. 12,686. Contra, Harding V. Kuessner, 172 111. 125, 49 N. E. 1001 [affirming 70 111. App. 355] ; Hopkins v. Orr, 124 IT. S. 510, 8 S. Ct. 590, 31 L. ed. 523 [affirming 3 N. M. 142, 3 Pac. 61] ; Butt v. Stinger, 4 Cranch C. C. (U. S.) 252, 4 Fed. Cas. No. 2,246 (where it is said that "the condition of an appeal bond is broken unless the judgment be reversed in toto"); Brooks f. Page, 1 D. Chipm. (Vt.) 340 (where the court said: "If the appellee again recover on the appeal, it is an affirm- ance of the former judgment, fully as to the right, and partially as to the quantum of damages " ) . 8. Condition to satisfy any judgment to be rendered will of course be broken by any partial affirmance. Holmes v. Steamer Belle Air, 5 La. Ann. 523; Diamond v. Petit, 3 La. Ann. 37; Harding v. Kuessner, 172 111. 125, 49 N. E. 1001 [affwmina 70 111. App. 355] ; Huntington v. Aurand. 70 111. App. 28 ; Bern v. Shoemaker, 7 S. D. 510, 64 N. W. 544. 9. Piercy v. Piercy, 36 N. C. 214; Terry v. Vest, 33 N. C. 65. 938 APPEAL AND ERROR ties on the bond, this judgment may be for a less sum than the judgment appealed from. 16 (d) Intermediate Affirmance. Further proceedings after affirmance in the affirming court or a higher court do not prevent an action for breach of the con- dition, 17 except in respect to such bonds as are conditioned to satisfy the judgment upon affirmance, and then only in case a stay of execution is effected by, or in connection with, such further proceedings, in which event liability is suspended to abide the ultimate decision, 18 and, in case of ultimate reversal of the original judgment, liability ceases. 19 (e) Intermediate Reversal. A reversal in the appellate court is a fulfilment of the condition, though a new trial result in another judgment, 20 and though the reversal be in turn reversed on further appeal, 21 unless the bond extended, by 16. Summary judgment, authorized by statute, against sureties in the case wherein the bond is given, permits the entering of judgment against them for a sum less than the judgment after remittitur filed by appel- lee. Hopkins v. Orr, 124 U. S. 510, 8 S. Ct. 590, 31 L. ed. 523 [affirming 3 V M. 142, 3 Pac. 61]. 17. Where the affirmed judgment is not stayed by further proceedings there is no bar for that reason to a suit on the bond. So held in case of a further appeal or proceed- ing in error. Kentucky. — Boaz v. Milliken, 4 Ky. L. Rep. 700. Montana. — Parrott v. Kane, 14 Mont. 23, 35 Pac. 243 ; Bullard t. Gilette, 1 Mont. 509. Ohio. — Bulkley v. Stephens, 29 Ohio St. 620. New York. — Burrall v. Vanderbilt, 6 Abb. Pr. (N. Y.) 70, 1 Bosw. (N. Y.) 637. Texas. — Hurley v. Lester, ( Tex. Civ. App. 1895) 32 S. W. 555. Also where a remittitur was remanded to the appellate court after entry of judgment thereupon in the lower court. Murray r. Jones, 2 N. Y. Suppl. 486, 18 N. Y. St. 916. Further appeal a matter of defense. — In order to maintain an action on a bond, given on appeal to an intermediate court, it is not necessary to allege or prove that the judg- ment of affirmance is not appealed from or has not been stayed. Green v. Raftes, 67 Ind. 49. 18. A stay or supersedeas bond, on fur- ther appeal, suspends the liability of the appellant on the affirmed judgment, and, where the principal is not liable, the sureties cannot be held liable pending the determina- tion of further proceedings. Winston v. Rives, 4 Stew. & P. (Ala.) 269; Shannon v. Dodge, 18 Colo. 164, 32 Pac. 61; Young v. Spencer, 2 Ohio Cir. Ct. 459, 1 Ohio Cir. Dee. 587; Adams v. Mortland, 13 Wkly. Notes Cas. (Pa.) 221; Howell r. Sevier, 1 Lea (Tenn.) 95; Gillette r. Bullard, 20 Wall. (U. S.) 571, 22 L. ed. 387. But see Perkins V. Klein, 62 111. App. 585. Appeal not perfected is no bar to an ac- tion on the bond. Ferris v. Tannebaum, 27 Abb. N. Cas. (N. Y.) 136, 15 N. Y. Suppl. 295, 39 N. Y. St. 71. Further appeal pending — Allegation. — Where an answer, which sought to avoid be- cause of a further appeal, with supersedeas from a territorial court to the United States Vol. II supreme court, failed to allege that the ap- peal was pending at the time of the commence- ment of the action, it was held insufficient. Gilette v. Bullard, 20 Wall. (U. S.) 571, 22 L. ed. 387. The giving of a restitution bond to appel- lants on the second appeal enables appellee to enforce the affirmed judgment by execu- tion; but, in case of a return nulla bona, en- forcement cannot be had by suit on the first bond because " the plaintiff proposes to en- force the judgment against the sureties, and to make restitution in case of refusal to the principal." Young v. Spencer, 2 Ohio Cir. Ct. 459, 461. 19. Kleiner v. Maryland Fidelity, etc., Co., 33 Misc. (N. Y.) 188, 67 N. Y. Suppl. 216. Action on bond before reversal. — In a case where the action on the bond was commenced before the reversal, and the reversal was pleaded in bar, it was held that plaintiff was entitled to nominal damages. Cook v. King, . 7 III. App. 549. Nominal damages are allowed in Illinois where, upon further appeal, judgment of af- firmance is reversed. Cook v. King, 7 111. App. 549. 20. Judgment on new trial after reversal is not covered by the obligation to satisfy judgment in case of affirmance. The judg- ment secured is the one appealed from, and this being vacated by a reversal, the bond is discharged. Janeway v. Haft, 22 N. Y. Civ. Proc. 290, 19 N. Y. Suppl. 844, 46 N. Y. St. 917. Second trial in ejectment as matter of right. — The payment of damages and costs, and the consequent vacating of the judg- ment appealed from, in an ejectment case, in accordance with a statute, releases a bond conditioned to satisfy that particular judg- ment; except, it was held, that an additional condition for use and occupation of the prem- ises would be enforced upon a second judg- ment. Clason v. Kehoe, 87 Hun (N. Y.) 368, 34 N. Y. Suppl. 431, 68 N. Y. St. 336. Withdrawal of deposit in lieu of bond. — In ease of a reversal, and new trial ordered, the appellant is entitled to withdraw a de- posit made by him in court in lieu of an appeal bond, although he has become insol- vent. Jordan v. Volkening, 14 Hun (N. Y.) 118. 21. Stoll v. Padlev, 100 Mich. 404, 59 N. W. 176; STofsinger v. Hartnett, 84 Mo. 549 [af- firming 12 Mo. App. 598]. APPEAL AND ERROR 939 ?he appeal".™ *** COnditions contain ed within it, to the subsequent proceedings on (f) Dismissal for Abandonment. The abandonment of an appeal after it ifer? - dl i % b ^ achof condition to prosecute when the abandonmen results in a dismissal of the appeal." A dismissal for failure to prosecute the appeal is a final judgment amounting to an affirmance, 24 unless it is otherwise pro- vided by statute, 25 or by rule of court, 26 or by the express terms of the bond itself *> Reversal and affirmance 'by same court without rehearing. — A judgment having been reversed in the supreme court of Cali- fornia, the ease was taken to the supreme court of the United States, which reversed, -the state supreme court, with directions to affirm the original judgment. In an action on the first appeal bond, conditioned to sat- isfy the judgment if affirmed by the state supreme court, the condition was held broken and the obligors liable. Crane v. Weymouth, .54 Cal. 476. 22. Crane v . Weymouth, 54 Cal. 476 ; Free- man v. Hill, 45 Kan. 435, 25 Pac. 870 ; Rob- inson v. Plimpton, 25 N. Y. 484; Gardner v. Barney, 24 How. Pr. (N. Y.) 467; Richard- son v. Kropf, 5 Daly (N. Y.) 385, 47 How. Pr. (N. Y.) 286; Carroll v. McGee, 25 N. C. 13. Affirmance on rehearing — Plea of re- versal. — Where, on rehearing, a reversal was set aside and the original judgment affirmed, it was held- that a plea of reversal was bad, since it did not traverse the plaintiff's allega- tion of affirmance. Walker v. Bank of North America, 2 111. App. 304. Breach by affirmance after reversal.— A motion to discharge a levy, pending appeal from an order denying a motion to vacate a judgment, was granted on condition of giving a bond, which was given, following the terms of the order, as follows : " That , in case said order appealed from shall be af- firmed by said general term, and, if an appeal be taken from the determination of the gen- eral term upon such appeal to the court of appeals, in case said order be finally affirmed by said court of appeals, the defendant shall well and truly pay," etc. On appeal to the general term the order was reversed, and, on appeal to the court of appeals, the judg- ment of the general term was reversed and the order affirmed. In suit on the bond it was held to have continued in full force until the decision by the court of appeals, when the condition was broken, according to its terms. Osborn v. Rogers, 9 N. Y. Suppl. 736 [af- firmed in 132 N. Y. 579, 30 N. E. 867, 43 N. Y. St. 965]. Separate proceedings about same matter. — In a United States district court an order for seizure and sale for satisfaction of an in- stalment of the purchase-money was made and appealed from, and, subsequently, a simi- lar order was obtained in another district court involving the same land for the satis- faction of a subsequent instalment of the same purchase-money. Both orders having been appealed from and affirmed, it was held that the payment of one of the appeal bonds would not discharge the other. Marchand v. Prellsen, 105 U. S. 423, 26 L. ed. 1057. 23. Seabrook v. State, 28 Ark. 396. Con- tra, Michael v. Ball, 8 Tex. Civ. App. 406, 27 S. W. 948. e 24. Dismissal for failure to prosecute is substantially a judgment of affirmance. California. — Chase v. Beraud, 29 Cal. 138: Ellis v. Hull, 23 Cal. 160. Colorado. — Long v. Sullivan, 21 Colo. 109, 40 Pac. 359. Illinois. — Sutherland v. Phelps, 22 111. 92 ; McConnel v. Swailes, 3 111. 571. Iowa. — Coon v. McCormack, 69 Iowa 539, 29 N. W. 455. Kentucky. — Harrison v. State Bank, 3 J. J. Marsh. (Ky.) 375; Harris v. West, 13 Ky. L. Rep. 334; Fearons v. Wright, 6 Ky. L. Rep. 747. Louisiana. — - Simonds v. Heinn, 22 La. Ann. 296; Champomier v. Washington, 2 La. Ann. 1013; Denis v. Veazey, 12 Mart. (La.) 79. Massachusetts.- — Com. v. Green, 138 Mass. 200. Minnesota. — But see, contra, L. Kimball Printing Co. v. Southern Land Imp. Co., 57 Minn. 37, 58 N. W. 868. Nebraska. — Flannagan v. Cleveland, 44 Nebr. 58, 62 N. W. 297 ; Dunterman v. Storey, 40 Nebr. 447, 58 N. W. 949. New Jersey. — Teel v. Tice, 14 N. J. L. 444 ; Gregory v. Obrian, 13 N. J. L. 11. Texas. — Blair v. Sanborn, 82 Tex. 686, 18 S. W. 159; Trent v. Rhombery, 66 Tex. 249, 18 S. W. 510; Clancey v. Johnson, (Tex. Civ. App. 1894) 27 S. W. 315; Estado Land, etc., Co. v. Ansley, 6 Tex. Civ. App. 185, 24 S. W. 933. 25. Dismissal not final, by statute. — Where, by the statute, another appeal may be taken or allowed within thirty days after a dismissal, there is no breach of condition to prosecute until the expiration of that time without appeal. But in a suit brought after that time, it is not necessary to allege that no second appeal had been taken within the time, as that is purely a matter of defense. Long v. Sullivan, 21 Colo. 109, 40 Pac. 359. 26. Affirmance by appellee. — Where a rule of practice required appellee to file a tran- script in the appellate court upon failure of appellant to prosecute, in order to obtain an affirmance, it was held that this was a pre- requisite to liability on the appeal bond. Seabrook v. State, 28 Ark. 396. Contra, Lob- dell v. Lake, 32 Conn. 16. 27. Condition only for affirmance. — Where the condition, in the language of the statute, was to satisfy the judgment " if the judgment appealed from or any part thereof Vol. II 940 APPEAL AND ERROR or by the judgment of dismissal, 28 or where the dismissal is for lack of jurisdic- tion to entertain the appeal. 29 e. Non-Perf ormanee Excused — (i) Performance Made Impossible. Where the performance of the condition has been made impossible, otherwise than by the fault of the appellant, performance will be excused, and no liability for non-per- formance will attach to either principal or surety — as where (in some jurisdic- tions) the principal appellant is discharged of all his debts by the bankrupt law ; 30 where a court, by injunction, has prevented a trial of the case as to the appellant; 31 where the cause is transferred to another appellate court, 33 or by the abolition of imprisonment for debt. 33 (n) Changes' and Delays in Proceedings. Change of status of the parties on appeal, and delays of proceedings which do not render performance impossi- ble, have been generally, though not always, held not to constitute grounds for ,be affirmed," and the statute had been changed so as to eliminate words making liability upon dismissal specific, it was held that there was no liability upon the obligors to pay the judgment in case of dismissal. iJrummond v. Husson, 14 N. Y. 60. See also L. Kimball Printing Co. v. Southern Land Imp. Co., 57 Minn. 37, 58 N. W. 868. 28. Dismissal without prejudice to the prosecution of a further appeal is not a final judgment nor equivalent to an affirmance. Fearons v. Wright, 6 Ky. L. Rep. 747. But after the lapse of the time allowed for the second appeal, the dismissal operates as an affirmance. Long r. Sullivan, 21 Colo. 109, 40 Pac. 359. 29. Dismissal for lack of jurisdiction has been held to place the parties in the same sit- uation as if no appeal had been taken, and that appellee could have sustained no injury, and appellant have received no benefits by a non-compliance with the condition. Ashley v. Brasil, 1 Ark. 144; Grunewald v. West Coast Grocery Co., 11 Wash. 478, 39 Pac. 964. Reasons. — In Blair v. Reading, 103 111. 375, 377, the court, by Scott, C. J., said: "It was dismissed for want of jurisdiction in the court to hear the writ at all. There was in no sense an affirmance of the original decree. A dismissal of a writ of error for want rf prose- cution, when the court has jurisdiction of the case, has always been treated as an affirm- ance of the decree or judgment, within the meaning of the usual conditions of such bonds. But the rule must be different where the court has no jurisdiction in the premises. It is for the obvious reason that the court has no juris- diction to pronounce a judgment of affirm- ance, and it would be a non sequitur to say a court may affirm a decree when it has no ju- risdiction to hear the case for any purpose." 30. Bankruptcy of principal before affirm- ance discharges bond. Georgia. — Odell v. Wootten, 38 Ga. 224. Kentucky. — Payne v. Able, 7 Bush (Ky.) 344, 3 Am. Rep. 316. Massachusetts. — Carpenter v. Turrell, 100 Mass. 450. Ohio. — Sigler v. Shehy, 15 Ohio 471, stat- ing reasons for the rule at length. Pennsylvania. — Kenly v. Hughes, 1 Browne (Pa.) 258. Vol. II Tennessee. — Martin v. F.ilbourn, 12 Heisk. (Tenn.) 331; Thomas v. Cole, 10 Heisk. (Tenn.) 411. Texas. — Williams v. Atkinson, 36 Tex. 16. But see, contra, Fisse r. Einstein, 5 Mo. App. 7S; Field v. Zalle, 5 Mo. App. 596; Knapp v. Anderson, 7 Hun ( N. Y. ) 295 ( stat- ing reasons for this contrary view) ; Holyoke v. Adams, 1 Hun (N. Y.) 223; Farrell v. Finch, 40 Ohio St. 337; Hickeoek v. Bell, 46 Tex. 610. After the liability has become fixed, sub- sequent bankruptcy of the principal does not release the sureties nor diminish their liabil- ity. Dowlin v. Standifer, Hempst. (U. S.) 290, 7 Fed. Cas. No. 4,041a. Judgment against a bankrupt, rendered merely for the purpose of ascertaining the amount of his indebtedness to plaintiff, will not charge the sureties on his appeal bond. Fontaine v. Westbrooks, 65 N. C. 528. 31. Planters', etc., Bank v. Hudgins, 84 Ga. 108, 10 S. E. 501. 32. Transfer from one appellate court to another, of the cause on appeal, though made pursuant to a constitutional statute providing therefor, is an excuse for non-per- formance of the condition of the appeal bond, where the condition is to prosecute the ap- peal in a designated court, performance being made impossible. Schuster v. Weiss, 114 Mo. 158, 21 S. W. 438, 19 L. R. A. 182 ; Cranor v. Reardon, 39 Mo. App. 306 ; Trader v. Sale, 18 Ohio Cir. Ct. 814. Transfer to another court, by agreement of appellant and appellee, without the knowl- edge and consent of the sureties, was held to release the sureties from liability on a bond conditioned to prosecute in a particularly designated court. Anderson v. Hays, 9 Ky. L. Rep. 334. The rule is different, and the bond is not discharged, by a transfer of the appeal to another court in pursuance of a provision of the constitution in force at the time of the execution and delivery of the bond. Halde- man v. Powers, 20 Ky. L. Rep. 215, 45 S. W. • 662. 33. Abolition of imprisonment for debt discharges the sureties on an appeal bond con- ditioned to surrender up the debtor for im- prisonment in the event of affirmance. Bunt- ing v. Wright, 61 N. C. 295. APPEAL AND ERROR 941 excuse of non-performance — as, the change of parties plaintiff, 34 discontinuance as to one of several defendants, 35 the striking out of a co-plaintiff, 36 a mere con- tinuance of the cause, 87 the correction of an error in the amount of the judgment, 38 the death of appellant, together with revival against his representatives, 39 or fail- ure to so revive, 40 the dissolution of a corporate appellant, 41 or the marriage of a feme sole appellant. 42 (in) Appeal Compromised. Iso breach can occur when appellee has excused non-performance of the condition by the obligor — as where the case has been disposed of by compromise before a decision of the appeal. 43 But it seems that 34. Substitution of plaintiff does not dis- charge obligors.— Where a suit was brought on promissory notes pledged as collateral, judgment obtained, and appeal for » trial de novo effected, and, pending the appeal, the original debt was paid, and another person, to whom the notes had also been pledged, was, by leave of court, substituted as plaintiff, it was held that the case could legally proceed to a finality, and the obligors were not dis- charged. Howell v. Alma Milling Co., 36 Nebr. 80, 54 N. W. 126, 38 Am. St. Rep. 694. Contra, upon addition of new plaintiffs (Fullerton v. Campbell, 25 Pa. St. 345), even where the added plaintiff sued for the use of the former plaintiff (Morse v. Goetz, 51 111. App. 485). 35. Discontinuance as to one defendant, because of his infancy, has been held not to affect the liability of the obligors on the bond as to the other defendants. Taylor v. Dansby, 42 Mich. 82, 3 N. W. 267. 36. Striking out co-plaintiff. — Where one of several plaintiffs in error, who had been er- roneously joined, was, on motion, stricken out of the proceedings in error, it was held that the liability of the obligors on a bond, given to stay proceedings upon a judgment in eject- ment pending the proceedings in error, was not affected. Sherry v. State Bank, 6 Ind. 397. Contra, Tarver v. Nance, 5 Ala. 712. 37. Continuance does not affect bond. Johnson v. Reed, 47 Nebr. 322, 66 N. W. 405 ; Howell v. Alma Milling Co., 36 Nebr. 80, 54 N. W. 126, 38 Am. St. Rep. 694. Contra, where the continuance was entered by consent of the obligee and principal obligor, without the consent of the sureties, though, after the expiration of the period of postponement, the appeal might have been prosecuted, and the agreement was without consideration. Michael v. Ball, (Tex. Civ. App. 1895) 32 S. W. 238. 38. Correction of error in judgment, as to the amount thereof, by a nunc pro tunc entry, without notice to plaintiff in error, brought to appellate court by a supplemental transcript, has been held to have no effect upon the lia- bility of a surety. Marx v. Brown, 42 Tex. 111. 39. A revival, against appellant's repre- sentatives, of the judgment appealed from does not change the obligation of the appeal bond (Cox v. Mulhollan, 1 Mart. N. S. (La.) 564; Butterworth v. Brown, 7 Yerg. (Tenn.) 467), notwithstanding, in case of the death of one of two appellants, the appellee was com- pelled to pursue them separately, one through the representative and the other in person. Sanger v. Nadlehoffer, 34 111. App. 252. 40. Failure to revive against representa- tives does not discharge sureties; the con- dition to prosecute is broken by abatement of appeal upon the death of appellant. Legate v. Marr, 8 Blackf. (Ind.) 404; Bell v. Walker, 54 Nebr. 222, 75 N. W. 617; Manning v. Gould, 1 N. Y. Civ. Proc. 216. Death before issuance of writ of error. — And this rule has been applied although the death of the judgment debtor occurred be- tween the return of the verdict and en- try of judgment, the death not being known when the writ of error issued. Chase v. Hodges, .2 Pa. St. 48. Contra, where, upon suggestion of the death, no personal represen- tative appeared, and the suit was thereupon abated. English v. Andrews, 4 Port. (Ala.) 319; Nelson v. Anderson, 2 Call (Va.) 286. And again, where no proceeding s were had for two terms after the death. Jeffers v. Forrest, 5 Cranch C. C. (U. S.) 674, 13 Fed. Cas. No. 7,251. And the liability of the sureties was held to have been discharged pro tanto by a failure of appellee to have all the proper parties representative substituted. Saulet v. Trepagnier, 2 La. Ann. 427. 41. The dissolution of a corporate appel- lant, whereby it ceased to exist before the suing out of the writ of error, in consequence of which it became necessary to set aside the judgment of affirmance against it, the court nevertheless held, in the absence of fraud, that the sureties were liable. Texas Trunk R. Co. v. Jackson, 85 Tex. 605, 22 S. W. 1030. 42. Marriage of appellant is not a release. Burnham v. Bass, 5 Vt. 463. 43. Disposition of cause by compromise, as the result of which the appeal is withdrawn or dismissed by agreement of the parties, ex- cuses non-performance of the condition to prosecute. Johnson v. Flint, 34 Ala. 673 ; Os- born v. Hendriekson, 6 Cal. 175 ; Leonard v. Gibson, 6 111. App. 503 ; Tournillon ». Ratliff, 20 La. Ann. 179. Affirmance by consent, pursuant to a com- promise agreement, has the same effect. John- son v. Flint, 34 Ala. 673. See also infra, IX, B, 1, c, (iv). Judgment, by consent, for costs. — Where a judgment on appeal was, by consent of the parties, for a part of the costs in favor of ap- pellant, but the judgment appealed from was not affirmed, it was held that there was no condition broken to cover the unpaid costs. Perkins v. Spalding, 3 T. B. Mon. (Ky.) 11. Vol. II 942 APPEAL AND ERROR an agreement for dismissal of the appeal may be -without consideration, in which case, upon dismissal, there is a breach of condition to prosecute. 44 However, the failure to perform a compromise agreement is not a failure of such consideration. 45 ' (iv) Affirmance by Consent — (a) When in Good Faith. An affirmance of the judgment appealed from, pursuant to an agreement between appellant and appellee, does not excuse non-performance of the condition to prosecute, since such an agreement may be made in good faith and is not necessarily inconsistent with a reasonable conduct of the appellate proceedings. 46 The same reason pre- vails where appellant, in good faith, consents to a reinstatement of the appellee who has been nonsuited. 47 But the contrary view is maintained by a number of courts, which, hold that the question of good or bad faith is immaterial. 48 (b) Fraudulent Agreements for Affirmance. Fraudulent collusion between the parties to an appeal, for the purpose of allowing appellee to collect the judg- ment from appellant's sureties through an improper affirmance by consent, will excuse non-performance and discharge the sureties. 49 Except for fraudulent col- 44. No consideration for dismissal agree- ment. — Where, however, the dismissal agree- ment was not based upon a compromise, but was substantially the act of appellant and without consideration, a dismissal pursuant thereto was held to be a breach of the con- ditions, like an affirmance, which would charge the sureties, unless it appeared that appellee had acted fraudulently or collusively with ap- pellant, which question was one of fact for the jury and could not be reviewed on appeal. Chase v. Beraud, 29 Cal. 138; Share v. Hunt, 9 Serg. & R. (Pa.) 404. And the same was held where, instead of a dismissal, judgment in the appellate court was entered by con- sent. Howell v. Alma Milling Co., 36 Nebr. 80, 54 N". W. 126, 38 Am. St. Rep. 694. 45. Failure to perform the compromise agreement works no alteration of the rule after the appeal has been disposed of. It was so held where appellant promised to pay, in lieu of the judgment, a certain sum, in instal- ments, and failed to do so. Comegys v. Cox, 1 Stew. (Ala.) 262, 18 Am. Dee. 45; Leonard v. Gibson, 6 111. App. 503. 46. Agreements for affirmance, if in good faith, do not excuse non-performance of the condition to prosecute, or discharge the sure- ties, since such an agreement may save time and costs and may be the best thing for ap- pellant to do under the circumstances, especi- ally if any concession as to delay of the execu- tion be gained by it. Drake v. Smythe, 44 Iowa 410; Hershler v. Reynolds, 22 Iowa 152; Ammons v. Whitehead, 31 Miss. 99 [approved in Quillen v. Quigley, 14 Nev. 215], stating at length the reasons for this rule; Seawell v. Cohn, 2 Nev. 308. Agreement to abide result of test case, in order to save costs, where the case in which agreement is made is the same as the case to be tested, is binding, and the judgment follow- ing the test-ease judgment is a breach of con- dition. Simonds' Succession, 26 La. Ann. 319. 47. Reinstatement of appellee after non- suit, after which appellee secures an affirm- ance, is not inconsistent with a due prosecu- tion of the appeal, since appellee might have procured the nonsuit to be set aside on mo- tion. McGimpse v. Vail, 5 ST. C. 408. Vol. II 48. Contrary view — Good or bad faith immaterial. — Kendall v. Griee, 1 Mackey (D. C.) 279, 47 Am. Rep. 243 (where the fact that the principal confessed judgment upon consideration that plaintiff would delay exe- cution for thirty days was held to discharge the sureties) ; Shimer v. Hightshue, 7 Blackf. (Ind.) 238; Ross v. Ferris, 18 Hun (N. Y.) 210 (stating reasons for this view) ; Smith v. Shidler, 3 Pittsb. (Pa.) 550. Agreement to set aside intermediate judg- ment in favor of insolvent appellant. — In Foo Long v. American Surety Co., 146 N. Y. 251, 255, 40 N. E. 730, 66 N. Y. St. 730 [af- firming 76 Hun (N. Y.) 264, 27 N. Y. Suppl. 743, 59 N. Y. St. 98], the court, by Andrews, C. J., said : " The defendant's undertaking was executed in view of the situation of the parties to the action at the time. The under- taking was to pay the judgment if it should be affirmed, or the appeal should be dismissed, and this under the circumstances, referred to an affirmance or dismissal in the ordinary course of judicial procedure, and not an af- firmance or dismissal by consent of the par- ties. The plaintiff was entitled to proceed on the appeal according to the usual practice. He could take an affirmance of the judgment by default if the practice of the court per- mitted that to be done. But to construe the undertaking as permitting the parties to agree upon the judgment to be rendered would sub- ject a surety to a hazard which could not, we think, have been contemplated. The present case is an apt illustration of the danger of such a construction. After the general term had reversed the judgment Chu Fong, the principal, being insolvent, without the knowl- edge or consent of the surety, agreed with his adversary that he should prevail on his appeal from the order of the General Term, and they together procured a reversal of the order and an affirmance of the original judgment. It would sacrifice substance to form to hold that an affirmance obtained in this manner was an affirmance within the true meaning of the un- dertaking. It was an affirmance by act of the parties, and not in any true or real sense an affirmance by judgment of the court." 49. Collusive affirmance imposes no liabil- ity. Way v. Lewis, 115 Mass. 26; Piercy V. APPEAL AND ERROR 943 lusion, a judgment of affirmance is valid and cannot be questioned, 50 if the appel- late court had jurisdiction of the subject-matter. 5 * d. Breaeh Waived — (i) Waiver by Obligee. The appellee may waive a breach of condition after it has occurred. Thus, a waiver might be accomplished by a binding agreement to permit appellant to further prosecute his appeal after he has become in default. 52 Practically, however, such waiver could seldom occur, since the appellate courts generally refuse to recognize such agreements. 58 A waiver is not accomplished by the release of an obligee's attachment on appellant's property, 54 the release of the judgment lien on appellant's land, 55 or an agreement, without consideration, with the principal not to sue on the bond. 56 (n) None But Obligee May Waive. Unless the obligee consents thereto the principal cannot, by any act of his own, discharge a surety by waiver of a breach ; m Fiercy, 36 N. C. 214 ; Krall v. Libbey, 53 Wis. 295s, 10 N. W. 386. Compare Ingersoll v. Seatoft, 102 Wis. 476, 78 N. W. 576, 72 Am. St. Rep. 892, where, under the circumstances, there was no collusion or fraud. Insolvency of appellant is evidence of col- lusion. Foo Long v. American Surety Co., 61 Hun (N. Y.) 595, 16 N. Y. Suppl. 424, 41 N. Y. St. 873. Equity will relieve against a final judg- ment which has been obtained by consent and collusion between plaintiff and defendant at law for the mere purpose of charging the surety, the principal not being really charge- able by reason of his insolvency. Piercy v. Fiercy, 36 N. C. 214. 50. Valid affirmance conclusive, in the ab- sence of allegation and proof of fraudulent collusion. California. — Hathaway v. Davis, 33 Cal. 161. Indiana. — Supreme Council, etc. v. Boyle, 15 Ind. App. 342, 44 N. E. 56, 42 N. E. 827. Louisiana. — Alley v. Hawthorn, 1 La. Ann. 122; Denis v. Veazey, 12 Mart. (La.) 79. New York.— Tabor v. Gilfillan, 58 Hun (N. Y.) 608, 12 N. Y. Suppl. 147, 34 N. Y. St. 62S. Wisconsin. — Ingersoll v. Seatoft, 102 Wis. 476, 78 N. W. 576, 72 Am. St. Rep. 892. 51. See supra, IX, A, 2, c. 52. Agreement to reinstate appeal, if binding, would be such a waiver of the breach occasioned bv the default as would discharge sureties. McAuley v. MeKinney, 23 Tex. Civ. App. 500, 57 S. W. 309. But in Bailey v. Rosenthal, 56 Mo. 385, the sureties were held liable, though, after a nonsuit in the appellate court, there was a reinstatement by agree- ment, the court, by Adams, J., saying: "It has never been held in this state that sureties in an appeal bond are parties to the suit in the sense that they must be consulted in re- gard to any step taken in the case before final judgment." 53. McAuley v. MeKinney, 23 Tex. Civ. App. 500, 57 S. W. 309. 54. Curtice v. Bothamly, 8 Allen (Mass.) 336. 55. Burrall v. Vanderbilt, 6 Abb. Pr. (N. Y.) 70. Contra, Wells v. Kelsey, 16 Abb. Pr. (N. Y.) 221 note, 25 How. Pr. (N. Y.) 384. And also, where, because of the discharge of the judgment lien, the appellant was en- abled to remove his property from the state, in an endeavor to prevent the surety from ex- onerating himself from liability. Dills v. Cecil, 4 Bush (Ky.) 579. So, too, where, be- cause of the principal's death, the property was taken by the heirs, it being held that the sureties would be released according to the value of the property released, and that the actual value was to be determined aside from the price for which it was sold and bought in by the heirs. Lewis v. Hill, 87 Ga. 466, 13 S. E. 588. Agreement not to sue on bond, between appellant and appellee, in order to be binding must be based upon a consideration; and, un- less so binding, it is no reason for holding the sureties discharged. California. — Williams v. Covillaud, 10 Cal. 419. Indiana. — Coman v. State, 4 Blackf. (Ind.) 241. Kentucky. — Brinagar v. Phillips, 1 B. Mon. (Ky.) 283, 36 Am. Dec. 575. Maryland.— Hayes v. Wells, 34 Md. 512; Oberndorff v. Union Bank, 31 Md. 126, 1 Am. Eep. 31. Mississippi. — Newell v. Hamer, 4 How. (Miss.) 684, 35 Am. Dec. 415. Nevada. — Quillen v. Quigley, 14 Nev. 215. New Hampshire. — Bailey v. Adams, 10 N. H. 162. Ohio. — Farmers' Bank v. Raynolds, 13 Ohio 84. 56. Partial payment of judgment no con- sideration. — " The mere payment of a, part of the amount of the judgment in monthly instalments is not a binding legal considera- tion for the extension of time. There is no legal obligation varying the contract which previously existed between the creditor and the principal debtor. The sureties were not de- prived of the right of subrogation. The pro- posed extension of time did not deprive the sureties of any right which existed at the time of the rendition of the judgment." Hawley, J., in Quillen v. Quigley, 14 Nev. 215, 217. 57. Surety's security released upon mis- representations. — Where a principal in a bond for costs on a probate appeal misrepre- sented to his surety that no costs would be taxed on the appeal, and thereby induced the surety to return to him security taken as in- demnity, the obligee not having consented to the transaction, the obligation of the surety was held to have in nowise diminished. Pro- bate Ct. v. St. Clair, 52 Vt. 24. Vol. II 944 APPEAL AND ERROR nor can the clerk of a court do so, 58 or the obligee's attorney, contrary to the authority of such obligee. 59 2. Condition to Satisfy Judgment — a. Existence of Condition. After there has been a breach of condition to prosecute to effect by an affirmance of the judgment, the obligors are then obliged to satisfy the judgment affirmed, if the bond contains a condition to that effect. 60 b. Prerequisites to Breach — (i) Besobt Against Principal — (a) Issu- ance of Execution — (1) Effect on Bond. Execution of the judgment against the principal may be resorted to, by the obligee, immediately upon affirmance, and such action has no effect upon the obligation of the bond except in so far as the judgment may be satisfied by the proceeds of the execution. 61 But, since there 58. Clerk of court cannot discharge surety by receiving the amount for which the sure- ties of appellant are liable, because, without the consent of the obligee, he has no authority to so do. Windham v. Coats, 8 Ala. 285. 59. An t unauthorized execution, issued by appellee's attorney against authority and in violation of the stay, is not a waiver of the obligation of the bond given to stay execu- tion on appeal. Lyons r. Cahill, 20 Abb. N". Cas. (N. Y.) 42, 13 N". Y. Civ. Proc. 314. 60. Condition to pay or satisfy judgment must be contained in the terms of the bond; otherwise the measure of liability cannot ex- tend to its payment or satisfaction. It was held no condition to satisfy where the lan- guage was: "To pay (or answer) all dam- ages and costs " ( La Tourette v. Baird, Minor (Ala.) 325; Mason v. Smith, 11 Lea (Tenn.) 67; Banks v. Brown, 4 Yerg. (Tenn.) 198; Jones v. Parsons, 2 Yerg. (Tenn.) 321; Brace v. Squire, 2 D. Chipm. (Vt.) 49; Bank of Metropolis v. Swann, 4 Cranch C. C. (TJ. S.) 139, 2 Fed. Cas. No. 902). Aliter, where the condition to pay damages was accompanied by a stay of execution or supersedeas (Wood v. Brown, 104 Fed. 203, 43 C. C. A. 474 ; Tarr v. Rosenstein, 53 Fed. 112, 5 TJ. S. App. 197, 3 C. C. A. 466; Rosenstein v. Tarr, 51 Fed. 368). Condition to satisfy appellate judgment has been held to oblige the satisfaction of the judgment appealed from. Fowler v. Thorn, 4 Ark. 208 ; Erickson v. Elder, 34 Minn. 370, 25 N. W. 804. Contra, Brown v. Jacobi, 12 Heisk. (Tenn.) 89; Sharp v. Pickens, 4 Coldw. (Tenn.) 268. Condition enlarging recital. — A bond re- cited that a judgment had been rendered in favor of plaintiff, and a stay of proceedings ordered to enable defendant to settle his bill of exceptions, or move for a new trial, on con- dition that he execute bond with surety. The condition of the bond was that defendant should pay the judgment, costs, and interest if the same should not be appealed from, or, if appealed from, should pay the judgment, costs, and interest in case of affirmance. In an action on the bond it was held that the object of the bond, and the liability of the obligors under it, were not to be determined by the recital merely, but by the condition as well, and the defendant and his sureties were not discharged by defendant's filing his bill and moving for a new trial as provided in the recital, but remained liable under the Vol. II condition until the judgment affirmed on ap- peal was satisfied. Miner v. Rodgers, 65 Mich. 225, 31 N. W. 845. No condition to satisfy. — Insolvency of the appellant pending the appeal will render the sureties liable to pay the judgment ap- pealed from, on affirmance, though there be no condition to pay the judgment, but only one to pay damages caused by the appeal, because, where the judgment could have been collected but for the appeal, the damage by an appeal which prevents its collection until the insolvency of appellant is the amount of the judgment. Estes v. Roberts, 63 Minn. 265, 65 N". W. 445; Friesenhahn v. Merrill, 52 Minn. 55, 53 N. W. 1024; Heitan v. Goebel, 35 Minn. 384, 29 N. W. 6. To prosecute to (or with) effect has been held to impose the obligation to pay the judg- ment if unsuccessful. Tarr v. Rosenstein, 53 Fed. 112, 5 TJ. S. App. 197, 3 C. C. A. 466; Rosenstein v. Tarr, 51 Fed. 368. See supra, IX, B, 1, a. Undertaking not specific. — Where the un- dertaking described the judgment and was given to procure a stay thereof, which could not be done without becoming liable for the satisfaction of the judgment upon af- firmance, and the judgment was actually stayed, it' was held that the intention of the obligors was clear to bind themselves to satisfy the judgment, even though they did not so bind themselves in terms, and that they would be so bound. McEIroy v. Mumford, 128 N. Y. 303, 28 N. E. 502, 40 N. Y. St. 270; Markoe v. American Surety Co., 25 Misc. (N. Y.) 127, 54 N. Y. Suppl. 828. _ Where there is no condition but the condi- tion to prosecute, upon an affirmance of the judgment, the only liability on the bond is for nominal damages. Young v. Mason, 8 111. 55. Contra, where the condition was for " due prosecution of the appeal." Foarquar v. Collins, 4 T. B. Mon. (Ky.) 447. A bond on second appeal, conditioned to abide the judgment of the second appellate court, does not relate to the original judg- ment so as to be security for its payment. Bauer v. Cabanne, 105 Mo. 110, 16 S. W. 521. 61. Issuance of execution is no satisfac- tion of the obligation of the bond where nothing is derived under it for the benefit of the judgment creditor. Louisiana. — Clements v. Cassily, 23 La. Ann. 358. APPEAL AND ERROR 945 can be but one satisfaction of the judgment, a pending levy of execution on personalty of the principal sufficient to satisfy the bond has been held to be a bar to an action on the bond, 63 as is also imprisonment of the debtor by execution. 63 This is not so, however, in case of a levy on real estate. 64 Massachusetts. — Many v. Sizer, 6 Gray (Mass.) 141. Ohio. — Chillicothe Bank v. Pierce, 6 Ohio 535. Pennsylvania. — Clayton v. Neff, 1 Wkly. Notes Cas. (Pa.) 430. United States. — Dowlin u Standifer Hempst. (U. S.) 290, 7 Fed. Cas. No. 4,041o.' Void execution sale. — Where the execu- tion was satisfied by a sale of property be- longing to one other than the judgment debtor, and the proceeds for that reason had to be returned, this was held, in an action on an appeal bond, to be no satisfaction of the judgment. Johnson v. Gennison, 22 La. Ann. 397. So, also, where the sale was held void because made pending the appeal, and after the filing of a proper supersedeas bond and petition in error. Riegel v. Fields, (Kan. App. 1900.) 59 Pac. 1088. Abandonment of property by officer, after levy, because of the non-payment of fees, will not avail sureties on an appeal bond as a defense. Poll v. Murr, 3 Cine. L. Bui. 1141. Disposal of property by appellant, pend- ing the appeal, which property had been levied upon and left by agreement with ap- pellant at the time of the appeal when a stay bond was given, was held not to affect lia- bility on the bond. Bennett v. McGrade, 15 Minn. 132. Restitution bond by appellee- — Failure to enforce judgment. — Where a supersedeas bond is given on appeal, and appellee gives a counter-restitution bond to enable him to satisfy the judgment pending the appeal, and lie fails to get satisfaction of the judgment — upon affirmance, his right of action upon the supersedeas bond is not affected. Ah Lep v. Gong Choy, 13 Oreg. 429, 11 Pac. 72. 62. Levy on personalty bars action on bond while the levy is in force, and provided it be upon sufficient property to satisfy the judgment. Therefore, an answer alleging these facts states a defense to the action. Smith v. Hughes, 24 111. 270 ; Pearl v. Well- man, 8 111. 311; Gregory v. Stark, 4 111. 611; Treasurer v. Hall, 3 Ohio 225 ; Cass v. Adams, 3 Ohio 223; Bosbyshell v. Evans, 1 Pa. L. J. Rep. 315. In Hastings First Nat. Bank v. Rogers, 15 Minn. 381, the court said: "The defendants contend that the levy upon the flour operates as » satisfaction of the judg- ment and execution. It is true that a valid levy upon sufficient personal property is prima facie a satisfaction of an execution; but the presumption arising from such a levy may be rebutted. . . . This presumption arises from the fact that the debtor has been de- prived of his property in regular course of execution, and that therefore he ought to be exonerated from further liability, and the judgment creditor be compelled to look to the [60] sheriff. But if the debtor has not been de- prived of his property by reason of the levy; if it has been left in his possession, and eloigned or abandoned, and returned to him, or released from the levy, and delivered up to a third person upon the debtor's request — the reason of the presumption and the pre- sumption itself ceases. Peck v. Tiffany, 2 N. Y. 451; People v. Hopson, 1 Den. (N. Y.) 574; Green v. Burke, 23 Wend. (N. Y.) 490." See also, to the same effect, Ambrose v. Weed, 11 111. 488. 63. Imprisonment of the debtor is a sat- isfaction of a bond conditioned to surrender him up or satisfy the judgment in case of affirmance during the continuance of the im- prisonment. Koenig v. Steckel, 58 N. Y. 475 ; Mitchell v. Thorp, 5 Wend. (N. Y.) 287; Sunderland v. Loder, 5 Wend. (N. Y.) 58; Jackson v. Benedict, 13 Johns. (N. Y.) 533; Mears v. Speight, 49 N. C. 420; Wilk- ings v. Baughan, 25 N. C. 86; Shaw v. Clopp, 1 Ashm. (Pa.) 163. Discharge of the debtor, in the manner provided by law, will restore the remedy on the bond. Norridgewock v. Sawtelle, 72 Me. 484; Prusia v. Brown, 45 Hun (N. Y.) 80; Cooke v. Little, 2 N. C. 193. No condition to surrender. — Where the bond is to stay the judgment and not for the liberty of the debtor, neither the impris- onment of the debtor on execution nor his surrender by the sureties will discharge the bond. It will be held liable for the judg- ment. Mitchell v. Thorp, 5 Wend. (N. Y.) 287; Williams v. Floyd, 27 N. C. 649; Cooke v. Little, 2 N. C. 193. Imprisonment for a fine, after affirmance, is no satisfaction of the obligation of an appeal bond to pay the amount of the judg- ment if affirmed. Sheffield v. O'Day, 7 111. App. 339. 64. Levy on real estate does not bar ac- tion on bond. Illinois. — Robinson v. Brown, 82 111. 279; Herrick v. Swartwout, 72 111. 340; Gold v. Johnson, 59 111. 62; Gregory v. Stark, 4 111. 611. Indiana. — But see, contra, Mcintosh v. Chew, 1 Blackf. (Ind.) 280. Massachusetts. — Ladd v. Blunt, 4 Mass. 402. New York. — Shepard v. Rowe, 14 Wend. (N. Y.) 260. Ohio.— Mayo v. Williams, 17 Ohio 244; Reynolds v. Rogers, 5 Ohio 169. Pennsylvania. — Patterson v. Swan, 9 Serg. & R. (Pa.) 16. England. — Clerk v. Withers, 2 Ld. Raym. 1072, 1 Salk. 322. Reasons for different rule respecting real estate. — "The plea alleges that the plain- tiffs caused an execution to be issued on that judgment, and levied on the lands of Gregory, of value sufficient to satisfy the debt, and Vol. II 946 APPEAL AND ERROR (2) Necessity to Establish Breach — (a) General Rule. To establish a- breach of the condition to satisfy the affirmed judgment it is only necessary to show that, after affirmance, the judgment has not been satisfied. 65 To show this it is not necessary that an execution should have issued on the judgment and returned unsatisfied, 66 in the absence of a statute requiring it, 67 or conditions of the bond to that effect, 68 or in the terms of the judgment which make execution necessary. 69 (b) Execution Required by Statute. In some states statutes require the issu- ance and unsatisfied return of execution against the judgment debtor in order to establish a breach of the condition to satisfy the affirmed judgment. 70 In such that the levy still continues, and the lands remain unsold. That such a levy on per- sonal property would be such a satisfaction of the debt as would be a bar to another suit on that judgment, or any attempt to enforce the judgment in any other way, while the levy still subsisted, and before the result of a sale should prove the insufficiency of the property levied upon, would seem to be set- tled by the authorities. But the same rule does not obtain where the levy is made on real estate. In this case the effect of the levy is not to deprive the debtor of the title, possession, or use of the estate. After the levy, as before, the judgment creditor has only a lien on the land ; nor is the owner divested of his title until after the expira- tion of the time allowed for redemption; but as the creditor realizes his money upon the sale, the judgment is thereby satisfied. The judgment against Gregory was no more satis- fied after than before the levy." Gregory v. Stark, 4 111. 611. Insufficient averment — Duplicity. — In an answer to a, declaration on an appeal bond an averment that an execution under the affirmed judgment was " levied upon the lands, tenements, goods, and chattels of the said Edward Herrick, of sufficient value to satisfy said judgment," was held no defense, for the reason that : " From the averment we must conclude that the goods and chattels, of themselves, are not of sufficient value to satisfy the execution. The levy of an execu- tion upon real estate of sufficient value to satisfy it, does not, like the levy of an execu- tion on personal property, operate, while the levy is undisposed of, as such a satisfaction of the judgment as will bar an attempt to enforce its collection in anv other manner." Herrick v. Swartwout, 72 111. 340, 342. 65. Immediate payment necessary to avoid breach. — " The moment judgment was rendered in the appeal cause, unless the money was paid immediately, the condition of the bond was forfeited, and action could be brought upon it at any time before that judgment was actually satisfied." Gregory v. Stark, 4 111. 611, 612. 66. Issuance and unsatisfied return of exe- cution are not necessary to show a failure of satisfaction of the judgment, and need not be alleged or proved. The allegation and proof of non-payment is enough. California. — Murdock v. Brooks, 38 Cal. 596; Tissot v. Darling, 9 Cal. 278. Colorado. — Anderson v. Sloan, 1 Colo. 484 ; Vol. II Steinhauer v. Colmar, 11 Colo. App. 494, 55 Pac. 291. Illinois. — Trogdon v. Cleveland Stone Co.,. 53 111. App. 206. Indiana. — Railsback v. Greve, 58 Ind. 72. Kentucky — Farmer v. Edwards, 9 Ky. L. Rep. 816; Fowler v. Gordon, 5 Ky. L. Rep. 332. Louisiana. — Rawlings v. Barham, 12 La. Ann. 630, Bryan v. Cox, 3 Mart. N. S. (La.) 574. Missouri. — Staley v. Howard, 7 Mo. App. 377. Montana. — Bullard v. Gilette, 1 Mont. 509. Nebraska. — Ayres v. Duggan, 57 Nebr. 750, 78 N. W. 296; Bell v. Walker, 54 Nebr. 222, 74 N. W. 617; Johnson r. Reed, 47 Nebr. 322, 66 N. W. 405 ; Flannagan v. Cleve- land, 44 Nebr. 58, 62 N. W. 297. New York. — Wood v. Derrickson, 1 Hilt. (c) Execution Required bt Bond. "When, by the condition of the bond, execu- tion unsatisfied against the principal is contemplated as a prerequisite to the liability of the sureties to satisfy the judgment, an action upon the bond cannot be maintained until the proper issuance and return of such execution. 74 (d) Execution Required by Judgment. In certain cases the judgment appealed from and as affirmed is for the doing of something other than the payment of money. In such cases it is necessary, before the sureties are liable to satisfy the judgment by payment of damages, to show that performance cannot be had of the principal. Such is the case of a judgment for the recovery of specific property. 73 (b) Demand on Principal. Since all of the obligors become absolutely bond, such statute was held still in force as to bonds executed prior to the repeal. Gosh- orn v. Alexander, 2 Ohio Dee. 597. 71. Execution out of appellate court, and the return of such execution unsatisfied, was held sufficient to establish a breach where the statute provided for the necessity of an un- satisfied return when an appeal is dismissed for failure to prosecute. Hallam v. Stiles, 61 Wis. 270, 21 N. W. 42. Must issue within thirty days from the judgment in the appellate court, in appeals from justice courts and when the judgment is against appellants only, without the sure- ties. Learson v. Hamlin, 7 Wis. 196. Com- pare Lipe v. Becker, 1 Den. (N. Y.) 568, 6 Barb. (N. Y.) 256. See also Sperling v. Levy, 1 Dalv (N. Y.) 95; Onderdonk v. Emmons, 9 Abb. Pr. (N. Y.) 187, 17 How. Pr. (N. Y.) 545; Beach v. Springer, 4 Wend. (N. Y.) 519. When the affirmed judgment has been al- lowed to become dormant, execution cannot be executed thereon in compliance with the statute requiring an execution returned un- satisfied before the accrual of an action on an appeal bond. Goshorn v. Alexander, 2 Ohio Dec. 597. See also Mayo v. Williams, 17 Ohio 244, which holds that the failure to allege an unsatisfied execution is not ground of general demurrer, and may be cured by verdict. What facts excuse execution. — Death of the principal and insolvency of his estate (Murison v. Butler, 20 La. Ann. 512) ; prin- cipal not found (Cooper v. Rhodes, 30 La. Ann. 533) ; execution prevented during liqui- dation of estate (Wells v. Roach, 10 La. Ann. 543; Flower v. Dubois, 10 Rob. (La.) 191) ; only available property heavily encumbered (Folger v. Palmer, 35 La. Ann. 814; White v. Gaines, 28 La. Ann. 532) ; property not within reach of execution (Whan v. Irwin, 27 La. Ann. 706 ; Wogan v. Thompson, 10 La. Ann. 284) ; execution enjoined (New Orleans, etc., R. Co. v. Dugan, 27 La. Ann. 465). Return before limit of time allowed for return of execution will yet be a sufficient compliance with the statute, unless return was at the instance of the obligee for the pur- pose of favoring the principal (Gale v. Doll, 28 La. Ann. 718; Sperling v. Levy, 1 Daly (N. Y.) 95) ; and the statute was held to be complied with where the execution was made returnable at the earliest possible day (Holmes v. Steamer Belle Air, 5 La. Ann. 523). Aliter, where the execution was re- turned before the return-day (Lynch v. Burr, 10 Rob. (La.) 136). 72. Return of nulla bona not conclusive. — The sureties may show that there really is property of the principal obligor subject to execution, though the sheriff has returned the execution nulla bona, and thus defeat the ac- tion. Green v. Shurtliff, 19 Vt. 592. Informing officer of property, belonging to the principal obligor, by sureties, alleged in plea in an action on appeal bond, held de- murrable because the plea " does not show that the plaintiff was advised of the prop- erty, or that in fact there was any; but only relies on the fact that the defendant said to the officer that there was property." Stanley v. Lucas, Wright (Ohio) 34. 73. No condition to satisfy. — In case of a condition to surrender the body of appellee in execution of the judgment, if affirmed, there must have been an execution to enable ap- pellant so to do ; but, no such condition being in the bond, it was held that the execution was not a prerequisite, and that the obligee could recover as on a voluntary common-law bond, entirely aside from the statute. Pevey v. Sleight, 1 Wend. (N. Y.) 518. 74. Hunt v. Hopkins, 83 Mo. 13. Condition for liability only on failure of principal. — Where the condition of the bond was that " unless his principals satisfied any judgment that might be rendered against them by the appellate court, he would be liable," etc., it was held that the liability of the surety did not become fixed_ until every reasonable step, including execution, to exact payment from the principals, had been taken by the obligee. Cooper v. Rhodes, 30 La. Ann. 533. In such case, as to what steps are rea- sonable, see Pinard v. George, 30 La. Ann. 384; Perkins v. Bard, 16 La. Ann. 443; Chal- aron v. McFarlane, 9 La. 227. 75. Judgment for specific property.— Pie- per v. Peers, (Cal. 1892) 31 Pac. 562; Shon- ing v. Coburn, 36 Nebr. 76, 54 N. W. 84. Vol. II 918 APPEAL AND ERROR liable upon a breach of the condition to satisfy an affirmed judgment, there is no necessity for the obligee to first make a demand on the principal before suing on the bond.™ But such demand must be made in order to establish a breach, where it is required by the terms of the condition. 77 (n) Besort to Another Security. The obligee need not first resort to and exhaust another available security before suing on the appeal bond — as, for instance, a mortgage from the principal — unless taken in satisfaction of the judg- ment, 78 or promissory notes assigned to him by the principal, unless the sureties are thereby prejudiced; 79 or another bond required by order of court, 80 or to effect anotiier purpose, 81 or on further appeal to a higher court, 82 unless the second 76. No demand on principal necessary, or any averment or proof of such demand. California. — Murdock v. Brooks, 38 Cal. 596. Colorado. — Bolles v. Bird, 12 Colo. App. 78, 54 Pae. 403. District of Columbia. — Atwood v. Latney, 4 Mackey (D. C.) 186. Kentucky. — Fowler v. Gordon, 5 Ky. L. Rep. 332. Louisiana. — Bryan v. Cox, 3 Mart. N. S. (La.) 574. Massachusetts. — Hobart v. Hilliard, 11 Pick. (Mass.) 143. Montana. — Nelson v. Donovan, 16 Mont. 85, 40 Pac. 72. Nebraska.— Bell v. Walker, 54 Nebr. 222, 74 N. W. 617. New Jersey. — Teel v. Tiee, 14 N. J. L. 444. New York. — Heebner v. Townsend, 8 Abb. Pr. ("NT. Y.) 234. 77. Demand required by terms of condi- tion. — Cooper v. Rhodes, 30 La. Ann. 533 ; Levois v. Thibodaux, 13 La. Ann. 264; Heeb- ner v. Townsend, 8 Abb. Pr. (N. Y.) 234. 78. Need not first resort to mortgage given by the principal as additional security for the satisfaction of a judgment appealed from. But it would be otherwise were the mortgage taken in satisfaction of the judg- ment or of the bond. Cox v. Mulhollan, 1 Mart. N. S. (La.) 564. 79. Promissory notes as collateral. — Bing- ham v. Mears, 4 N. D. 437, 439, 61 N. W. 808, 27 L. R. A. 257, wherein the court, in a very elaborate and learned opinion by Corliss, J., said : " The right of the sureties with respect to this collateral security is to resort to it themselves on paying the debt, and not to compel the creditor to resort to it." 80. A further bond required by order of court, and given pursuant thereto, will affect the liability on the first bond only in that the sureties on the two bonds are jointly liable in one action, where given for the same pur- pose (Hargis v. Mayes, 20 Ky. L. Rep. 1965, . 50 S. W. 844), but not where given for a dif- ferent purpose (O'Beirne v. Cary, 34 N. Y. App. Div. 328, 54 N. Y. Suppl. 337). 81. An appeal bond does not supersede a redelivery bond, given to effect a dissolution of an attachment in the same action, and the same person having executed both, he is liable to the full extent of both. State v. McGloth- lin, 61 Iowa 312, 16 N. W. 137. A bond to secure clerk's costs, in addition to the appeal bond, has no effect upon the lat- Vol. II ter. Thalheimer v. Crow, 13 Colo. 397, 22 Pac. 779. A replevin bond covering costs of appeal, upon which appellee recovers judgment with- out the costs of appeal, does not affect the right to recover the costs on the appeal bond. Pearson v. Bunker, 30 111. App. 524. 82. Successive appeal bonds are cumula- tive. — Liability on the first bond is fixed first by the intermediate judgment of affirm- ance, which in turn is superseded by the sec- ond bond, and the final judgment of affirm- ance fixes the liability on both. Colorado. — Shannon v. Dodge, 18 Colo. 164, 32 Pac. 61 ; Rockwell v. Lake County, 17 Colo. 118, 29 Pac. 454, 31 Am. St. Rep. 265. Illinois. — Becker v. People, 164 111. 267, 45 N. B. 500 ; Aurand v. Aurand, 87 111. App. 29. Kansas. — Coonradt v. Campbell, 29 Kan. 391. MicMaan. — Marquette County v. Ward, 50 Mich. 174, 15 N. W. 70; Evers v. Sager, 28 Mich. 47. New York.— Mackellar v. Farrell, 134 N. Y. 597, 31 N. E. 629, 45 N. Y. St. 935 ; Chester v.. Broderick, 131 N. Y. 549, 30 N. E. 507, 43 N. Y. St. 933 ; Church v. Simmons, 83 N. Y. 261 ; Humerton V. Hav, 65 N. Y. 380 ; Hinck- ley v. Kreitz, 58 N. Y. 583; Robinson v. Plimp- ton, 25 N. Y. 484. North Carolina. — State v. Bradshaw, 32 N. C. 229 ; Dolby v. Jones, 13 N. C. 109. Ohio. — Hayes v. Weaver, 61 Ohio St. 55, 55 N. E. 172. Tennessee. — Moore v. Lassiter, 16 Lea (Tenn.) 630. United States. — Babbitt v. Shields, 101 U. S. 7, 25 L. ed. 820; Howard Ins. Co. v. Silverberg, 89 Eed. 168. Greater liability by delay of further ap- peal. — Where the first appeal bond was con- ditioned to pay amount of deficiency on fore- closure, and during the delay caused by a further appeal the property depreciated so that the deficiency was larger than when the second appeal was taken, and the second ap- peal was against the wishes of the sureties on the first, they were nevertheless held liable according to the terms of the bond. Mackel- lar v. Farrell, 134 N. Y. 597, 31 N. E. 629, 45 N". Y. St. 935. Second bond is primarily liable. — Hinck- ley v. Kreitz, 58 N. Y. 583. The first sure- ties " became, on the, giving of the second un- dertaking to pay the judgments, sureties for the second sureties, and when the second sure- ties paid or discharged their obligation to the APPEAL AND ERROR 949 bond was given to supersede the first;" or an attachment lien upon the princi- pal s property or a bond given to release such lien, unless from the obligee's for- bearance the sureties will suffer loss; 8 * or an action against an officer lor negli- gent loss of attached property. 8 * And an obligor cannot delay proceedings against him to enable him first to resort to security held by him. 86 But a bond given on appeal from a judgment subjecting property to Scale is only for the denciency after sale ; hence, the property must in such case be exhausted before resort to the bond. 87 (in) Statutory Notice to Sureties. In New York, by statute, it is pro- vided that, before suit can be maintained upon an appeal bond, written notice of the entry of the judgment of affirmance or dismissal must be served upon the attorney for appellant, and ten days' failure to satisfy the judgment thereafter must have elapsed. 88 t owner of such judgments and took an assign- ment of them, they could not enforce such • judgments against the first sureties" (Wron- kow v. Oakley, 133 N. Y. 505, 511, 31 N. E. 521, 45 N. Y. St. 882, 28 Am. St. Rep. 661, 16 L. R. A. 209 ) , and, after the second bond is exhausted, the first will be liable for any remaining deficiency (Chester v. Broderick, 131 ST. Y. 549, 30 N. E. 507, 43 N. Y. St. 933). 83. International Bank v. Poppers, 105 111. 491. Where the first bond is by the order ex- pressly vacated, there can be no question. O'Beirne v. Cary, 34 N. Y. App. Div. 328, 54 N. Y. Suppl. 337. Supersedeas on second appeal, under the provisions of the law requiring it, has been held to supersede and discharge first super- sedeas. Winston v. Rives, 4 Stew. & P. (Ala) 269. 84. Bond to discharge attachment.— Still- well v. Bertrand, 22 Ark. 379, 380, where it is said : " If the causes in action in both cases were the same, founded upon different se- curities, Bertrand could prosecute them both to judgment, contenting himself with one satisfaction." Attachment lien on principal's property. — Davis v. Patrick, 57 Fed. 909, 912, 12 U. S. App. 629, 6 C. C. A. 632, where the court said : " If the sureties desired to avail them- selves of the attachment lien, it was their plain duty to pay the judgment debt, and by so doing become subrogated to whatever lien the judgment creditor had acquired on the lands in question." 85. Holmes v. Woodruff, 20 Vt. 97. 86. Security held by surety affords no ground upon which to delay summary pro- ceedings after his liability has become fixed by an execution returned nulla bona against the principal. De Greek v. Murphy, 28 La. Ann. 297. The right of one judgment debtor against Others, to compel the latter to satisfy a judgment from which he alone appealed, is of no avail as a defense in an action on the ap- peal bond after affirmance. Hutchins v. Wick, 4 Ohio Dec. 170, 1 Cleve. L. Rep. 89. 87. Property must first be exhausted. — See infra, IX, B, 2, d, (n). Condition only for deficiency. — Although the condition provided, in the language of the statute, for the payment " of the sums re- covered or directed to be paid by the judg- ment," it was held that the liability was only for the deficiency, if any, which could not be ascertained until after a sale. Concordia Sav., etc., Assoc, v. Read, 124 N. Y. 189, 26 N. E. 347, 35 N. Y. St. 222. Condition to pay judgment. — Where, on an appeal from a tax judgment against land, the bond was conditioned to pay whatever judgment might be awarded against the land in case of affirmance, it was held that the lia- bility was absolute for the entire judgment, and did not require that the land be first ex- hausted. Mix v. People, 86 111. 329. 88. N. Y. Code Civ. Proc. § 1309; N. Y. Code Proc. § 348; Hill v. Warner, 39 N. Y. App. Div. 424, 57 N. Y. Suppl. 355 ; Loweree v. Tallman, 30 N. Y. App. Div. 225, 52 N. Y. Suppl. 431. Court of appeals. — The provision does not apply to bonds given on appeal to the court of appeals. Johnstone v. Conner, 13 N. Y. Civ. Proc. 19; Sterne t>. Talbott, 89 Hun (N. Y.) 368, 35 N. Y. Suppl. 412, 69 N. Y„ St. 824; Galinger v. Engelhardt, 26 Misc. (N. Y.) 49, 55 N. Y. Suppl. 334. Surrogate courts. — Nor to appeals from surrogates' courts. Hildreth v. Lerche, 23 Abb. N". Cas. (N Y.) 428, 10 N. Y. Suppl. 238. Common pleas. — Nor to appeals to the com- mon pleas of New York city and county, from the city court of New York. Barber v. Ruth- erford, 12 Misc. (N. Y.) 33, 33 N. Y. Suppl. 89, 66 N. Y. St. 690; Weil v. Kempf, 12 N". Y. Civ. Proc. 379. Service held sufficient. — Delivery of a copy of the order of dismissal, containing an in- dorsement by the clerk of the date of its en- try and the name of appellee's attorney. Mil- ligan v. Cottle, 92 Hun (N. Y.) 323, 36 N. Y. Suppl. 904, 72 N. Y. St. 239. Where costs were retaxed and reduced after notice. Yates v. Burch, 87 N. Y. 409. Where the notice did not specifically state that judgment of af- firmance had been entered, but stated judg- ment had been entered on remittitur. Rogers v. Schmersahl, 4 Hun (N. Y.) 623. Service held insufficient.— Delivery of copy of order of affirmance, without a statement that it had been filed or entered, and that Vol. II 950 APPEAL AND ERROR e. Release from Necessity to Satisfy — (i) By Act of the Obligee. The sureties on an appeal bond will be released, from the necessity to satisfy an affirmed judgment, by any act of the obligee, which is done with the fraudulent inten- tion of preventing them from exonerating themselves from the property of the principal judgment debtor, 89 or by any act of the obligee which has that effect. 90 (n) By Legislative Act. Upon the ground that a judgment founded on a tort is not a contract, it has been held that, by statute, a valid judgment upon a particular tort could be declared a nullity, and that a bond conditioned for its satisfaction would thereupon become null and void. 91 A release of the judgment by limitation of the action thereon will release an appeal bond given for its performance. 92 (in) By Lnjtjnction. An injunction, preventing execution of the affirmed judgment, will release the obligors on the appeal bond. 93 (iv) Lnsolvency of Principal. The occurrence of the insolvency of the principal obligor, pending the appeal, preventing exoneration of the sureties over against him for satisfaction of the judgment, does not diminish the sureties' lia- judgment accordingly had been entered. Rae v. Beach, 76 N. Y. 164. Laches — Death of appellant's attorney. — Failure to make service for several months after affirmance, during which time the ap- pellant's attorney died, is not such negligence as will prejudice obligee. In such case, where another attorney is not appointed, the statu- tory service is not indispensable. Chilson v. Howe, 54 Hun (N. Y.) 635, 8 N. Y. Suppl. 945, 26 N. Y. St. 985. Pleading and proof. — Compliance with the statute must be alleged and proved, or else no cause of action is shown. Porter v. Kings- bury, 71 N. Y. 588; Heebner v. Townsend, 8 Abb. Pr. (N. Y. ) 234. An answer which al- leges want of information or knowledge suffi- cient to form a belief as to whether plaintiff served the required notice cannot be regarded as frivolous, Hill v. Warner, 39 N. Y. App. Div. 424, 57 N. Y. Suppl. 355. Judgment-roll. — The judgment-roll may be entered up at any time before or at the trial. Proof of the judgment and statutory notice thereof is sufficient. Concordia Sav., etc., Assoc, v. Read, 14 N. Y. St. 8. Waiver of notice. — Proceedings for fur- ther appeal before expiration of time of no- tice is no waiver of notice, and want of no- tice need not be alleged by defendant. Rae v. Harteau, 7 Daly (ST. Y.) 95, 53 How. Pr. (N. Y.) 25. 89. Collusive transfer of principal's prop- erty. — Evidence that the principal judgment debtor had sufficient property wherewith to satisfy the affirmed judgment, but fraudu- lently transferred it to the obligee for a nor- mal sum for the purpose of compelling pay- ment by the sureties, was offered by the sure- ties in an action on an appeal bond and ex- cluded by the trial court; on appeal, this was held reversible error, since the facts sought to be shown would have discharged the sure- ties. Lafayette P. Ins. Co. v. Remmers, 30 La. Ann. 1347. Agreement to delay suit on bond. — In order that an agreement, between the obligee and principal obligor, to delay suit on the bond may operate to relieve the sureties of Vol. II liability, the agreement must be such as will prevent the obligee from bringing suit, and thus render nugatory the right of the sureties to be subrogated upon satisfaction of the judgment to the obligee's right of action ; hence, where such agreement is not binding for want of consideration, the sureties are not relieved. Quillen v. Quigley, 14 Nev. 215. Negligence of officer, by reason of which property levied upon is destroyed by fire, does not release the sureties on appeal bond to any extent (Grieff v. Steamboat D. S. Stacy, 12 La. Ann. 8) ; or negligence in fail- ing to make a levy or to take possession of property which the affirmed judgment gave to the obligee, unless the latter was responsible for the neglect of the officer (Atkinson v. Fitzpatrick, (Ky. 1901) 60 S. W. 516). 90. Release of collateral security, held by the obligee, to which the sureties would have had the right of subrogation, releases the sureties. Bingham v. Mears, 4 N. D. 437, 61 N". W. 808, 27 L. R. A. 257. Release of second appeal bond, the sure- ties being different from those on the first, re- leases the sureties on the first bond, since those on the second are primarily liable. Hinckley v. Kreitz, 58 N. Y. 583. 91. White v. Crump, 19 W. Va. 583 {cit- ing Peerce v. Kintzmiller, 19 W. Va. 564], construing W. Va. Const, art. 8, § 35, and U. S. Const, art. 1, § 10. 92. Byrne v. Garrett, 23 La. Ann. 587. 93. Conflict of federal and state courts. — In a suit on an appeal bond in a case of an affirmance of a decree of divorce and alimony, as a, defense the obligors introduced the de- cree of the United States circuit court, ren- dered after the affirmance of the decree, in a suit instituted prior to the institution of the divorce proceedings, holding the contract of marriage upon which the decree of divorce and alimony was based to be null and void, and enjoining the use of such instrument, or the claiming of any rights or property interests thereunder, and it was' held that there was no liability either upon the divorce and ali- mony decree or the appeal bond. Sharon v. Sharon, 84 Cal. 433, 23 Pac. 1102. APPEAL AND ERROR 951 hility, 94 not even when the judgment is released by the bankruptcy act, if such release occurs after the affirmance, and, perhaps, not even when it occurs before affirmance. 95 On the other hand, where it is held that sureties are only seconda- rily liable, insolvency of appellant pending appeal will affect the liability of the sureties by way of damages to appellee caused by the appeal. 96 d. Amount Necessary to Satisfy — (i) Amount of the Judgment — (a) The Judgment Appealed From. The amount necessary to be paid in performance of the condition to satisfy is the amount of the judgment appealed from, 97 with inter- est 98 and costs. 99 If the appellate court adjudge a greater amount, the bond is not security for the excess, 1 unless performance of the appellate court judgment is provided for by the terms of the bond, 2 or by a statute which is held to be a part of it. 3 94. Phillips ». Wade, 66 Ala. 53; Trimble V. Brichta, 11 La. Ann. 271; Baldwin v. Gor- don, 12 Mart. (La.) 378. 95. See supra, IX, B, 2, a. 96. Insolvency of appellant damages ap- pellee in the amount of the judgment, ap- pellee having been prevented by the appeal from collecting it while appellant was sol- vent. Keitzinger v. Reynolds, 11 Ind. 545; Estes v. Roberts, 63 Minn. 265, 65 N. W. 445. See also Friesenhahn v. Merrill, 52 Minn. 55, 53 N. W. 1024; Reitan v. Goebel, 35 Minn. 384, 29 N. W. 6. 97. Not merely damages resulting from stay of execution will discharge the condi- tion to satisfy a judgment. It can be dis- charged only upon payment of the full amount of the judgment. Rodman v. Moody, 14 Ky. L. Rep. 202. Judgment for costs. — Where the judgment in an action of interpleader to try title to property in the hands of an officer was and ■could be only for costs, a condition to pay the " costs and condemnation money " was held fulfilled upon payment of costs. Guyer v. Spotts, 85 Pa. St. 51. Recitals of amount. — The bond on appeal from an intermediate appellate court recited the amount of the original judgment to be less than the amount as stated in such inter- mediate judgment, and, on affirmance by the court of last resort and suit on the bond, it was held that the amount recited in the in- termediate judgment would prevail, the con- dition being to " pay the amount directed to be paid by the said judgment," notwithstand- ing the recital of the larger amount in the judgment was irregular and unnecessary. Hill v. Burke, 62 N. Y. 111. Omission to allege amount. — In a suit on an appeal bond an omission to allege the amount of the judgment appealed from is fatal to the assignment of a breacti of condi- tion to satisfy the judgment upon affirmance. Malone v. MeClain, 3 Ind. 532. An immaterial variance, between the judg- ment proved and the declaration, will not de- feat the action. So held where the total amounts agreed, but the declaration failed to specify, but what the judgment showed — that a portion of the amount was for dam- ages. Pearl v. Wellman, 11 111. 352. Alsq where the declaration does not, while the judgment does, include " interest. Frantz v. Smith, 5 Gill (Md.) 280. A fatal variance is established by an alle- gation that the judgment was for six hun- dred and fifty dollars, when it was one thou- sand two hundred and fifty dollars, with re- mittitur of six hundred dollars. Rothgerber v. Wonderly, 66 111. 390. Also by an allega- tion of a judgment against two and proof of a judgment only against one. Dupuie v. Mc- Causland, 1 111. App. 395. 98. Brigham v. Vanbuskirk, 6 B. Mon. (Ky.) 197; Missouri, etc., R. Co. v. Lacy, 13 Tex. Civ. App. 391, 35 S. W. 505; Whereatt v. Ellis, 103 Wis. 348, 79 N. W. 416, 74 Am. St. Rep. 865. Judgment not secured by the bond. — In- terest cannot be allowed as damages or costs. Halsey v. Flint, 15 Abb. Pr. (N. Y.) 367. Interest may exceed penalty of a bond, though the penalty can be exceeded in no' other way, the interest to run from the time of demand. Crane v. Andrews, 10 Colo. 265, 15 Pae. 331 (which also seems to hold that the penalty may be exceeded by the costs and damages) ; Ives v. Merchants' Bank, 12 How. (TJ. S.) 159, 13 L. ed. 936. Double interest, provided for by statute as a penalty for an unsuccessful appeal, ex- tends only over the time of the appeal ; after affirmance single interest only may be al- lowed. Bacon v. Otis, 11 Mass. 407. 99. A failure to take default as to costs, in a suit for judgment, interest, and posts, and plea of payment of judgment and inter- est, deprives plaintiff of the right to recover anything where the defense of payment of the judgment and interest was successful. Very r Watkins, 18 Ark. 546. See also, supra x IX, B, 3. . 1. Extra damages, awarded in appellate court under a statute authorizing an award of ten per cent, on the amount of the judg- ment in case of affirmance, are not included in a condition to " pay said damages so recovered by said Baron against him, and costs, in case the judgment of the said court shall be af- firmed." Raney v. Baron, 1 Fla. 327. 2. Condition to perform appellate judg- ment carries obligation to satisfy amount adjudged in excess of judgment below. Cooper V. Rhodes, 30 La. Ann. 533. 3. Statute a part of bond.— Where a statute required a condition to perform the judgment of the appellate court, but was not inserted, and the bond was allowed to serve the same purpose as if in accordance with Vol. II 952 APPEAL AND ERROR (b) Collateral Judgments. The judgment appealed from is often one ren- dered in a proceeding instituted to affect, in some way, a preexisting judgment. 4 In such case a condition to satisfy the judgment appealed from does not oblige the satisfaction of the preexisting judgment, unless the effect of the appeal is to question the provisions of the preexisting judgment. 5 If, however, such obliga- tion be assumed by the terms of the bond, it has been held that it may he enforced. 6 (n) Amount of Deficiency — (a) Judgment in Rem. If the action _ be wholly in rem, to subject a specific property or fund to the satisfaction of a claim,, and no personal judgment for a deficiency be entered, an appeal bond conditioned to satisfy the judgment is not security for such deficiency, 7 and not even for the statute, it has been held that the condition was supplied by statute and an appellate judg- ment in excess of the one appealed from would be secured in full. Chandler v. Thornton, 4 B. Mon. (Ky.) 360. 4. Appeals from judgments denying mo- tions and applications. — Motion to modify decree of divorce and alimony. Henderson v. Henderson, (Oreg. 1900) 61 Pac. 136. Motion to vacate or application to enjoin a judgment. Halsey v. Murray, 112 Ala. 185, 20 So. 575; Steele v. Wilson, 9 Bush (Ky.) 699; Hanley v. Wallace, 3 B. Mon. (Ky.) 184; Duncan v. Rule, 7 Ky. L. Rep. 439; Greiner v. Prender- gast, 3 La. Ann. 389. In a suit to collect alimony awarded in a former decree, by subjecting the income from certain trust funds to its payment, the appeal bond, conditioned, upon affirmance, to pay the amount directed by the judgment to be paid, is not security for the payment of the alimony decree. Markoe v. American Surety Co., 44 N. Y. App. Div. 285, 60 N. Y. Suppl. 674 [reversing 25 Misc. (N. Y.) 127, 54 N. Y. Suppl. 828]. 5. Appeal from judgment of revivor. — Where, on appeal from a judgment of revivor of a dormant judgment, the appellants sought to question the validity of the revived judg- ment, which objections were considered on their merits, a bond to satisfy was held to se- cure payment of the revived judgment, upon affirmance. Reynolds v. Rogers, 5 Ohio 169. 6. Condition to pay preexisting judg- ment. — Where the condition in a bond, on appeal from an order confirming a sale under a judgment of foreclosure by the purchaser, was conditioned to pay the amount of the purchase-price, the obligors of the bond were held according to its terms. Andrews v. Scot- ton, 2 Bland (Md.) 629. Contra, where the condition was to pay a judgment in a bond on appeal from an order dissolving an injunc- tion of proceedings under it. Halsey v. Mur- ray, 112 Ala. 185, 20 So. 575 [overruling Mc- Calley v. Wilburn, 77 Ala. 549]; Hanley v. Wallace, 3 B. Mon. (Ky.) 184. Collateral stipulation. — -A stipulation be- tween the parties, to an appeal from an order denying a motion to modify a decree of di- vorce and alimony, whereby appellant agreed to pay to appellee, pending the appeal, a speci- fied sum in consideration that appellee, pend- ing the appeal, would forbear to enforce the decree for alimony, was held not to enlarge the terms of the appeal bond so as to charge Vol. II the obligors with the satisfaction of the de- cree for alimony. Henderson v. Henderson, (Oreg. 1900) 61 Pac. 136. 7. Absence of personal judgment prevent* action on bond for deficiency. So held in cases of mortgage foreclosure. Indiana. — Hinkle v. Holmes, 85 Ind. 405;. Willson v. Glenn, 77 Ind. 585. Iowa. — Berryhill v. Keilmeyer, 33 Iowa 20. Kentucky. — Talbot v. Morton, 5 Litt. (Ky.) 326. Maryland. — Andrews v. Scotton, 2 Bland (Md.) 629. Neiv York. — Knapp v. Van Etten, 55 Hun (N. Y.) 428, 8 N. Y. Suppl. 415, 28 N. Y. St. 573. United States. — Omaha Hotel Co. v. Kountze, 107 U. S. 378, 2 S. Ct. 911, 27 L. ed. 609 (involving the lands of a county, against which no personal judgment could be given) ; Wayne County v. Kennicott, 103 U. S. 554, 26 L. ed. 486. So held, also, in case of vendor's lien foreclosure (Wardlow v. Steele, 7 Coldw. (Tenn.) 573) ; also in interpleader eases (Oliver v. State, 66 Ga. 602). Reasons — Attachment with personal judg- ment. — In Neilson 139, 2 Fed. Cas. No. 902. Use and occupation. — That appellant in un- lawful detainer or ejectment used and occu- pied the premises pending appeal need not be alleged or proved. It is enough to show that appellee was deprived of the possession by the appeal. Higgins v. Parker, 48 111. 445; Sherry v. State Bank, 6 Ind. 397 ; Grashaw v. Wilson, 123 Mich. 364, 82 X. W. 73. Evidence of rental value. — A lease of the premises for the previous year is admissible to show damages by reception of rents. Vin- cent v. Defield, 105 Mich. 315, 63 N. W. 302. Tn computing such value taxes paid by the un- successful appellant should be deducted, and interest computed on the balance from the- first of the year. Turner v. Johnson, 20 Ky_ L. Rep. 2009, 50 S. W. 675. APPEAL AND ERROR 957 amount of damages suffered is a question of fact, 30 governed by rules of law as to what in the particular case may constitute damages, 87 or provisions of The record of appraisement of goods in a replevin suit is a proper means of identifica- tion, and prima facie evidence of their value. Karthaus «. Owings, 2 Gill & J. (Md.) 430. Issue of supersedeas is presumed, in the ab- sence of evidence to the contrary, where an appeal bond necessary for that purpose has been filed. Lindon v. Sewell, 5 Ky. L. Rep. 304; State v. Dotts, 31 W. Va. 819, 8 S. E. 391. A plea of non damnificatus, where breaches are assigned, is bad. Terre Haute, etc., R. Co. v. Peoria, etc., R. Co., 182 111. 501, 55 N. E. 377 ; Jenkins v. Hay, 28 Md. 547. 36. Double value of use and occupation. — Where, by statute, the obligee could recover double the value of the use and occupation of premises pending an appeal in a forcible entry and detainer case, it was held improper for the court to double the amount found by the jury for use and occupation, and refuse to permit the jury to return the full amount or liability, including unpaid costs and damages for waste. Henrie v. Buck, 39 Kan. 381, 18 Pac. 228. 37. As to the effect of a stay of execution — Generally. — A stay of execution entitles the obligee to recover damages for any losses sus- tained by reason of having been prevented from executing the judgment (Ray l\ Ray, 1 Ida. 705; Keen v. Whittington, 40 Md. 489) , as for deterioration of property, which, but for the stay, would have been sold for the obligee's benefit, in which case the jury should be in- structed to find for plaintiff the amount of the deterioration in value (Cook v. Marsh, 44 111. 178 ; Hinkle v. Holmes, 85 Ind. 405 ; Welch v. Welch, (Ky. 1901) 60 S. W. 409; Buckner r. Bogard, 8 Ky. L. Rep. 701 ; Jenkins v. Hay, 28 Md. 547 ; Omaha Hotel Co. v. Kountze, 107 U. S. 378, 2 S. Ct. 911, 27 L. ed. 609; Wayne County v. Kennicott, 103 TJ. S. 554, 26 L. ed. 486 ; Dexter v. Sayward, 79 Fed. 237 ) ; but where the deterioration was due to the pre- vention of the appointment of a receiver by the appeal and stay, and not to an unusual delay of appellee in having the receiver ap- pointed after affirmance, about which latter fact it was held the judge might properly ftate to the jury what would not be unusual delay (Fulton v. Fletcher, 12 App. Cas. (D. C.) 1). Rents and profits are losses within the rule stated ; as rents and profits in eject- ment, for the time the successful party is kept out of possession by the bond (Cahall v. Citizens Mut. Bldg. Assoc, 74 Ala. 539; Hays v. Wilstach, 101 Ind. 100; Adams v. Gilchrist, 63 Mo. App. 639 ; Clason v. Kehoe, 49 N. Y. App. Div. 631, 63 N. Y. Suppl. 300; Gleeson's Estate, 192 Pa. St. 279, 43 Atl. 1032, 73 Am. St. Rep. 808; Norton v. Davis, 13 Tex. Civ. App. 90, 35 S. W. 181; Tarpey v. Sharp, 12 Utah 383, 43 Pac. 104; St. Louis Smelting, etc., Co. v. Wyman, 22 Fed. 184), without deducting value of ap- pellant's improvements (Sherry v. State Bank, 6 Ind. 397; Gleeson's Estate, 192 Pa. St. 279, 43 Atl. 1032, 73 Am. St. Rep. 808), ex- cept in case of special statute allowing im- provements to occupants (Hentig v, Collins, 1 Kan. App. 173, 41 Pac. 1057; Norton v. Davis, 13 Tex. Civ. App. 90, 35 S. W. 181), though the bond was insufficient under the statute to operate as a supersedeas, if possession be re- tained (Miller v. Vaughan, 78 Ala. 323; Shum- way v. Harmon, 6 Thomps. & C. (N. Y.) 626) ; the rents and profits were not received by ap- pellant (Sherry v. State Bank, 6 Ind. 397), or, pending the appeal, appellee alienated a portion of the land (De Castro v. Clarke, 29 Cal. 11) ; in partition, from the date of the bond (Armstrong v. Bryant, (Ky. 1891) 16 S. W. 463) ; but where appellee might have had possession by ejectment, no rents and profits were allowed (Stoekwell v. Sargent, 37 Vt. 16) ; in unlawful detainer, during the appellate proceedings (Keegan v. Kinnare, 123 111. 280, 14 N. E. 14; Higgins v. Parker, 48 111. 445 ; Neagle v. Kelly, 44 111. App. 234 ; Craig v. Encey, 78 Ind. 141 ; Pray v. Wasdell, 146 Mass. 324, 16 N. E. 266 ; Grashaw v. Wil- son, 123 Mich. 364, 82 N. W. 73; Bernecker v. Miller, 44 Mo. 126; Green v. Sternberg, 15 Mo. App. 32 ; Morris v. Hunken, 40 N. Y. App. Div. 129, 57 N. Y. Suppl. 712; Union Co. v. Whitely, 15 R. I. 27, 22 Atl. 34, and see 3 Cent. Dig. tit. '•' Appeal and Error," § 4768 ) , including taxes paid, where appellant was a tenant under an agreement to pay taxes as part of rent (Neagle v. Kelly, 146 111. 460, 34 N. E. 947 [affirming 44 111. App. 234]; but rents and profits are not included in the term "intervening damages" (Drew v. Chamber- lin, 19 Vt. 573) ; on appeal from decree setting aside conveyance, the sureties being liable from date of bond; the principal from the time of wrongful possession (Killfoil v. Moore, (Tex. Civ. App. 1898) 45 S. W. 1024) ; or on judgment of possession under execution, from the time of the appeal up to the termination of appellee's title under foreclosure of a mort- gage given by appellant (Estey Mfg. Co. v. Runnels, 67 Mich. 310, 34 N. W. 581); but both parties appealing, in an action to sub- ject property to plaintiff's debt, prevents any liability for rent (Lyon v. Lancaster, 17 Ky. L. Rep. 1169, 33 S. W. 838). In mortgage foreclosure, rents and profits pending the ap- peal are not recoverable (Wood v. Fulton, 2 Harr. & G. (Md.) 71; Hutton v. Loekridge, 27 W. Va. 428 ) , unless required by the court, the court having that power in an equity case (Lowe v. Riley, 57 Nebr. 252, 77 N. W. 758; Omaha Hotel Co. v. Kountze, 107 U. S. 378,- 2 S. Ct. 911, 27 L. ed. 609), or unless ex- pressly stipulated for and required by stat- ute (Gerald v. Gerald, 30 S. C. 348, 9 S. E. 274) ; but not where merely stipulated for without being required by statute (Whitney v Allen, 21 Cal. 233) ; and in suits between tenants in common, no damages for rents and profits are recoverable, because appellee could not have gotten possession under the judg- Vol. II 958 APPEAL AND ERROR a statute designating the amount to be assessed in case of an affirmance, 3 ment appealed from if it had not been stayed (Carver v. Carver, 115 Ind. 539, 18 X. E. 37). Waste, in probate proceedings, where the possession was retained by an executor pend- ing appeal from the vacation of a will. Inter- est on the waste, and shrinkage other than physical depreciation not allowed (Hughan i". Grimes, (Kan. 1900) 62 Pac. 326), and on further appeal, not included in obligation of first appeal bond (Chureh v. Simmons, 19 Hun (X. Y.) 220). Value of property adjudged to appellee, and of which appellant retained possession by vir- tue of the appeal bond and thereafter dis- posed of (Jenkins v. Hay, 28 lid. 547; Kar- thaus v. Owings, 2 Gill & J. (Md.) 430), and the insolvency of appellant, pending appeal, whereby the collection of the judgment is pre- vented by the appeal, calls for the application of the same rule, provided it appears that satisfaction, notwithstanding the insolvency, cannot be had (Keitzinger v. Reynolds, 11 Ind. 545 ; Vent r. Duluth Trust Co., 77 Minn. 523, 80 X. W. 640 : Estes r. Roberts, 63 Minn. 265, 65 X. W. 445 ; Friesenhahn v. Merrill, 52 Minn. 55, 53 X. W. 1024). No supersedeas. — Where no supersedeas is sought and none is necessary to obtain a writ of error, there is no liability upon affirmance, except for costs (Knoxville, etc., R. Co. v. Leabow, 97 Tenn. 449, 37 S. W. 197 ) . So held in case of a bond given on appeal from an or- der discharging a minor claimed as an appren- tice by appellee (Shows v. Pendry, 93 Ala. 248, 9 So. 462 ) , and where, because of non- compliance with the statute, no supersedeas was effected (Steele r. Tutwiler, 63 Ala. 368). Partial stay of execution. — Where, on ap- peal from the judgment of a circuit court af- firming the judgment of a county court, cir- cuit court judgment was stayed but the county court still had power to collect the judgment, there was held to be no liability for damages because of the partial stav of execution. Rob- erts v. Jenkins, 80 Ky. 666. Failure to allege supersedeas. — Damages because of supersedeas cannot be recovered without alleging it (Wharton v. Porter, 10 Sm. & M. (Miss.) 305) ; but the allegation is not necessary where no such damages are sought and the appeal could be effected with- out a supersedeas ( Reynolds v. Rogers, 5 Ohio 169), or where there is no stay of execution (Scott v. Marchant, 88 Ind. 349). Application of execution or attachment pro- ceeds must be first to the payment of the judg- ment, and, if insufficient to pay the judgment, the obligors, in an appeal bond liable only for damages and costs, are not entitled to a pro rata application so as to partially relieve their obligations. Leopold v. Epstein, 54 X. Y. App. Div. 133, 66 X. Y. Suppl. 414; Akes r. Sanford, 19 Tex. Civ. App. 601, 47 S. W. 671 ; Ives v. Merchants' Bank, 12 How. (U. S.) 159, 13 L. ed. 936. Injunction bond — Appeal from judgment of dissolution. — Where the damages suf- fered by an injunction are covered by the bond Vol. II required and given in order to obtain the in- junction, it has been held that a bond on ap- peal from a judgment dissolving the same, conditioned to pay damages because of the ap- peal, was not security for the damages caused by the injunction. Parham t. Cobb, 9 La. Ann. 423. Special assessment. — The damages by rea- son of an appeal from a special assessment is the amount of the assessment and costs. Kil- gour r. Drainage Com'rs, 111 111. 342. Emoluments of office. — ■ The amount of the salary during the period the relator is kept out of office by appeal of usurper in quo warranto proceedings is the measure of dam- ages in an action on the bond (U. S. r. Addi- son, 6 Wall. (U. S.) 291, 18 L. ed. 919) ; but in an election contest, where the appeal did not prevent induction into office, and emolu- ments were not sufficiently mentioned in the bond or judgment, no emoluments were al- lowed (Jayne v. Drorbaugh, 63 Iowa 711. 17 N. W. 433). Money judgment — Interest. — The amount of damages suffered by an unsuccessful appeal from a money judgment is the amount of in- terest at the legal rate from the date of the judgment to the date of the affirmance. Mason r. Smith, 11 Lea (Tenn.) 67. Interest as damages will be allowed, at the legal rate, upon money which is the subject of the litigation and tied up by the appeal. Xa- tional Bank r. Baker. 58 111" App. 343 ; De Vol i. Dye, 6 Ind. App. 257, 33 X. E. 253; Jenkins i'. Hav, 28 Md. 547 : Hargis r. Maves, 20 Ky. L. Rep. 1965, 50 S. W. 844: Vanmeter V. Par- ker, 19 Ky. L. Rep. 1229. 43 S. W. 200. Con- tra, unless provision for interest is made in the decree (Tarr r. Rosenstein. 53 Fed. 112, 5 U. S. App. 197. 3 C. C. A. 466; Rosenstein v. Tarr, 51 Fed. 368), or unless the appellant had the use of the monev (Stearns i'. Brown, 1 Pick. (Mass.) 530). Attorney's fees, expended in resisting an unsuccessful appeal, cannot be recovered as damages in an action on the appeal bond. Kellogg v. Howes, 93 Cal. 586, 29 Pac. 230; Xoll v. Smith, 6S Ind. 188; Deisher (. Gehre, 45 Kan. 583, 26 Pac. 3; Hughan r. Grimes, (Kan. 1900) 62 Pac. 326; Barratt c. Grimes, (Kan. App. 1901) 63 Pac. 272; Welch v. Welch, 20 Ky. L. Rep. 1990, 50 S. W. 687 (unless covered by a provision of the bond) ; Buekner i. Bogar'd, 8 Ky. L. Rep. 701. Con- tra, Shows v. Pendrv, 93 Ala. 24S, 9 So. 462; Drake v. Webb, 63 Ala. 596. Speculative damages — Liquor license. — On a bond for appeal from the granting of a li- quor license, upon affirmance, the obligors are not liable for the supposed profits which would have accrued to the licensee during the pendency of the appeal and consequent suspen- sion of the license if the appeal had not been taken. Blair v. Kilpatrick. 40 Ind. 312. 38. Statutory damages of a certain per cent., to be allowed upon affirmance, is cov- ered by a condition to perform the judgment even though not awarded in the judgment of APPEAL AND ERROR 959 or an order of court 89 under which the bond is given, or the terms of the bond* affirmance. Gilpin v. Hord, 85 Ky. 213, 8 Ky. L. Rep. 904, 3 S. W. 143. Contra, Raney v. Baron, 1 Fla. 327. See also Chase v. Bear- born, 23 Wis. 443, holding that where a stat- ute allowed treble damages, it was held not to be covered by the term " other damages justly accruing to the plaintiff," bond for treble damages not being required. Liability supplied by statute. — Where lia- bility for certain damages is required by stat- ute as a condition of appeal bonds, and the statute in terms declares that no omission will relieve the obligors from liability, it was held that an omission to provide in a bond for mesne profits was supplied by the statute. Stults v. Zahn, 117 Ind. 297, 20 N. E. 154 (so holding to supply a condition to pay rents pending appeal ) ; Opp v. Ten Eyck, 99 Ind. 345. So, too, a statute providing that appeal bonds should be conditioned to satisfy the judgment and costs, together with another provision that the obligors in such appeal bond should be liable upon a summary judg- ment in the appellate court for the debt, dam- ages, and costs, has been held to impose the liability for all damages suffered because of the appeal. Conger v. Robinson, 4 Sm. & M. (Miss.) 210. "Intervening damages," payment of which is prescribed by statute as the condition of an appeal bond, allows the estimation of damages by considering the property the judgment debtor had when the appeal was taken, and all that he acquired when it was pending, the judgment creditor being entitled to recover the value of his chance of collecting his judg- ment during the time his right to an execu- tion was suspended. McGregor v. Balch, 17 Vt. 562. In debt upon a recognizance to prosecute writ of error, under the Vt. statute of 1791, where, upon nonsuit and complaint, execution has issued, and been returned satisfied for twelve per cent, interest and costs, according to the statute, the court will, under the statute for that purpose, reduce the amount of the penalty of the bond for " intervening dam- ages " to a merely nominal sum, unless actual damage be shown. James v. Smith, 1 Tyler (Vt.) 128. Costs of a special administration beyond the amount of expenses which would have been necessary if the estate had been settled by the executors without the intervention of the ap- peal have been held to constitute intervening damages. Sargeant v. Sargeant, 20 Vt. 297. " Damages " as used in the N. Y. Code Proc. § 334, relative to appeal bonds, means only such damages as are awarded on the appeal, not damages thereafter to be recovered or al- ready adjudged in the lower court. Post v. Doremus, 60 N. Y. 371. United States statute — Rents and profits. — A bond' given on appeal to the supreme court of the United States in a suit to recover land, conditioned, according to U. S. Rev. Stat. § 1000, to "answer all damages and costs, if they fail to make their plea good," has been held not to include rents and profits pending the appeal, though the bond operated to stay execution of the judgment, unless they are recovered in the judgment of affirmance (Burgess v. Doble, 149 Mass. 256, 21 N. E. 438; Omaha Hotel Co. v. Kountze, 107 U. S. 378, 2 S. Ct. 911, 27 L. ed. 609), and the same has been held with reference to damages gen- erally under the same statute (Coolidge v. Inglee, 15 Mass. 66). Retrospective statute.— A statute author- izing damages on affirmance of a decree in chancery does not allow the recovery of such damages upon a bond dated before its passage. Woodson v. Johns, 3 Munf. (Va.) 230. No condition for rent. — Where a statute required that the condition of the bond on appeal in an unlawful detainer action should be " to prosecute such appeal with effect, and pay all rent then due," the omission of the rent clause was held not to be supplied by the statute, and, there being no other words from which an obligation to pay rent could be im- plied, the obligors were not charged therewith. Pitt v. Swearingen, 76 111. 250. Provision for separate action for the recov- ery of damages, in case of the wrongful de- tention of real estate, so that only the land itself and costs can be recovered, prevents the recovery of damages because of the loss of pos- session on appeal, though the bond is condi- tioned under statute to pay " intervening damages." Drew v. Chamberlin, 19 Vt. 573. 39. Maximum fixed by order. — Where an appeal bond is given pursuant to an order of court, and the order fixes a. maximum liabil- ity, the amount recoverable on the bond can- not exceed the amount so fixed. Hoag v. Prime, 52 Hun (N. Y.) 615, 5 N. Y. Suppl. 502, 24 N. Y. St. 476; Curry v. Homer,- 62 Ohio St. 233, 56 N. E. 870. Damages before execution of the bond are allowed where the bond is given to replace an- other under order of court, and the first bond released, such bond being held to relate back to date of the appeal. Wilson v. King, 59 Ark. 32, 26 S. W. 18, 23 L. R. A. 802. Contra, unless the new bond by its terms is retrospec- tive, Henrie v. Buck, 39 Kan. 381, 18 Pac. 228. Several beneficiaries of a bond, whose ag- gregate claims exceed the, amount fixed by the court for liability of the bond, will be com- pelled to accept pro rata sums. Curry v. Homer, 62 Ohio St. 233, 56 N. E. 870. 40. Designated penalty should not be ex- ceeded. — Alabama. — ■ Witherington r. Brant- ley, 18 Ala. 197; Windham v. Coats, 8 Ala. 285. Illinois. — Parisher v. Waldo, 72 111. 71; Eournier v. Faggott, 4 III. 347. Indiana. — Sharpe v. Harding, 21 Ind. 334; King v. Brewer, 19 Ind. 267; Ward v. Buell, 18 Ind. 104, 31 Am. Dec. 349. Iowa. — Perry v. Denson, 1 Greene (Iowa) 467. Kansas. — Guess v. Letson, 9 Kan. App. 106, 57 Pac. 1053. Vol. II 960 APPEAL AND ERROR or the judgment of the appellate court rendered on the determination of the appeal. 41 C. Payment of the Obligation. Non-payment of the obligation must be alleged and proved. 42 The defense of payment raises questions of fact : First, if there be no claim of accord and satisfaction, as to the manner of payment ** and Michigan. — Zeigler v. Henry, 77 Mich. 480, 43 X. W. 1018. A T e ic York.— Culver v. Green, 4 Hill (N. Y.) 570; Pevey v. Sleight, 1 Wend. (X. Y.) 518. Texas. — -Hendrick v. Cannon, 5 Tex. 248; Sears v. Seattle Consol. St. R. Co., 7 Wash. 286, 34 Pae. 918 (though the penalty is smaller than required by statute to effect the appeal ) . A clause in addition to the penalty- — that is, " in the sum of four hundred dollars and the rental value of the land in controversy " — was regarded as surplusage, having no place in the penalty of the bond, and the rule of maximum liability was enforced. Guess v. Letson, 9 Kan. App. 106, 57 Pac. 1053. Liabilities in different amounts. — Where the bond states that each surety is bound in the amount set opposite his name, the amounts following their respective names, in each case, is the limit of liability. Hanna v. Savage, 7 Wash. 414, 35 Pac. 127, 8 Wash. 432, 36 Pac. 269. See People v. Slocum, 1 Ida. 62. Maximum statutory amount, when named in the bond as a penalty, does not create an absolute liability for the amount, but is only a limitation on the amount of damages which mav be recovered. German Sav., etc., Soc. v. Kern, (Oreg. 1901) 63 Pae. 1052. Damages prior to bond. — On appeal from an order dissolving an injunction, a bond con- ditioned to pay " all damages caused by wrongfully suing out said injunction," was considered only as an additional injunction bond, embracing only such damages as have been caused prior to giving the appeal bond, and not those caused by keeping the injunc- tion in force bv the appeal. Mix v. Singleton, 86 111. 194; Bardill v. School Trustees, 4 111. App. 94. A bond, prospective in terms as to dam- ages, cannot be made retrospective by inter- pretation. " The law will not create a liabil- ity against sureties which they did not intend to bring on themselves, and which is not within the express conditions of the bond." Henrie r. Buck. 39 Kan. 381, 18 Pae. 228; Hays v. Closon, 20 Kan. 120. 41. Damages to be awarded on appeal. — Sanger v. Xadlehoffer. 34 111. App. 252; Ful- lerton v. Miller, 22 Md. 1. Competitive damages. — Where a bond, on appeal from a decree enjoining further pro- fessional practice, was conditioned to pay " all costs and damages that shall be adjudged against said appellant in this appeal," a fail- ure of the appellate court to adjudge damages on affirmance was held to prevent any recov- ery on the bond for damages suffered by rea- son of competitive professional practice in violation of the decree pending the appeal. Cole p. Edwards, 104 Iowa 373, 73 X. W. 863. Rents and profits. — The same rule was ap- Vol. II plied to prevent a recovery of damages where none were awarded by the appellate court, the condition for damages being only such " as may be allowed upon such writ of error." Johnson v. Hessel, 134 Pa. St. 315, 19 Atl. 700. 42. Thalheimer v. Crow, 13 Colo. 397, 22 Pac. 779; Ullery v. Kokott, (Colo. App. 1900) 61 Pae. 189; Wilson v. Welch, 8 Colo. App. 210, 46 Pac. 106; Mayo v. Williams, 17 Ohio 244; Page v. Johnson, 1 D. Chipm. (Vt.) 338; Tucker i\ Lee, 3 Cranch C. C. (U. S.) 684, 24 Fed. Cas. Xo. 14,221. Contra, Way v. Swift, 12 Vt. 390, holding that payment is a matter of defense, and that non-payment need not be alleged. Sufficient evidence of non-payment. — Where there is no plea of payment, the intro- duction of the uncanceled judgment which was affirmed, and testimony of a witness for plaintiff, not cross-examined, that the amount named in the judgment is due and unpaid, is sufficient evidence. Sterne v. Tatbott, 89 Hun (X. Y.) 368, 35 X. Y. Suppl. 412, 69 X. Y. St. 824. Under a general denial it cannot be shown that the judgment has been satisfied since joinder of issue. Souvais v. Leavitt, 53 Mich. 577. 19 X. W. 261. Nil debet is not a good plea in an action on an appeal bond. Anderson v. Sloan, 1 Colo. 484: Kilgour v. Drainage Com'rs, 111 111. 342. 43. Payment as garnishee, by the unsuc- cessful appellant, of the judgment debt, in a suit against appellee, discharges the obliga- tion of the appeal bond to satisfy the judg- ment. Xoble v. Thompson Oil Co., 69 Pa. St. 409. Payment of bid by surety.— The payment of part of a bid by a surety on the bond given on appeal from a judgment under which a foreclosure sale was made, which sale was af- terward not completed without any blame to the obligee, was held not to relieve the surety's liability. Black River Bank v. Page, 44 X. Y. 453; Leopold r. Epstein, 54 X. Y. App. Div. 133, 66 X. Y. Suppl. 414. A replevin bond, after execution, does not operate as payment of the judgment under which the execution was issued, although the amount of the levy be amply sufficient for the purpose. It is merely additional security with the appeal bond. Morrow v. Mason, 7 J. J. Marsh. (Ky.) 370. Bond enjoining execution is governed by the same rule. Hodges v. Gewin, 6 Ala. 478. Tender of performance — Alternative judg- ment. — A judgment being for the transfer of certain stock within sixty days or payment of two hundred dollars, and the appeal not hav- ing been decided within sixty days, a tender of the transfer within sixty days after certifi- APPEAL AND ERROR 961 amount paid 4 * to the obligees; 45 and, secondly, if accord and satisfaction be claimed, as to whether or not the necessary elements of accord and satisfaction existed. 46 D. Summary Proceedings Against Sureties — l. Nature and Effect. 47 By cation of the affirmance, but not within sixty days from the original judgment, was held not sufficient. Ross v. Swiggett, 16 Ind. 433. Wrongful appropriation of deceased obli- gor's property by obligee, who was the divorced wife of the obligor, cannot operate as a pay- ment, though the value of the property ap- propriated be more than sufficient, because payment was not intended, and the remedy being to recover the property by proceedings in the probate court. Shuster o. Weiss, 114 Mo. -158, 21 S. W. 438, 19 L. R. A. 182. Draft in payment, returned without pre- sentment, with the consent of appellant, does not discharge the bond, though good and for proper amount. Hastings First Nat. Bank v. Rogers, 15 Minn. 381. Tender of specific personal property — Re- plevin judgment. — Where, under the law, it was held not reversible error to render a judg- ment in replevin for the value of the property instead of in the alternative for its value in case delivery cannot be had, an appeal bond superseding the judgment was held not re- leased by a tender of the specific property after affirmance. Fowler v. Gordon, 5 Ky. L. Rep. 332. Satisfaction of judgment under execution. — In an action on an appeal bond, an answer stating that such bond was given to stay all proceedings on plaintiff's part to enforce the judgment appealed from, and alleging that, notwithstanding this, plaintiff had substan- tially enforced that judgment, but not alleg- ing that he had attempted to collect the judg- ment for costs, does not state a defense, where the effect of an appeal bond was only to stay the collection of the judgment for costs; and the intention with which defendant gave the bond is immaterial. Steinback v. Diepen- troek, 52 N. Y. App. Div. 437, 65 N. Y. Suppl. 118. Levy of execution, presumptive evidence of payment. See supra, IX, B, 2, b, (i), (a). "44. Application of partial payment — Un- secured interest first. — Partial payments by the judgment debtor to the creditor, not spe- cifically applied, will be first applied to the satisfaction of interest on the judgment, where the appeal bond is security only for damages and costs. Mason v. Smith, 11 Lea (Tenn.) '67. Misapplication by sheriff of execution pro- ceeds. — On a foreclosure sale the proceeds should be first applied to the satisfaction of the judgment and interest, where the amount realized is insufficient to also pay costs and damages, which alone are secured by the ap- peal bond; and, where such proceeds were mis- applied to the payment of costs first by direc- tion in the judgment, it was held that the judgment would be amended in that respect, and that perhaps a reapplication could be made without amendment. Leopold" v. Ep- [61] stein, 54 N. Y. App. Div. 133, 66 N". Y. Suppl. 414. Proof of tender of the full amount payable upon the bond to the proper parties will re- lieve the obligors from liability. Sharp v. Miller, 57 Cal. 415. Penalty and costs, paid into court by a surety, should be sufficient to stay proceed- ings on the bond. Oshiel v. De Graw, 6 Cow. (N. Y.) 63. Nominal damages.— It has been held that, although an unsuccessful appellant may have paid the affirmed judgment and all the dam- ages and all costs in both courts, he is yet lia- ble for nominal damages, in failing to prose- cute his appeal to effect, in an action on the bond. George v. Bisehoff, 68 111. 236. See also, supra, IX, B, 2, f ; IX, B, 3, b, (n) ; IX, B, 4. 45. Payment to some of obligees. — Pay- ment of the entire amount, including costs, to defendant in error or appellee, will not relieve the obligors from the necessity of paying costs to others entitled thereto under the bond. Curry v. Homer, 62 Ohio Sc. 233, 56 N. E. 870. Payment to execution officer, after unsatis- fied return by him of the execution, is no evi- dence of payment of the obligation, and is inadmissible without further evidence of his authority from the obligee to receive it. Pierce v. Gray, 11 Gray (Mass.) 377. Payment to the clerk does not satisfy the obligation, not even asito amount of his fees, where the judgment is for costs on appeal to be paid to appellee. Menage v. Newcomb; 33 Minn. 143, 22 N. W. 182. 46. Judgment of record and satisfaction with principal. — In a suit on a bond a plea that the plaintiff had sued the principal to foreclose a mortgage given as security for the debt for which the appeal bond was security, and that in that suit the plaintiff was com- pelled to accept satisfaction of the debt in goods, according to an agreement, was held a good defense. Very v. Watkins, 18 Ark. 546. Acceptance of bonds upon condition that their market value should advance to par within a year, and failure of such advance, whereupon they were tendered back, was held not a satisfaction. Jacksonville, etc., R., etc., Co. v. Hooper, 85 Fed. 620, 52 U. S. App. 579, 29 C. C. A. 382. Part payment — Release of principal — Joint and several bond. — Where part payment of the affirmed judgment is accepted by appellee from appellant in full satisfaction of appel- lant's share of liability, the bond is dis- charged, since appellant's share of liability is the entire obligation. Brown v. Ayer, 24 Ga. 288. See also Accord and Satisfaction. 47. Actions generally. — Wherever, in an action on an appeal bond, the question of the sufficiency of a pleading or the propriety of a proceeding has turned upon a question of sub- Vol. II 962 APPEAL AND ERROR statute, in many of the states, separate actions on appeal bonds need not be insti- tuted, the bond becoming a part of the record of proceedings on appeal, 48 and the sureties parties thereto, 49 so that the appellate court, upon affirmance of the appealed judgment, 50 may enter judgment against the sureties as well as against the principal appellant, as of course, 51 and thereon issue execution, 52 or remand the case for such judgment and execution in the trial court. 53 2. Statutory Jurisdiction. The remedy by summary proceedings against sure- ties in the appellate court may be authorized as an exercise of appellate jurisdic- tion ; M but it cannot be resorted to in the absence of special statutory authority. 55 stantive law, it has been treated in this arti- cle (see supra, IX), as have also all special rules of procedure relating particularly to ap- peal bonds ( see supra, IX, I), 1 ) ; but all gen- eral rules of procedure applicable to actions on appeal bonds merely as bonds will be found treated under Bonds; Principal and Surety. 48. Hydraulic Press-Brick Co. i. Zeppen- feld, 9 Mo. App. 595; Clerk's Office v. Huff- steller, 67 N. C. 449 ; Whitehead v. Smith, 53 N. C. 351; Holbrook v. Investment Co., 32 Oreg. 104, 51 Pac. 451; Sullivan v. Skagit County, 2 Wash. 681, 28 Pac. 1039. 49. Surety a party to the proceeding. — A surety, by signing an appeal bond, and by force of the statute, submits himself to the jurisdiction of the court, and becomes liable to judgment for the original cause of action against his principal. Arkansas. — Callahan v. Saleski, 29 Ark. 216; White v. Prigmore, 29 Ark. 208. California. — Hawley v. Gray Brothers' Ar- tificial Stone Paving Co., 127 Cal. 560, 60 Pac. 437. Colorado. — Shannon v. Dodge, 18 Colo. 164, 32 Pac. 61. Iowa. — Phelan v. Johnson, 80 Iowa 727, 46 N. W. 68. Kansas. — Greer v. McCarter, 5 Kan. 17. Minnesota. — Davidson v. Farrell, 8 Minn. 258. Mississippi. — Ifflernan v. Cameron, 66 Miss. 442, 6 So. 206. Nebraska. — Lowe v. Rilev, 57 Nebr. 252, 77 N. W. 758; Selby v. McQuillan, 45 Nebr. 512, 63 N. W. 855. Oregon. — Holbrook v. Investment Co., 32 Oreg. 104, 51 Pac. 451. Tennessee. — Ex p. Miller, 1 Yerg. (Tenn.) 435. Texas. — Hickcoek v. Bell, 46 Tex. 610. United States. — Beall v. New Mexico, 16 Wall. (TJ. S.) 535, 21 L. ed. 292. 50. Reversal in part, necessitating a re- mand of the case for further proceedings, will not authorize » summary judgment as to any part in the lower court, as upon an af- firmance. Crawford v. Kirksey, 55 Ala. 282, 28 Am. Rep. 704. 51. Rogers v. Brooks, 31 Ark. 194; White v. Prigmore, 29 Ark. 208; Clerk's Office v. Huffsteller, 67 N. C. 449; Yarborough v. Giles, 2 N. C. 521 ; Cooke v. Little, 2 N. C. 193; Charman v. McLane, 1 Oreg. 339; White- side v. Hickman, 2 Yerg. (Tenn.) 357. In Texas the judgment of the supreme court, affirming the judgment of the district court, works a forfeiture of the writ-of-error Vol. II bond, and gives it the force and effect of a judgment against the sureties. Hickcoek v. Bell, 4& Tex. 610. 52. Execution not permitted against prin- cipal. — The fact that the execution cannot be had against the principal appellant be- cause it is a municipal corporation will not prevent summary judgment and execution against the sureties. Brauer v. Portland, 35 Oreg. 471, 58 Pac. 861, 59 Pac. 117, 60 Pac. 378. 53. Mowry v. Heney, (Cal. 1890) 24 Pac. 301 ; Meredith v. Santa Clara Min. Assoc, 60 Cal. 617. 54. An appellate court, without original jurisdiction under the constitution, may yet be empowered to enter summary judgments, because such is riot necessarily an exercise of original jurisdiction. White v. Prigmore, 29 Ark. 208 ; Hawley v. Gray Brothers' Artificial Stone Paving Co., 127 Cal. 560, 60 Pac. 437. 55. Special statutory authority necessary, else the summary judgment is void for want of jurisdiction, and execution thereunder a. nullity. Alabama. — Halsey v. Murray, 112 Ala. 185, 20 So. 575. Georgia. — Offerman, etc., R. Co. v. Way- cross Air-Line R. Co., 112 Ga. 610, 37 S. E. 871. Kansas. — Waysman v. Updegraff, 1 Kan. 516. Kentucky. — Stephens v. Miller, 3 Ky. L. Rep. 523. Michigan. — Booth v. Radford, 57 Mich. 357, 24 N. W. 102; Willard v. Fraliek, 31 Mich. 431. Nebraska. — Miller v. Hogeboom, 56 Nebr. 434, 76 N. W. 888. Tennessee. — Ex p. Miller, 1 Yerg. (Tenn.) 435. Texas. — Blair v. Sanborn, 82 Tex. 686, 18 S. W. 159. In the United States courts, under U. S. Rev. Stat. (1878), § 914, conforming the mode of proceeding in federal courts as nearly as may be to that of the state courts, in cases arising under state laws, summary judgment may be entered against sureties if author- ized by statute of the state in which the cause is heard. Smith v. Gaines, 93 TJ. S. 341, 23 L. ed. 901 ; Moore v. Huntington, 17 Wall. (TJ. S.) 417, 21 L. ed. 642; Hiriart v. Ballon, 9 Pet. (TJ. S.) 156, 9 L. ed. 85; Gordon v. Chattanooga Third Nat. Bank, 56 Fed. 790, 13 U. S. App. 554, 6 C. C. A. 125. "Appeal" includes "error."— A statute, providing that on appeal summary judgment APPEAL AND ERROR 963 Hence, summary proceedings cannot be based upon an invalid bond ; 56 upon a bond which though valid, is not a statutory bond ; 57 upon an improper transcript on appeal, though it be sufficient, without objection, for an affirmance; 58 upon a rec- ord which does not disclose the amount of liability, 69 unless adequate proceedings are also provided for such ascertainment ; m upon a statute which does not give the remedy in specific terms, 61 nor where the appeal has not been perfected,® unless some other special method is provided for getting the bond before the appel- late court. 63 When jurisdiction exists, the proceedings cannot be collaterally may be entered against the sureties of an unsuccessful appellant, has been held to ap- ply to proceedings in error and plaintiffs in error. Dold V. Robertson, 3 N. M. 313, 9 Pac. 302. Summary judgment on restitution bond — Authority implied. — The power to enter judgment against the sureties of appellee on a restitution bond has been implied from the express authority to enter summary judg- ment against the sureties of appellant. Hol- brook v. Investment Co., 32 Oreg. 104, 51 Pac. 451. 56. An invalid bond -will not support a summary judgment. Hydraulic Press-Brick Co. v. Zeppenfeld, 9 Mo. App. 595; Brown v. McLaughlin, 8 Humphr. (Tenn.) 140. See supra, IX, A. 57. A bond not required by statute cannot be proceeded against summarily, though such proceedings are authorized in case of statu- tory bonds, and though the bond is good at common law. Halsey v. Murray, 112 Ala. 185, 20 So. 575 [overruling McCalley v. Wilburn, 77 Ala. 549] ; Reynolds v. Cox, 108 Ala. 276, 19 So. 395; Powers v. Chabot, 93 Cal. 266, 28 Pac. 1070; Lewis v. Mull, 3 Greene (Iowa) 437 ; Hymens v. Brown, 15 Tex. 302. Contra, Triplet v. Gray, 7 Yerg. (Tenn.) 15; Banks v. Brown, 4 Yerg. (Tenn.) 198; Nichol v. McCombs, 2 Yerg. (Tenn.) 82. See, however, Jones v. Parsons, 2 Yerg. (Tenn.) 321. See 3 Cent. Dig. tit. "Appeal and Error," § 4779. A defective bond, having only one surety, where the law required two, was held to au- thorize a summary judgment. McDowell v. Bradley, 30 N. C. 92. 58. Burton v. Pettibone, 5 Yerg. (Tenn.) 443. 59. Amount of liability not apparent. — In such case appellee will be left to his action on the bond. Alabama. — Hughes v. Hatehett, 55 Ala. 539. Arkansas. — Stephens v. Shannon, 44 Ark. 178. California. — Reay v. Butler, 118 Cal. 113, 50 Pae. 375. Georgia. — Offerman, etc., R. Co. v. Way- cross Air-Line R. Co., 112 Ga. 610, 37 S. E. 871. Iowa. — Berryhill v. Keilmeyer, 33 Iowa 20. Oregon. — German Sav., etc., Soc. v. Kern, (Oreg. 1901) 63 Pac. 1052. Texas. — Burck v. Burroughs, 64 Tex. 445; Taylor v. St. Louis Type Foundry, 21 Tex. Civ. App. 69, 51 S. W. 304. Washington. — Blair v. Cassin, 19 Wash. 127, 52 Pac. 1011; Northwestern, etc., Hypo- theek Bank v. Griffitts, 18 Wash. 69, 50 Pac. 591 ; Titlow v. Cascade Oatmeal Co., 16 Wash. 676, 48 Pac. 406; Tompkinson v. Muzzy, 2 Wash. 616, 27 Pae. 456, 28 Pac. 652. 60. Kiernan v. Cameron, 66 Miss. 442, 6 So. 206. 61. Statute applicable to special appeals. — A statute providing for summary judg- ment, which, by its terms, applies to appeals from certain courts in particular cases, can- not be extended so as to authorize such judg- ment in appeals from other courts or in other eases. Powell v. Camp, 60 Mo. 569 ; Gunn v. Sinclair, 52 Mo. 327 ; Keary v. Baker, 33 Mo. 603 ;. Harrington v. Evans, 49 Mp. App. 372; Gruenewald v. Schaales, 17 Mo. App. 324. Statute not specific. — The remedy by sum- mary judgment against sureties cannot be left to inference. So Where a statute merely said that, upon affirmance, the sureties would " be liable to the appellee for the whole amount of the debt, costs, and damages," it was held not to authorize a summary judg- ment. Sebly v. McQuillan, 45 Nebr. 512, 63 N. W. 855 [overruling Banghart v. Lamb, 34 Nebr. 535, 52 N. W. 399 ; and followed in Mil- ler v. Hogeboom, 56 Nebr. 434, 76 N. W. 888]. 62. Yesler v. Barker, 3 Wash. Terr. 245, 13 Pac. 759. A dismissal by appellant will authorize the entry of summary judgment the same as a dismissal for failure to prosecute. " By thus dismissing his appeal he could not place the respondents in a worse situation than they would have been in if, upon his neglect to prosecute the same, they had appeared, and, upon filing a short record, procured a dismis- sal or affirmance." Allen v. Catlin, 9 Wash. 603, 604, 38 Pac. 79. Dismissal as affirmance. — However, in case the dismissal operates as » substantial af- firmance, the rule in respect of summary judgments is the same as in the case of an actual affirmance. Shannon v. Dodge, 18 Colo. 164, 32 Pac. 61. So, where appellant moved to dismiss " without prejudice," the dis- missal was allowed, but jurisdiction was re- tained in order to allow appellee to move for an affirmance, and summary judgment on the bond, after the expiration of the time for ap- peal. Agassiz v. Kelleher, 9 Wash. 656, 38 Pac. 221. 63. Bond brought to appellate court by ap- pellee. — A provision of the statute whereby, on dismissal for failure to perfect an appeal, the appellee may bring a transcript of the record to the appellate court in order to ob- tain an affirmance, has been held not to au- Vol. II 964 APPEAL AND ERROR attacked, 64 nor, even in proceedings for summary judgment, can mere irregu- larities in the original action be drawn in question. 65 Meritorious defenses alone may avail the surety. 66 3. Compliance With Statutory Requirements. Since the power to enter judg- ment summarily against sureties in the appellate court is essentially a creature of statute, all of the requirements of the statute authorizing it must be substantially complied with; as that, upon affirmance, 67 judgment against the sureties 68 be entered 69 immediately 70 or instanter, 71 after return of execution nulla bona ; ra upon thorize a summary judgment on the bond, though liability thereon becomes thereby fixed (Yesler v. Barker, 3 Wash. Terr. 245, 13 Pae. 759), unless the bond is before the court (O'Hare p. Wilson, 3 Wash. Terr. 251, 14 Pae. 595). 64. Collateral attack upon a summary judgment, on account of fraud or collusion of the parties, is unwarranted, though there be ground for setting aside the judgment in a direct proceeding in the court which ren- dered it. Fhelan v. Johnson, 80 Iowa 727, 46 N. W. 68. 65. Whitehead v. Smith, 53 N. C. 351; Wilkings v. Baughan, 25 N. C. 86; Rogers v. Newman, 5 Lea (Tenn.) 255. 66. Merit'orious defenses to summary judg- ment. — A surety may plead to a rule that the affirmed judgment has been extinguished by compensation through the obtaining of a judgment by the unsuccessful appellant against appellee (Ellis v. Fisher, 10 La. Ann. 479) ; and fraud and collusion between ap- pellant and appellee in procuring an af- firmance will enable the sureties subsequently to set aside the summary judgment on motion (Dennard v. Mayo, 25 Ga. 681). Mistake in execution — Issue to lower court. — Upon affirmance, appellee having moved for summary judgment upon the terms of the bond, and the sureties having resisted by affidavits that a mutual mistake had been made by inserting a condition to pay the judg- ment when the intention was to secure only the costs, and appellant having denied the mistake and its mutuality, judgment was en- tered for the costs and issues as to the al- leged mistake were sent down to the lower court for trial by jury and recertification. Burnett v. Nicholson, 86 N. C. 728. 67. Dismissal for lack of jurisdiction is not an affirmance and will not authorize the entry of a summary judgment in the appel- late court against sureties. So held where the appeal was not perfected because of fail- ure to file the appeal bond within the pre- scribed time. Grunewald v. West Coast Gro- cery Co., 11 Wash. 478, 39 Pae. 964. 68. Death of the principal does not pre- vent jurisdiction of summary proceedings against sureties. Trimble v. Brichta, 11 La. Ann. 271. Judgment against representatives of a, surety is not authorized by La. Code Proc. art. 596, as amended by the act of March 20, 1839, § 20. Saulet v. Trepagnier, 7 Rob. (La.) 227. 69. Unauthorized entries of judgment. — Omitting the name of one or more of the sureties (Hansen v. Martin, 63 Cal. 282) ; Vol. II entering judgment against sureties separately each for a share ( Faust v. Glynn, 28 La. Ann. 676) ; or computing interest to time of entry, with interest on the whole, instead of for the amount of the original judgment with simple interest ( Gordon v. Chattanooga Third Nat. Bank, 56 Fed. 790, 13 U. S. App. 554, 6 C. C. A. 125) ; or entering judgment for costs of lower court (Williams v. MeCurdy, 22 Ala. 696) are fatal defects. Authorized entries of judgment. — A nunc pro tunc entry at a term subsequent to the af- firmance against appellant ( Bancroft v. Stan- ton, 7 Ala. 351 ; Mayo v. Kersey, 24 Ga. 167) ; judgment against the sureties separately from the principal, a judgment against the latter having been entered (Woolard v. Woolard, 30 N. C. 322), or against all of the sureties in several eases in solido, upon a consolidation (Wetumpka, etc., R. Co. v. Bingham, 5 Ala. 657) are authorized. Execution without judgment. — In some ju- risdictions the judgment of affirmance oper- ates to charge the sureties without formal entry of judgment against them, so that exe- cution may issue upon the bond as upon a judgment. Gwyer v. Kennedy, 61 Ga. 255; Munroe v. Dumas, 42 Ga. 238 ; Hickcock v. Bell, 46 Tex. 610. 70. Entering judgment immediately is sub- stantially done if entered on motion in court, when the successful party moves for judg- ment, though the clerk, in entering the judg- ment, failed to notice that there were any sureties. Gay v. Hults, 56 Mich. 153, 22 N. W. 271. 71. Kinchen v. Brickell, 3 N. C. 209 ; Yar- borough v. Giles, 2 N. C. 521 ; Cooke v. Little, 2 N. C. 193. 72. De Greek v. Murphy, 28 La. Ann. 297 ; Saulet v. Trepagnier, 7 Rob. (La.) 227 ; Smith v. Gaines, 93 U. S. 341, 23 L. ed. 901. Insufficient return. — A sheriff's return as follows: "And after making diligent search and inquiry, and demand of said defendant for other property to satisfy said writ, and the plaintiff named in said writ failing to point out other property to satisfy the same, and said writ having expired by limitation of law, is hereby returned credited as above," is insufficient to enter a judgment against the surety on an appeal bond condemning him to pay the unsatisfied balance of the judgment against the defendant. The return should state that no property could be found not- withstanding a demand on the parties. Shep- pard v. Stewart, 20 La. Ann. 191. Execution not necessary where the princi- pal is dead. Trimble v. Brichta, 11 La. Ann. 271. APPEAL AND ERROR 965 the filing of a copy of the bond in the appellate court ; 7S upon the expiration of the time for appeal to a higher court; 74 upon motion and notice thereof to the sureties, 75 supported by affidavit ; 76 that judgment shall be entered in the trial court upon receipt of a mandate from the appellate court, and non-payment after thirty days, upon motion of the appellee, 77 or that sureties shall be entitled to a hearing and opportunity to show cause. 78 d. Summary Remedy Not Exclusive. The statutory right to a summary judg- ment against sureties is not an exclusive remedy, but it is merely cumulative to the common-law remedy of debt, or the ordinary code action upon the bond. 79 X. EFFECT OF TRANSFER OF CAUSE. A. As to Jurisdiction in General — 1. Dependent Upon Perfecting Proceed- ings For Review — a. In General. Jurisdiction of the cause is not transferred to the appellate tribunal until, under the particular laws prevailing, the appeal is perfected. 80 Generally, appellant has, when he has tiled a satisfactory bond, done 73. Sullivan v. Skagit County, 2 Wash. 681, 28 Pac. 1039. 74. Ex p. Sawyer, 21 Wall. (U. S.) 235, 22 L. ed. 617. Where no right of appeal exists judgment may be entered at once. The Blanche Page, 17 Blatchf. (U. S.) 221, 3 Fed. Cas. No. 1,525. 75. Ground for substantial relief has been held to be necessary to be shown in order to entitle sureties to have a judgment, entered without proper notice of motion, set aside. Sears v. Seattle Consol. St. B. Co., 7 Wash. 286, 34 Pac. 918. 76. Motion upon affidavit. — Where the judgment against sureties recites a motion and that it was made upon affidavit that the bond had not been satisfied, though the record does not contain the affidavit, it will be pre- sumed that the affidavit contained the neces- sary statements of fact to support the judg- ment. Santa Monica First. Nat. Bank v. Ko- walsky, (Cal. 1893) 31 Pac. 1133. 77. Mowry v. Heney, (Cal. 1890) 24 Pac. 301; Meredith v. Santa Clara Min. Assoc, 60 Cal. 617. Premature motion. — A motion for sum- mary judgment against sureties cannot be sus- tained where a certificate of the affirmance was filed after notice of the motion, and only four days before the hearing, though the cer- tificate be deemed a, statutory remittitur. Thirty days must have elapsed, and this must be shown. McCallion v. Hibernia Sav., etc., Soc, 83 Cal. 571, 23 Pae. 798. 78. Sureties entitled to hearing.— Upon af- firmance of a judgment in admiralty from a district court by a circuit court it was ordered that judgment be entered against the sureties unless an appeal should be taken to the su- preme court within a specified time. The ap- peal was taken and judgment affirmed with directions " that such execution and proceed- ings be had . . as according to right and justice, and the laws of the United States, ought to be had," and thereafter, upon mo- tion, the circuit court refused to give judg- ment and execution against the sureties. Upon mandamus in the supreme court to com- pel the circuit court to give such judgment and execution as in compliance with the su- preme court mandate, it was held that the remedy was by appeal or error from the action on the motion, wherein the sureties would have an opportunity to be heard. Ex p. Sawyer, 21 Wall. (U. S.) 235, 22 L. ed. 617, 618. Scire facias against sureties, to show cause why execution should not issue upon judg- ment against them after affirmance, must be issued subsequently to the rendition of an ab- solute judgment against sureties as well as principal. Gutheil Suburban Invest. Co. v. Fahey, 12 Colo. App. 487, 55 Pac. 946. 79. Charleston Bank v. Moore, 6 Ga. 416; State v. Boies, 41 Me. 344; Wilcox v. Daniels, 22 Mo. 493; Cockrill v. Owen, 10 Mo. 287; Trent v. Rhomberg, 66 Tex. 249, 18 S. W. 510. 80. Arkansas. — Clay v. Notrebe, 11 Ark. 631. Colorado. — De Guile v. Alexander, 4 Colo. App. 516, 36 Pac. 620. Illinois. — John F. Alles Plumbing Co. v. Alles, 67 111. App. 252. Iowa. — Loomis v. MeKenzie, 57 Iowa 77, 8 N. W. 779, 10 N. W. 298. Kentucky. — Moore v. Jessamine, Litt. Sel. Cas. (Ky.) 104. North Carolina. — Coates v. Wilkes, 94 N. C. 174; Wilson v. Seagle, 84 N. C. 110; McRae v. New Hanover County, 74 N. C. 415. Texas.— Churchill v. Martin, 65 Tex. 367. United States.— Interstate Commerce Com- mission v. Louisville, etc., E. Co., 101 Fed. 146 See also 2 Cent. Dig. tit. "Appeal and Er- ror," § 2212. , . . Vacation of allowance of appeal during term.— In Aspen Min., etc., Co. v. Billings, 150 U. S. 31, 14 S. Ct. 4, 37 L. ed. 986 the circuit court of the United States, at the same term at which it had allowed an appeal to the supreme court, vacated the order and granted an appeal to the circuit court of ap- peals. See also State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 566. An adjourned term, held under authority of statute, is » part of the regular term and during such term the proceedings are Mi fieri and the records under the control of the court, Smith v. Smith, 17 Ind. 75. Vol. II 966 APPEAL AND ERROR substantially all that is required of him to give the appellate court jurisdiction. 81 But the statutes of the various jurisdictions are different in their requirements, and as the question under discussion depends in the main upon such statutes, they must be consulted in all cases. 82 b. Power Over Perfecting and Transmission of Record. The lower court does not, by reason of the appeal, lose its jurisdiction to do anything for the presenta- tion of the case in the appellate court. 83 During the time within which, by law, a party may file his statement upon appeal and liave it settled, the court retains jurisdiction for that purpose, and a settlement and filing of the bill of exceptions after judgment and appeal taken is a matter embraced in the action. 81 Pending application for writ of error. — While, upon an application for a writ of er- ror, the appellate court has jurisdiction to determine whether or not the writ shall issue, it has no jurisdiction over the case until the writ is granted. New York Fidelity, etc., Co. r. Allibone, 90 Tex. 660, 40 S. W. 399. 81. District of Columbia. — Chisholm v. Cissell, 12 App. Cas. (D. C.) 180. Illinois. — Reynolds r. Perry, 11 111. 534 (where it was held that, the appeal having been improvidently granted, appellee might, on filing a copy of the record and giving rea- sonable notice to appellant, move to dismiss the appeal); Blackerby r. People, 10 111. 266; Simpson r. Alexander, 10 111. 260; JohnF. Alles Plumbing Co. v. Alles. 67 111. App. 252; Elgin Lumber Co. v. Langman, 23 111. App. 250. Louisiana. — Cary r. Richardson, 32 La. Ann. 1168; Phelps" r. Boughton, 28 La. Ann. 826; State r. Judge, 22 La. Ann. 37; State v. Judge, 11 La. Ann. 728; Bridge v. Merle, 7 La. 446. Ohio. — State r. Meacham, 6 Ohio Cir. Ct. 31, holding that the appellate court might award a mandamus to compel the clerk of the lower court to enter upon his journal the ac- tion of that court fixing amount of the bond. New York. — Adams v. Fox, 27 N. Y. 640. United States. — Keyser r. Farr, 105 U. S. 265, 26 L. ed. 1025 (wherein there was not only the acceptance of a bond, but an actual entry of the case in the supreme court, and a motion to dismiss, on account of an order of the court below vacating its allowance of ap- peal, was denied) ; Draper v. Davis, 102 U. S. 370, 26 L. ed. 121. 82. Iowa. — Requirement of service of no- tice on party and clerk and payment or secur- ing of clerk's fees for transcript. Loomis v. McKenzie, 57 Iowa 77, 8 N. W. 779, 10 N. W. 298. Kentucky. — Stone v. Cromie, 87 Ky. 173, 10 Ky. L. Rep. 19, 7 S. W. 920. Maine. — Entry of the action in the su- preme court confers jurisdiction. Hunter v. Cole, 49 Me. 556. Missouri. — The appeal is pending in the appellate court from the time it is taken, and not from the time the transcript is filed. Foster v. Rucker, 26 Mo. 494. Nebraska. — Jurisdiction on petition in er-. ror does not attach until transcript is filed. Slobodisky v. Curtis, 58 Nebr. 211, 78 N. W. 522. North Carolina. — Where, after appeal taken Vol. II and bond filed, appellant neglects to have a transcript docketed in the supreme court, the superior court may, upon proper notice, at next term adjudge that the appeal has been abandoned and proceed as if no appeal had been taken. Bailev v. Brown, 105 N. C. 127. 10 S. E. 1054; Avery v. Fritchard, 93 N. C. 266; Wilson v. Seagle, 84 N. C. 110. Oregon. — Elwert v. Norton, 34 Oreg. 567, 51 Pac. 1097, 59 Pae. 1118, under a, statute permitting appellant to cure an omission, holding that it gave the lower court power to cure the omission only at the instance of ap- pellant, and not on attack by appellee. South Carolina. — Upon filing of return. Pelzer Mfg. Co. v. Cely, 40 S. C. 430, 18 S. E. 790; Pickens r. Quillian, 31 S. C. 602, 9 S. E. 743. South Dakota. — Upon service of notice of appeal and execution of undertaking. Sands v. Cruickshank, 12 S. D. 1, 80 N. W. 173; Mather v. Darst, 11 S. D. 480, 78 N. W. 954. Texas. — Garza v. Baker, 58 Tex. 483, as to jurisdiction of lower court pending the term, and the duty of appellant to file a transcript within the return-time. Wisconsin. — Service of notice and execu- tion of undertaking perfects the appeal, and the trial court cannot strike the notice of undertaking from the files for failure to pay clerk's fees for transmitting the record. Con- gregation of Immaculate Conception v. Hell- stern, 105 Wis. 632, 81 N. W. 988. United States. — Filing of transcript dur- ing term succeeding allowance of appeal. Evans r. State Nat. Bank, 134 U. S. 330, 10 S. Ct. 493, 33 L. ed. 917. Jurisdiction ac- quired by filing a writ of error in the office of the clerk is not defeated by irregularity in the transcript or in its certification. Burnham r. North Chicago St. R. Co., 87 Fed. 168, 59 U. S. App. 274, 30 C. C. A. 594. 83. Goff r. Hawkeye Pump, etc., Co., 62 Iowa 691, 18 N. W. 307 (where the record was not certified till after the appeal) : State v. Clark. 33 La. Ann. 422 (holding that the jurisdiction of the lower court over its clerk continues, and that it may compel him to prepare and deliver the transcript of appeal ) ; State v. Judge, 11 La. Ann. 728 : Bridge V. Merle, 7 La.- 446: Pemberton r. Zacharie, 4 La. 205; Fink r. Martin, 10 Rob. (La.) 147; Lamburth v. Dalton, 9 Nev. 64; Caples v. Central Pac. R. Co., 6 Nev. 265. See also 2 Cent. Dig. tit " Appeal and Error," § 2202. 84. California. — Colbert v. Rankin, 72 Cal. 197, 13 Pac. 491. But a bill of exceptions, APPEAL AND ERROR 96? e. Irregular op Ineffectual Proceedings For Review. A judgment not appeal- able remains in foil force notwithstanding an attempted appeal; and, though an appeal is attempted, if no appeal is given by law or it is irregularly taken, the appellate court does not acquire jurisdiction, but the lower court retains jurisdic- tion of the case and may review its judgment before rendering a proper one ffi But on the other hand, it is held that appeals, though ill taken — as where an appeal is taken on an order not involving the merits or affecting the judgment, which, under statutes, is improper — are not mere nullities, and are operative until dis- missed. An appeal is not affected by a law adding new requirements, which law was passed after such appeal had been perfected. 87 2. Extent of Powers of the Respective Courts in General. As a general rule, when an appeal is perfected the cause becomes one for the cognizance of the appellate court ; the authority of the lower court is terminated, and it cannot proceed in the cause, at least as to the subject-matter of the appeal, until the appeal is heard and determined. 88 So, pending an appeal from a decree in chan- settled for the purpose of use in support of a motion for a new trial, cannot be changed after denial of the motion and appeal from such denial, because the appeal deprives the court of jurisdiction to set aside the order denying the new trial or to change the record upon which it was based. Baker v. Borello, 131 Cal. 615, 63 Pae. 914. Iowa. — Tiffany v. Henderson, 57 Iowa 490, 10 N. W. 884, where time for signing the bill had been extended. Minnesota. — Pratt v. Pioneer Press Co., 32 Minn. 217, 18 N. W. 836, 20 N. W. 87. Missouri. — Shaw v. Shaw, 86 Mo. 594 [cit- ing State v. Lewis, 71 Mo. 170] ; Paretti v. Rebenack, 81 Mo. App. 494. Montana. — William Mercantile Co. v. Pussy, 13 Mont. 401, 34 Pae. 189, construing the statutory provision that an appeal stays the proceedings of the trial court. See also infra, note 95. Nevada. — Patchen v. Keeley, 19 Nev. 404, 14 Pae. 347; James v. Lepert, (Nev. 1884) 2 Pae. 753. But in Thomas v. Sullivan, 11 Nev. 280, the appellate court disregarded a settled statement made after the appeal was taken. 85. California. — Gregory v. Gregory, 102 Cal. 50, 36 Pae. 364. Colorado. — Morrell Hardware Co. v. Prin- cess Gold-Min. Co., ( Colo. App. 1901 ) 63 Pae. 807 ; De Guile v. Alexander, 4 Colo. App. 516, 36 Pae. 620. Connecticut. — Calhoun v. Terry Porter, 21 Conn. 526. Minnesota. — Fay v. Davidson, 13 Minn. 523. New York. — Guarantee Trust, etc., Co. v. Philadelphia, etc., R. Co., 160 N. Y. 1, 54 N. E. 575, holding that where an appeal from an order, not appealable as of right, is im- properly taken to the court of appeals, the appellate division cannot, by an order nunc pro tunc after the expiration of the statutory time to appeal, make the appeal effective. Pennsylvania. — MeCarter's Appeal, 78 Pa. St. 401 ; Robinson v. Glancy, 69 Pa. St. 89. United States. — Riddle v. Hudgins, 58 Fed. 490, 19 U. S. App. 144, 7 C. C. A. 335. Execution may be sued out or action of debt maintained. Campbell v. Howard, 5 Mass. 376; Latham v. Edgerton, 9 Cow. (N. Y.) 227; Loveland v. Burton, 2 Vt. 521. 86. American Button-Hole, etc., Mach. Co. v. Gurnee, 38 Wis. 533. And see Baasen v. Filers, 11 Wis. 277; Pemberton v. Zacharie, 5 La. 310, in which cases it was held that proceedings in the lower court were unau- thorized, though the appeal was improperly allowed. The question whether an appeal is regular or valid can be determined only by the appellate tribunal in which the case, as to the judgment, order, or decree appealed from, is properly pending, so that the lower court cannot carry its judgment or decree into execution (Dunbar v. Dunbar, 5 W. Va. 567) ; though the lower court may permit a second appeal when the first was irregularly perfected (Bates v. Weathersby, 2 La. Ann. 484). Appellate court having no jurisdiction. — An appeal, when perfected, even though granted to a tribunal that has no jurisdiction to entertain it, suspends action on the judg- ment until the appeal is dismissed by the ap- pellate tribunal. Smith v. Chytraus, 152 111. 664, 38 N. E. 911. See also supra, VIII. 87. And the court, in such a case, cannot make new orders looking to an appeal under the new enactment. Eichholtz v. Wilbur, 4 Colo. 434. 88. Alabama. — Southern R. Co. v. Bir- mingham, etc., R. Co., (Ala. 1900) 29 So. 191. California. — Barnhart v. Edwards, 128 Cal. 572, 61 Pae. 176, 57 Pae. 1004: Stewart v. Taylor, 68 Cal. 5, 8 Pae. 605; Livermore v. Campbell, 52 Cal. 75. But see Auzerais v. Superior Ct., 101 Cal. 542, 36 Pae. 6, for a limitation of this rule. Delaware. — Woolaston t\ Mendenhall, 1 Del. Ch. 23. District of Columbia.— Whitney v. Frisby, 6 D. C. 262. Indiana. — Indianapolis, etc., R. Co. v. Kibby, 28 Ind. 479. Iowa.— Stillman v. Rosenberg, 111 Iowa 369, 82 N. W. 768; Levi v. Karrick, 15 Iowa 444'; McGlaughlin v. O'Rourke, 12 Iowa 459. See also Turner v. Keokuk First Nat. Bank, 30 Iowa 191. Kentucky.— Boaz v. Milliken, 4 Ky. L. Rep. 700 (as to want of authority of the lower Vol. n 968 APPEAL AND ERROR eery, the chancellor has n<) power to render any further decree affecting the rights and equities of the parties. 89 The appellate court acquires jurisdiction in all matters pertaining to the subject-matter of the appeal itself and to the proper hearing thereof, and also in regard to all applications which, by statute, may, after the taking of the appeal, be made to such court, 90 and the lower court cannot pro- ceed in any manner so as to affect the jurisdiction acquired by the appellate court, 91 court to direct a rule against its clerk to com- pel him to issue a certified copy of the opin- ion and mandate) ; Helm v. Boone, 6 J. J. Marsh. (Ky.) 351, 22 Am. Dec. 75. Louisiana. — State v. Duffel, 41 La. Ann. 958, 8 So. 541; Lottspeich v. Diboll, 28 La. Ann. 772; Pemberton v. Erwin, 5 La. 22; Williams v. Chew, 6 Mart. N. S. (La.) 463. See also, for distinction between suspensive and devolutive appeals, Garland's Rev. Code Frac. La. (1901), §§ 575-578. Michigan. — Beal v. Chase, 31 Mich. 490, as to want of authority in the lower court pending an appeal to make a second decree, the statute providing for a stay of proceed- ings unless otherwise ordered by the su- preme court. Missouri. — State v. Gates, 143 Mo. 63, 44 S. W. 739 [citing Macklin v. Allenberg, 100 Mo. 337, 13 S. W. 350; Burgess v. O'Don- oghue, 90 Mo. 299, 2 S. W. 303; Exchange Nat. Bank v. Allen, 68 Mo. 474 ; Lewis v. St. Louis, etc., R. Co., 59 Mo. 495, 21 Am. Bep. 385], holding that, under statutory pro- visions allowing an appeal from an order granting a new trial, and declaring that the recognizance provided for should have the effect to stay execution pending an appeal, an order granting such appeal suspended all further exercise of judicial functions by the lower court until the termination of the ap- peal, notwithstanding such recognizance was not given, as the recognizance could operate only upon a judgment to the extent of sus- pending its execution. North, Carolina. — Pasour v. Lineberger, 90 N. C. 159 (holding that pending an appeal from an order refusing to discharge an at- tachment the lower court cannot dismiss the attachment) ; State Bank v. Twitty, 13 N. C. 386; Murry v. Smith, 8 N. C. 41. Ohio. — Bradford v. Watts, Wright (Ohio) 495. South Carolina. — Elliott v. Pollitzer, 24 S. C. 81 (pending an appeal from an order overruling a demurrer) ; Frazee v. Cardozo, 6 S. C. 315 (holding that a party cannot be at- tached for contempt by the supreme court of the state for not conforming to a judgment which had been superseded by the allowance of a writ of error from the supreme court of the United States). Tennessee. — Suggs v. Suggs, 1 Overt. (Tenn.) 2. West Virginia. — Crawford v. Fickey, 41 W. Va. 544, 23 S. E. 652. United States. — Morrin v. Lawler, 91 Fed. 693. See also 2 Cent. Dig. tit. "Appeal and Er- ror," § 2191 ; and supra, VIII. Waiver by participation in trial. — Where one has a right to appeal from an order grant- Vol. II ing a new trial, but, instead of standing on his appeal, by which further proceedings should have been arrested until the appeal was disposed of, participated in the new trial awarded, he loses his right to complain of the errors which occurred during the first trial. Trundle v. Providence- Washington Ins. Co., 54 Mo. App. 188. 89. Allen v. Allen, 80 Ala. 154; Moore v. Randolph, 52 Ala. 530. So, after an appeal is taken, no step in the cause can be taken which by any possible contingency can preju- dice appellant when the act of assembly regulating writs of error and appeal directs, by plain implication, that when the pre- scribed bond is given the judgment or decree appealed from shall be stayed and delayed. Ohio L. Ins., etc., Co. v. Winn, 4 Md. Ch. 253 [followed in Hall v. Jack, 32 Md. 253]. Appeal from order overruling demurrer re- moves the whole cause into the appellate- court. Graham v. Merrill, 5 Coldw. (Tenn.) 622. 90. People v. Board of Education, 141 N. Y. 86, 35 N. E. 1087, 56 Am. St. Rep. 560. To the same effect see Woodbury v. Nevada Southern R. Co., 120 Cal. 367, 52 Pac. 650; Planters' Bank v. Neely, 7 How. (Miss.) 80, 40 Am. Dec. 51; Com. v. O'Donnell, 7 Pa. Super. Ct. 49 ; Waterman v. Raymond, 5 Wis. 185 ; Morgan's Louisiana, etc., R., etc., Co. v. Texas Cent. R. Co.. 32 Fed. 525. Jurisdiction limited to the record. — Mc- Gregor v. Gardner, 16 Iowa 538; Bradbury v. Andrews, 37 Me. 199; Veeder v. Baker, 83 N. Y. 163; South Royalton Bank v. Colt, 31 Vt. 415. Removal of record. — For the purpose of jurisdiction of the appellate court, the record itself is supposed to be removed even though only a transcript is sent. Judson v. Gray, 17 How. Pr. (N. Y.) 289. Intermediate rulings brought up. — An ap- peal from final judgment brings up for review all intermediate rulings to which exceptions were taken. Smith v. Cooper, 21 Ga. 359; Palmer v. Rogers, 70 Iowa 381, 30 N. W. 645 [citing Montgomery County v. American Emi- grant Co., 47 Iowa 91; Cohol v. Allen, 37 Iowa 449; Jones v. Chicago, etc., R. Co., 36 Iowa 68]; Clair •». Terhune, 35 N. J. Eq. 336. 91. Barnard v. Dettenmaier, 89 111. App. 241; Mechanics, etc., Sav., etc., Assoc, v. Peo- ple, 72 111. App. 160; Elwert v. Norton, 34 Oreg. 567, 51 Pac. 1097, 59 Pac. 1118; Hineh- man v. Point Defiance R. Co., 17 Wash. 399, 49 Pac. 1061. Competency of judges of appellate court. — At the time when an appeal is taken the lower court has no authority to inquire into the competency of the members of the upper APPEAL AND ERROR 969 or defeat the right of appellant to prosecute his appeal. 92 Proceedings in the lower court under the original judgment are held to be void; 98 though, on the other hand, it has been held that even a stay does not affect the jurisdiction of the lower court, and that proceedings in violation of the stay are merely erro- neous or irregular ; 94 and sometimes, by the terms of the statute, the appeal arrests further proceedings only as to matter embraced in the judgment appealed from. 95 B. Partial Removal or Appeal Affecting- Particular Matters — l. in Gen- eral. An appeal does not always necessarily stay further proceedings in the cause, in reference to rights not passed upon or affected by the order or decree appealed from, but only the execution or operation of such order or decree. 96 Where only a part of a judgment or decree is appealed from the remainder is unaffected and may be enforced, 97 and if the appeal from the particular order or judgment does court; and, after appeal, the former court cannot resume jurisdiction on the ground that certain members of the upper court are disqualified to sit in the cause because they had been of counsel. Walker v. Rogan, 1 Wis. 597. Effect of agreement. — When the case is transferred to the upper court upon an agreed statement of facts, subject to a stipulation that, upon judgment being ordered upon the facts as agreed, either party may have the right to controvert any of such facts before a jury, the order for judgment is made sub- ject to the condition for which the parties have stipulated, and after such order the case may be discharged, and the cause stand for trial without leave obtained from the upper court. Perkins v. Langmaid, 36 N. H. 501. 92. Chisholm v. Cissell, 12 App. Cas. (D. C.) 180. Dismissal of case. — The lower court cannot, by dismissing the case at the instance of re- spondent, dismiss the appeal. An entry of such order of dismissal is a nullity. Cloud v. Wiley, 29 Ark. 80; Holland v. State, 15 Fla. 549; Freeman v. Henderson, 5 Coldw. (Tenn.) 647. 93. Southern R. Co. v. Birmingham, etc., R. Co., (Ala. 1900) 29 So. 191; State v. Johnson, 29 La. Ann. 399 (holding that, upon the removal of a cause by a writ of error with supersedeas to the supreme court of the United States, the state court is divested of all ju- risdiction, and that any proceeding thereafter in the state court is coram non judice and ab- solutely void) ; Thompson v. Thompson, 1 N. J. L. 184 (holding that, pending an ap- peal, every proceeding under the original judgment is void — because no judgment ex- ists, as on a removal by writ of error, but the judgment is that which the court of ap- peals pronounces de novo). After removal of cause. — In Massachusetts it was held that where an action was re- moved from the common pleas to the supreme judicial court, conformably with Mass. Stat. (1840), e. 87, § 3, the common pleas had no further jurisdiction, and » judgment entered in that court was coram non judice and void, and no writ of error was necessary to reverse it. Boynton v. Foster, 7 Mete. (Mass.) 415. 94. Briggs v. Shea, 48 Minn. 218, 50 N. W. 1037 ; State v. Young, 44 Minn. 76, 46 N. W. 204; Bowman v. Tallman, 28 How. Pr. (NY.) 482. See also Fidelity Trust, etc., Co. v. Mo- bile St. R. Co., 54 Fed. 26 ; and supra, VIII. 95. In North Carolina the perfecting of an appeal arrests " all further proceedings in the court below upon the judgment appealed from or upon the matter embraced therein," but does not withdraw from it authority to make orders in the cause for investment of the fund, and the like, or any other orders not af- fected by the judgment appealed from. Her- ring v. Pugh, 126 N. C. 852, 36 S. E. 287; Hinson v. Adrian, 91 N. C. 372. Similar pro- visions are found in the statutes of other states. See Cal. Code Civ. Proc. (1899), § 946; Baughman v. Superior Ct., 72 Cal. 572, 14 Pac. 207; Mont. Code Civ. Proc. ( 1895 ) , § 1730 ; State v. Second Judicial Dist. Ct., 22 Mont. 241, 56 Pac. 281; N. Y. Code Civ. Proc. § 1310; Ireland v. Nichols, 40 How. Pr. (N. Y.) 85, 86, 9 Abb. Pr. N. S. (N. Y.) 71, holding the proceedings stayed by the ap- peal under such a provision to be such " as may be instituted by the respondent for the purpose of enforcing the provisions of the judgment." See also Henry v. Henry, 4 Dem. Surr. (N. Y.) 253; and infra, X, B. 96. Barnum V. Barnum, 42 Md. 251. Particular questions reserved or certified. — But where, under authority of statute, im- portant and difficult questions arising in » cause are reserved by the trial court for the decision of the higher court, the questions, and not the cause, are before the upper court, and the trial court still has jurisdiction to dismiss the case. Foote V. Smith, 8 Wyo. 510, 58 Pac. 898; Veazie v. Wadleigh, 11 Pet. (U. S.) 55, 9 L. ed. 630. 97. Early v. Mannix, 15 Cal. 149 (on ap- peal from a judgment awarding damages, for the purpose of compelling the court to allow a motion for treble damages) ; Waring v. Fletcher, 152 Ind. 620, 52 N. E. 203 (on ap- peal from a judgment sustaining an attach- ment in part only) ; Genet v. Delaware etc., Canal Co., 130 N. Y. 217, 32 N. E. 851, 49 N. Y. St. 201 (holding that if an exception to costs' is not presented on appeal the trial court may modify its judgment as to costs) ; Matter of Witmark, 15 N. Y. St. 745; At- lantic Ins. Co. v. Lemar, 10 Paige (NY.) 505. See also N. Y. Code Civ. Proc. §§ 1310, 2584. Vol. II 970 APPEAL AND ERROR not bring the entire cause into the appellate court, but only sufficient of the rec- ord to present the question as to the propriety of the particular order, further proceedings in the conduct of the cause are properly had in the lower court. 98 An appeal from an order upon a motion brings up the motion only, as well as copies of papers on which it is founded, and does not bring up the action. 99 But the trial court, in its discretion, may decide to await the determination of the appeal. 1 2. Incidental or Interlocutory Appeals. An appeal on an incidental matter does not divest jurisdiction, but the trial court or parties may proceed in matters not involved in the appeal, and which are entirely collateral to the part of the case taken up ; 2 and, as nothing is in the upper court but the order, a motion for an order in the cause cannot be entertained in that court. 3 The lower court cannot proceed, however, in such manner as to lead to a decision, pending the appeal, of the very question involved on the appeal. 4 98. Keough v. McNitt, 7 Minn. 29, holding that an appeal from an order setting aside the report of a referee and judgment based thereon, and granting a new trial, and an ap- peal from an order overruling a demurrer to a supplemental answer, bring up only suf- ficient of the record to present the question of the propriety of the particular order, and, pending such appeal, the lower court has ju- risdiction of a motion for the substitution of parties. Decree against equity of answer. — So, in Buckner r. Mear, 26 Ohio St. 514, it was held that where a defendant sets up an equitable defense and asks for equitable relief in an ac- tion, if the equitable ease is established the decree will end the controversy and settle the rights of the parties; but if defendant fails in his equitable case the issue raised on the petition must be disposed of before the case can pass to final judgment; that where the decree is against the equity set up by defend- ant his right to appeal will not operate to delay the final disposition of the case. 99. Barker i. Wing, 58 Barb. (X. Y.) 73. But if the motion goes to the jurisdiction — as on a motion to set aside service of pro- cess — an adjudication that the movant was properly made a party is vital to the juris- diction of the court over his person, and, where the order is appealable, pending an ap- peal the lower court cannot adjudge the rights of such movant. National Exch. Bank v. Stelling. 32 S. C. 102, 10 S. E. 766. 1. Smith r. Fleischman, 23 X. Y. App. Div. 355, 48 X. Y. Suppl. 234, where defendant appealed from an order denying his motion, made under X. Y. Code Civ. Proc. § 570. 2. Illinois. — Gorham v. Farson, 18 111. App. 520, holding that where an order dis- charging a receiver and awarding possession of the mortgaged premises pendente lite was removed by writ of error, such possession being in no way material to a final hearing and the entry of a decree of foreclosure, the court may proceed with the hearing, reserv- ing the question of the disposition of the as- sets until the writ of error is disposed of. Louisiana. — State r. Judge, 27 La. Ann. 702; Wright t\ Bousselle, 6 La. Ann. 73; State r. Judge, 17 La. 511. Vol. II Maryland. — Rice v. West, 42 Md. 614; Bar- num v. Barnum, 42 Md. 251. Massachusetts. — Cheney v. Gleason, 125 Mass. 166 (right of master to proceed with reference under interlocutory decree) ; Forbes v. Tuckerman, 115 Mass. 115. New York. — Henry v. Henry, 4 Dem. Surr. (N. Y. ) 253, as to the effect of an appeal from an order denying a commission to take testi- mony, to operate as a suspension of the hear- ing, construing the code provisions by which an appeal operates as a stay except as to mat- ter not affected by or embraced in the judg- ment appealed from. See also supra, X, A, 2. Pennsylvania. — Sheaffer's Appeal, 100 Pa. St. 379 ; Gyger's Appeal, 15 Wkly. Xotes Cas. (Pa.) 513 — relating to preliminary injunc- tions. See also supra, VIII, J, 5, c. Wisconsin. — Xoonan v. Orton, 30 Wis. 356. United States. — Fidelity Trust, etc., Co. r. Mobile St. R. Co., 54 Fed. 26. Appeal from order striking one of several defenses. — Where an answer contains several defenses and an appeal is taken from an order striking out one of them, this brings before the appellate tribunal the question whether the answer shall stand, and the lower court cannot proceed to a trial on the re- maining issues until the appeal is disposed of. Penn Yan v. Forbes, 8 How. Pr. (N. Y.) 285. 3. Perry r. Tupper, 71 X. C. 380; Ward V. Ward, 17 X. C. 553. 4. Fowler v. Lewis, 36 W. Va. 112, 14 S. E. 447, holding that, where a stranger to the record comes in with new matter, asking, in effect, a decree against a defendant, or to be substituted to his right, and the answer of defendant is stricken out and a petition sub- sequently filed by defendant against the stranger is dismissed, pending an appeal from the order of dismissal the court cannot adju- dicate as between such intervening stranger and said defendant upon the former's petition. Dissolution of preliminary injunction. — Thus, though an appeal from judgment dis- solving a preliminary injunction on rule does not ordinarily prevent the cause from pro- ceeding to determination on the merits, and this is held to be so though the injunction is the sole relief sought (State v. Judge, 33 La. APPEAL AND ERROR 9Y1 3. Proceedings For Review by One or More Co-Parties. "Where the pro- ceeding for review is instituted by a party whose rights or interest alone are affected by the judgment or decree appealed from, the lower court is not deprived of jurisdiction as to others who do not appeal. 5 The appeal operates only as to appellant and appellee, 6 in some cases, even where the judgment or decree is against other defendants who do not appeal, 7 and does not divest jurisdiction of the, lower court over issues between appellees. 8 C. Force and Effect of Judgment op Order Appealed From 9 — l. In General. As to the force and effect of a judgment pending proceedings for review, aside from controlling influence of positive statute, this distinction is to be observed : where the proceeding is one in which the cause is retried as upon original process, the judgment is vacated, but if the proceeding is in the nature of Ann. 436) ; where the appeal requires the appel- late court to examine the question whether there is equity in the bill, the lower court can- not hear and determine a demurrer to the bill for want of equity. Ex p. Montgomery, 114 Ala. 115, 14 So. 365. See also supra, VIII, J, 5, c. 5. Howard v. Lowell Mach. Co., 75 Ga. 325 ; Sosman v. Conklin, 65 Mo. App. 319, holding that an appeal by a mortgagee from a judg- ment fixing upon the property a mechanic's lien for the personal indebtedness of a con- tractor does not affect the personal judgment against the contractor nor suspend issuance of execution thereon. As to defendants not served. — An appeal by defendants against whom judgment is ren- dered, which, under N. Y. Code Civ. Proc. § 1310, stays proceedings to enforce the judg- ment, does not prevent the bringing of an ac- tion against joint debtors not served, under section 1937, since such action is not one to enforce the judgment. Morey v. Tracey, 92 N. Y. 581. As to defendant not appearing. — Day v. Gelston, 22 111. 103, holding that an appeal by a defendant who alone appeared, and against whom judgment was rendered, will not deprive the lower court of jurisdiction as to other defendants who did not appear, to proceed against them either by defaulting them or trying such pleas as they should pre- sent, and that scire facias was not necessary to bring in such parties, as they were still be- fore the court. Separate trial. — 'Where a cause is tried as to one defendant only, upon an order granting him a separate trial his appeal from an ad- verse judgment cannot deprive the lower court of jurisdiction as to the other defendants. The fact that the original pleadings are in the appellate court is not an insuperable objec- tion, as such pleadings may be supplied by copies for use on the trial. Hayes v. Frey, 54 Wis. 503, 11 N. W. 695. Plaintiff's appeal from judgment for inter- vener. — An appeal by a plaintiff from a judg- ment deciding that the property in a promis- sory note sued on is in an intervener does not disturb the judgment against defendants, the majcer and indorser of such note. Lynch v. Williams, 6 La. Ann. 79. Parties coming in after appeal. — James River, etc., Co. v. Littlejohn, 18 Gratt. (Va.) 53, holding that the statute which permitted a non-resident defendant to appear and file his answer after a decree against a resident defendant made no exception of eases in which an appeal had been taken from the decree against the resident defendant. But in Texas, recognizing the right of one interested in the subject-matter of litigation to be made a party, even after judgment, and to move for a new trial, it is held, that an appeal from a dismissal of such a motion does not affect the right of the successful party in the action to enforce the collection of his judgment against the property of the party to the cause who did not appeal. Streeper v. Ferris, 64 Tex. 12. 6. Glass v. Greathouse, 20 Ohio 503. hold- ing that where a complainant is successful as against one defendant, but his bill is dis- missed as to another defendant, an appeal by the unsuccessful defendant does not affect the dismissal as to the other defendant. 7. Decree in equity. — Subject to statutory provisions permitting an appeal by any party aggrieved by a judgment or decree, where one of two defendants against whom the decree is entered is satisfied, and the other is not, an appeal by the latter removes the cause as to the former where there is such intimate con- nection between the parties that the rights of one cannot be adjudicated without also adju- dicating the rights of the other, but. where no such intimate connection of rights exists, the appeal by one vacates the decree against him alone. Glass v. Greathouse, 20 Ohio 503. See also Todd v. Daniel, 16 Pet. (U. S.) 521. 10 L. ed. 1054. And as to separate proceedings by co-parties see supra, VI: and 2 Cent. Dig. tit. "Appeal and Error," § 1798 et seq. But in Kelly v. Brooks, 57 Miss. 225, it was held that an appeal by one of several de- fendants, from an order overruling a demur- rer filed by all the defendants, prevented any further steps in the lower court as to any of the defendants without summons and sever- Appeal by one of several tort-feasors — A judgment against several persons in an action of tort is severable, and an appeal by one tort- feasor vacates the judgment as to himself alone. Chapin v. Babcock, 67 Conn. 255 34 Atl. 1039. See also Puekett v. Amsworth, 1 Yerg. (Tenn.) 254. 8. Levy v. Collins. 32 La. Ann. 1003. 9. For new suit pending appeal or error see Abatement and Revival, II, E. Vol. II 972 APPEAL AND ERROR an ancient writ of error, merely requiring a review of errors and an affirmance of the judgment, or a reversal and remanding for further trial, the judgment of the lower court is not vacated. 10 The subject is now generally regulated by statute, however, and, owing largely to diversity of their provisions in the respective states, the cases are not in harmony upon the force and effect of the judgment pending appellate proceedings. On the one hand it is held that the judgment itself is not annulled by an appeal. It is at most merely suspended ; n and is binding upon the parties as to every question directly decided. 13 If affirmed by the appellate court, it does not become thereby the judgment of such court, but dates from the time of its original entry. 13 In other states, however, by an appeal the judgment appealed from is vacated and annulled and the litigants are, in respect of their legal rights, where they were at the commencement of the suit. 1 * The action of the supreme court commences at the stage of the proceedings immediately prior to the judgment of the court below, and leaves the case with all its incidents, pleadings, and evidence unaffected. 15 2. Lien of Judgment. The lien of the judgment is not impaired by an appeal. The right of the judgment creditor to realize by a sale of defendant's property is merely suspended, 16 and, by statute in some states, the lien remains unimpaired 10. Bank of North America v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683 [quoted in Ran- dies v. Randies, 67 Ind. 434; Missouri Pac. R. Co. v. Atkison, 17 Mo. App. 484; Cain v. Williams, 16 Nev. 426; Rogers v. Hatch, 8 Nev. 35; Freeman on Judgments, § 328]. See also Tabor v. Miles, 5 Colo. App. 127, 38 Pac. 64; Allen v. Savannah, 9 Ga. 286; Snelling v. Parker, 8 Ga. 121 ; Gay v. Smith, 38 N. H. 171; Maskall v. Maskall, 3 Sneed (Tenn.) 207; Tarbell v. Downer, 29 Vt. 339. And an appeal in the nature of a writ of error does not va- cate, but merely suspends, the judgment. Lewis r. St. Louis, etc., R. Co., 59 Mo. 495, 21 Am. Rep. 385; Akers v. Akers, 16 Lea (Tenn.) 7, 57 Am. Rep. 207. See also 2 Cent. Dig. tit. " Appeal and Error," § 2193. It was held in Tennessee, however, that the distinction be- tween the effect of a simple appeal as vacating the decree and of an appeal in the nature of a writ of error was difficult to justify, because the bond and proceedings were the same in both classes of appeal. Smith v. Holmes, 12 Heisk. (Tenn.) 466. 11. Arkansas. — Cloud v. Wiley, 29 Ark. 80; Fowler v. Scott, 11 Ark. 675. Colorado. — Steinhauer v. Colmar, 1 1 Colo. App. 494, 55 Pac. 291. Indiana. — State v. Krug, 94 Ind. 366 ; Hayes v. Hayes, 75 Ind. 395. Nevada. — Brooks v. Nevada Nickel Syndi- cate, 24 Nev. 311, 53 Pac. 597. North Carolina. — State v. Mizell. 32 N. C. 279. By N. C. Stat. (1887), c. 192, a judg- ment, civil or criminal, is not vacated, but is merely suspended, by perfecting an appeal. Black v. Black, 111 N. C. 300, 16 S. E. 412. A judgment granting, refusing, or dissolving an injunction is not vacated or suspended by appeal. James v. Markham, 125 N. C. 145, 34 S. E. 241; Green v. Griffin, 95 N. C. 50. See supra, VIII, J, 5, e. Tennessee. — Covington v. Bass, 88 Tenn. 496, 12 S. W. 1033, as to appeal to the su- preme court from a judgment at law. The reporter indicates that since the Tennessee act of 1885, c. n n appeal from the chancery Vol. II court has the same effect as an appeal from a judgment at law. See also supra, VIII. 12. Cole v. Conolly, 16 Ala. 271; Burton v. Burton, 28 Ind. 342; Nill v. Comparet, 16 Ind. 107, 79 Am. Dec. 411. 13. Steinhauer v. Colmar, 11 Colo. App. 494, 55 Pac. 291. But it is also held that the taking of an appeal suspends the force of the judgment until the appeal is determined when the law substitutes the judgment of the ap- pellate court for that of the court below. Archer v. Hart, 5 Fla. 234. 14. Massachusetts. — Davis v. Cowdin, 20 Pick. (Mass.) 510; Paine v. Cowdin, 17 Pick. (Mass.) 142. Nebraska. — Jenkins v. State, 60 Nebr. 205, 82 N. W. 622. New Hampshire. — Stalbird v. Beattie, 36 N. H. 455, 72 Am. Dec. 317. North Carolina. — Isler v. Brown, 69 N. C. 125. The rule, however, was changed in this state by the North Carolina act of 1887, c. 192. Black v. Black, 111 N. C. 300, 16 S. C. 412. Ohio. — Bell v. Crawford, 25 Ohio St. 402; Lawson v. Bissell, 7 Ohio St. 129 ; Kay v. Wat- son, 17 Ohio 27. Rhode Island. — Estes v. Cook, 2 R. I. 98. Vermont. — Gale v. Butler, 35 Vt. 449. An appeal from the decree of a chancellor vacates and annuls the decree both as to the merits and costs. 15. Stalbird v. Beattie, 36 N. H. 455, 72 Am. Dec. 317. 16. California. — Low v. Adams, 6 Cal. 277. Illinois. — Shirk v. Metropolis, etc., Gravel Road Co., 110 111. 661; Walker v. Doane, 108 111. 236; Oakes v. Williams, 107 111. 154; Cur- tis r. Root, 28 111. 367. New York. — Matter of Berry, 26 Barb. (X. Y.) 55. Ohio. — Moore v. Rittenhouse, 15 Ohio St. 310; Stuble v. Walpole, Wright (Ohio) 447. Tennessee. — Covington v. Bass, 88 Tenn. 496, 12 S. W. 1033; Smith v. Holmes, 12 Heisk. (Tenn.) 466. APPEAL AND ERROR 973 until the judgment is reversed or modified by the appellate court. 17 And though the appellate court enters a new judgment of its own which is in effect a mere affirmance of the judgment in the lower court, the latter is not thereby merged or extinguished, nor is its lien impaired. 18 But the time during which under statute, the hen of the judgment endures is not extended by an appeal" In other states, when an undertaking has been given to effect a stay, the court may, after appeal, in its discretion, exempt from the lien all or a portion of the property subject thereto. 20 3. Enforcement of Judgment — a. In Gener-al. The judgment cannot be enforced while the appeal remains undisposed of; 21 and, notwithstanding the lower court may not be deprived of jurisdiction to the extent that it cannot pro- ceed in collateral matters, or for the preservation of the fruits of the litigation, 22 at the same time, it cannot take such action as will be in effect an execution of its judgment or will place the funds where they will be beyond the control of the ultimate judgment or decree. 23 b. Aetion on Judgment — (i) In General. In those states where it is held that after an appeal the judgment is no longer in force, such judgment cannot be the foundation of* a new action. 24 But where the appeal is in 'the nature of a writ Texas. — Woodson v. Collins, 56 Tex. 168; Thulemeyer v. Jones, 37 Tex. 560; Smith v. Kale, 32 Tex. 290; Semple v. Eubanks, 13 Tex. Civ. App. 418, 35 S. W. 509. But the lien is discharged by reversal of the judgment, and rights acquired by a sub- sequent bona fide purchaser are not prejudiced by a reversal thereafter of such reversing judg- ment by a higher court. Foot v. Dillaye, 65 Barb. (N. Y.) 521. 17. Black v. Black, 111 N. C. 300, 16 S. E. 412; Stephens v. Koonce, 106 N. C. 222, 11 S. E. 996. But where the appeal vacates the judgment, the lien cannot attach until entry of judgment in the appellate court. Snelling v. Parker, 8 Ga. 121. On error sued out, under statute declaring that the lien of the judgment shall not be lost if the judgment is affirmed, the judgment is binding until reversed, and if affirmed it is binding ab initio. Allen v. Savannah, 9 Ga. 286. 18. Kilpatrick v. Dye, 4 Sm. & M. (Miss.) 289; Planters Bank v. Calvit, 3 Sm. & M. (Miss.) 143, 41 Am. Dec. 616. Supersedeas. — In the absence of statute, it has been held in Alabama that the lien of the judgment is discharged by a writ of error and supersedeas. Campbell v. Spence, 4 Ala. 543, 39 Am. Dee. 301 ; McRae v. McLean, 3 Port. (Ala.) 138. But see supra, VIII, J. 19. Christy v. Flanagan, 87 Mo. 670; Chou- teau v. Nuckolls, 20 Mo. 442. 20. N. Y. Code Civ. Proc. §§ 1256-1258. Minn. Gen. Stat. (1894), § 5426, is similar in its provisions. Restoration of lien. — N. Y. Code Civ. Proc. § 1259, provides the manner in which the lien may be restored after the judgment is affirmed or the appeal therefrom dismissed. Valid equities which arise in the meantime have priority over the lien. Union Dime Sav. Inst. v. Duryea, 3 Hun (N. Y.) 210. 81. McCreary v. Rogers, 35 Ark. 298; Strickland v. Maddox, 9 Ga. 196; Johnson v. Williams, 82 Ky. 45 ; Thompson v. Thompson, 1 N. J. L. 184. See also Haynes v. Hayes, 68 111. 203. But where one of several defendants appeals, he may be summoned as garnishee on execution against the others. Baker v. New Orleans, etc., R. Co., 10 La. Ann. 110. But one may estop himself by his conduct from setting up the pendency of his appeal from an order of sale, in order to affect the validity of the sale. Fairfax v. Muse, 4 Munf . (Va. ) 124, where appellant had moved the court to amend the order of sale, and had in- duced others to bid at such sale. Appeal after sale.- — And an appeal inter- posed after a decree of sale has been essen- tially executed will not be permitted to super- sede the completion of the purchase. Brasher v. Cortlandt, 2 Johns. Ch. (N. Y.) 505. Appellant put to election. — In Vail v. Rem- sen, 7 Paige (N. Y. ) 206, where complainant was seeking to carry into effect a decretal or- der from which he had appealed at the same time that he was proceeding on the appeal to reverse the order, the chancellor intimated that the vice-chancellor might compel appel- lant to elect whether he would abandon the proceedings under the order or dismiss the appeal. See also supra, VIII. 22. See infra, X, G. 23. State v. Duffel, 41 -La. Ann. 958, 8 So. 541; Stewart v. Love, 3 Lea (Tenn.) 374; Goddard v. Ordway, 94 TJ. S. 672, 24 L. ed. 237; Bronson v. La Crosse, etc., R. Co., 1 Wall. (U. S.) 405, 17 L. ed. 616. See also Edwards v. Ellis, 27 Kan. 344; Dawson v. Parsons, 16 Misc. (N. Y.) 190, 38 N. Y. Suppl. 1000. 74 N". Y. St. 810. Discovery pending appeal from order on de- murrer. — Where a defendant appeals from an order overruling his demurrer a motion by plaintiff for the discovery of defendant's books, in order to enable plaintiff to prepare for trial, such motion being made pending the appeal, is premature. Palen v. Johnson, 18 Abb. Pr. (N. Y.) 304. 24. Paine v. Cowdin, 17 Pick. (Mass.) 142; Campbell v. Howard, 5 Mass. 376. A plea in abatement will be sustained to Vol. II 974 APPEAL AND ERROR of error, or the judgment appealed from is not vacated, parties are not precluded by the appeal from suing on the judgment, or from prosecuting collateral or independent proceedings. (n) Foreign Judgment. The pendency of an appeal in the state of judg- ment is no bar to an action on the judgment in another state if, in the state of judgment, the appeal does not vacate the judgment or stay execution. 26 But that an appeal is pending in a foreign state, which operates as a stay, is a matter to be proven as a defense to, or in suspension of, the action, 27 and must be pleaded. 28 (in) Execution on New Judgment Pending First Writ of Error. 'If judgment be obtained in an action of debt on a judgment while the writ of error is pending, execution will not be permitted, generally, till the writ of error has been determined. While there are two judgments, only one can be satisfied. 29 It is in the discretion of the court in which the action upon a judgment is brought, pending a writ of error, to stay the proceedings or not. 30 4. Availability as Set-Off. A judgment, in order to be available as a set-off, must be a valid, subsisting obligation and final in its nature ; and, hence, a judg- ment from which an appeal has been taken cannot be set off pending the appeal against a final judgment, rendered in another action, in favor of the defendant. An appeal suspends the right to a set-off. 31 such an action. Hutehcraft v. Gentry, 2 J. J. Marsh. (Ky.) 499; Atkins V. Wyman, 45 Me. 399; Jenkins v. Pepoon, 2 Johns. Cas. (N. Y.) 312. 25. Indiana. — Line v. State, 131 Ind. 468, 30 N. E. 703 ; Central Union Telephone Co. v. State, 110 Ind. 203, 10 N. E. 922, 12 N. E. 136; State v. Krug. 94 Ind. 366; Burton v. Reeds, 20 Ind. 87; Nill v. Comparet, 16 Ind. 107, 79 Am. Dec. 411; Hammond v. Evans, 23 Ind. App. 501, 55 N. E. 784. Nevada. — Cain r. Williams, 16 Nev. 426 [citing Rogers v. Hatch, 8 Nev. 35j Bank of North America v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683]. New Jersey. — Suydam v. Hoyt, 25 N. J. L. 230, where it was held that the pendency of a writ of error does not enable defendant to plead nul tiel record. Pennsylvania. — Woodward v. Carson, 86 Pa. St. 176; Merchants' Ins. Co. v. De Wolf, 33 Pa. St. 45, 75 Am. Dec. 577. Texas. — Brooke v. Clark, 57 Tex. 105. Virginia. — Newcomb v. Drummond, 4 Leigh (Va.) 57, wherein, after the recovery of the judgment and the taking of an appeal, but before the appeal could be prosecuted, the records of the court were destroyed by fire. But the action on the judgment was allowed. Necessity of stay. — Sometimes, whether or not the action can be maintained depends upon whether there has been a stay of execu- tion. Tarbell v. Downer, 29 Vt. 339. See also supra, VIII. 26. California. — Taylor v. Shew, 39 Cal. 536. 2 Am. Rep. 478. Illinois. — Dow v. Blake, 148 111. 76, 35 N. E. 761, 39 Am. St. Rep. 156 [affirming 46 111. App. 329]. Massachusetts. — Clark v. Child, 136 Mass. 344; Faber v. Hovey, 117 Mass. 107, 19 Am. Rep. 398. Pennsylvania. — Merchants' Ins. Co. v. De Wolf, 33 Pa. St. 45, 75 Am. Dec. 577. United States.— Woodbridge, etc., Engi- neering Co. v. Ritter, 70 Fed. 677; Union Vol. n Trust Co. v. Rochester, etc., R. Co., 29 Fed. 609. 27. Dow v. Blake, 148 111. 76, 35 N. E. 761, 39 Am. St. Rep. 156. Presumption in absence of proof. — And, in the absence of proof to the contrary, the pre- sumption is that the etfect of an appeal by the laws of a, foreign state is the same as in the state where the action is being prosecuted. Taylor v. Shew, 39 Cal. 536, 2 Am. Rep. 478 ; Piedmont, etc., L. Ins. Co. v. Ray, 75 Va. 821. Proof by record. — The pendency of an ap- peal cannot be proved by parol evidence, but by the record only. Blodget v. Jordan, 6 Vt. 580. 28. Taylor v. Shew, 39 Cal. 536, 2 Am. Rep. 478; Merchants' Ins. Co. v. De Wolf, 33 Pa. St. 45, 75 Am. Dec. 577. Legal conclusion. — An affidavit asserting as a defense to such action that the judgment operates as a supersedeas must not aver this fact simply, for that is the averment of a legal conclusion, but must set out the facts upon which the correctness of the conclusion depends. Woodbridge, etc., Engineering Co. r. Ritter, 70 Fed. 677. 29. Woodward v. Carson, 86 Pa. St. 176; Newcomb v. Drummond, 4 Leigh (Va.) 57; Bishop v. Best, 3 B. & Aid. 275, 5 E. C. L. 165 ; Benwell v. Black, 3 T. R. 643. 30. Suydam r. Hoyt. 25 N. J. L. 230 [cit- ing Bicknell v. Longstaffe, 6 T. R. 455 ; Smith v. Shepherd, 5 T. R. 9 ; Cristie v. Richardson, 3 T. R. 78 ; Abraham v. Pugh, 5 B. & Aid. 903, 7 E. C. L. 490]. See also supra, note 29. 31. Sandel v. George, 18 La. Ann. 526 (wherein the rule is confined to suspensive appeals and not applied to devolutive ap- peals) ; Kernion r. Hills, 12 Rob. (La.) 376; De Camp v. Thomson, 159 N. Y. 444, 54 N. E. 11, 70 Am. St. Rep. 570 [affirming 54 N. Y. Suppl. 1098]; Hardt v. Schulting, 24 Hun (N. Y.) 345 (where it was held that a judg- ment recovered by plaintiff could not be set off pending appeal against costs awarded de- fendant in the same action ) ; De Figaniere v. APPEAL AND ERROR 975 D. New Trial or Rehearing. In some states an appeal does not divest the trial court of jurisdiction to hear and determine a motion for a new trial, 83 and the right of the party to apply for a new trial, and the power of the court to enter- tain jurisdiction of the application, during the time limited in the statute, are absolute and unconditional, and not affected by the pendency of an appeal. 88 But, in other states, after the cause has been removed by appeal the trial court has no jurisdiction to entertain and no power to grant such a motion, 84 and a petition for a rehearing on the ground of newly-discovered evidence must be made in the court below before such court loses jurisdiction by an appeal. 35 E. Opening or Vacating Judgment or Order. So, after the appeal is Young, 2 Rob. (NY.) 670; Pierce v. Tuttle, 51 How. Pr. (N. Y.) 193; Terry v. Roberts, 15 How. Pr. (N. Y.) 65; Weatherred v. Mays, 1 Tex. 472. But an appeal from an order overruling an application to allow an appeal from a judgment after the expiration of the time limited for the appeal will not prevent the judgment from being satisfied by setting off another judgment against it, in the absence of a stay of proceedings on the appeal from the above order. Brooks v. Harris, 41 Ind. 390. 32. Naglee v. Spencer, 60 Cal. 10 ; Henry v. Allen, 147 N. Y. 346, 41 N. E. 694, 69 N. Y. St. 679; People v. Board of Education, 141 N. Y. 86, 35 N. E. 1087, 56 N. Y. St. 560; Ver- nier v. Knauth, 7 N. Y. App. Div. 57, 39 N. Y. Suppl. 784; Nash v. Wetmore, 33 Barb. (N. Y.) 155; Schmidt v. Cohn, 12 Daly (N Y.) 134, after appeal from order denying new trial. See also supra, I, D; and 2 Cent. Dig. tit. " Appeal and Error," § 2196. Effect of denial of motion. — If the motion is denied because of the pendency of the ap- peal, the appeal will be treated as an appeal from such order of dismissal as well as from a judgment. Rayner v. Jones, 90 Cal. 78, 27 Pac. 24. Motion made at a subsequent term. — An order extending the time for presenting a bill of exceptions beyond the term is a step taken toward modifying or correcting the judgment, and jurisdiction of the judgment is thereby retained, and at a succeeding term the judg- ment may be vacated and a new trial granted. Henrichsen v. Smith, 29 Oreg. 475, 42 Pac. 486, 44 Pac. 496. 33. Indiana, etc., R. Co. v. McBroOm, 103 Ind. 310, 2 N. E. 760 (holding that if the ac- tion of the lower court in vacating the judg- ment is certified to the appellate court the ap- peal will be stricken from its docket) ; Cook r. Smith, 58 Iowa 607, 12 N. W. 617 (indicat- ing that both proceedings should not be ac- tively prosecuted at the same time, and that upon application this would, no doubt, be con- trolled by the court) . 34. Hudson v. Bauer Grocery Co., 105 Ala. 200, 16 So. 693; Elgin Lumber Co. v. Langman, 23 111. App. 250; McArdle r. McArdle, 12 Minn. 122; Skinner v. Bland, 87 N C. 168; Isler n. Brown, 69 N. C. 125. But these last twocasesdo not refer to granting new trials at the term at which judgment was had, but refer to motions to set aside judgments at subsequent terms, as for excusable neglect, and the like. This last could not be done because the case was pending in the appellate court. But, in this state, after final judgment in the appellate court and motion in the lower court for a new trial on the ground of newly-discovered evidence touching a single feature of the case, on the matter coming before the supreme court as a new question it was held to be the proper practice to bring the matter to the at- tention of the latter court, which would make an issue and direct it to be tried in the lower court. Bledsoe v. Nixon, 69 N. C. 81. And, under a later statute (1887-92), if the judg- ment of the superior court is affirmed and the opinion certified down the motion should be made in the lower court, though, pending the appeal, it should be made in the supreme court, and, upon final judgment in that court, a petition to rehear should be filed there. Black v. Black, 111 N. C. 300, 16 S. E. 412. Time extended by consent. — The fact that an appeal was perfected pending a motion to set aside the verdict, the time for the hearing of which had been extended by consent, did not debar the trial court from hearing such motion. Myers v. Stafford, 114 N. C. 231, 19 S. E. 232. Appellant cannot complain of dismissal of appeal. — In Montevallo Coal Min. Co. v. Rey- nolds, 44 Ala. 252, after an appeal the appel- lant moved for and obtained a new trial. While the granting of the new trial was erro- neous, yet, since appellant had lost his right to complain, the upper court, on motion of appellee, dismissed the appeal. And see Bel- mont v. Erie R. Co., 52 Barb. (N. Y.) 637 [citing Noble v. Prescott, 4 E. D. Smith (N. Y.) 139; Peel v. Elliott, 16 How. Pr. (N. Y.) 483]. 35. Tant v. Guess, 37 S. C. 489, 16 S. E. 472. So, in the United States court, it was held, under an equity rule, that the court of appeals could not grant a rehearing after the term at which the final decree was rendered; but that, if the term still continued, the prac- tice was to make an application to the court below for the rehearing, and for that court to send a request to the supreme court of the United States for a return of the record in order that it might proceed further with the cause. Roemer v. Simon, 91 U. S. 149, 23 L. ed. 267. In New York it is held that after an appeal to the court of appeals from a judg- ment affirming an order of the special term, a motion for a reargument of the appeal from the special term cannot be granted. In re- Citizens' Water-Works Co., 15 N. Y. SuppL 579, 39 N. Y. St. 747. Vol. II 976 APPEAL AND ERROR taken, the judgment in the court below cannot "be vacated and set aside, 36 subject, however, to the power of courts over their own judgments during the term, not- withstanding steps taken to perfect an appeal. 37 F. Amendment of Proceeding's ffl — 1. In General. It is a rule of general application that, when an appeal is taken, all power of the court appealed from to change its judgment or modify its orders ceases to exist until the cause, or some part of it, is remanded by the appellate court, 89 subject to the rule that during the trial term that court has the right to set aside, vacate, or modify its judgment, and of this power it is not divested by the appeal. A court of record has the inhe- rent power to correct its own record by an order nunc pro tunc, even after an appeal — for while it loses jurisdiction of the case it does not of its record 40 — as where, through inadvertence, some matter has been omitted from the record, or some untrue statement inserted, or where the judgment entered contains misre- citals. 41 The power of correction is confined, however, to showing correctly the 36. Kentucky. — Davidson v. Allan, 5 Ky. L. Rep. 683. Louisiana. — Morris v. Bienvenu, 30 La. Ann. 878. Missouri. — Burgess v. O'Donoghue, 90 Mo. 299, 2 S. W. 303. Ohio. — Brewster v. Anderson, 1 Ohio Cir. Ct. 479. , Pennsylvania. — Baldwin's Appeal, 112 Pa. St. 2, 5 Atl. 732. South Carolina. — Whaley v. Charleston, 8 S. C. 344. Texas. — But see Churchill v. Martin, 65 Tex. 367 ; Garza v. Baker, 58 Tex. 483 ; Smith v. Haynes, 30 Tex. 500. Washington. — Canada Settlers' L. & T. Co., v. Murray, 20 Wash. 656, 56 Pac. 368, holding that after an appeal has been perfected it is too late to cure errors by moving to vacate the judgment. United States. — Citizens' Bank v. Farwell, 56 Fed. 539, 12 U. S. App.,419, 6 C. C. A. 30. Interlocutory motion. — But in Belmont v. Erie R. Co., 52 Barb. (N. Y.) 637, notwith- standing an appeal ", motion was entertained to open an order made at special term to al- low the introduction of proofs which could not l)e produced when the order was made. 37. Sullivan r.. Woods, (Ariz. 1897) 50 Pac. 113; Churchill v. Martin, 65 Tex. 367; Garza v. Baker, 58 Tex. 483; Blum v. Wettermark, 58 Tex. 125. 38. For amendments, generally, see Plead- ing. See also 2 Cent. Dig. tit. " Appeal and Error," § 2198. 39. Wise v. Frey, 9 Nebr. 217, 2 N. W. 375; Stone v. Furry, Add. (Pa.) 114; Grubbs v. Blum, 62 Tex. 426 ; Interstate Commerce Com- mission v. Louisville, etc., R. Co., 101 Fed. 146; Hovey v. McDonald, 109 V. S. 150, 3 S. Ct. 136, 27 L. ed. 888. At common law amendments were allowed only while proceedings were in paper, but, by various statutes, which became part of the law of this country, amendments were allow- able after the proceedings were entered of rec- ord. By the statutes of 8 Hen. VI, cc. 12, 15, a misprision was made amendable at any time, and such things as are amendable before error brought are amendable afterward so long as diminution may be alleged and certiorari awarded. Judson v. Blanchard, 3 Conn. 579; Vol. II Boyle v. Connelly, 2 Bibb (Ky.) 7. See also Thatcher v. Miller, 11 Mass. 413. Notice. — Since after appeal the opposite party is not bound to take notice of what may be done in the trial court, he should be served vith notice of any motion thereafter made. Eno v. Hunt, 8 Iowa 436. 40. Gamble v. Daugherty, 71 Mo. 599; Ex- change Nat. Bank v. Allen, 68 Mo. 474; Jones r. St. Joseph F. & M. Ins. Co., 55 Mo. 342; Andresen v. Lederer, 53 Nebr, 128, 73 N. W. 664. Criminal cases embraced in the rule. — The power to make nunc pro tunc orders extends to criminal cases. Borrego v. Territory, 8 N. M. 446, 46 Pac. 349 {.citing Benedict v. State, 44 Ohio St. 679, 11 N. E. 125]. See also Ckiminal Law. There must be record evidence to amend by. — Branger v. Chevalier, 9 Cal. 351 (confining the rule to cases in which the term had ex- pired) ; Boyle v. Connelly, 2 Bibb (Ky.) 7; Gamble v. Daugherty, 71 Mo. 599; Exchange Nat. Bank v. Allen, 68 Mo. 474 (holding that the correction should not be based on the memory of the judge or on facts proved by affidavits apart from the record ) . 41. Alabama. — Birmingham Nat. Bank v. Mayer, 104 Ala. 634, 16 So. 520; Montevallo Coal Min. Co. v. Reynolds, 44 Ala. 252; Cun- ningham v. Fontaine, 25 Ala. 644; Cullum v. Eatre, 2 Ala. 415, as to showing of publica- tion of notice to non-resident, after writ of error sued out. Colorado. — Kindel v. Beck, etc., Litho- graphing Co., 19 Colo. 310, 35 Pac. 538, 24 L. R. A. 311. Illinois. — Leiferman v. Osten, 64 111. App. 578 (where the complaint was supplied by amendment) ; Heintz v. Pratt, 54 111. App. 616. Indiana. — Doe v. Owen, 2 Blackf. (Ind.) 452. Iowa. — Maxon v. Chicago, etc., R. Co., 67 Iowa 226, 25 N. W. 144; Mahaffy v. Mahaffy, 63 Iowa 55, 18 N. W. 685; Levi v. Karrick, 15 Iowa 444. Kentucky. — Smith v. Todd, 3 J. J. Marsh. (Ky.) 298; Boyle v. Connelly, 2 Bibb (Ky.) 7 ; Williams v. Thompson, 4 Ky. L. Rep. 9. Minnesota. — Under the statute the lower court has power, after judgment and appeal, APPEAL AND ERROR 97? history of the proceedings before the appeal, and the lower court has no jurisdic- tion, pending an appeal, to interfere with the rights of parties under a judgment. 43 2. Process or Return. As a general rule, an amendment nunc pro tunc of the officer's return is allowable after writ of error brought. 43 The application for but before the return is made to the appellate court, to correct its record so as to conform to the facts and to the decision actually made. State Sash, etc., Mfg. Co. v. Adams, 47 Minn. 399, 50 N. W. 360. Missouri — Exchange Nat. Bank v. Allen, 68 Mo. 474; De Kalb County v. Hixon, 44 Mo. 34 J. Nebraska. — Andresen v. Lederer, 53 Nebr. 128, 73 N. W. 664. New Jersey. — Hood v. Spaeth, 51 N. J. L. 129, 16 Atl. 163. Nexc Mexico. — Borrego v. Territory, 8 N. M. 446, 46 Pac. 349. New York. — National City Bank v. New York Gold Exch. Bank, 97 N. Y. 645 [follow- ing Buckingham v. Dickinson, 54 N. Y. 682, and Guernsey v. Miller, 80 N. Y. 181] ; New York Ice Co. v. Northwestern Ins. Co., 21 How. Pr. (N. Y.) 296; Judson v. Gray, 17 How. Pr. (N. Y.) 289; Rew v. Barker, 2 Cow. (N. Y.) 408, 14 Am. Dec. 515. Pennsylvania. — Gunn v. Bowers, 126 Pa. St. 552, 17 Atl. 893; Payne v. Ulmer, 1 Walk. (Pa.) 516. South Carolina. — Gibson v. Gibson, 7 S. C. 356. Texas. — Chestnutt v. Pollard, 77 Tex. 86, 13 S. W. 852; Hurlbut v. Lang, 10 Tex. Civ. App. 168, 29 S. W. 1109; Gerard v. State, 10 Tex. App. 690. But see Gallagher v. Finlay, 2 Tex. App. Civ. Cas. § 623. Utah.— Wasatch Min. Co. v. Jennings, 14 Utah 221; 46 Pac. 1106. Wisconsin. — Kelly v. Chicago, etc., R. Co., 70 Wis. 335, 35 N. W. 538. United States. — Hovey v. McDonald, 109 U. S. 150, 3 S. Ct. 136, 27 L. ed. 888. England. — Richardson v. Mellish, 3 Bing. 34G, 11 E. C. L. 173, where the judgment-roll in the common pleas was, after judgment in error, amended so as to conform to the postea, which had been amended after argument in the king's bench. Supplemental transcript. — Corrections of clerical errors after appeal may, by supple- mental transcript, be brought into the appel- late court, where *they will be considered as if part of the original record. Usually they are made upon affidavit and certiorari. Breene v. Booth, 3 Colo. App. 470, 33 Pac. 1007 ; Judson v. Blanchard, 3 Conn. 579; Culbertson v. Sal- inger, 111 Iowa 447, 82 N. W. 925; Richard- son v. Mellish, 3 Bing. 346, 11 E. C. L. 173 [citing Frend v. Richmond, Hardres 505 ; Dun- bar v. Hitchcock, 3 M. & S. 591 ; Wood v. Mat- thews, Popham 102; Harrison v. King, 1 B. & A. 161]. Bill of exceptions at subsequent term. — And a bill of exceptions according with the real facts may be granted at a subsequent term. State v. Estes, 34 Oreg. 196, 51 Pac. 77, 52 Pac. 571, 55 Pac. 25. In some jurisdictions, however, the rule is regularly adhered to that an amendment of a [62] bill of exceptions cannot be allowed by the trial court during the subsequent term. Mich- igan Ins. Bank v. Eldred, 143 U. S. 293, 12 S. Ct. 450, 36 L. ed. 162; Bridges v. Kuyken- dall, 58 Miss. 827. 42. California. — In re Bullard, (Cal. 1892) 31 Pac. 1119; Shay v. Chicago Clock Co., Ill Cal. 549, 44 Pac. 237; San Francisco Sav. Union v. Myers, 72 Cal. 161, 13 Pac. 403; Reynolds v. Reynolds, 67 Cal. 176, 7 Pac. 480. Colorado. — Breene v. Booth, 3 Colo. App. 470, 33 Pac. 1007. Illinois. — Illinois Land, etc., Co. v. McCor- mick, 61 111. 322. Iowa. — Carmichael v. Vandebur, 51 Iowa 225, 1 N. W. 477. Louisiana. — Forroento v. Robert, 27 La. Ann. 445. Minnesota. — Floberg v. Joslin, 75 Minn. 75, 77 N. W. 557. Nebraska. — Andresen v. Lederer, 53 Nebr. 128, 73 N. W. 664. New York. — Catlin v. Cole, 19 How. Pr. (N. Y.) 82, holding that after an appeal to the court of appeals from the general term it is too late to send the case back to the referee for an entire refinding of facts. But see Mat- ter of Plumb, 52 Hun (N. Y.) 119, 4 N. Y. Suppl. 831, 22 N. Y. St. 547, holding that, notwithstanding an appeal from a surrogate's order enjoining action on the part of a guardian, etc., the surrogate has jurisdfction over the proceeding and may alter the order if the exigencies of the case require it. Refusal to notice an immaterial amend- ment. — In Parker v. Vinson, 11 S. D. 381, 77 N. W. 1023, the supreme court thought that an amendment of judgment, made pending the appeal, was not before it, because there was no appeal from the order of amendment, but, assuming that the amendment was before ii, held that the making of the amendment was not reversible error, since no substantial right of the parties had been thereby affected. 43. Illinois. — Terry v. Eureka College, 70 111. 236; Chicago Fuel Gas Appliance Co. v. Jewett, 66 111. App. 489; World's Columbian Exposition v. Scala, 55 111. App. 207, Kentucky. — Irvine v. Scobee, 5 Litt. (Ky.) 70. Massachusetts. — Thatcher v. Miller, 11 Mass. 413. Pennsylvania. — Shamburg v. Noble, 80 Pa. St. 158. Texas. — The record is within the control of the district court until the day for filing the transcript in this court. Thomson v. Bishop, 29 Tex. 154. Compare Texas State Fair, etc., Exposition v. Lyon, 5 Tex. Civ. App. 382, 24 S. W. 328. Notice. — It has been held that the amend- ment may be permitted without notice being first given to defendant. Lungren v. Harris, 6 Ark. 474. But see Jenkins v. Crofton, 10 Ky. L. Rep. 456, 9 S. W. 406, in which an Vol. II 978 APPEAL AND ERROR leave to amend is addressed largely to the discretion of the court, which discretion is liberally exercised when in the furtherance of substantial justice and where the interests of innocent third parties will not be affected. 44 3. Pleadings. After the case is pending in the appellate tribunal a pleading cannot be amended in matter of substance. 45 A copy of a lost plea may, upon notice and proof, be supplied in place of the original by order of court, 46 but it is held that a new pleading cannot be filed nunc pro fame 4 " G. Collateral Actions or Proceeding's— 1. In General Preservation of Status in Quo of Parties and Property. An appeal does not always deprive the lower court of all jurisdiction so as to prevent absolutely any action, even though such action be not in execution of the judgment appealed from; 48 but, on the contrary, the case is often regarded as pending in the court of original jurisdiction for the purposes of other proceedings than such as pertain to the subject-matter of the judgment itself, or to the appeal and the proper hearing thereof, and incidental matters necessary for the preservation of the fruits of the ultimate judgment or the status in quo of the parties are not placed beyond the interfer- ence of the lower court. 49 For the latter purposes the court may make an order providing for renting or leasirig of property, 60 or order investment of funds result- ing from the sale of property under an order made pending litigation. 61 But it amendment was held improper where appel- lant had no opportunity to question its cor- rectness. 44. Hefflin v. McMinn, 2 Stew. (Ala.) 492, 20 Am. Dec. 58. To the same effect see Moore v. Horn, 5 Ala. 234 ; Anderson v. Sloan, 1 Colo. 33. 45. Johnson v. Chaplin, 28 Iowa 570; Western Wheel-Scraper Co. v. Drinnen, 79 Fed. 820; Marsteller v. McClean, 2 Cranch C. C. (U. S.) 8, 16 Fed. Cas. No. 9,140. 46. Blake v. Miller, 118 111. 500, 8 N. E. 828 ; Long v. Sutter, 67 111. 185. 47. Blake v. Miller, 118 111. 500, 8 N. E. 828; Ladd r. Couzins, 35 Mo. 513 (the prin- ciple of which case was afterward discred- ited). See Gamble v. Daugherty, 71 Mo. 599. 48. See supra, X, B ; and for inherent power of appellate court to grant supersedeas see supra, VIII, G. 49. Alabama. — Allen v. Allen, 80 Ala. 154. California. — Broder v. Conklin, 121 Cal. 289, 53 Pae. 797. Idaho. — Miller v. Pine Min. Co., (Ida. 1893) 32 Pac. 207, authority of lower court to quash execution issued after appeal. Ioiva. — Mitchell v. Roland, 95 Iowa 314, 63 N. W. 606. Louisiana. — State v. Houston, 35 La. Ann. 236; Fink v. Martin, 10 Rob. (La.) 147. If the security on an appeal bond becomes in- solvent after appeal, it is the same as if no security had been given, and the question must be inquired into in the court which granted the appeal. Stanton v. Parker, 2 Rob. (La.) 550. See also State v. Judge, 23 La. Ann. 31. Maryland. — Barnum v. Barnum, 42 Md. 251. Massachusetts. — Joannes v. Underwood, 6 Allen (Mass.) 240, holding that, under a statutory provision that the entry of ques- tions arising upon appeal, etc., should not transfer the case, but only the questions to be determined, the lower court has authority, pending an appeal from a judgment sustain- Vol. II ing a demurrer to a declaration, to order plaintiff to furnish an indorser for costs, and, in case of his failure to do so, to order non- suit. New York. — People v. Board of Education, 141 N. Y. 86, 35 N. E. 1087, 56 N. Y. St. 560. North Carolina. — Herring v. Pugh, 126 N. C. 852, 36 S. E. 287, placing the authority of the lower court upon the statute which pro- vides that an appeal shall stay further pro- ceedings upon the judgment appealed from, etc., but that the court might proceed upon matter not affected by, or embraced in, the judgment appealed from. But the court may decline to exercise the discretionary power given it under the above statute, and may re- fuse to dispose of a collateral matter which is not important under the decision. Penni- man v. Daniel, 91 N. C. 431. Ohio. — Goode v. Wiggins, 12 Ohio St. 341, petition in error. Pennsylvania. — New Brighton, etc., R. Co.'s Appeal, 105 Pa. St. 13, holding that for the purposes of preserving the status in quo of the parties on an appeal from a decree in equity, the court below may, if necessary, is- sue an attachment. West Virginia. — Crawford v. Fickey, 41 W. Va. 544, 23 S. E. 662. United States. — Bronson v. La Crosse, etc., R. Co., 1 Wall. (U. S.) 405, 17 L. ed. 616; Spring r. South Carolina Ins. Co., 6 Wheat. (U. S.) 519, 5 L. ed. 320. But see also supra, VIII, K. So a scire facias is a new and independent action, and proceedings upon the scire facias are not removed by a writ of error removing the record in the original action. Greenway v. Dare, 6 N. J. L. 305. 50. Panish v. Ross. 95 Ky. 318, 15 Ky. L. Rep. 682, 25 S. W. 266 : Adkins v. Edward's, 83 Va. 316, 2 S. E. 439; Moran v. Johnston, 26 Gratt. (Va.) 108. 51. Hinson r. Adrian, 91 N. C. 372 • Sprint v. South Carolina Ins. Co., 6. Wheat (US) 519, 5 L. ed. 320. APPEAL AND ERROR 979 cannot proceed in such a manner as to execute its judgment or place the funds beyond the control of the ultimate result of the litigation. 52 2. Appointment of Receiver. Upon such a step becoming necessary for the preservation and conservation of property pending the appeal, a receiver may be appointed, 63 upon proper application being made to the court below. 64 This authority is also exercised under statutory provisions. 55 3. Restraining Orders. By virtue of its inherent powers, an appellate tri- bunal may, pending the determination of an appeal upon its merits, issue an order of supersedeas to preserve the status in quo of the parties. 56 On the tither hand, if the purposes of justice require it, and to avoid irreparable injury or multiplicity of suits, if an injunction has been granted, the lower court may order a continu- ance of the status in quo, or may make any necessary orders to preserve the rights of the parties pending the appeal. 57 But upon the effect of appeals from orders granting, refusing, dissolving, or refusing to dissolve injunctions, the authorities are, in conflict, 58 the question, however, often depending at this time upon statu- tory provisions relating to supersedeas and stay of proceedings pending an appeal, 59 or upon statutes expressly conferring authority to make such injunctive order. 60 52. See supra, X, C, 3; and VIII. 53. Fellows v. Heermans, 13 Abb. Pr. N. S. (N. Y.) 1; Adkins v. Edwards, 83 Va. 316, 2 S. E. 439; Moran v. Johnston, 26 Gratt. (Va.) 108. 54. Matter of Hancock, 27 Hun (N. Y.) 575; Graves v. Maguire, 6 Paige (N. Y.) 379; Hart v. Albany, 3 Paige (N. Y.) 381. Application by parties to another suit. — The preservation of the funds being the chief object, the court may entertain » motion for the appointment of a receiver, made by the plaintiff in another suit involving the same property. Lottimer v. Lord, 4 E. D. Smith (N. Y.) 183. 55. Eastman v. Cain, 45 Nebr. 48, 63 N. W. 123, construing Nebr. Code Civ. Proc. § 256. Statute authorizing appointment pending action. — A statutory provision authorizing the appointment of a receiver to take charge of property during the pendency of the action authorizes such an appointment after an ap- peal has been taken. Mitchell v. Roland, 95 Iowa 314, 63 N. W. 606. Statute authorizing collateral action. — Un- der a statute giving the court power to pro- ceed after appeal on any matter embraced in the action and not affected by the order ap- pealed from see State v. Second Judicial Dist. Ct.,. 22 Mont. 241, 56 Pac. 281, construing Mont. Code Civ. Proc. (1895), § 1730. Discharge of receiver. — And, in a case where the appointment of a receiver is » matter an- cillary to the main proceedings, the court may, after appeal has been taken, hear and determine a motion for the discharge of the receiver. Baughman v. Superior Ct., 72 Cal. 572, 14 Pac. 207. 56. State v. Board of Education, 19 Wash. 8, 52 Pac. 317, 67 Am. St. Rep. 706, 40 L. R. A. 317. See also supra, VIII, G. If it should be conceded that the appellate court has no power to hear and determine the appeal during the term at which the judg- ment was rendered, yet it may, to prevent the execution of the judgment below, protect or enforce its jurisdiction by injunction. Ellis v. Harrison, (Tex. Civ. App. 1900) 56 S. W. 592. 57. King v. Tilford, 100 Ky. 564, 18 Ky. L. Rep. 978, 38 S. W. 888 ; Davis v. Connolly, 20 Ky. L. Rep. 411, 46 S. W. 679 (construing Ky. Civ. Code, § 747) ; Parker v. Judges, 12 Wheat. (U. S.) 561, 6 L. ed. 729 (holding that the circuit court might issue an injunc- tion to stay proceedings on a judgment at law, notwithstanding that judgment was be- fore the supreme court on a writ of error) ; Interstate Commerce Commission v. Louis- ville, etc., R. Co., 101 Fed. 146. 58. Thus, where a decree may have an in- trinsic effect which can only be suspended by an affirmative order (as a decree dismissing an injunction suit and dissolving the injunc- tion), it is held that the lower court may, pending the appeal, make such injunctive or- der for the purpose of preserving the status in quo of the parties. Jewett v. Dringer, 29 N. J. Eq. 199; Bullion, etc., Min. Co. v. Eu- reka Hill Min. Co., 5 Utah 182, 12 Pac. 660 assimilating the power of the supreme court of the territory of Utah to make such an or- der, on appeal to the supreme court of the United States, to the right of a circuit court of the United States on an appeal to the su- preme court of the United States. But, on the other hand, it is held that, if a perpetual injunction has been denied, the court is with- out authority to grant an injunction pending the appeal. Campbell, etc., Co. v. Frost, 24 Misc. (N. Y.) 87, 52 N. Y. Suppl. 487; Eu- reka Consol. Min. Co. r. Richmond Min. Co., 5 Sawy. (U. S.) 121, 8 Fed. Cas. No. 4,549. And that the court has no power to revive or continue a temporary injunction obtained by plaintiff after judgment against him in the action, pending his appeal from the judgment see Spears v. Mathews, 66 N. Y. 127 ; Fellows v. Heermans, 13 Abb. Pr. N. S. (N. Y.) 1. 59. See supra, VIII. 60. Johnson v. Young, 13 Colo. 382, 22 Pac. 769, construing Colo. Civ. Code ( 1887 ) , § 144, as to the right of the lower court to make such order. Statutory provisions also allow Vol. II 980 APPEAL AND ERROR XL ASSIGNMENT OF ERRORS. 61 A. Nature and Object. An assignment of errors is in the nature of a plead- ing, and, in the court of last resort, it performs the same office as a declaration or complaint in a court of original jurisdiction. 63 The object of an assignment of errors is to point out the specific errors claimed to have been committed by the court below, in order to enable the reviewing court and opposing counsel to see on what points plaintiff's counsel intends to ask a reversal of the judgment or decree, and to limit discussion to those points. 63 B. Necessity — 1. Statement and Extent of Rule. It is a rule of very general application, though subject to some exceptions to be noticed hereafter, 6 * that a reviewing court will not consider any errors except those assigned. 65 A failure to a vacation of injunction orders on the execu- tion of an undertaking by the defendant. Williams v. Western Union Tel. Co., 65 How. Pr. (N. Y.) 326, construing N. Y. Code Civ. Proc. § 629. Authority of appellate court, under stat- ute, to issue restraining orders, see Leech v. State, 78 Ind. 570; Croll v. Franklin, 36 Ohio St. 316. And where, by statute, an injunction can be granted by that court only before which the action is pending, it must be sought, after the appeal, in the appellate court. Hyatt v. Clever, 104 Iowa 338, 73 N. W. 831, construing Iowa Code (1873), § 3389. 61. As to the parties entitled to assign er- ror see infra, XVII. [3 Cyc] 62. Illinois. — Ditch v. Sennott, 116 111. 288, 5 N. E. 395 ; Lang v. Max, 50 111. App. 465 ; Anderson v. Olin, 44 111. App. 294 ; Wil- cox v. Moore, 44 111. App. 293 ; Waixel v. Har- rison, 35 111. App. 571. Indiana. — Williams v. Riley, 88 Ind. 290; Deputy v. Hill, 85 Ind. 75; Pruitt v. Edin- burg, etc., Turnpike Co., 71 Ind. 244; Hutts v. Hutts, 62 Ind. 214; Hollingsworth v. State, 8 Ind. 257. New Jersey. — Jersey Co. Associates v. Davi- son, 29 N. J. L. 415. New Mexico. — Lamy v. Lamy, 4 N. M. 43, 12 Pac. 650. New York. — Acker v. Ledyard, 1 Den. (N.Y.) 677. Ohio. — Wells v. Martin, 1 Ohio St. 386. 63. Smith v. Williams, 36 Miss. 545; Ran- dall v. Carlisle, 59 Tex. 69; Clements v. Hearne, 45 Tex. 415 ; Phillips, etc., Constr. Co. v. Seymour, 91 U. S. 646, 23 L. ed. 341. See also Squires v. Foorman, 10 Cal. 298. 64. See infra, XI, B, 3. 65. Alabama. — West v. Thomas, 97 Ala. 622, 11 So. 768; McNeill v. Kyle, 86 Ala. 338, 5 So. 461. Arizona. — Maricopa County v. Jordan, (Ariz. 1900) 60 Pae. 693; Trimble v. Long, (Ariz. 1899) 56 Pac. 731. California. — See Hutton v. Reed, 25 Cal. 478. Colorado. — Barnett v. Jaynes, 26 Colo. 279, 57 Pac. 703; Rocky Mountain Nat. Bank v. McCaskill, 16 Colo. 408, 25 Pae. 821. Connecticut. — Ives v. Finch, 28 Conn. 112; Tolland v. Willington, 26 Conn. 578. Florida.— Dell v. Marvin, 41 Fla. 221, 26 So. 188, 79 Am. St. Rep. 171, 45 L. R. A. 201. Vol. n Georgia. — Collins v. Carr, 111 Ga. 867, 36 S. E. 959. Idaho. — Purdy v. Steel, 1 Ida. 216. Illinois. — Watson v. Le Grand Skating Rink Co., 177 111. 203, 52 N. E. 317; Davis v. Lang, 153 111. 175, 38 N. E. 635; Knickerbocker v. Crosby, 86 111. App. 246 ; Kelley v. Heath, etc., Mfg. Co., 66 111. App. 528. Indiana. — Pritchett v. McGaughey, 151 Ind. 638, 52 N. E. 397 ; Starkey v. Starkey, 136 Ind. 349, 36 N. E. 287. Iowa. — Winebrenner v. Brunswick-Balke- Collender Co., 82 Iowa 741, 47 N. W. 1089; Wood v. Whitton, 66 Iowa 295, 19 N. W. 907, 23 N. W. 675. Kentucky. — Louisville, etc., R. Co. v. Sul- livan, 81 Ky. 624, 50 Am. Rep. 186; Com. v. Hughes, 13 Bush (Ky.) 349. Louisiana. — Patterson v. Owen, 20 La. Ann. 141 ; Roumage v. Durrive, 20 La. Ann. 21. Michigan. — Supe v. Francis, 49 Mich. 266, 13 N. W. 584; Monroe v. Ft. Wayne, etc., R. Co., 28 Mich. 272. See also Burnham v. Van Gelder, 32 Mich. 490. Minnesota. — Rushfeldt v. Shave, 37 Minn. 282, 33 N. W. 791; Freeman v. Rhodes, 36 Minn. 297, 30 N. W. 891. Mississippi. — Smith v. Williams, 36 Miss. 545. Missouri. — Gifford v. Weber, 38 Mo. App. 595. Montana. — Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, 43 Pac. 714; State v. Whaley, 16 Mont. 574, 41 Pac. 852. Nebraska. — Vix v. Whyman, 58 Nebr. 190, 78 N. W. 497 ; Stuart v. Staplehurst Bank, 57 Nebr. 569, 78 N. W. 298. Nevada. — Boynton v. Longley, 19 Nev. 69, 6 Pac. 437, 3 Am. St. Rep. 781; Clarke v. Lyon County, 8 Nev. 181. New Hampshire. — Bean v. Burleigh, 4 N. H. 550. New Jersey. — State v. Lewis, 39 N. J. L. 501. North Carolina. — Durham Fertilizer Co. v. Black, 114 N. C. 591, 19 S. E. 642; Thornton v. Brady, 100 N. C. 38, 5 S. E. 910. North Dakota. — Nichols, etc., Co. v. Stang- ler, 7 N. D. 102, 72 N. W. 1089; Schmitz v. Heger, 5 N. D. 165, 64 N. W. 943 ; Devils Lake First Nat. Bank r. Merchants Nat. Bank, 5 N. D. 161, 64 N. W. 941. Ohio.— Pollock v. Cohen, 32 Ohio St. 514; Booth r. Shepherd, 8 Ohio St. 243. APPEAL AND ERROR 981 assign errors is not a mere matter of form that can be waived, but is one of sub- stance, 66 and, as a general rule, errors not assigned are considered to have been waived. 67 The rule applies to appeals on questions of law reserved w as well as to where the case has come up on certificate from the trial court. 69 So, too, the rule applies to suits in equity as well as to actions at law. 70 2. Applications of Rule — a. In General. Applying the rule that errors not assigned will not be noticed, it has been held that objections that the trial court erroneously taxed the costs, 71 denied a motion to direct verdict, 72 denied a motion to dismiss, 73 denied a motion to strike a bill of exceptions from the files, 74 failed to file conclusions of law and fact, 75 failed to sign a statement of facts, 76 failed to sign exceptions until after expiration of time for so signing, 77 granted a nonsuit, 78 remanded a cause to the court from which a change of venue had been taken, 79 overruled a motion for a venire de novo, 80 proceeded to hear a cause without neces- Oklahoma. — Bradford v. Territory, 1 Okla. 366, 34 Pae. 66. Oregon. — Weissman v. Etiasell, 10 Oreg. 73 ; McKay v. Freeman, 6 Oreg. 449. Pennsylvania. — Fox v. Fox, 96 Pa. St. 60 ; Dorman v. Pittsburgh, etc., Turnpike Road Co., 3 Watts (Pa.) 126. South, Carolina. — Fields v. Hurst, 20 S. C. 282. Texas. — San Antonio, etc., R. Co. v. Gurley, (Tex. Civ. App. 1898) 45 S. W. 604; Kahler v. Carruthers, 18 Tex. Civ. App. 216. 45 S. W. 160; Lynn v. McGregor First Nat. Bank, (Tex. Civ. App. 1897) 40 ri. W. 228. Vermont.— See Banfill u.'Banfill, 27 Vt. 557. Washington. — Sengfelder v. Hill, 21 Wash. 371, 58 Pac. 250; Doran v. Brown, 16 Wash. 703, 48 Pae. 251. Wisconsin. — Grimm v. Washburn, 100 Wis. 229, 75 ST. W. 984. United States. — Findlay v. Pertz, 74 Fed. 081, 43 U. S. App. 383, 20 C. C. A. 662; Randolph v. Allen, 73 Fed. 23, 41 U. S. App. 117, 19 C. C. A. 353. See 3 Cent. Dig. tit. "Appeal and Error,'' § 2968 et seq. Reason for the rule. — It has been well said that " to require the appellee or the court to hunt through the record for every conceivable error which the court below may have com- mitted, when none has been pointed out by the party complaining of the judgment, would ob- viously be unreasonable and oppressive on the party recovering judgment, and most bur- thensome on this court, unnecessarily imped- ing the progress of its business; and, by the confusion and uncertainty which it would be- get as to the questions on which the case was decided in the court below, destroy its charac- ter as an appellate tribunal ; and, by the mul- tiplicity of the questions for discussion, tend much more to confusion and error in its own decisions than the correction of errors which may in fact have occurred in the District Court." Clements v. Hearne, 45 Tex. 415, 416. On appeal from an intermediate court. — In Colorado a writ of error to the court of ap- peals will be dismissed where plaintiff in er- ror does not file a new brief and a new assign- ment of errors in the supreme court. Munn v. Corbin, 24 Colo. 381, 51 Pac. 1002. In Indiana, on appeal to the supreme court from a judgment of affirmance in the superior court, an assignment that the court below at general term erred in affirming the judgment and finding of the court at special term, pre- sents for review all the questions which were properly presented at the general term. Alex- ander v. North-Western Christian University, 57 Ind. 466 ; Indianapolis Mfg., etc., Union v. Cleveland, etc., R. Co., 45 Ind. 281 ; Carney v. Street, 41 Ind. 396. In Kentucky it has been held that, on ap- peal to the court of appeals from the superior court, no assignment of errors different from that used in the superior court will be al- lowed. Emerson v. Dye, 81 Ky. 660, 5 Ky. L. Rep. 734; Boaz v. Milliken, 4 Ky. L. Rep. 700. 66. Ditch v. Sennott, 116 111. 288, 5 N. E. 395; Jesse French Piano, etc., Co. v. Meehan, 77 111. App. 577; Lang v. Max, 50 111. App. 465 ; Conlon v. Manning, 43 111. App. 363. 67. Lehman v. Meyer, 67 Ala. 396 ; Feagan v. Kendall, 43 Ala. 628 ; Pollock v. Cohen, 32 Ohio St. 514; Lewis v. Steiner, 84 Tex. 364, 19 S. W. 516. 68. Elder v. Sidwell, 66 Ind. 316. 69. Kistner v. Conery, 109 Iowa 439, 80 N. W. 522. 70. See cases cited supra, note 64 et seq. In one state, however, the rule is limited by special statutory enactment. See infra, XI, B, 3, c. 71. Durham v. Cantrell, 103 Ga. 166, S. E. 708. 72. Marshalltown First Nat. Bank Wright, 84 Iowa 728, 48 N. W. 91, 50 N. 23. 73. Runnals v. Aycock, 78 Ga. 553, 3 S 657. 74. Steele v. Grand Trunk Junction R. Co., 125 111. 385, 17 N. E. 483. 75. Hess v. Dean, 66 Tex. 663, 2 S. W. 727. 76. Ennis Mercantile Co. v. Wathen, 93 Tex 622 57 S. W. 946 ; Reagan v. Copeland, 7S Tex. 551, 14 S. W. 1031. 77. Landrum v. Guerra, (Tex. Civ. App. 1894) 28 S. W. 358. 78. Toulouse v. Pare, 103 Cal. 251, 37 Pac. 146; Miller i: Wade, 87 Cal. 410, 25 Pac. 487. 79. Davis v. Binford, 58 Ind. 457. 80. Windfall Natural Gas, etc., Co. v. T«r- williger, 152 Ind. 364, 53 N. E. 284. Vol. II 29 v. W. E. 982 APPEAL AND ERROR sary parties, 81 refused to allow the filing of an answer to a motion, 82 refused to grant a continuance, 83 refused to try causes of action separately, 84 required, on its own motion, the jury to find specially on certain questions ; 85 that the amount of recovery is excessive ; 86 that the court refused a motion to quash ; 87 that there was a non-joinder of the parties ; 88 that there was, without consent of defendant, a second trial at the same term ; 89 that, in an action to vacate a sale made under a trust deed, the trustee was not present at the sale, are all waived if not assigned as errors. 90 So, objections to the regularity of a call for assessments on corporate stock, which objections have no assignments of error to rest on, will not be consid- ered, 91 and errors and irregularities occurring after the issuance of a tax-deed, as invalidating the deed, such errors and irregularities not being presented by the assignments of error or raised by the pleading, will not be considered. 92 b. Rulings in Respect to Pleadings. 93 In regard to questions in relation to pleadings it has been held that the following objections will not be considered unless assigned as error : striking out portions of an answer ; M striking out or refusing to strike out parts of pleas ; 95 refusal to strike out amended complaint ; % a ruling on exceptions to a disclaimer by defendant in trespass to try title ; 97 the dismissal of a bill absolutely, instead of without prejudice for want of a neces- sary party ; 9S a ruling on a demurrer to a petition for multifariousness ; " and variance between the pleadings and proof. 1 So, it has been held that, where it appears that the petition was to have been amended by consent, an objection that the petition was not actually amended must, to be noticed, be assigned as error. 2 And an objection to the lack of a statutory prayer in a complaint will not be entertained on appeal, there being no assignment of error based on the defect. 8 It is also well settled in a number of jurisdictions that objections to rulings on the sufficiency of a complaint or answer to state a cause of action or defense will not, in the absence of proper assignments of error, be noticed, 4 but in other juris- dictions the contrary view obtains. 3 81. Nichols v. Murphy, 36 111. App. 205. 82. Atkison v. Dixon, 96 Mo. 582, 10 S. W. 163. 83. Meyers v. Andrews, 87 111. 433. 84. Cobble v. Tomlinson, 50 Ind. 550. 85. Wood v. Whitton, 66 Iowa 295, 19 N. W. 907, 23 N. W. 675. 86. Wisconsin Cent. R. Co. v. Wieczorek, 51 111. App. 498 ; Kenwood Bridge Co. v. Dunder- dale, 50 111. App. 581; Horan v. People, 10 111. App. 21; Miller v. Miller, 4 Ky. L. Rep. 364; Hammond v. Edwards, 56 Nebr. 631, 77 N. W. 75; Montgomery v. Albion Nat. Bank, 50 Nebr. 652, 70 N. W. 239 ; Oliver v. Chicago, etc., R. Co., 40 Nebr. 845, 59 N. W. 351; Clas- sen v. Elmendorf, (Tex. Civ. App. 1898) 47 S. W. 1023; Campbell v. Fisher, (Tex. Civ. App. 1893) 24 S. W. 661. 87. Jackson v. Warren, 32 111. 331; Nafe v. Leiter, 103 Ind. 138, 2 N. E. 317; Kratz v. Dawson, 3 Wash. Terr. 100, 13 Pac. 663. 88. Hume v. Robinson, 23 Colo. 359, 47 Pac. 271. 89. Orr v. Bobb, Ky. Dec. 244. 90. Kennedy v. Dunn, 58 Cal. 339. 91. Monroe v. Ft. Wayne, etc., R. Co., 28 Mich. 272. 92. Barnett v. Jaynes, 26 Colo. 279, 57 Pac. 703. 93. See cases cited infra, notes 94-99, 1-4 ; and 3 Cent. Dig. tit. " Appeal and Error," § 2973. 94. New Albany v. White, 100 Ind. 206; Aspegren v. Kotas, 91 Iowa 497, 50 N. W. 273. 95. Cobble v. Tomlinson, 50 Ind. 550. Vol. II 96. Cleveland Stone Co. v. Monroe County Oolitic Stone Co., 11 Ind. App. 423, 39 N. E. 172. 97. Blue v. Chandler, 17 Tex. 126. 98. Shoekley v. Niess, 3 J. J. Marsh. (Ky.) 96. 99. Worden v. California Fig Syrup Co., 102 Fed. 334, 42 C. C. A. 383. 1. Slater v. Chapman, 67 Mich. 523, 35 N. W. 106, 11 Am. St. Rep. 593; Sehoenfeld v. Heman, 1 Cine. Super. Ct. (Ohio) 401; Grimm v. Washburn, 100 Wis. 229, 75 N. W. 984. 2. Booth v. Shepherd, 8 Ohio St. 243. 3. Smith v. Soper, 12 Colo. App. 264, 55 Pac. 195. 4. Illinois. — Falkenau v. Abrahamson, 66 111. App. 352. Indiana. — Pritchett v. McGaughey, 151 Ind. 638, 52 N. E. 397; Louisville, etc., Ferry Co. v. Nolan, 135 Ind. 60, 34 N. E. 710. Michigan. — Nelson v. Dutton, 51 Mich. 416, 16 N. W. 791. Oklahoma. — Bradford v. Territory, 1 Okla. 366, 34 Pac. 66. Pennsylvania. — Hoffer v. Wightman, 5 Watts (Pa.) 205. Texas. — Pendleton v. Colville, 49 Tex. 525 : Willard v. Guttman, (Tex. Civ. App. 1897) 43 S. W. 901. Wisconsin. — Grimm V. Washburn, 100 Wis. 229, 75 N. W. 984. See also Highland Ave., etc., R. Co. v. Mil- ler, 120 Ala. 535, 24. So. 955; Erwin v. Reese, 54 Ala. 589. 5. See infra, XI, B, 3. APPEAL AND ERROR 983 c. Rulings in Respect to Evidence. 6 So, it has also been held that error in the admission 7 or exclusion of evidence, 8 or in refusing to strike out evidence, 9 will not be noticed unless properly assigned. 10 Nor will the court consider whether the evidence is sufficient to support the verdict when no assignment of error is made in respect thereto. 11 d. Rulings in Respect to Instructions. Error in the giving n or refusing of instructions 13 cannot, in the absence of an assignment of error, be corrected, and this is true in respect to the refusal of instructions although the record shows the refusal and an exception taken thereto. 14 e. Findings. Objections to findings cannot be considered in the absence of assignments of error thereon. 15 6. See eases cited infra, notes 7-11; and 3 Cent. Dig. tit. " Appeal and Error," § 2974. 7. Indiana. — Leever v. Hamill, 57 Ind. 423. Iowa. — Bixby v. Carskaddon, 70 Iowa 726, 29 N. W. 626. Michigan. — Noble v. St. Joseph, etc., St. R. Co., 98 Mich. 249, 57 N. W. 126. Nebraska. — Hedrick v. Strauss, 42 Nebr. 485, 60 1ST. W. 928; Wiseman v. Ziegler, 41 Nebr. 886, 60 N. W. 320 ; Kirkendall v. Davis, 41 Nebr. 285, 59 N. W. 915. Texas. — Texas, etc., R. Co. v. Berry, 67 Tex. 238, 5 S. W. 817. United States. — Murray v. Louisiana, 163 U. S. 101, 16 S. Ct. 990, 41 L. ed. 87. 8. Kehoe v. Allen, 92 Mich. 464, 52 N. W. 740, 31 Am. St. Rep. 608 ; Andre v. Hardin, 32 Mich. 324; Anderson r. Anderson, 23 Tex. 639; Swearingen t. Reed, 2 Tex. Civ. App. 364, 21 S. W. 383. 9. Sherman v. Shaw, 9 Nev. 148. 10. An objection to the admission in evi- dence of a deposition cannot be considered when such admission was not assigned as er- ror. Stewart v. Register, 108 N. C. 588, 13 S. E. 234; Smith v. McGregor, 96 N. C. 101, 1 S. E. 695. Effect of parol evidence on validity of in- strument. — When no assignment of error is made as to the effect of certain parol evidence on the validity of an instrument, the appel- late court cannot consider such effect. John- son v. Robinson, 68 Tex. 399, 4 S. W. 625. 11. California. — Winterburn v. Chambers, 91 Cal. 170, 27 Pac. 658 ; Malone v. Del Norte County, 77 Cal. 217, 19 Pac. 422. Florida — Jordan v. Petty, 5 Fla. 326. Massachusetts. — Prescott v. Tarbell, 1 Mass. 204. Nebraska. — Wiseman v. Ziegler, 41 Nebr. 886, 60 N. W. 320. North Carolina. — Dunavant v. Caldwell, etc. R. Co., 122 N. C. 999, 29 S. E. 837; Col- lins v. Young, 118 N. C. 265, 23 S. E. 1005, holding that findings of fact by the court be- low are not reviewable when no exception is filed thereto on the ground that there was no evidence to support the finding. North Dakota.— Colby v. McDermont, 6 N. D. 495, 71 N. W. 772. Texac.— Galveston, etc., R. Co. v. Clark 21 Tex. Civ. App. 167, 51 S. W. 276; Ft. Worth etc., R. Co. v. Osborne, (Tex. Civ. App. 1894) 26 S W. 274; Campbell v. Kone, (Tex. Civ. App. a894) 26 S. W. 231. See 3 Cent. Dig. tit. "Appeal and Error," § 2978. 12. Georgia. — Malone v. Robinson, 77 Ga. 719. Iowa. — Arnold v. Barkalow, 73 Iowa 183, 34 N. W. 807 ; Montgomery v. Des Moines, 55 Iowa 101, 7 N. W. 421. Michigan. — Dresser v. Blair, 28 Mich. 501. Montana. — Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, 43 Pac. 714. Nebraska. — Richardson, etc., Co. v. Winter, 38 Nebr. 288, 56 N. W. 886. Pennsylvania. — ■ Vandevort v. Wheeling Steel, etc., Co., 194 Pa. St. 118, 45 Atl. 86. Texas.— Smith v. Whitfield, 67 Tex. 124, 2 S. W. 822; Norvell v. Phillips, 46 Tex. 161. See also Washington v. Eastham, (Tex. Civ. App. 1900) 56 S. W. 78, in which it was said that an instruction not constituting funda- mental error cannot be reviewed where there is no assignment of error upon that point. See 3 Cent. Dig. tit. "Appeal and Error," § 2975. Effect of statute making exceptions un- necessary. — Notwithstanding a statutory provision that if there is error in the instruc- tions of the trial judge they shall be deemed excepted to without the filing of any formal objections, the supreme court will not, with- out a specific assignment of error, consider a general exception to the charge as given. Mc- Kinnon v. Morrison, 104 N. C. 354, 10 S. E. 513; Lindsey v. Sanderlin, 104 N. C. 331, 10 S E. 518 ; Burnett v. Wilmington, etc., R. Co., 120 N. C. 517, 26 S. E. 819. 13. Indianapolis, etc., R. Co. v. Rhodes, 76 111. 285; Gove v. Blevins, 61 111. App. 591; Richardson, etc.. Co. v, Winter, 38 Nebr. 288, 56 N. W. 886; Davis v. Dura], 112 N. C. 833, 17 S E. 528; Findlay v. Pertz, 74 Fed. 681, 43 TJ. S. App. 383, 20 C. C. A. 662 ; and see 3 Cent. Dig. tit. "Appeal and Error," § 2975. 14. Indianapolis, etc., R. Co. v. Rhodes, 76 Til 285 15. California.— Allstead v. Nicol, 123 Cal 594, 56 Pac. 452; Citizens' Bank v. Jones, 121 Cal. 30, 53 Pac. 354. leoTJ -no Indiana.— Brunson v. Henry 152 Ind. 310, 52 N E 407 ; Windfall Natural Gas, etc., Oo. v. Terwilliger, 152 Ind. 364, 53 N. B. 284 North Carolina.— Battle v. Mayo, 102 N. C. 413, 9 S. E. 384; Green v. Castleberry, It N 'awt Searcy v. Grant, M T«.. 97. 37 S W 320; Campbell v. Kone, (Tex. Civ. App. Vol. II 984 APPEAL AND ERROR f. Judgment or Decree. Errors in a judgment or decree of an incidental nature, will not be considered unless properly assigned. 16 3. Exceptions to Rule — a. In General. There are some exceptions to the general rule that errors not assigned will not be noticed. In many jurisdictions it is well settled that the reviewing court will notice plain errors, 17 or errors which are fundamental or apparent upon the face of the record. 18 b. What Errors Are Fundamental or Apparent of Reeord. Want of jurisdic- tion over the subject-matter is an error which will be noticed even though it is 1894) 26 S. W. 231; Swearingen v. Reed, 2 Tex. Civ. App. 364, 21 S. W. 383. United States. — Metropolitan Nat. Bank v. Rogers, 53 Fed. 776, 3 TJ. S. App. 406, 3" C. C. A. 666. See 3 Cent. Dig. tit. "Appeal and Error," § 2975. Sufficiency of findings to support the judg- ment cannot be considered where no error is assigned in respect thereto. Goulet v. Perry, 123 Mich. 264, 81 N. W. 1072. 16. Reynolds v. Reynolds, 15 Conn. 83; Harris v. Monroe Cattle Co., 84 Tex. 674. 19 S. W. 869; Johnson v. Richardson, 52 Tex. 481 ; Galveston City R. Co. v. D. A. Tompkins Co., (Tex. Civ. App. 1894) 26 S. W. 774; and see 3 Cent. Dig. tit. "Appeal and Error," § 2977. Illustrations. — Thus, the court will not consider error as to costs (Harris v. Monroe Cattle Co., 84 Tex. 674, 19 S. W. 869) ; error in entering judgment against all of the de- fendants (Patrick Red Sandstone Co. v. Skot- man, 1 Colo. App. 323, 29 Pac. 21) ; error in not setting out the full names of the parties for and against whom the judgment is ren- dered (Johnson v. Richardson, 52 Tex. 481) ; or in not allowing damages on the dissolution of an injunction (Galveston City R. Co. v. D. A. Tompkins Co., (Tex. Civ. App. 1894) 26 S. W. 774). 17. Lee v. Dozier, 40 Miss. 477; Koontz v. Kaufman, 31 Mo. App. 397; Neppach v. Jones, 28 Oreg. 286, 39 Pac. 999, 42 Pac. 519 ; Me- dynski v. Theiss, 36 Oreg. 397, 59 Pac. 871 ; U. S. v. Tennessee, etc., R. Co., 176 U. S. 242, 20 S. Ct. 370, 44 L. ed. 452; TJ. S. v. Pena, 175 TJ. S. 500, 20 S. Ct. 165, 44 L. ed. 251 ; Independent School Dist. v. Hall, 106 TJ. S. 428, 1 S. Ct. 417, 27 L. ed. 237 ; Worden v. California Fig Syrup Co., 102 Fed. 334, 42 C. C. A. 383; Western North Carolina Land Co. v. Scaife, 80 Fed. 352, 42 TJ. S. App. 439, 25 C. C. A. 461. 18. Arizona. — Maricopa County v. Jordan, (Ariz. 1900) 60 Pac. 693; Trimble v. Long, (Ariz. 1899) 56 Pac. 731. Connecticut. — Crandall v. State, 10 Conn. 339. Iowa. — Voorhees v. Arnold, 108 Iowa 77, 78 N. W. 795 ; Marshalltown First Nat. Bank v. Wright, 84 Iowa 728, 48 N. W. 91, 50 N. W. 23. Louisiana. — State v. Balize, 38 La. Ann. 542; Bossier v. Carradine, 18 La. Ann. 261. North Carolina. — Huntsman v. Linville River Lumber Co., 122 N. C. 583, 29 S. E. 838 ; Durham Fertilizer Co. v. Black, 114 N. C. 591. 19 S. E. 642; Thornton v. Brady, 100 N. C. 38, 5 S. E. 910; Allen v. Griffin, 98 N. C. Vol. II 120, 3 S. E. 837 — applying the rule in this state only to errors apparent upon the face of the record proper. Ohio.— Gittings p. Baker,- 2 Ohio St. 21. Pennsylvania. — Arthurs v. Smathers, 38 Pa. St. 40 ; Hutchinson v. Campbell, 25 Pa. St. 273; Rodovinsky v. Roxford Knitting Co., 5 Pa. Super. Ct. 636. Tennessee. — Massingale v. Jones, 3 Hayw. (Tenn.) 36. Texas. — Hansen v. Yturria, ( Tex. Civ. App. 1898) 48 S. W. 795; MeCord v. Holloman, (Tex. Civ. App. 1898) 46 S. W. 114. Virginia. — Saunders v. Griggs, 81 Va. 506. See 3 Cent. Dig. tit. "Appeal and Error," § 2968 et seq. In Alabama no error except want of juris- diction will be considered unless assigned, and this is true even though the error be ap- parent of record. Tuskaloosa Cotton-Seed Oil Co. p. Perry, 85 Ala. 158, 4 So. 635; Lehman v. Meyer, 67 Ala. 396. In Florida it is held that the reviewing court can take notice of an error of law ap- pearing on the face of the record, but not of an error of fact unless it is a matter upon which an appeal or writ of error is based, and regularly assigned for error in the reviewing court. If there is such error in fact existing in the ease it must be brought to the notice of the circuit court by writ of error coram vobis, or other proper remedy. Jordan v. Petty, 5 Fla. 326. In Louisiana no assignment of errors is necessary when the case comes up with the certificate of the clerk of the court below that the record contains a true, correct, and com- plete transcript of all the papers filed, of all the evidence, and all the proceedings had in the suit, but in that state the civil law, and practice based upon it, largely obtain. Har- rison v. Soulabere, 52 La. Ann. 707, 27 So. Ill; Warfield V. Hamlet, 28 La. Ann. 814; Bossier v. Carradine, 18 La. Ann. 261 ; Kearny v. Nixon, 17 La. Ann. 318 ; Bouligny v. For- tier, 17 La. Ann. 121. In Michigan it has been held that special assignments of error are not required in cer- tiorari cases which are removed to the su- preme court by writ of error, those assign- ments contained in the affidavit of certiorari being all that are necessary. Chicago, etc., R. Co. v. Campbell, 47 Mich. 265, 11 N. W. 152. In North Carolina it has been held that on appeal from the judgment in a case tried on an agreed statement of facts no particular as- signment of error is necessary. Davenport v. Leary, 95 N. C. 203; Chamblee v. Baker, 95 N. C. 98. APPEAL AND ERROR 985 not assigned. 19 In some of the jurisdictions no assignment of error is necessary to present for review the sufficiency of the complaint to state a cause of action, or of the answer to state a defense. 20 e. Where the Cause Is One in Equity. Under the Iowa code, the only purpose of an assignment of error in an equitable action is to point out the errors of law. 21 But in Vermont the statute authorizing the reversal of the decree on appeals for any error assigned or found does not imply that the party appealing from the decree must make a formal assignment of errors. 22 C. Contents 23 — 1. Designation of Parties. 24 Like the declaration or complaint in a court of original jurisdiction, the assignment of errors should state the names 19. Want of jurisdiction of subject-matter. — Alabama, — Tuskaloosa Cotton-Seed Oil Co. v. Perrv, 85 Ala. 158, 4 So. 635; McDaniel v. Moody, 3 Stew. (Ala.) 314. Indiana. — But see, contra, in this state, where it is held that, though a want of juris- diction over the subject-matter is not waived by failure to demur to the complaint, such lack must at least be assigned as error on the appeal or it cannot be raised in the appellate court. McGoldrick v. Slevin, 43 Ind. 522; Lane v. Taylor, 40 Ind. 495. Maine. — But see, contra, in this state, where it has been held that, on appeal from the probate court and in the absence of fraud, the question of jurisdiction of the cause can be raised only when contained in the reasons assigned for the appeal. Hughes v. Decker, 38 Me. 153. North Carolina. — See also Davis v. Coun- cil, 92 N. C. 725. Oregon. — Weissman v. Russell, 10 Oreg. 73 ; State v. McKinnon, 8 Oreg. 493. Texas. — Richardson v. Knox, 14 Tex. Civ. App. 402, 37 S. W. 189; Cain v. Culbreath, (Tex. Civ. App. 1896) 35 S. W. 809. 20. Shute v. Keyser, (Ariz. 1892) 29 Pac. 386; Wood v. Henderson, 2 La. Ann. 220; Sneed v. Moodie, 24 Tex. 159; Hall v. Johnson, (Tex. Civ. App. 1897) 40 S. W. 46. But see Carson v. Russell. 26 Tex. 452. Other illustrations. — The sale of a tract of land worth ten or twelve thousand dollars on execution for seven hundred and thirty-two dollars (Atcheson v. Hutchison, 51 Tex. 223), and the rendition of a judgment on improper pleadings (Holloway Seed Co. v. City Nat. Bank, 92 Tex. 187, 47 S. W. 95, 516 [reversing 47 S. W. 77]), have been held to be funda- mental errors. On the other hand, a defective return upon a scire facias is not a fundamental error. Evans v. State, 25 Tex. 80. And it has been held that a mixed question of law and fact, which requires the examination of both the pleading and evidence, is not error of law ap- parent of record, which the court can con- sider without being assigned. Neyland v. Bendy, 69 Tex. 711, 7 S. W. 497. So, the denial of a motion to set aside a verdict must be assigned as error if appellant desires a review of the ruling. Glass v. Meyer, 124 Ala. 332. 26 So. 890. 21. Smith v. Wellslager, 105 Iowa 140, 74 N. W. 914, construing Iowa Code (1897), § 3652. In Iowa the necessity and effect of an as- signment of errors is discussed in Smith v. Wellslager, 105 Iowa 140, 74 N. W. 914, 916, the court saying : " It [an assignment of er- rors] is not necessary in event of the errone- ous rulings on the admissibility cf evidence, for these can only be determined on trial de novo ; for, if all the evidence is not before the court, the rulings, even if erroneous, may well be deemed to have been without prejudice, owing to the presumption in favor of the cor- rectness of the court's conclusions. Nor where judgment is on pleadings is an assignment of error required. Heidlebaugh v. Wagner, 72 Iowa 601, 34 N. W. 439; Early v. Burt, 68 Iowa 716, 28 N. W. 35. See also Jordan v. Wimer, 45 Iowa 65. But the ruling on a mo- tion or demurrer can only be brought to the attention of this court on error assigned. Marshall v. Westrope, 98 Iowa 324, 67 N. W. 257 ; Exchange Bank v. Pottorfe, 96 Iowa 354, 65 N. W. 312; Fink v. Mohn, 85 Iowa 739, 52 N. W. 506; Patterson v. Jack, 59 Iowa 632, 13 N. W. 724; Powers v. O'Brien County, 54 Iowa 501, 6 N. W. 720. The utility of an as-. signment of error in a case tried in equity seems to be limited to some rulings affecting the pleadings or the decree entered. If the decree, for instance, is contrary to the finding of facts therein contained, it would seem it might be corrected on assignment of errors. And, where the relief granted in the decree is not warranted by the pleadings, might not the remedy be obtained on appeal, through an assignment of error, without the complete record?" 22. Bishop v. Day, 13 Vt. 116, 117, wherein it is said: "All that is . . . required is that the court shall look into the whole case, and ' shall examine all errors, that shall be as- signed or found,' i. e., all errors which shall be pointed out by the party objecting to the decree, or which in any other way shall come to the knowledge of the court." Compare, also, Vt. Stat. (1894), § 981 et seg. 23. See infra, XI, C, 1-6; and 3 Cent. Dig. tit. " Appeal and Error," § 2990 et seg. Forms of assignments of errors are set out in full, in part, or in substance in Toledo, etc., R. Co. v. East Saginaw, etc., R. Co., 72 Mich. 206, 40 N. W. 436; Niles v. Rhodes, 7 Mich. 374'; Norton v. Sherman, 58 Mich. 549, 25. N. W. 510; Healey v. Toppan, 45 N. H. 243, 86 Am. Dec. 159 ; Copp v. Copp, 20 N. H. 284 ; White v. Johnson, 27 Oreg. 282, 40 Pac. 511 ; Fletcher v. Rhode Island, 5 How. (U. S.) 540, 11 L. ed. 272. 24. See cases cited infra, notes 25-27 ; and 3 Cent. Dig. tit. "Appeal and Error," § 2992. Vol. II 986 APPEAL AND ERROR of all the parties ; ffi but if all the names are given in the body of the assignment it will be sufficient, even though the name of one party is omitted from the title of the cause. 36 The party complaining should place his name before and above that of the party complained of. 27 2. Specification of Errors — a. In General 28 — -(i) Each Error Must Be Separately Assigned. It is unambiguously stated in a very large number of decisions that each error relied on must be separately and distinctly speci- fied — - that no one assignment shall embrace more than one specification of error — and that on a failure to comply with this requirement the court will, as a gen- eral rule, refuse to consider the assignment. 29 25. Hutts v. Martin, 141 Ind. 701, 41 N. E. 329; Rosenbower v. Schuetz, 141 Ind. 44, 40 N. E. 256; Ferguson v. Despo, 8 Ind. App. 523, 34 N. E. 575; and 3 Cent. Dig. tit. "Ap- peal and Error," § 2992. An assignment of error entitled " The Es- tate of " a person named, deceased, against a certain named defendant, has been held to be insufficient. Peden v. Noland, 45 Ind. 354. Full names of the parties should be given. State v. Delano, 34 Ind. 52. Thus, it has been held that an assignment of error giving the names of the parties as " Wm. H. Burke v. The State " is insufficient, the full name of the state not being given. Burke v. State, 47 Ind. 528. This, however, would seem to be an over-refinement; and, in some jurisdictions, such a designation of the parties would be a sufficient compliance with the statute. See N. C. Code (1883), §§ 1183, 1188. The mention of one name, with the addi- tion of " et al.," is insufficient. Big Four Bldg., etc., Assoc, v. Oleott, 148 Ind. 176, 45 N. E. 64; Snyder v. State, 124 Ind. 335, 24 N. E. 891; Todd v. Wood, 80 Ind. 429; Lang v. Cox, 35 Ind. 470; Brookover v. Forst, 31 Ind. 255. Use of initials for christian names. — Al- though a designation of parties in an assign- ment of errors by initials of their christian names will in general be insufficient under Supreme Court Rules, No. 6 [55 N. E. iv], re- quiring the names of the parties to be given in full, and a ground for dismissal of the ap- peal,, this designation will nevertheless be sufficient where the parties are so designated in the pleadings filed by themselves. Good- rich v. Stangland, 155 Ind. 279, 58 N. E. 148. Where parties do not wish to appeal they may decline to do so, and their names will be considered stricken from the assignment of er- rors. Snyder v. State, 124 Ind. 335, 24 N. E. 891. Word " appellee " instead of " appellant." — A mere clerical mistake in the use of the word " appellee " instead of the word " appellant " in an assignment of errors will not prevent a consideration of the real question intended to be presented. Landon v. White, 101 Ind. 249; O'Bannon v. Cord, 3 Ky. L. Rep. 183. 26. Ferguson v. Despo, 8 Ind. App. 523, 34 N. E. 575. 27. Fisher v. Allison, 46 Ind. 592; Wick- Tiam v. Hess, 38 Ind. 183. 28. An assignment containing a mere ab- stract proposition of law will not be consid- Vol. II ered for any purpose. Davis v. Harper, 14 App. Cas. (D. C.) 463. 29. Alabama. — National Fertilizer Co. v. Holland, 107 Ala. 412, 18 So. 170, 54 Am. St. Rep. 101; Mobile v. Murphree, 96 Ala. 141, 11 So. 201. Colorado. — Bitter v. Mouat Lumber, etc., Co., (Colo. 1899) 59 Pac. 403; Hanna v. Barker, 6 Colo. 303. Connecticut. — Norwalk v. Ireland, 68 Conn. 1, 35 Atl. 804; Simmonds v. Holmes, 61 Conn. 1, 23 Atl. 702, 15 L. R. A. 253. Dakota. — McCormack v. Phillips, 4 Dak. 506, 34 N. W. 39. Indiana. — Jones v. Mayne, 154 Ind. 400, 55 N. E. 956; Hussey v. Whiting, 145 Ind. 580, 44 N. E. 639, 57 Am. St. Rep. 220 ; Saunders v. Montgomery, 143 Ind. 185, 41 N. E. 453; Lawrence v. Van Buskirk, 140 Ind. 481, 40 N. E. 54; Eddingfield v. State, 12 Ind. App. 312, 39 N. E. 1057; MeCullough v. Martin, 12 Ind. App. 165, 39 N. E. 905. Iowa. — Dirr v. Dusenbery, (Iowa 1898) 76 N. W. 508 ; Salvador v. Feeley, 105 Iowa 478, 75 N. W. 476. Minnesota. — Mahler v. Merchants Nat. Bank, 65 Minn. 37, 67 N. W. 655; Columbia Mill Co. v. National Bank of Commerce, 52 Minn. 224, 53 N. W. 1061. Missouri. — Honeycutt v. St. Louis, etc., R. Co., 40 Mo. App. 674; Martin v. Fox, 40 Mo. App. 664. Nebraska. — Phoenix Ins. Co. v. King, 54 Nebr. 630, 74 N. W. 1103; Omaha v. Richards, 49 Nebr. 244, 68 N. W. 528. Pennsylvania. — Gallagher's- Appeal, 114 Pa. St. 353, 7 Atl. 237, 60 Am. Rep. 350 ; Sloan v. James, 7 Del. Co. (Pa.) 594, 13 Pa. Super. Ct. 399. v South Carolina. — Armour Packing Co. v. London, 53 S. C. 539, 31 S. E. 500. Texas. — Union Cent. L. Ins. Co. v. Chown- ing, 86 Tex. 654, 26 S. W. 982, 24 L. R. A. 504 ; Mitchell v. Mitchell, 84 Tex. 303, 19 S. W. 477; McCreary v. Robinson, (Tex. Civ. App. 1900) 57 S. W. 682; House v. Brown, 21 Tex. Civ. App. 576, 54 S. W. 396; Drake v. State, (Tex. Civ. App. 1893) 23 S. W. 398. Utah. — Bankhead v. Union Pac. R. Co., 2 Utah 507. United States.— North Chicago St. R. Co. v. Burnham, 102 Fed. 669, 42 C. C. A. 584; Chandler t>. Pomeroy, 96 Fed. 156, 37 C. C. A. 430 ; U. S. v. Indian Grave Drainage Dist., 85 Fed. 928, 57 U. S. App. 416, 29 C. C. A. 578; Clark v. Deere, etc., Co., 80 Fed. 534, 53 U. S. App. 166, 25 0. C. A. 619. APPEAL AND ERROR 987 (n)_ Errors Must Be Definitely Pointed Out. So, a very large number of decisions broadly lay down the doctrine that an assignment of errors must point out definitely and specifically the errors relied on. 80 In perhaps the majority of these decisions this rule is so generally stated that it cannot be determined whether anything further is intended than that the particular ruling in regard to which error is claimed must be definitely pointed out, or whether, in addition thereto, it See 3 Cent. Dig. tit. " Appeal and Error," § 2997 et scq. In Florida and Nebraska the rule is limited somewhat in the case of assignment of er- rors as to instructions. See infra, XI, C, 2, b, (III). Superfluous assignments. — While each er- ror relied on should be separately and dis- tinctly specified, the record should neverthe- less not be encumbered with numerous assign- ments of error when a few would suffice to present in an intelligible manner all of the material questions involved in the case. Farns- worth v. Nevada Co., 102 Fed. 578, 42 C. C. A. 509. Where various errors are complained of, presenting a single proposition of law com- mon to all of them, they need not be separately stated as so many distinct propositions. Cen- tral Trust Co. v. New York Continental Trust Co., 86 Fed. 517, 58 U. S. App. 604, 30 C. C. A. 235. 30. Alabama. — Feagan v. Kendall, 43 Ala. 628. Arizona. — Providence Gold-Min. Co. v. Marks, (Ariz. 1900) 60 Pac. 938; Daggs v. Hoskins, (Ariz. 1898) 52 Pac. 350. California. — Hall v. Susskind, 120 Cal. 559, 53 Pac. 46; Matter of Boyd, 25 Cal. 511; Hut- ton v. Reed, 25 Cal. 478. Colorado. — Marshall Silver Min. Co. v. Kirtley, 12 Colo. 410. 21 Pac. 492; Hanna v. Barker, 6 Colo. 303. Connecticut. — Norwalk v. Ireland, 68 Conn. 1, 35 Atl. 804; Simmonds v. Holmes, 61 Conn. 1, 23 Atl. 702, 15 L. R. A. 253. Dakota.— Bill v. Klaus, 4 Dak. 328, 30 N. W. 171 ; Bush v. Northern Pac. R. Co., 3 Dak. 444, 22 N. W. 508. Florida.— St. Johns, etc., R. Co. v. Shalley, 33 Fla. 397, 14 So. 890. Georgia. — Houston v. Coachman, 99 Ga. 146, 24 S. E. 940 ; Brunswick v. Moore, 74 Ga. 409 ' r, i * > Illinois.— Railway Pass., etc., Conductors Mut. Aid, etc., Assoc, v. Leonard, 62 111. App. 477. Indiana.— Peters v. Banta, 120 Ind. 416, 22 N. E. 95; Clear Creek Tp. v. Rittger, 12 Ind. App. 355, 39 N. E. 1052. Iowa.— Peterson v. Walter A. Wood Mow- ing, etc., Mach. Co., 97 Iowa. 148, 66 N. W. 96, 59 Am. St. Rep. 399 ; Feister v. Kent, 92 Iowa 1, 60 N. W. 493. Kansas.— Fagerberg v. Johnson, 48 Kan. 434 29 Pac. 684; Mutual Ben. L. Ins. Co. v. Kasha, 6 Kan. App. 357, 51 Pac. 811. Kentucky.— O'Reagan v. O'Sullivan 14 Bush (Ky.) 184; Maxwell v. Dudley, 13 Bush (Ky.) 403; Newhall v. Hulsman, 4 Ky. L. Rep. 262; Harned v. Harvey, 3 Ky. L. Rep. 537, defendant excepting " to the whole of the judgment rendered in this case." Louisiana. — Krseutler v. U. S. Bank, 12 Rob. (La.) 456. Michigan. — Baylis v. Stout, 49 Mich. 215, 13 N. W. 521. Minnesota. — Yellow Medicine County Bank v. Wiger, 59 Minn. 384, 61 N. W. 452; In re Granstrand, 49 Minn. 438, 52 N. W. 41. Mississippi. — New Orleans, etc., R. Co. v. Moye, 39 Miss. 374; Calvit v. Markham, 3 How. (Miss.) 343; Adams v. Munson, 3 How. (Miss.) 77. Missouri. — Isaac v. Bohn-Verdin Lumber Co., 47 Mo. App. 30; Honeycutt v. St. Louis, etc., R. Co., 40 Mo. App. 674. Nebraska. — Phoenix Ins. Co. v. King, 54 Nebr. 630, 74 N. W. 1103; Quinn v. Moss, 45 Nebr. 614, 63 N. W. 931. Nevada. — Sherman v. Shaw, 9 Nev. 148 ; Caldwell v. Greely, 5 Nev. 258 ; Corbett v. Job, 5 Nev. 201. North Carolina. — Greensboro v. McAdoo, 110 N. C. 430, 14 S. E. 974; Brendle v. Herren, 98 N. C. 539, 4 S. E. 629. North Dakota. — Hostetter v. Brooks Ele- vator Co., 4 N. D. 357, 61 N. W. 49.. Ohio. — Armstrong v. Clark, 17 Ohio 495; Little Miami R. Co. v. Collett, 6 Ohio St. 182. Oregon. — Herbert v. Dufur, 23 Oreg. 462, 32 Pac. 302 ; Thompson v. New York L. Ins. Co., 21 Oreg. 466, 28 Pac. 628. Pennsylvania. — Fitzpatrick v. Engard, 175 Pa. St. 393, 34 Atl. 803 ; Kramer v. Winslow, 154 Pa. St. 637. 25 Atl. 766; Rosenthal v. Ehrlicher, 154 Pa. St. 396, 32 Wkly. Notes Cas. (Pa.) 221, 26 Atl. 435; Martin v. Jackson, 27 Pa. St. 504, 67 Am. Dec. 489; Thompson v. McConnel, 2 Phila. (Pa.) 32, 13 Leg. Int. (Pa.) 20. South Carolina. — Armour Packing Co. v. London, 53 S. C. 539, 31 S. E. 500; Covar v. Sallat, 22 S. C. 265. South Dakota. — Betts v. Letcher, 1 S. D. 182, 46 N. W. 193; State v. Chapman, 1 S. D. 414, 47 N. W. 411, 10 L. R. A. 432. Tennessee. — Cheatham v. Pearce, 89 Tenn. 668, 15 S. W. 1080; Wood v. Frazier, 86 Tenn. 500' 8 S. W. 148; Denton v. Woods, 86 Tenn. 37, 5 S. W. 489. ono Texas.— Tudor v. Hodges, 71 Tex. 392 9 S W. 443 ; Hughes v. Galveston, etc., R. Co., 67 Tex 595 4 S W. 219; Texas Midland R. Co. v. Tidwe'll, (Tex. Civ. App. 1899) 49 S W. 641; Gulf, etc., R. Co. v. Warner, (Tex. Civ. App. 1896) 36 S. W. 118. Washington.— McAlmond v. Adams, 1 Wash. ^United States.— Soge v. Magnes, 85 Fed. 355, 56 U. S. App. 500, 29 C. C. A. 564; Florida Cent., etc., R Co. v. Bucki, 68 Fed. 864, 30 U. S. App. 454, 16 C. C. A. 42. See 3 Cent. Dig. tit. Appeal and Error, § 2997 et seq. Vol. II 988 APPEAL AND ERROR must state the reasons why such ruling is erroneous. In a number of cases in which the question has been directly raised it has been held necessary to state the reasons why the ruling complained of is erroneous, 31 while in other cases the opposite conclusion has been reached. 32 (in) Assignment of One Error as Affecting Consideration of Another. Assigning error to one ruling or decision raises no question as to the correctness 31. California. — Moore v. Moore, (Cal. 1893) 34Pac. 90. Georgia.— Hall v. Huff, 74 6a. 409; Hig- gins v. Cherokee R. Co., 73 6a. 149. Kansas. — Fagerberg v. Johnson, 48 Kan. 434, 29 Pac. 684; Eldridge v. Deets, 4 Kan. App. 241, 45 Pac. 948. Michigan. — Bettys v. Denver Tp., 115 Mich. 228, 73 N. W. 138. New Jersey. — Driscoll v. Carlin, 50 N. J. L. 28, 11 Atl. 482; Donnelly v. State, 26 N. J. L. 463. North Carolina. — Willey v. Norfolk South- ern R. Co., 96 N. C. 408, 1 S. E. 446 ; State v. Alston, 94 N. C. 930 ; Strickland v. Draughan, 88 N. C. 315. Tennessee. — Cheatham v. Pearce, 89 Tenn. 668, 15 S. W. 1080; Schoenpflug v. Ketcham, (Tenn. Ch. 1898) 52 S. W. 666. 32. Sneer v. Stutz, 93 Iowa 62, 61 N. W. 397 ; Brackenridge v. Claridge, 91 Tex. 527, 44 S. W. 819, 43 L. R. A. 593 (the contrary was formerly the rule in Texas. Pearson v. Flana- gan, 52 Tex. 266 ) ; Bonham Cotton Press Co. v. McKellar, 86 Tex. 694, 26 S. W. 1056; Clarendon Land, etc., Co. v. McClelland, 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105; Atchison, etc., R. Co. v. Mevers, 76 Fed. 443, 46 U. S. App. 226, 22 C. C. A. 268. On principle it would seem that the latter view is correct. As shown in a preceding section, the assignment of errors is the dec- laration or complaint of appellant or plain- tiff in error, and there is no more reason for injecting an argument into the assignment of errors than into the pleadings in the court below. See supra, XI, A. The proper place for reasons in support of the assignment of errors is in the argument or brief of counsel. See, infra, XII. The following assignments of error have been held insufficient on account of their gen- erality: That the court erred as a matter of law in dismissing the complaint." Swvgert v. Wingard, 48 S. C. 321, 26 S. E. 653" That " the court erred in deciding the rule " for ap- pellant, and that " the court erred in making absolute the rule " for appellee. Landis v. Ev- ans, 1 1 3 Pa. St. 332, 6 Atl. 908. " That the court erred in its action in regard to the jury." Harmon v. Chandler, 3 Iowa 150. That the court " erred in not holding that plaintiff could not maintain its suit against defend- ants, appellants." Dendy v. Waite, 36 S. C. 569, 15 S. E. 712. That the court " erred in rendering judgment in favor of defendant." Noble v. Harter, 6 Kan. App. 823, 49 Pac. 794. That the court " erred in submitting the case to the jury and entertaining judgment on the verdict." Van Stone v. Stillwell, etc., Mfg. Co., 142 U. S. 128, 12 S. Ct. 181. 35 L. ed. 961. That the action of the judge was op- pressive, illegal, and in violation of all law, Vol. II and the whole judgment wrong and oppres- sive. Lawless v. Harrington, 75 Ind. 379. That the entire record disputes the theory of the appeal. Brown v. Patton, (Tenn. Ch. 1898) 48 S. W. 277. That " there was irregu- larity in the proceedings on the part of the de- fendant and its agent, by which, as shown in the bill of exceptions, the plaintiffs were pre- vented from having a fair trial." Hanlon v. Union Pac. R. Co., 40 Nebr. 52, 58 N. W. 590. That " plaintiff could acquire no higher interest in the land than Chapman, and Chap- man could not ask that this defendant should pay the notes due to Z. Bartlett." Spencer v. Jones, (Tex. Civ. App. 1898) 47 S. W. 29. " That the judgment is for Sloss, when by law, etc., it should have been for Kimball." Kim- ball v. Sloss, 7 Ind. 589. " Because the judge did not hold that the action and proceeding of plaintiff in the premises were without au- thority of law; second, that the action of the jury was not in accordance with law." 6reens- boro v. McAdoo, 110 N. C. 430, 14 S. E. 974. " Error of law occurring at the trial and ex- cepted to by plaintiff." Ohio Valley R., etc., Co. v. Thomas, 9 Ky. L. Rep. 508, 5 S. W. 470; Meaux v. Meaux, 5 Ky. L. Rep. 548; Hart v. Weber, 57 Nebr. 442, 77 N. W. 1085 ; Houston v. Omaha, 44 Nebr. 63, 62 N. W. 251; Haskell v. Valley County, 41 Nebr. 234, 59 N. W. 680. " First, that the court declared the estate of Feagan solvent on the facts stated; second, that the court did not declare such estate in- solvent." Feagant). Kendall, 43 Ala. 628. "For sundry errors committed- by the court at the trial and excepted to by this appellant in er- ror." American Bonding, etc., Co. v. Scott, (Kan. App. 1900) 61 Pac. 873. In refusing to permit plaintiff in error " to read certain au- thorities to the jury, among them decisions of the supreme court of appeals of Virginia." Blankenship v. Chesapeake, etc., R. Co., 94 Va. 449, 27 S. E. 20. "Irregularities in the pro- ceedings of the court and abuse of discretion, by which the appellant was prevented from having a fair trial." Omaha F. Ins. Co. v. Dierks, 43 Nebr. 473, 61 N. W. 740. "Mis- conduct by the jury." Houston v. Omaha, 44 Nebr. 63, 62 N. W. 251, in which case it was held that the action of the jury which it is claimed amounted to misconduct should be stated. So, where particular instances of mis- conduct are not specified, an exception, to the effect that the court erred in not holding that the mortgagor, by improper conduct, had lost his right to object to the sale, will not be con- sidered on appeal. Fishburne v. Smith, 34 S. C. 330, 13 S. E. 525. Where a party assigns errors diametrically opposed, the court will consider neither of them. The appellant may select his ground, but he cannot assume opposite positions, en- suring success whatever may be the decision APPEAL AND ERROR 989 to a?g ue^other> haVing ^^ ^ ***** ° f em)r8 ' the part ^ wiU not be allowed w„?" / SP n Ci 7 C A f? lieati01 l! to Particular Rulings -(i) Pleadings- U) Com- glamt Declaration, or Petitwn. Assignments attacking the sufficiency of a declaration, petition, or complaint, or the rulings on demurrer or exceptions tnereto, must be specific and point out the error complained of B (b) Plea or Answer. Assignments of error directed to the plea or answer, or to rulings on demurrer or exceptions thereto, must be specific. A general assignment of errors to the sustaining or overruling of demurrers or exceptions, will be insufficient. 86 " * ' on the controverted point. Emmons v. Old- ham, 12 Tex. 18. 33. Alabama. — Napier v. Jones, 47 Ala. 90. Georgia. — Wood v. Collins, 111 Ga. 32, 36 S. E. 423. Indiana. — Patterson v. State, 91 Ind. 364; Evansville, etc., E. Co. v. Lavender, (Ind. App. 1893) 34 N. E. 109. Nebraska. — Drexel v. Daniels, 49 Nebr. 99, . In- dian Grave Drainage Dist.. 85 Fed. 928 57 U S 1pp. 416, 29 C. C. A. 578 ; Lincoln Sav. Bank, etc.. Co. v. Allen, 82 Fed. 148, 49 U.S. App 498, 27 C. C. A. 87 ; Newman v. Virginia, etc. Steel, etc., Co., 80 Fed. 228, 42 U. S. App. 466, 25 C. C. A. 382; American Nat. Bank v. National Wall-Paper Co., 77 Fed. 85, 40 U. S. App. 646, 23 C. C. A. 33; Oswego Tp v. Travelers' Ins. Co., 70 Fed. 225, 36 UT S. App. 13, 17 C. C. A. 77. Insufficient assignments illustrated.— In ap- plying the rules stated in the text, it has been held that the following assignments will not be noticed: . . That the court erred in admitting evidence. Colorado.— Strassheim v. Cole, (Colo. App. 1899) 59 Pae. 479; Fleming v. Daly, 12 Colo. App. 439, 55 Pae. 946. Indiana.— Indiana Bond Co. v. Shearer, 24 Ind. App. 622, 57 N. E. 276. Indian Territory.— Pureell Mill, etc., Co. v. Kirkland, (Indian Terr. 1898) 47 S. W. 311 Iowa. — Buford v. Devoe, 96 Iowa 736, 65 N. W. 413; Burnside v. Eston, 94 Iowa 760, 64 N. W. 786. Maine. — Webber v. Dunn, 71 Me. 331. Missouri. — Honeycutt v. St. Louis, etc., R. Co., 40 Mo. App. 674. Nebraska. — Cortelyou v. Maben, 40 Nebr. 512, 59 N. W. 94; Hanlon v. Union Pae. R. Co., 40 Nebr. 52, 58 N. W. 590. Nevada. — Sherman v. Shaw, 9 Nev. 148. New Mexico. — Schofield v. Territory, 9 N. M. 526, 56 Pae. 306. Oregon. — Archbishop v. Hack, 23 Oreg. 536, 32 Pae. 402 ; Johnson v. Fanno, 23 Oreg. 514, 32 Pae. 396. South Dakota. — Northern Grain Co. v. Pierce, 13 S. D. 265, 83 N. W. 256; State v. Chapman, 1 S. D. 414, 47 N. W. 411, 10 L. R. A. 432. Texas.— Mitchell v. Mitchell, 84 Tex. 303, 19 S. W. 477. That the court erred in excluding evidence. Alabama. — Sonneborn v. Bernstein, 49 Ala. 168. Colorad.0. — Strassheim v. Cole, |Colo. App. 1899) 59 Pae. 479; Las Animas County v. Stone, 11 Colo. App. 476, 53 Pae. 616. I 0W a. — Burnside v. Eston, 94 Iowa 760, 64 N. W. 786; Chandler v. Knott, 86 Iowa 113, 53 N. W. 88. Maine. — Webber v. Dunn, 71 Me. 331. Nebraska.— Coburn v. Watson, 48 Nebr. 257, 67 N. W. 171; Cortelyou v. Maben, 40 Nebr. 512, 59 N. W. 94. New Mexico.— Schofield v. Territory, 9 N. M. 526. 56 Pae. 306. Oregon.— Northern Pae. Terminal Co. 0. Lowenberg, 11 Oreg. 286, 3 Pae. 683. So an assignment of " error of law occur- ring 'at the trial" is insufficient to present for review rulings of the trial court on the admission or exclusion of testimony. Jaeggi v Gallev, 54 Nebr. 800, 75 N. W. 238 ; Blod- gett v. McMurtry, 54 Nebr. 69, 74 N. W. 392. Nor can such rulings be reviewed under an assignment of error alleging " irregularity in the proceedings of the court, and abuse of discretion by the court, by which defendant was prevented from having a fair trial. Friedman v. Weisz, 8 Okla. 392, 58 Pae. 613. Nor under an assignment that the court erred in finding certain facts. Ellison v Fox, 38 Minn 454, 38 N. W. 358. Nor under an as- signment that the conclusion of law is not iustified by the findings of fact Hewetam v. Dossett, 71 Minn. 358, 73 N W. 1089 Nor under an assignment that the court erred in overruling the motion for a new trial," if there are several grounds of error set forth in such motion. Allsman v. Rich- mond, 55 Nebr. 540, 75 N W. 1094. 43. Illinois.— Chicago, etc., R. Co. v. Mof- fitt, 75 111. 524; Chicago City R. Co. v. Van Vleek, 40 111. App. 367. Vol. II 992 APPEAL AND ERROR (3) Stating Grounds of Objection. According to a number of decisions, assignments of error to the admission or exclusion of evidence must state the reasons why the rulings complained of are erroneous. 44 (b) Sufficiency. An assignment of error based on the insufficiency of evi- dence must point out the particulars in which the evidence is insufficient, or it will not be considered. 45 A mere general assignment of error tha't the evidence was insufficient, or that the judgment was not supported by the evidence, presente no question for review. 46 (in) Instructions — (a) Rule Stated. It is a rule of almost universal appli- cation that an assignment of error directed against a charge embodying several Kentucky. — Phillips v. Owsley, 4 Ky. L. Rep. 832. Minnesota. — American Express Co. v. Piatt, 51 Minn. 568, 53 N. W. 877. Missouri. — Honeycutt v. St. Louis, etc., P. Co., 40 Mo. App. 674. Nebraska. — Langdon v. Wintersteen, 58 Nebr. 278, 78 N. W. 501 ; Sigler v. McConnell, 45 Nebr. 598, 63 N. W. 870. Oregon. — Archbishop v. Hack, 23 Oreg. 536, 32 Pac. 402. Texas. — Grinnan r. Rousseaux, 20 Tex. Civ. App. 19, 48 S. W. 58, 781; Ft. Worth Com- press Co. v. Chicago, etc., R. Co., 18 Tex. Civ. App. 622, 45 S. W. 967 ; Miller v. Vernoy, 2 Tex. Civ. App. 675, 22 S. W. 64. See 3 Cent. Dig. tit. "Appeal and Error," % 3010 et sea. General assignment of error to the admis- sion of the testimony of several witnesses is not well taken if any part of the evidence ob- jected to was proper. Eagle Eire Co. v. Globe L. & T. Co., 44 Nebr. 380, 62 N. W. 895. Where only part of the testimony of a wit- ness is excluded, and the assignment of error is that the court erred in excluding all of the testimony of such witness, no question is pre- sented for review. World Mut. Ben. Assoc, v. Worthing, 59 Nebr. 587, 81 N. W. 620; Alls- man v. Richmond, 55 Nebr. 540, 75 N. W. 1094. 44. Mississippi. — New Orleans, etc., R. Co. v. Moye, 39 Miss. 374. New Jersey. — Donnelly v. State, 26 N. J. L. 463. North Carolina. — Watts v. Warren, 108 N. C. 514, 13 S. E. 232; Sumner v. Candler, 92 N. C. 634. Oregon. — Archbishop v. Hack, 23 Oreg. 536, 32 Pac. 402; Johnson v. Fanno, 23 Oreg. 514, 32 Pac. 396. Texas.— Shilling v. Shilling, (Tex. Civ. App. 1896) 35 S. W. 420; Adams v. Eddy, (Tex. Civ. App. 1894) 29 S. W. 180. But this is not the rule in Texas now. The proper place for reasons is in the brief. Clarendon Land, etc., Co. v. McClelland, 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105. See in- fra, XII. United States. — Van Stone v. Stillwell, etc., Mfg. Co., 142 U. S. 128, 12 S. Ct. 181, 35 L. ed. 961. 45. California. — In re Strock, 128 Cal. 658, 61 Pac. 282; Kyle v. Craig, 125 Cal. 107, 57 Pac. 791. Dakota.— Caulfield v. Bogle, 2 Dak. 464, 11 N. W. 511. Vol. II Michigan. — Peabody v. McAvoy, 23 Mich. 526. Minnesota. — Butler-Ryan Co. v. Silvey, 70 Minn. 507, 73 N. W. 406, 510; Lytle v. Pres- cott, 57 Minn. 129, 58 N. W. 688. Montana. — Bass v. Buker, 6 Mont. 442, 12 Pac. 922. Nebraska. — Chicago, etc., R. Co. v. Oyster, 58 Nebr. 1, 78 N. W. 359; Brunswick v. Mc- Clay, 7 Nebr. 137. South Carolina. — Dobson v. Cothran, 34 S. C. 518, 13 S. E. 679. South Dakota. — Brady v. Kreuger, 8 S. D. 464, 66 N. W. 1083, 59 Am. St. Rep. 771. Texas. — Fant v. Andrews, ( Tex. Civ. App. 1898) 48 S. W. 909; Masterson v. Glaze, (Tex. Civ. App. 1898) 46 S. W. 1048; Cullen v. Emgard, (Tex. Civ. App. 1898) 44 S. W. 538; Blain v. Blain, (Tex. Civ. App. 1897) 43 S. W. 66. United States.- — Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 S. Ct. 679, 36 L. ed. 485. 46. Garcia v. Gray, 67 Tex. 282, 3 S. W. 42; Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 S. Ct. 679, 36 L. ed. 485. Illustrations. — So assigning error in enter- ing judgment against defendant on the spe- cial findings does not raise the question whether the evidence justified a verdict, or whether the verdict authorized a judgment. Louisville, etc., R. Co. v. Collins, 6 Ky. L. Rep. 667. An assignment of error that, by a great preponderance, the evidence shows the existence of a certain fact, does not raise the question that there was no evidence as to the existence of such fact. Gulf, etc., R. Co. v. Kizziah, 4 Tex. Civ. App. 356, 22 S. W. 110, 26 S. W. 242. See also Poole v. Jackson, 93 Tenn. 62, 23 S. W. 57. An assignment of er- ror that " there is no credible proof to sus- tain the verdict " is bad in form, because it is the exclusive province of the jury to pass upon the credibility of witnesses. Brown v. Odill, 104 Tenn. 250, 56 S. W. 840. Variance between pleadings and proof. — A specification that the court erred in ad- mitting any testimony under the bill merely challenges the sufficiency of the facts stated in the bill to constitute a cause of action, and, where the ultimate facts pleaded are proved, it does not reach the objection that there was a variance between the evidential facts charged and those established by the findings, so as to authorize the review of such question on appeal. Burt v. Gotzian, 102 Fed. 937, 43 C. C. A. 59. APPEAL AND ERROR 993 propositions as a whole, or against the giving or refusing of a group of instruc- tions embodying distinct propositions, is insufficient. The portion of the charge complained of, or the instructions the giving or refusing of which is claimed to be error, should be distinctly designated or pointed out. 47 (b) Limitations and Exceptions to Rule. In a few jurisdictions, however, the rule is limited to this extent — namely, that, where errors in giving or refus- ing instructions are not separately assigned, the assignment will not be consid- ered if any one of the instructions or refusals to instruct to which errors have been assigned in gross was - proper. 48 So, in some jurisdictions it is held that a single assignment of error may embrace more than one instruction if the instruc- tions are each designated therein by number ; the assignment will be the same in ■effect as if each instruction objected to were named in a distinct assignment. 49 (c) Setting Out or Quoting Instructions. In a number of jurisdictions the rules of court expressly require the assignment of error to quote or set out in totidem verbis the instructions the giving or refusing of which is alleged to be •error, 50 and such, it seems, is the general rule, whether or not a rule of court 47. Connecticut. — Simmonds v. Holmes, 61 Oonn. 1, 23 Atl. 902, 15 L. R. A. 253. Dakota,— Kennedy v. Falde, 4 Dak. 319, 29 N. W. 667. District of Columbia. — District of Columbia v. Robinson, 14 App. Cas. (D. C.) 512. Georgia. — Anderson v. Southern R. Co., 107 •Ga. 500, 33 S. E. 644; Austell v. James, 97 ■Ga. 334, 22 S. E. 953. Iowa. — Blair v. Madison County, 81 Iowa 313, 46 N. W. 1093; Moffatt v. Fisher, 47 Iowa 473. Kansas. — Sanford v. Gates, 38 Kan. 405, 16 Pac. 807. Kentucky. — Wheeler, etc., Mfg. Co. v. Hord, 4 Ky. L. Rep. 240. Michigan. — Pratt v. Burhans, 84 Mich. 487, 47 N. W. 1064, 22 Am. St. Rep. 703; People v. Sweeney, 55 Mich. 586, 22 N. W. 50. Minnesota. — Watts v. Howard, 70 Minn. 122 72 N. W. S40; Carpenter v. Eastern R. Oo., 67 Minn. 188, 69 N. W. 720. Nebraska. — Mclntyre v. Union Pac. R. Co., '56 Nebr. 587, 77 N. W. 57 ; Flower v. Nichols, 55 Nebr. 314, 75 N. W. 864. North Carolina. — State v. Melton, 120 N. C. 591, 26 S. E. 933; McKinnon v. Morrison, 104 N C. 354, 10 S. E. 513; Leak v. Covington, 99 N. C. 559, 6 S. E. 241 ; Suttle v. Falls, 98 N. C. 393, 4 S. E. 541, 2 Am. St. Rep. 338. Oregon. — Jensen v. Foss, 24 Oreg. 158, 33 Pac. 535; Johnson v. Fanno, 23 Oreg. 514. 32 Pac. 396. Pennsylvania. — Drenning v. Wesley, 189 Pa. St. 160, 42 Atl. 13; Crawford v. MeKinney, 165 Pa. St. 605. 30 Atl. 1045; Good Intent ■Co. v. Hartzell, 22 Pa. St. 277 ; Zerbe v. Mil- ler, 16 Pa. St. 488; Cobb v. Stephens, 2 Phila. (Pa.) 150, 13 Leg. Int. (Pa.) 245. South Carolina.— Willoughby v. North Eastern R. Co., 52 S. C. 166, 29 S. E. 629. Texas.— Halff v. Goldfrank, (Tex. Civ. App. 1899) 49 S. W. 1095; Texas, etc., R. Co. v. Echols, 17 Tex. Civ. App. 677, 41 S. W. 488 ; Sanger v. Noonan, (Tex. Civ. App. 1894) 27 S. W. 1056. Utah. — ; Bowers v. Union Pac. R. Co., 4 Utah 215, 7 Pap. 251. United States.— Bogk v. Gassert, 149 U. S. 17, 13 S. Ct. 738, 37 L. ed. 631 ; New Orleans, [63] etc., R. Co. v. Clements, 100 Fed. 415, 40 C. C. A. 465; G allot v. U. S., 87 Fed. 446, 58 U. S. App. 243, 31 C. C. A. 44; Sutherland v. Brace, 71 Fed. 469, 34 U. S. App. 454, 18 C. C. A. 199; Atchison, etc., R. Co. v. Mulligan, 67 Fed. 569, 34 U. S. App. 1, 14 C. C. A. 547; Vider v. O'Brien, 62 Fed. 326, 18 U. S. App. 711, 10 C. C. A. 385. See 3 Cent. Dig. tit. " Appeal and Error," § 3013 et seq. Single assignments of error should not em- brace more than one proposition, and, on a violation of the rule, the court will usually disregard the assignment. See supra, note 47 et seq. 48. Lewis v. State, (Fla. 1900) 28 So. 397; Green v. Sansom, 41 Fla. 94, 25 So. 332; Frenzer v. Richards, 60 Nebr. 131, 82 N. W. 317; World Mut. Ben. Assoc, v. Worthing, 59 Nebr. 587, 81 N. W. 620; and see 3 Cent. Dig. tit. "Appeal and Error," § 3013 et seq. 49. Ellis v. Leonard, 107 Iowa 487, 78 N. W. 246; Ludwig v. Blaekshere, 102 Iowa 366, 71 N. W. 356; Sherwood v. Snow, 46 Iowa 481, 26 Am. Rep. 155; Witsell v. West Asheville, etc., R. Co., 120 N. C. 557, 27 S. E. 125; and see 3 Cent. Dig. tit. "Appeal and Error," § 3013 et seq. 50. Colorado. — Ruby Chief Min., etc., Co. v. Prentice, 25 Colo. 4, 52 Pac. 210; Martin v. Hazzard Powder Co., 2 Colo. 596. Georgia — Atlantic Consol. St. R. Co. v. Beauchamp, 93 Ga. 6, 19 S. E. 24. Kansas. — Lancashire Ins. Co. v. Murphy, (Kan. App. 1900) 62 Pac. 729; Leavenworth v. Duffy, (Kan. App. 1900) 62 Pac. 433. Michigan.— Baylis v. Stout, 49 Mich. 215, 13 N. W. 521. Pennsylvania.— Crawford v. McKmney, 165 Pa. St. 605, 30 Atl. 1045; Irvin v. Kutruff, 152 Pa. St. 609, 31 Wkly. Notes Cas. (Pa.) 485 25 Atl. 796; Genesee-Fork Imp. Co. v. Ives, 144 Pa. St. 114, 29 Wkly. Notes Cas. (Pa ) 109 22 Atl. 887, 13 L. R. A. 427; Fry v Flick, 10 Pa. Super. Ct. 362, 44 Wkly. Notes Cas (Pa.) 198; May v. Troutman, 4 Pa. Super. Ct. 42, 40 Wkly. Notes Cas. (Pa.) 63. Tennessee— Chicago Guaranty Fund L. Soc. v. Ford, 104 Tenn. 533, 58 S. W. 239. United States.— Lucas v. Brooks, 18 Wall. Vol. II 994 APPEAL AND ERROR expressly so requires, 61 except where, as is the case in some states, it is sufficient to refer to the instruction by number. 52 (d) Stating Reasons Why Instructions Are Erroneous. There is some differ- ence of opinion as to whether, in addition to specifying the instruction the giving or refusing of which is complained of, it is further necessary for the assignment to show in what the error consists. This is due, in a large measure at least, to the difference in the wording of the statutes and rules of court. In a number of jurisdictions it has been held necessary to show why the ruling com- plained of is erroneous. 53 On the other hand, it has been held in some jurisdic- tions, where this question has been directly raised, that it is not necessary to state such reasons. 54 (e) Illustrations of Defective Assignments — (1) Not Relating to Objec- tions Urged. Objections to instructions given are not raised by an assignment of error that the finding of the jury was contrary to the law and the evidence, 55 or that the verdict is contrary to law. 56 An objection to a failure to instruct upon the law of the case is not raised by an assignment that the court erred in giving such instructions as were given, such instructions, upon the subjects to which they relate, being correct. 57 So, an assignment that the charge was an expression of opinion upon the weight of the evidence does not raise the question as to the duty of employers to adopt improved appliances and methods of operation, 58 and (U. S.) 436, 21 L. ed. 779; Deitseh v. Wig- gins, 15 Wall. (U. S.) 539, 21 L. ed. 228; Johnston v. Jones, 1 Black (U. S.) 209, 17 L. ed. 117; Frichard v. Budd, 7G Fed. 710, 42 U. S. App. 186, 22 C. C. A. 504; Suther- land v. Brace, 71 Fed. 469, 34 U. S. App. 454, 18 C. C. A. 199; Haldane r. U. S., 69 Fed. 819, 32 U. S. App. 607, 16 C. C. A. 447 ; Mit- chell v. Marker, 62 Fed. 139, 22 U. S. App. 325, 10 C. C. A. 306, 25 L. R. A. 33; MeClellan v. Pyeatt, 50 Fed. 686, 4 U. S. App. 319, 1 C. C. A. 613. See 3 Cent. Dig. tit. " Appeal and Error," § 3015. Pointing out questions of fact submitted to jury. — -An assignment that the court erred in submitting to the jury a question of fact about which there was no evidence, without specifying what the question was. will not be considered. Sweeney v. Ten Mile Oil, etc., Co., 130 Pa. St. 193, 18 Atl. 612. 51. Baylis v. Stout, 49 Mich. 215, 13 N. W. 521; Chicago Guaranty Fund L. Soc. v. Ford, 104 Tenn. 533, 58 S. W. 239. This, it seems, must be a necessary consequence of the doc- trine stated that " the portion of the charge complained of, or the instructions the giv- ing or refusing of which is claimed to be error, should be distinctly designated or pointed out." See supra, XI, C, 2, b, (ni), (A). 52. See Iowa and North Carolina cases cited supra, note 47. 53. Dale v. Purvis, 78 Cal. 113, 20 Pae. 296; Enright v. Atlanta, 78 Ga. 288; Georgia R. Co. v. Olds, 77 Ga. 673 ; Reardon v. Smith, 72 111. App. 674; Gregg v. Berkshire, (Kan. App. 1900) 62 Pac. 550; Johnson v. Fanno, 23 Oreg. 514, 32 Pac. 396; Lucas v. Brooks, 18 Wall. (U. S.) 436, 21 L. ed. 779; Union Casu- alty, etc., Co. v. Sehwerin, 80 Fed. 638, 42 U. S. App. 514, 26 C. C. A. 45; Newman v. Virginia, etc., Steel, etc., Co., 80 Fed. 228, 42 U. S. App. 466, 25 C. C. A. 382. ■54. Farmers Sav. Bank r. Wilka, 102 Iowa Vol. II 315, 71 N. W. 200; Hammer v. Chicago, etc., R. Co., 70 Iowa 623, 25 N. W. 246; Schaefert v. Chicago, etc., R. Co., 62 Iowa 624, 17 N. W. 893; Clark v. Ralls, 50 Iowa 275. Although many of the Texas decisions, some of which are of very recent date, seem to hold that it is necessary to show in what respect the rul- ing complained of is erroneous. Robertson v. Coates, 1 Tex. Civ. App. 664, 20 S. W. 875; Schneider v. McCoulsky, 6 Tex. Civ. App. 501, 26 S. W. 170; Alamo F. Ins. Co. v. Lancaster, 7 Tex. Civ. App. 677, 28 S. W. 126; Interna- tional, etc., R. Co. v. Hinzie, 82 Tex. 623, 18 S. W. 681 ; Cannon v. Cannon, 66 Tex. 682, 3 S. W. 36; Marsalis v. Thomas, 13 Tex. Civ. App. 54, 35 S. W. 795, decided subsequent to the decision of the supreme court laying down the opposite doctrine. The rule now seems to be that where an assignment of errors is suffi- ciently specific to enable the court to see that a particular ruling is complained of, it should be held to be good, although it fail to state the reason why such ruling is complained to be erroneous. Clarendon Land, etc., Co. v. Mc- Clelland, 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105 (in which it is said that the rea- sons by which allegations of error are sought to be sustained find their proper place ) ; Gulf, etc., R. Co. v. Ramey, (Tex. Civ. App. 1894) 24 S. W. 654; Davis v. Missouri, etc., R. Co., 17 Tex. Civ. App. 199, 43 S. W. 44 (in which" it was held that if appellant has assigned a reason why an instruction complained of is erroneous, he is not confined to that reason in arguing, because the reason assigned is not an essential part of the assignment). 55. Sweeney v. Ten Mile Oil Co., 130 Pa. St. 193, 18 Atl. 612; Kilsore v. Jordan, 17 Tex. 341. 56. Drexel v. Daniels, 49 Nebr. 99, 68 N. W. 399. 57. Davis v. Hilbourn, 41 Nebr. 35, 59 N. W. 379. 58. Sickles v. Missouri, etc., R. Co., 13 Tex. Civ. App. 434, 35 S. W. 493. APPEAL AND ERROR 995 a failure to charge a proposition of law applicable to the case cannot he taken advantage of by assigning error on a charge that is abstractly correct. 59 (2)_ Selecting Single Sentence of Charge. An assignment of error is defective which selects a single sentence from the body of the charge and imputes error thereto, and so severs the sentence from the context to which it evidently refers that it is unintelligible. 60 (3) Too General. The following assignments have been held too general to require consideration : that the court erred in its charge to the jury ; 61 that " defendant excepted to the charge as given upon the first and second issues ; " m il that the charge as a whole was illegal in failing to state all the issues involved in the case ; " 6S " that the charge of the court below as a whole was misleading to the jury ; " M that the court erred in its charge " because it charges the law in the abstract and does not apply it to the facts of the case ; " 65 that " the court erred in its charge in giving an incorrect measure of damages ; " 66 that " the court erred in refusing to give the special charges assigned by plaintiff ; " 67 " that the court failed to charge the jury on the law applicable to the facts and pleadings in this case ; " w that the instruction was not warranted by the evidence ; 69 that the instructions did not fully cover the case made by the declaration and proof ; 70 " errors of law occurring at the trial ;" 71 or "misdirection in the charge." 72 (iv) Findings of Fact.' 13 An assignment of error that the evidence is insuf- ficient to support the findings is too general to be considered. 74 So, also, is an 59. Wood v. Collins, 111 Ga. 32, 36 S. E. 423; Lucas v. State, 110 Ga. 756, 36 S. E. 87. 60. Irvin v. Kutruff, 152 Pa. St. 609, 31 Wkly. Notes Cas. (Pa.) 485, 25 Atl. 796. See also Finch v. Karste, 97 Mich. 20, 56 N. W. 123. 61. Ludwig v. L. C. Huck Malting Co., 46 111. App. 494; Cramer v. Carlisle Bank, 2 Grant (Pa.) 267; Low v. Tandy, 70 Tex. 745, 8 S. W. 620 ; Clements v. Hearne, 45 Tex. 415 ; Deware v. Wichita Valley Mill, etc., Co., 17 Tex. Civ. App. 394, 43 S. W. 1047. 62. Taylor v. Albemarle Steam Nav. Co. 105 N. C. 484, 10 S. E. 897. 63. Carter v. Dixon, 69 Ga. 82. 64. Udderzook v. Harris, 140 Pa. St. 236, 21 Atl. 395. 65. Holman V. Herscher, (Tex. 1891) 16 S. W. 984. 66. Sanger v. Craddock, (Tex. 1886) 2 S. W. 196. 67. Sanger v. Craddock, (Tex. 1886) 2 S. W. 196. 68. Gross v. Hays, 73 Tex. 515, 11 S. W. 523. 69. Sage v. Tucker, 51 Mo. App. 336 ; Giles v. Hunter, 103 N. C. 194, 9 S. E. 549. 70. Whelan v. Georgia Midland, etc., R. Co., 84 Ga. 506, 10 S. E. 1091. 71. Hastings, etc., R. Co. v. Ingalls, 15 Nebr. 123, 16 N. W. 762. 72. Everett v. Williamson, 107 N. C. 204, 12 S. E. 187; McKinnon v. Morrison, 104 N. C. 354, 10 S. E. 513. 73. Conclusions of law. — In Indiana, if there is a special finding of fact and conclu- sions of law stated thereon, there must be an assignment of error upon the record that the court erred in its conclusions of law. Nading v. Elliott, 137 Ind. 261, 36 N. E. 695; Hart- man v. Aveline, 63 Ind. 344, 30 Am. Rep. 217 ; Lewis v. Haas, 50 Ind. 246. Errors in con- clusions of law cannot be reached by assigning error to the findings of fact ( Selking v. Jones, 52 Ind. 409) ; but, where exception has been properly taken to conclusions of law, a general assignment that the trial court erred in its conclusions of law will be sufficient to present, to the reviewing court the question whether the lower court so erred (Smith v. Davidson, 45 Ind. 396; Cruzan V. Smith, 41 Ind. 288. See also Peterson v. Struby, 25 Ind. App. 19, 56 N. E. 733, 57 N. E. 599). Under a Texas statute providing that all grounds of error not distinctly specified shall be considered waived, an assignment of error to the conclusions of law, because, from the facts, the appellee was not entitled to the judgment given, is insufficient. Tudor v. Hodges, 71 Tex. 392, 9 S. W. 443. 74. See supra, XI, C, 2, b, (n). The particulars in which the evidence is said to be insufficient to justify the finding should be pointed out in the assignment of error. California.— Kyle v. Craig, 125 Cal. 107, 57 Pac. 791; San Francisco v. Pacific Bank, 89 Cal. 23, 26 Pac. 615, 835. Montana. — Thorp v. Freed, 1 Mont. 651. Nevada. — Lamance v. Barnes, 17 Nev. 197, 30 Pac. 700. North Carolina. — Green v. Castleberry, 77 N. C. 164. North Dakota. — Brynjolfson v. Thingvalla Tp., 8 N. D. 106, 77 N. W. 284. South Dakota — But see Brady v. Kreuger, 8 S. D. 464, 66 N. W. 1083, 59 Am. St. Rep. 771. Utah.— Van Pelt v. Park, 18 Utah 141, 55 Pac. 381. See 3 Cent. Dig. tit. "Appeal and Error," § 3018. This rule applies as well to appeals m equity cases as to appeals in actions at law. Van Pelt i>. Park, 18 Utah 141, 55 Pac. 381. When necessity for pointing out evidence Vol. n 996 APPEAL AND ERROR assignment of error that the court erred in its findings,' 5 or an assignment " that the findings and judgment of the court are not supported by the pleadings, evi- dence, and law of the case." 76 A general assignment of error calling in question the correctness of the findings is of no avail when it specifies no particular evi- dence. 77 And an assignment of error which does not show whether it is taken to the findings of fact or conclusions of law is bad. 78 (v) Report of Referee or Master. A general assignment that the court erred in sustaining or overruling the report of the referee or master, presents no question for consideration. 79 (vi) Verdict. That the verdict is contrary to law, without specifying or indi- cating in what way and for what reason it is so, is too general and will not be regarded by the court. 80 So, an assignment of error that the verdict is contrary to the evidence, 81 or contrary to the law and the evidence, 82 or contrary to the instructions, 83 is too general. An assignment of error that the court erred in obviated. — The necessity of pointing out ■wherein the evidence is insufficient to justify the finding is obviated where there is no evi- dence to sustain the finding and the various points raised have necessarily called attention to that fact. San Luis Water Co. v. Estrada, 117 Cal. 1C8, 48 Pac. 1075. 75. Arizona. — Main v. Main, (Ariz. 1900) 60 Pac. 888. Colorado. — Percy Consol. Min. Co. v. Hal- lam, 22 Colo. 233, 44 Pac. 509. Indiana. — Peterson v. Struby, 25 Ind. App. 19, 56 X. E. 733, 57 X. E. 599. Iowa. — Carpenter v. Chicago, etc., R. Co., (Iowa 1899) 79 X. W. 393; Garrett v. Wells, 63 Iowa 256, 18 N. W. 899. Minnesota. — Cook r. Kittson, 68 Minn. 474, 71 N. W. 670. See also Albreeht v. St. Paul, 56 Minn. 99, 57 N. W. 330. Texas. — Falls Land, etc., Co. v. Chisholm, 71 Tex. 523, 9 S. W. 479. Utah.— Mader v. Taylor, 15 Utah 161, 49 Pac. 255. 76. Hanover F. Ins. Co. v. Shrader, 11 Tex. Civ. App. 255, 31 S. W. 1100, 32 S. W. 344. 77. Dallemand v. Swensen, 54 Minn. 32, 55 N. W. 815; Moody v. Tschabold, 52 Minn. 51, 53 N. W. 1023; Union Cash Register Co. v. John, 49 Minn. 481, 52 X. W. 48; Smith v. Kipp, 49 Minn. 119, 51 X. W. 656. In Indiana an assignment of error " that the court erred in its conclusions of law on the facts found " admits the correctness of the findings of fact. Indianapolis Natural Gas Co. v. Pierce, 25 Ind. App. 116, 56 X. E. 137. 78. Brunswick v. Moore, 74 Ga. 409 ; Fidel- ity, etc., Co. v. Anderson, 102 Ga. 551, 28 S. E. 382 ; Lytle v. Preseott, 57 Minn. 129, 58 X. W. 688. 79. Particular errors relied on should be pointed out. Iowa. — Feister v. Kent, 92 Iowa 1, 60 N. W. 493; Hoefer v. Burlington, 59 Iowa 281, 13 X. W. 294. Kentucky. — O'Reagan v. O'Sullivan, 14 Bush (Ky.) 184. Michigan. — Altman v. Wheeler, 18 Mich. 240. North Carolina. — Green v. Castlebury, 70 X. C. 20. Pennsylvania. — Bull's Appeal, 24 Pa. St. 286. Vol. II South Carolina. — Smith v. Brabham, 48 S. C. 337, 26 S. E. 651; Moorer v. Andrews, 39 S. C. 427, 17 S. E. 948. Tennessee. — Glasgow v. Hood, ( Tenn. Ch. 1900) 57 S. W. 162. United States. — Dexter v. Arnold, 2 Sumn. (U. S.) 108, 7 Fed. Cas. Xo. 3,858. See 3 Cent. Dig. tit. " Appeal and Error," § 3020. So an objection to an award that the arbi- trators failed to file issues submitted to them, and exceeded their powers, cannot be consid- ered unless the assignment of error points out wherein such arbitrators failed to decide is- sues and exceeded their powers. Fortune v. Killebrew, (Tex. Civ. App. 1893) 21 S. W. 986. 80. Iowa. — Hamilton Buggy Co. v. Iowa Buggy Co., 88 Iowa 364, 55 X. W. 496 ; Brig- ham v. Retelsdorf, 73 Iowa 712, 36 X. W. 715. Pennsylvania. — Schofield v. Ferrers, 46 Pa. St. 438. South Dakota. — Bauder v. Schamber, 7 S. D. 54, 63 X. W. 227. Texas. — Utley v. Smith, (Tex. Civ. App. 1895) 32 S. W. 906; Sanger v. Craddock, (Tex. 1886) 2 S. W. 196. Utah. — Gilberson v. Miller Min., etc., Co., 4 Utah 46, 5 Pac. 699. See 3 Cent. Dig. tit. "Appeal and Error," § 3017. An assignment of error that the verdict is contrary to law as given in the instructions, without designation as to what particular branch of the charge was disregarded by the jury, is too general for consideration. Wood v. Hallowell, 68 Iowa 377, 27 X. W. 263; Hous- ton, etc., R. Co. v. Marcelles, 59 Tex. 334. 81. See supra, XI, C, 2, b, (n). 82. Keokuk Stove Works v. Hammond, 94 Iowa 694, 63 X. W. 563; State v. Floyd, 39 S. C. 23, 17 S. E. 505; International, etc., R. Co. v. Hinzie, 82 Tex. 623, 18 S. W. 681 ; Bon- ner v. Whitcomb, 80 Tex. 178, 15 S. W. 899; Leach v. Wilson County. (Tex. 1890) 13 S. W. 613; Blain v. Blain, (Tex. Civ. App. 1897) 43 S. W. 66. 83. ^Etna Ins. Co. v. Simmons, 49 Xebr. 811, 69 X. W. 125; Gulf, etc., R. Co. i. Mon- tier, 61 Tex. 122; Utlev v. Smith, (Tex. Civ. App. 1895) 32 S. W. 906. APPEAL AND ERROR 997 S - n fnd V s e o^ Ct fOT ^^^ f d , efendan \ as the case may be, is also too gen- defe'ndan ^ tW ^^^T^ °f . error J? that the verdict should have been for defendant « that " the court erred in refusing to instruct the iury to return a ^£ft V the A d f^ ant C 6 ° r that the co «^ erred in sustaining amotion to set aside the verdict, where the motion was based on several grounds 87 So an assignment of error that the verdict is excessive, without statiSg why it is exces- sive^ will not be noticed j 88 nor can the objection that the verdict is excessive be considered under an assignment of error that the verdict is not sustained by the evidence or is contrary to law, 90 or under an assignment that " the court erred in overruling defendant's motion for a new trial." 91 _ (vn) Judgment. A general assignment of error that the court erred in the judgment rendered is insufficient, 92 except, perhaps, in cases where only a single 84. Jackson Bridge, etc., Co. v. Lancashire Ins. Co., 122 Mich. 433, 81 N. W. 265; Alberts v. Vernon, 96 Mich. 549, 55 N. W. 1022 ; John- son v. Ballon, 25 Mich. 460; Supreme Lodge, etc. v. Withers, 89 Fed. 160, 59 U. S. App. 177, 32 C. C. A. 182, 85. Alberts V. Vernon, 96 Mich. 549, 55 N. W. 1022. 86. Atchison, etc., R. Co. v. Todd, 4 Kan. App. 740, 46 Pae. 545 ; Beck v. Baden, 3 Kan. App. 157, 42 Pac. 845. 87. Battin v. Marshalltown, (Iowa 1898) 77 N. W. 493. 88. Louisville, etc., R. Co. v. Sullivan, 81 Ky. 624, 50 Am. Rep. 186 ; Galveston v. Dev- lin, 84 Tex. 319, 19 S. W. 395; Sanger v. Crad- dock, (Tex. 1886) 2 S. W. 196; Texas, etc., E. Co. v. Scharbauer, (Tex. Civ. App. 1899) 52 S. W. 589. 89. Ray v. Thompson, 26 Mo. App. 431; Brosnahan v. Philip Best Brewing Co., 26 Mo. App. 386; Nye, etc., Co. v. Snyder, 56 Nebr. 754, 77 N. W. 118; Riverside Coal Co. v. Holmes, 36 Nebr. 858, 55 N. W. 255. 90. Ray v. Thompson, 26 Mo. App. 431. 91. Evans v. Delk, (Tex. 1888) 9 S. W. 550. An assignment of error that " the verdict is contrary to the evidence and is so exceedingly small as to clearly appear to have been given under the influence of passion, prejudice, or undue means," does not raise the question of error in assessment of the amount of recovery by the jury independently, or aside from the consideration of the influence of passion, prej- udice, or undue means. Beavers v. Missouri Pac. R. Co., 47 Nebr. 761, 66 N. W. 821. 92. Arizona. — Newmark v. Marks, ( Ariz. 1890) 28 Pac. 960. California. — Shepherd v. Jones, 71 Cal. 223, 16 Pac. 711; Wilson v. Wilson, 45 Cal. 399. Georgia. — Brunswick v. Moore, 74 Ga. 409 ; Hall v. Huff, 74 Ga. 409. Indiana. — Seisler v. Smith, 150 Ind. 88, 46 N. E. 993 ; McGinnis v. Boyd, 144 Ind. 393, 42 N. E. 678; Indiana Bond Co. v. Shearer, 24 Ind. App. 622, 57 N. E. 276. Iowa. — Guyer v. Minnesota Thresher Mfg. Co., 97 Iowa 132, 66 N. W. 83; Keokuk Stove Works v. Hammond, 94 Iowa 694, 63 N. W. 563. Kansas. — Gamble v. Hodges, 17 Kan. 24; Beck v. Baden, 3 Kan. App. 157, 42 Pac. 845. Kentucky. — Smith ». Williams, 4 Ky. L. Rep. 031; Harned v. Harvey, 3 Ky. L. Rep. 537. Michigan. — Hecock v. Van Busen, 96 Mich. 573, 55 N. W. 1024 ; Wheeler, etc., Mfg. Co. v. Walker, 41 Mich. 239, 1 N. W. 1035. Minnesota. — Cook v. Kittson, 68 Minn. 474, 71 N. W. 670. Montana. — Thorp v. Freed, 1 Mont. 651. South Dakota. — John A. Tolman Co. v. Sav- age, 5 S. D. 496, 59 N. W. 882. Texas. — Western Union Tel. Co. v. Neel, (Tex. Civ. App. 1896) 35 S. W. 29; Douglass v. Duncan, 66 Tex. 122, 18 S. W. 343; Bryant v. Galbraith, (Tex. Civ. App. 1897) 43 S. W. 833. United States. — Louisiana, etc., R. Co. v. Board of Levee Coni'rs, 87 Fed. 594, 58 U. S. App. 281, 31 C. C. A. 121; Hart v. Bowen, 86 Fed. 877, 58 U. S..App. 184, 31 C. C. A. 31; U. S. ». Ferguson, 78 Fed. 103, 45 U. S. App. 457, 24 C. C. A. 1. See 3 Cent. Dig. tit. "Appeal and Error," § 3025 et seq. Thus, it is insufficient to assign for error that " the court erred in rendering judgment for defendant" (Bryant v. Galbraith, (Tex. Civ. App. 1897 ) 43 S. W. 833 ) ; that " the judgment ought to have been rendered for the plaintiff" (Wheeler, etc., Mfg. Co. v. Walker, 41 Mich. 239, 1 N. W. 1035) ; " that the court erred in rendering judgment for the plaintiff, because the evidence ... is not sufficient to sustain a judgment for plaintiff" (Western Union Tel. Co. v. Neel, (Tex. Civ. App. 1896) 35 S. W. 29 ) ; that the court erred in render- ing judgment for one party when it should have been for another (Newmark v. Marks, (Ariz. 1890) 28 Pac. 960; Webster v. Fisk, 9 Mich. 250 ) ; that the court " erred in render- ing judgment against the defendant and in not rendering judgment in his favor " (U. S. v. Ferguson, 78 Fed. 103, 45 U. S. App. 457, 24 C. C. A. 1 ) ; that the court " granted a di- vorce when it ought not to have been done " (McFarland v. McFarland, 40 Ind. 458) ; that the court erred in ordering judgment on the pleading or findings (Shepherd v. Jones, 71 Cal. 223, 16 Pae. 7ll ) ; that the " court erred in entering judgment against plaintiff for costs" (Tomblin v. Ball, 46 Iowa 190) ; that " the court erred in not rendering a judgment for the plaintiff for the land sued for, costs of this suit, the damage proved, and in not or- dering a writ of possession to put defendants out of, and put plaintiff in, possession of such land, under the pleadings of the parties filed Vol. II 99S APPEAL AND ERROR issue is involved. 93 The particular ground on which it is claimed that the judg- ment is erroneous must be specifically pointed out. 94 So, an assignment that the judgment is contrary to the law ; 95 that the judgment is contrary to the evi- dence ; % that the judgment is contrary to the law and the evidence ; T{ or that the judgment shows on its face illegality, as fully appears from the execution on and by virtue of which the lands were sold, 98 is too general to be considered. The question whether or not the judgment is excessive is not raised by an assignment of error that the court erred in rendering judgment for plaintiff; 99 by an assign- ment that " the judgment is excessive under the evidence ; " 1 by an assignment that " if the plaintiff is entitled to anything, the judgment is for a much greater sum than the pleading and evidence authorized ; " 2 or by an assignment that the damage sustained by plaintiff does not equal the amount of the judgment. 3 If the basis of the appeal is error in the judgment in calculation, it must be pointed out in what the error consists. 4 (viii) Degree. Assignments of error which merely allege error in the decree, without more particularly pointing out in what the error consists, are insufficient. 5 in this ease and the evidence given on the trial of the case" (Mynders v. Ralston, 68 Tex. 498, 4 S. W. 854). 93. Thomasson v. Callahan, 5 Ky. L. Rep. 600. See also Austin v. Gulf, etc., R. Co., 45 Tex. 234. 94. Tomblin v. Ball, 46 Iowa 190; Lowrie v. France, 7 Xebr. 191. 95. Howcott r. Kilbourn, 44 Ark. 213; Fer- guson v. Ehrenberg, 39 Ark. 420; Goodwine ;;. Crane, 41 Ind. 335; Davis v. Scott, 13 Ind. 506; Barry t, Barry, (Kan. App. 1900) 59 Pac. 685; Cevada v. Miera, (N. M. 1900) 61 Pac. 125 ; Pearce v. Strickler, 9 N. M. 467, 54 Pac. 748. In actions where the legal liability of the parties is several as well as joint and plain- tiff might maintain his action against any one or against all of the defendants, it cannot be assigned as error that the judgment is errone- ous as to one or more of defendants, and there- fore bad as to all. Smith v. Foster, 3 Coldw. (Tenn.) 139. 96. Macev i\ Wilson, (Tex. 1889) 12 S. W. 282. 97. Smola v. McCaffrey, 83 Iowa 760, 50 IST. W. 16; Lee v. Schmidt, 1 Hilt. (X. Y.) 537; Connor v. Edwards, 36 S. C. 563, 15 S. E. 706 ; American Legion of Honor f . Rowell, 78 Tex. 077, 15 S. W. 217; Anderson r. Horn, 75 Tex. 675, 13 S. W. 24 ; Florsheim Bros. Dry-Goods Co. v. Todd, (Tex. Civ. App. 1896) 35 S. W. 51: Dav r. Dalziel, (Tex. Civ. App. 1895) 32 S. W. 377. 98. Atcheson v. Hutchison, 51 Tex. 223. 99. Black p. Boyd, 52 Iowa 719, 2 N. W. 1044. 1. Consolidated Kansas City Smelting, etc., Co. v. Conring, (Tex. Civ. App. 1895) 33 S. W. 547. 2. Hicks r. Bailey, 16 Tex. 229. 3. Southern Pac. Co. v. Redding, 17 Tex. Civ. App. 440, 43 S. W. 1061. So, the ques- tion whether the inclusion of an item of in- terest was erroneous is not presented by an assignment that the court erred in finding the defendant indebted in the sum it did, or Vol. II any other sum. McNulta v. West Chicago Park Com'rs, 99 Fed. 900, 40 C. C. A. 155. 4. Lee v. Trahan, 20 La. Ann. 202. So an assignment that the judgment is excessive under the evidence is too general to be con- sidered. Consolidated Kansas City Smelting, etc., Co. v. Conring, (Tex. Civ. App. 1895) 33 S. W. 547. 5. Rogers v. Rogers, 74 Ga. 598 ; Ward v. Tennessee Coal, etc., Co., (Tenn. Ch. 1900) 57 S. W. 193; McFarlane r. Golling, 76 Fed. 23, 46 U. S. App. 141, 22 C. C. A. 23; Oswego Tp. v. Travelers' Ins. Co., 70 Fed. 225. 36 V. S. App. 13, 17 C. C. A. 77: Florida Cent. R. Co. r. Cutting, 68 Fed. 586, 30 V. S. App. 428, 15 C. C. A. 597. See also Fullerton's Estate, 146 Pa. St. 61, 23 Atl. 321; Haag r. Good, 7 Pa. Super. Ct. 425, 42 Wkly. Notes Cas. (Pa.) 530; and 3 Cent. Dig. tit. "Ap- peal and Error," § 3025 et seq. Illustrations. — So, a general assignment of error that the court erred in entering final decree, and that the decree is in every respect erroneous, will not be considered on appeal. Stanley v. Chicago Trust, etc., Bank, 61 111. App. 257. An objection to a decree that it does not follow the verdict, no particular de- parture being specified, does not raise the question whether the decree goes bevond the verdict. Searcy r. Collins, 94 Ga." 642, 20 S. E. 94. An assignment that the decree is erroneous, because the allegations of the bill are not sufficient to warrant the relief granted, is too general. Simmons v. Bailey, 105 Tenn. 152, 58 S. W. 277. The rule in Alabama in equity cases is somewhat different from that stated in the text. In such cases an assignment of error that "the court below erred in the final de- cree rendered" is sufficient when the decree, as an entirety, is assailed as erroneous. Rob- inson v. Murphy, 69 Ala. 543. It is other- wise, however, when it is only claimed that the decree is partially erroneous. In that case the specific errors with which it is said to be infected should be assigned with pre- cision. Alexander v. Rea, 50 Ala. 450. APPEAL AND ERROR 999 (ix) Motion Eos New Trial— (a) View That Assignment of Error For Overruling Moteon Is Sufficient — (1) Rule Stated. In a number of jurisdic- tions it is weli settled that a general assignment of error that the court erred in overruling a motion for a new trial brings up for review all the grounds properly made the basis of the motion, it not being necessary to specify the particular ground or grounds 111 regard to which the action of the court is claimed to be erroneous It is also held, in some of these jurisdictions, that matters assignable as grounds for new trial cannot be made the subject of an independent assign- ment of error in the reviewing court, but must be embraced in the motion for a new trial, and the action of the trial court in overruling the motion assigned as error ; 7 that all errors which are grounds for new trial and which are not specified in the motion for new trial are waived ; 8 and, even though specified in the motion f or new trial, such matters cannot be considered unless error is assigned to the action of the court in overruling the motion. 9 6. Georgia. — Gray v. Phillips, 88 Ga. 199, 14 S. E. 205. Illinois. — Ottawa, etc., R. Co. v. McMath, 91 111. 104; Shaw v. People, 81 111. 150. Indiana. — Kernodle v. Gibson, 114 Ind. 451, 17 N. E. 99; Hutts v. Shoaf, 88 Ind. 395. Kansas. — Ft. Seott, etc., R. Co. v. Jones, 48 Kan. 51, 28 Pae. 978. Oklahoma. — Logan County v. Jones, 4 Okla. 341, 51 Pao. 565; Richardson v. Maekay, 4 Okla. 328, 46 Pae. 546; Walter A. Wood Mowing, etc., Co. v. Parnham, 1 Okla. 375, 33 Pae. 867. Wyoming. — School Dist. No. 3 v. Western Tube Co., 5 Wyo. 185, 38 Pae. 922; Wolcott v. Bachman, 3 Wyo. 335, 23 Fac. 72, 673. See 3 Cent. Dig. tit. "Appeal and Error," § 3023 et seq. Matters properly alleged as ground for new trial. — ■ Among the causes properly assigned as grounds for new trial, and which do not require a more specific assignment than that of error in overruling the motion for » new trial, are rejection of proper evidence and the admission of improper evidence (Ottawa, etc., R. Co. v. MeMath, 91 111. 104; Shaw v. People, 81 111. 150; Chicago, etc., R. Co. v. Northern Illinois Coal, etc., Co., 36 111. 60; Galvin v. State, 56 Ind. 51 ) ; sufficiency of the evidence to sustain the findings (Indian- apolis, etc., R. Co. v. Rhodes, 76 111. 285; Whitinger v. Nelson, 29 Ind. 441 ; Richardson v. Maekay, 4 Okla. 328, 46 Pae. 546; Pierce v. Manning, 2 S. D. 517, 51 N. W. 332) ; or verdict (Ottawa, etc., R. Co. v. McMath, 91 111. 104; Shaw v. People, 81 III. 150; Munger v. Supancicz, 64 111. App. 661 ; Davis v. Mont- gomery, 123 Ind. 587, 24 N. E. 367 ; Robbins v. Magee, 96 Ind. 174; Marsh v. Ferrell, 63 Ind. 363) ; the giving of improper, and the refusal of proper, instructions (Chicago, etc., R. Co. v. Northern Illinois Coal, etc., Co., 36 111. 60; Hage v. Newsom, 96 Ind. 426; Marsh v. Ferrell, 63 Ind. 363 ; New Albany v. Slider, 21 Ind. App. 392, 52 N. E. 628) ; that the finding is contrary to law (Whitinger v. Nel- son, 29 Ind. 441) ; that the damages are ex- cessive (Munger v. Supancicz, 64 111. App. 661; Firestone v. Daniels, 71 Ind. 570; Rich- ' ardson v. Maekay, 4 Okla. 328, 46 Pae. 546) ; error in ruling upon a motion to suppress a deposition (McMullen v. Clark, 49 Ind. 77) ; ruling on a motion for continuance (Conti- nental L. Ins. Co. v. Kessler, 84' Ind. 310; Carr v. Eaton, 42 Ind. 385; Hughes v. Ains- lee, 28 Ind. 346) ; ruling on a motion for change of venue (Walker v. Heller, 73 Ind. 46; Horton v. Wilson, 25 Ind. 316; Baner v. Ward, 77 Ind. 153) ; refusal to require the jury to answer more fully and specifically in- terrogatories (Staser v. Hogan, 120 Ind. 207, 21 N. E. 911, 22 N. E. 990) ; or error in re- instating a cause after a change of venue or refusal of sufficient time for perfecting the change (Wiley v. Barclay, 58 Ind. 577). What is not a general assignment. — An as- signment that the court below erred in overruling a motion for a new trial and in rendering judgment, . for the reason that the complaint did not state facts sufficient to constitute a cause of action, is not a general allegation that the court erred in overruling the motion for a new trial ; and, if it presents any question, it is as to the sufficiency of the complaint. Frazier v. Harris, 51 Ind. 156. 7. New Albany v. Slider, 21 Ind. App. 392, 52 N. E. 626; Hunt v. Listenberger, 14 Ind. App. 320, 42 N. E. 240, 964 ; Merchants', etc., Bank v. Fraze, 9 Ind. App. 161, 36 N. E. 378; Maybin v. Webster, 8 Ind. App. 547, 35 N. E. 194, 36 N. E. 373; MeCloskey v. Davis, 8 Ind. App. 190, 35 N. E. 187; Johnson v. Badger Lumber Co., 8 Kan. App. 580, 55 Pae. 517; Wright v. Darst, 8 Kan. App. 492, 55 Pae. 516; Walter A. Wood Mowing, etc., Co. v. Farnham, 1 Okla. 375, 33 Pae. 867; Wolcott v. Bachman, 3 Wyo. 335, 23 Pae. 72, 673; U. S. v. Trabing, 3 Wyo. 144, 6 Pae. 721. 8. Allen p. State, 74 Ind. 216 ; McMullen v. Clark, 49 Ind. 77; Branham v. Record, 42 Ind. 181. 9. Terre Haute v. Fagan, 21 Ind. App. 371, 52 N. E. 457; Carson v. Funk, 27 Kan. 524; Case v. Jacobitz, (Kan. App. 1900) 62 Pae. 115; Chicago, etc., R. Co. v. German Ins. Co., 2 Kan. App. 395, 42 Pae. 594. See also Tem- ple v. Lasher, 39 Ind. 203, and cases cited supra, note 6 et seq. Not showing disposition of motion. — An as- signment of error which recites the making of a motion for a new trial, and stating the grounds, but not showing what was done with it, is insufficient. Smith v. Frost, 74 Ga. 842. Vol. II 1000 APPEAL AND ERROR (2) Limitations of Rule — (a) Matters Not Grounds For New Trial. The rule that a general assignment of errors is sufficient only applies to such matters- as are errors upon the face of the record. All other errors in the rulings and decisions of the trial court should be specially assigned as such. 10 (b) Several Motions For New Trial. Where more than one motion for a new trial is made, an assignment of error to the overruling of the motion is too gen- eral to be considered, because it does not show which motion was overruled. 11 (b) View That Each Ground Must Be Specified. In many jurisdictions the rule stated in a preceding section, that a general assignment that the court erred in overruling a motion for new trial brings up for review all grounds properly made the basis of the motion, 12 does not obtain. The particular ground or grounds in regard to which the action of the court is claimed to be erroneous must be distinctly specified, and an assignment that the court erred in overruling a motion for new trial is too general to be available. 13 So, it has been held to be insuffi- cient to assign' that the court erred in overruling the motion for a new trial f or the grounds therein stated, 14 or that the court erred in overruling the motion on new trial, in which motion the grounds of the motion were referred to by num- ber, 15 unless the grounds stated amount to a single proposition, presented in a. different way. 16 10. Ringgenberg v. Hartman, 102 Ind. 537, 26 N. E. 91 ; New Albany v. White, 100 Ind. 206; Woleott v. Baehman, 3 Wyo. 335, 23 Pac. 72, 673; U. S. v. Trabing, 3 Wyo. 144, 6 Pae. 721. The following grounds are not assignable in a motion for a new trial and are not pre- sented by a general assignment that the court erred in overruling the motion for a new trial: An order allowing a supplemental complaint to be filed before issue joined. Ringgenberg v. Hartman, 102 Ind. 537, 26 N. E. 91. Refusal to compel a party to an- swer interrogatories. Cates v. Thayer, 93 Ind. 156. Error in the conclusions of law. Montmorency Gravel Road Co. v. Rock, 41 Ind. 263. Ruling on a motion to remand a cause to a justice of the peace, to be certified by him to the circuit court. Tibbetts v. O'Connell, 66 Ind. 171. That a part of a pleading has been erroneously stricken out. New Albany v. White, 100 Ind. 206. Alleged error in refusing to dismiss drainage pro- ceedings for failure of proof that the pro- posed drain would be of public utility. Ear- hart v. Farmers' Creamery, 148 Ind. 79, 47 N. E. 226. 11. J. Painter, etc., Co. v. W. H. Metz Co., 7 Ind. App. 652, 35 N. E. 27. 12. See supra, XI, C, 2, b, (ix), (a), (1). 13. Arizona. — Main v. Main, (Ariz. 1900) 60 Pac. 888; Miller v. Douglas, (Ariz. 1900) 60 Pae. 722. Dakota. — Franz Falk Brewing Co. v. Mie- lenz, 5 Dak. 136, 37 N. W. 728. Iowa.— Moffltt v. Albert, 97 Iowa 213, 66 N W. 162; Wicke v. Iowa State Ins. Co., 90 Iowa 4, 57 N. W. 632. Kentucky. — Louisville, etc., R. Co. v. Sul- livan, 81 Ky. 624, 50 Am. Rep. 186; Daniels v. Carter, 6 Kv. L. Rep. 584; Paducah, etc., R. Co. v. Terrell, 5 Ky. L. Pep. 925 ; Taylor v. Armstrong, 5 Ky. L. Rep. 251 ; Pace v. Tolle, 5 Ky. L. Rep. 249. Minnesota. — Mahler v. Merchants' Nat. Vol. II Bank, 65 Minn. 37, 67 N. W. 655; Lytle v. Prescott, 57 Minn. 129, 58 N. W. 688. Nebraska. — Hart v. Weber, 57 Nebr. 442, 77 N. W. 1085 ; National Masonic Ace. Assoc. v. Burr, 57 Nebr. 437, 77 N. W. 1098. South Carolina. — Lanier v. Tolleson, 20" S. C. 57. Texas. — Brown v. Vizcaya, (Tex. Civ. App. 1899 ) 55 S. W. 191 ; Armstrong v. Elliott, 2» Tex. Civ. App. 41, 48 S. W. 605, 49 S. W. 635; Tronnier v. Munger Improved Cotton Maeh. Mfg. Co., (Tex. Civ. App. 1895) 31 S. W. 245; Johnson v. White, (Tex. Civ. App. 1894) 27 S. W. 174. United States. — Condran v. Chicago, etc., R. Co., 67 Fed. 522, 32 U. S. App. 182, 14 C. C. A. 506, 28 L. R. A. 749. See 3 Cent. Dig. tit. "Appeal and Error," § 3023. 14. Sisson v. Kaper, 105 Iowa 599, 75 N. W. 490; Koenigs v. Chicago, etc., R. Co., 98 Iowa 569, 65 N. W. 314, 67 N. W. 399; Duneombe v. Powers, 75 Iowa 185, 39 N. W. 261 ; St. Louis, etc., R. Co. v. Woolum, 84 Tex. 570, 19 S. W. 782; Harrell v. Mexico Cattle- Co., 73 Tex. 612, 11 S. W. 863; Haver v. Duke, 72 Tex. 445, 10 S. W. 565: Bumpass v. Morrison, 70 Tex. 756, 8 S. W. 596 : Houston, etc., R. Co. v. McNamara, 59 Tex. 255 ; Lain? ik Hanson, (Tex. Civ. App. 1896) 36 S. W. 116; McCown v. Terrell, 9 Tex. Civ. App. 66, 29 S. W. 484. 15. Low v. Fox, 56 Iowa 221, 9 S. W. 13; Culbertson v. McCullom, 1 Ky. L. Rep. 267. 16. King v. Chicago, etc., R. Co., 88 Iowa 704, 54 N. W. 204; Kitterman r. Chicago, etc., R. Co., 69 Iowa 440, 30 N. W. 174. See- also Thomas v. Hoffman, 62 Iowa 125, 17 N. W. 431. Illustrations. — So, assignments of error that " the court should have granted a new trial, because the verdict of the jury is con- trary to the preponderance of the facts upon every issue submitted to the court, and to the law as applied to the issues by the court " APPEAL AND ERROR 1001 „ (o) ■#«& Where Appeal Is From Order Granting or Denying Motion for Jyew Trial. Under a statute which authorizes an appeal from an order granting or refusing a new trial, if the motion is based on the ground that the evidence is not sufficient to support the verdict or that the verdict is contrary to the evidence, a general assignment of error that the court erred in granting or refusing the new trial, as the case may be, is sufficient ; but, when the motion is based on the ground that the verdict was contrary to the law, or that errors of law occurred during the trial, the errors must be specifically pointed out and a general assign- ment of error must be disregarded. 17 (x) Motion m Arrest of Judgment. An assignment of error that the court erred in overruling a motion in arrest of judgment is too general and will not be noticed, at least in cases where the motion was based on several grounds. 18 3. Matters in Conflict With Record. Nothing can be assigned for error which is in contradiction of the record. 19 (Galveston, etc., R. Co. v. Cooper, 2 Tex. Civ. App. 42, 20 S. W. 990) ; that the court erred in not granting a new trial, because the ver- dict was not supported by the law and was contrary to the law and evidence, and because the preponderance of the evidence was in favor of the plaintiff (Campbell v. Reagan, (Tex. Civ. App. 1893) 22 S. W. 824; Noell v. Bonner, (Tex. Civ. App. 1892) 21 S. W. 553) ; that " the court erred in not setting aside the judgment of the court and granting to them a new trial, because the judgment of the court was contrary to law, and because the judg- ment of the court was contrary to the evi- dence, and because of the many errors of the court in its rulings as complained of by plain- tiffs " (Baxter v. Baker, (Tex. Civ. App. 1893) 22 S. W. 258) ; that "the court erred in not granting a new trial ; the evidence did not warrant a possible finding in excess of seven thousand five hundred dollars" (Hous- ton, etc., R. Co. v. Snelling, 59 Tex. 116), are insufficient. 17. Cobb v. Malone, 92 Ala. 630, 9 So. 738, construing Ala. Acts (1890-91), p. 779. Illustrations. — Rulings on the admission of evidence which were not specified in the mo- tion as grounds for new trial cannot be re- vised even if assigned as errors, and though there has been a joinder in such assignment. Mobile v. Murphree, 96 Ala. 141, 11 So. 201. So, it has been held that an assignment of er- ror that the court erred in granting a new trial does not raise the question whether proper notice of the motion for new trial was given to the adverse party. Dillard v. Sav- age, 98 Ala. 598, 13 So. 514. In California an appeal from an order de- nying a new trial cannot be considered where the statement on the motion for a new trial does not contain as part thereof any specifi- cation of errors, but there is merely attached thereto what is designated as an assignment of errors, which forms no part of the state- ment, is not authenticated as part of the rec- ord, and does not appear to have been con- sidered on the motion for new trial. Ackley v. Pishbeck, 124 Cal. 409, 57 Pac. 207 ; Sprigg v. Barber, 122 Cal. 573, 55 Pac. 419 ; Cal. Code Civ. Proe. § 659. 18. Moffitt v. Albert, 97 Iowa 213, 66 N. W. 162; Duncombe v. Powers, 75 Iowa 185, 39 N. W. 261 ; Armstrong v. Killen, 70 Iowa 51, 30 N. W. 14; and 3 Cent. Dig. tit. "Appeal and Error," § 3022. In Indiana the practice is different from that stated in the text. In this state an as- signment that the court erred in overruling the motion in arrest of judgment embraces and includes every valid reason set out in such motion, and is considered sufficiently definite. Miles v. Buchanan, 36 Ind. 490. 19. Connecticut. — Cumnor v. Sedgwick, 67 Conn. 66, 34 Atl. 763; Wetmore v. Plant, 5 Conn. 541. Indiana. — Heilman v. Shanklin, 60 Ind. 424. Kansas. — Krueger v. Beckham, 35 Kan. 400, 11 Pac. 158. Kentucky. — Cook v. Conway, 3 Dana (Ky.) 454. Maine. — Paul v. Hussey, 35 Me. 97 ; King v. Robinson, 33 Me. 114, 54 Am. Dec. 614. Massachusetts. — Gray v. Cook, 135 Mass. 189; Riley v. Waugh, 8 Cush. (Mass.) 220. New Hampshire. — Collins v. Walker, 55 N. H. 437 ; Claggett v. Simes, 31 N. H. 22. Neio Mexico. — -Waldez v. Archuleta, 3 N. M. 195, 5 Pac. 327. New York.— Lovett v. Pell, 22 Wend. (N. Y.) 369; Moody v. Vreeland, 9 Wend. (N. Y.) 125. Texas. — Jennings v. Wilier, (Tex. Civ. App. 1895) 32 S. W. 24. United States. — Cheney v. Bacon, 49 Fed. 305, 4 U. S. App. 207, 1 C. C. A. 244; Field v. Gibbs, Pet. C. C. (TJ. S.) 155, 9 Fed. Cas. No. 4,766. England. — Molins v. Werby, 1 Lev. 76; Helbut v. Held, 1 Str. 684 ; Bradburn v. Tay- lor, 1 Wils. C. P. 85; Hudson v. Bank, Cro. Jac. 28 ; Hollingwood v. Lankin, 1 Salk. 262, 2 Saund. 101. Illustrations. — Thus, it cannot be assigned for error that there is no record. Moody v. Vreeland, 9 Wend. (N. Y.) 125. And, if the record states that issue was joined, it cannot be assigned for error that issue was not joined. Waldez v. Archuleta, 3 N. M. 195, 5 Pac. 327. See also Lovett v. Pell, 22 Wend. (N. Y.) 369. So, if the record show that the judgment was rendered by the court, it can- not be assigned for error that the judgment was rendered by the clerk. Cumnor v. Sedg- Vol. II 1002 APPEAL AND ERROR 4. Matters Not Shown by Record. No rulings or decisions of the court not shown by the record can be assigned as errors. 20 5. Joinder of Error in Law and Error in Fact. Under the English practice, errors in fact and errors in law cannot be assigned together, 31 and this view has been adopted in a number of American decisions, 22 the reason assigned being that errors in fact and errors in law are distinct things, and require different modes of trial. 23 In one state, however, the rule has been abrogated by express statutory provisions, 24 and in another state by practice and usage for many years. 25 6. Signature. In some jurisdictions it has been held necessary for the assign- ment of error to be signed by the appellant or plaintiff in error, or his attorney as such. 26 wick, 67 Conn. 66, 34 Atl. 763. And if the record states that the party appeared and pleaded, it is conclusive as to that fact. Cook v. Conway, 3 Dana (Ky.) 454. 20. Alabama. — Haney v. Conoly, 57 Ala. 179. California. — Ferrier v. Ferrier, 64 Cal. 23, 27 Pac. 960. Georgia. — Visage v. McKellar, 58 Ga. 140 ; Leaptrot v. Robertson, 37 Ga. 586; Smith v. Mitchell, 6 Ga. 456. Indiana. — Western Union Tel. Co. v. Frank, 85 Ind. 480. Kentucky. — Springfield First Nat. Bank v. Wilson, 5 Ky. L. Rep. 927. Ohio. — Harvey v. Brown, 1 Ohio 268. Texas. — Johnson v. Sabine, etc., R. Co., 69 Tex. 641, 7 S. W. 379 ; Northern Assur. Co. v. Samuels, 11 Tex. Civ. App. 417, 33 S. W. 239; Moss v. Kittman, (Tex. Civ. App. 1893) 21 S. W. 315; Fox v. Brady, 1 Tex. Civ. App. 590, 20 S. W. 1024. United States. — Woodbury v. Shawneetown, 74 Fed. 205, 34 U. S. App. 655, 20 C. C. A. 400. An assignment of errors cannot be accepted as proof of facts therein alleged, and cannot, therefore, be considered in the absence of anything else in the record to show that the court did or did not rule as asserted in such assignment. Ferrier v. Ferrier, 64 Cal. 23, 27 Pac. 960; Patterson v. Mills, 121 N. C. 258, 28 S. E. 368 ; Woodbury v. Shawneetown, 74 Fed. 205, 34 U. S. App. 655, 20 C. C. A. 400. Thus, a specification that the court erred in its con- clusions of law, on the agreed statement of facts, presents no question in the absence of a bill of exceptions embracing the agreed state- ment of facts. Western Union Tel. Co. v. Frank, 85 Ind. 480. Assignments of error, founded on extrane- ous matters in the record which do not per- tain to the cause between appellant and ap- pellee, will be stricken out. Hagadon v. Campbell, 24 Ala. 375. 21. 2 Tidd Pr. 1169; 2 Bacon Abr.; Com- yns Dig. ; Jeffry v. Wood, 1 Str. 439. 22. Fitch v. Lothrop, 2 Root (Conn.) 524; Clarke v. Bell, 2 Litt. (Ky.) 162; Brents v. Barnett, 3 Bibb (Ky.) 251; Freeborn v. Den- man, 7 N. J. L. 190; Moody v. Vreeland, 7 Wend. (N. Y.) 55. 23. 2 Tidd Pr. 1169; Eliot v. McCormick, 141 Mass. 194, 6 N. E. 375, in which case it is said : " There is no good reason why this should not be done. An assignment of errors is Vol. II analogous to » declaration, which may con- tain several counts. If an error of law and also errors of fact be assigned, there need be no embarrassment or confusion in the sub- sequent pleadings or in the trial. The de- fendant in error can plead in nullo est er- ratum, which is in the nature of demurrer to the assignment of error in law, and traverse the assignments of errors in fact; and, under our practice, the court will take such order as to the trial that all the questions involved in the case may be brought before this court for final determination at the same time. There is no practical force in the objection that er- rors in law and errors in fact are to be tried by different tribunals. There is no more dan- ger of confusion in the trial than there is in the ordinary case of a declaration containing several counts, to some of which the defend- ant may demur, while he traverses others. Where a plaintiff in error has several valid objections to a judgment against him, he ought not to be deprived of any of them, or to be compelled to elect at his peril which of the objections he will rely upon. Such a nar- row rule of pleading is against the spirit of our laws, and the practice and usage under them." 24. Starbird v. Eaton, 42 Me. 569. 25. Eliot v. McCormick, 141 Mass. 194, 6 N. E. 375 [citing Goodridge v. Ross, 6 Mete. (Mass.) 487]; Packard v. Matthews, 9 Gray (Mass.) 311; Tilden v. Johnson, 6 Cush. (Mass.) 354: Morrison v. Underwood, 5 Cush. (Mass.) 52. 26. Sutherland v. Putnam, (Ariz. 1890) 24 Pac. 320 ; State v. Delano, 34 Ind. 52; Riley v. Murray, 8 Ind. 354. An assignment of er- rors, which contains the names of the parties, and is signed " Dunn and Lowe, East and Miller, for appellants," is not objectionable, as not being signed by appellants or their at- torneys, where the record shows that Dunn, Lowe, East, and Miller were attorneys for ap- pellants in the lower court. Levi v. Bray, 12 Ind. App. 9, 39 N. E. 754. This was formerly the rule in Texas (For- dyee v. Dixon, 70 Tex. 694, 8 S. W. 504; Dwyer v. Testard, 1 Tex. App. Civ. Cas. § 1228) ; but the rule requiring it has been repealed by Rule No. 101 of 1891 [20 S. W. xviii], and, as the statute [Tex. Rev. Stat. art. 1037] does not require such signing, an unsigned assignment adopted in appellant's brief so as to identify it as his act should not be disregarded. Bexar Bldg., etc.. Assoc, v. Newman, 86 Tex. 380, 25 S. W. 11. APPEAL AND ERROR 1003 D. Joint Assignments. Upon a joint assignment of error one of several appellants or plaintiffs in error cannot avail himself of errors which are not com- mon to all his co-appellants, but which affect him alone. 27 Nor can parties jointly assign error or take advantage of errors which affect themselves severally, and not jointly. 28 It is an elementary and well-settled rule that joint assignments of error must be good as to all who join therein, or they will not be available as to any of them. If the assignment of error is not good as to one, it will be overruled as to all. 29 This doctrine has been applied in a host of decisions, and under widely varying circumstances. Thus, a joint assignment of error by several appellants presents no question as to a ruling against one of the appellants only, and is inef- fective for any purpose. 30 Accordingly, a joint assignment of error by several to the rulings of the court on the separate demurrer of one of them presents no question for the appellate court. 31 A joint assignment of error based upon the action of the court in overruling a motion for a new trial cannot be considered on appeal where the motion for a new trial appearing in the record was the sole and separate motion of one of appellants. 82 It has also been held that where par- ties join in a demurrer, which is overruled as not being good as to one, the other party, if the overruling is error as to him, can make it available only on a sepa- rate assignment of error. 33 If appellants jointly assign as error the rulings on the separate demurrers of each, and separate motions for new trial, such an assignment of error presents no question for the decision of the appellate court, nor is a defect of this character waived by a joinder in error. 34 If a party for whom judgment was rendered and the other appellants jointly assign errors, the assignment will be bad and the appeal will be dismissed. 85 A joint assignment of errors by sev- eral defendants, that the complaint does not charge facts sufficient to constitute a cause of action, cannot be sustained unless the complaint is bad as to all. 36 E. Time Of Filing- — 1. In General. The time of filing assignments of errors is regulated altogether by statutes or rules of court. 37 27. Yeoman v. Shaeffer, 155 Ind. 308, 57 31. Grimes v. Grimes, 141 Ind. 480, 40 N. e 546. N. E. 912; Arbuekle v. Swim, 123 Ind. 208, 24 28. Yeoman v. Shaeffer, 155 Ind. 308, 57 N. E. 105; Lodoga v. Linn, 9 Ind. App. 15, N. E 546. 36 N. E. 159. 29. Alabama.— Davis v. Williams, 121 Ala. 32. Meyer v. Meyer, 155 Ind. 569, 58 N. E. 542, 25 So. 704; McKissack v. Witz, 120 Ala. 842; Carr v. Carr, 137 Ind. 232, 36 N. E. 412 25 So °1 899. Illinois.— Brachtendorf v. Kehm, 72 111. 33. Davis v. Williams, 121 Ala. 542, 25 So. App 228 70i. Indiana.— Advance Mfg. Co. v. Auch, 25 34. Louisville, etc., R. Co v. Smoot, 135 Ind. App. 687. 58 N. E. 1062 ; Osborn v. State, Ind. 220, 33 N. E 905, 34 N. E 1002 25 Ind App.' 521, 58 N. E. 558; Wines v. 35. Lillich v. Moore, 112 Ala. 532, 20 So. State Bank, 22 Ind. App. 114, 53 N. E. 389; 452. 1lnT ^ ao io Johnson v. Winslow, 22 Ind. App. 104, 53 36. Becknel v Becknell, 110 Ind. 42 10 jx E ggg N. E. 414; Eichbredt v. Angerman, 80 Ind. Ve&raste.-Moseman v. State, 59 Nebr. 208; Durham v Craig 79 Ind. 117; Advance 629 81 N. W. 853; American Bank v. Hand, Mfg. Co. v. Auch, 25 Ind App. 687, 58 N. E. 59 Nebr. 273, 80 N. W. 908. 1062 See also Vigo Real Estate Co. v. Reese, New York.- Kittel v. Callahan, 19 N. Y. 21 Ind. App. 20, 51 N. E. 350. Suppl 397, 46 N. Y. St. 404. See also Bosley Exceptions to rule.— In one state it_ has ^National Maeh Co. 123 N. Y. 550, 25 N E. been held that husband and wife, when joint 990 34 N Y St. 277. But see Fisher v. Thir- parties to a suit, may jointly assign errors kell 21 Mich. 1, 4 Am. Rep. 422, in which it which affect the wife alone, she being the real was'held that a joint assignment of error will party in interest ^wi™. Heinzman, 26 be considered joint and several, or joint or Ind. 551, 25 N. E. 708 , Stewart v. Jiabbs, IM several according to the nature of error as- Ind. 568, 22 N. E. 770. , . signed and as affecting the respective plain- How defective assignment cured.- A joint !^ e ? ™ r ° F assignment of errors, defective because the er- See 3 Cent. Dig. tit. "Appeal and Error," rors alleged are not errors against all appel- 8 PWetw lants, is cured by the parties against whom 30. Sparklin „. St. James' Church, 119 Ind. there is no appeal declining to join in the ap- 535 22 N E 8- Hanshew V. State, 113 Ind. peal. Cooper v. Hayes, 96 Ind. 386 261 14 K E. 365?Orton v. Tildeni 110 Ind. 37. Colorado.- Haas v. Pueblo County, 5 13L 10 N". E. 936. Col °- 125 - T7 . TT Vol. II 1004 APPEAL AND ERROR 2. Effect of Failure to File in Time. It has been said that, under the Eng- lish practice, if the errors be not assigned within the required time, defendant in error sues out his writ of scire facias quare executionem non, and if, upon such writ, plaintiff in error does not assign his errors, but suffers judgment to go by- default, no errors afterward assigned will prevent execution. 38 In most of the American states, under like conditions, the appeal or writ of error is dismissed or the judgment affirmed, according as the statute or rule of court may provide. 39 3. Waiver of Objection For Failure to File in Time. It has been held that an objection, for failure to file an assignment of errors in time, is waived if not made before argument of the cause on the merits. 40 Georgia. — Nicholls v. Popwell, 80 Ga. 604, 6 S. E. 21; Boyd v. Ham, 2 Ga. 190. Indiana. — Lawrence v. Wood, 122 Ind. 452, 24 N. E. 159; Price v. Baker, 41 Ind. 572, 13 Am. Rep. 346; Pulaski County v. Vurpillat, 14 Ind. App. 311, 42 N. E. 962. Iowa. — Russell v. Johnston, 67 Iowa 279, 25 N. W. 232; Betts v. Glenwood, 52 Iowa 124, 2 N. W. 1012. Kentucky. — Wearen v. Smith, 80 Ky. 216 ; Harpending v. Daniel, 78 Ky. 71. Louisiana. — ■ State v. Strong, 32 La. Ann. 173 ; Keller v. Judson, 18 La. Ann. 282. New Hampshire. — Rochester v. Roberts, 25 N". H. 495. New Mexico. — Lamy v. Lamy, 4 N. M. 43, 12 Pac. 650. North Carolina. — Pleasants t\ Raleigh, etc., Air-Line R. Co., 95 X. C. 195 ; Lytle v. Lytle, 94 N. C. 522. Tennessee. — Snapp v. Zink, Mart. & Y. (Tenn.) 265. Texas. — American Legion of Honor v. Row- ell, 78 Tex. 677, 15 S. W. 217; Phillips v. Webb, (Tex. Civ. App. 1897) 40 S. W. 1011; Patrick v. Laprelle, (Tex. Civ. App. 1896) 37 S. W. 872; Keyser r. Willman, (Tex. Civ. App. 1895) 29 S. W. 832. Utah. — Bankhead v. Union Pac. R. Co., 2 Utah 507. United States. — Crabtree v. MeCurtain, 61 Fed. 808, 19 U. S. App. 660, 10 C. C. A. 86 ; Flahrity v. Union Pac. R. Co., 56 Fed. 908, 12 U. S. App. 532, 6 C. C. A. 167 ; U. S. r. Good- rich, 54 Fed. 21, 12 U. S. App. 108, 4 C. C. A. 160. 38. Statement in Rochester v. Roberts, 25 N. H. 495 [citing Carth. 40, 41; 1 Archbold Pr. 270]. 39. Arizona. — U. S. v. Tidball, (Ariz. 1892) 29 Pac. 385; Sutherland v. Putnam, (Ariz. 1890) 24 Pac. 320. Arkansas. — Tucker v. Ellis, 1 Ark. 273. Indiana. — Lawrence v. Wood, 122 Ind. 452, 24 X. E. 159; Bacon v. Withrow, 110 Ind. 94, 10 X. E. 624. Iowa. — McLuen v. Bear Grove Dist. Tp., 82 Iowa 742, 48 X. W. 76 ; Wise v. Usry, 72 Iowa 74. 33 N. W. 371. Kentucky.' — Wright v. Woolfolk, 14 Bush (Ky.) 308; Philpot v. Benge, 4 Ky. L. Rep. 732. Louisiana. — Lacy v. Flucker, 1 La. 50. Michiaan. — Roush r>. Darmstaetter, 113 Mich. 535, 71 X. W. 867. Mississippi. — Adams v. Munson, 3 How. (Miss.) 77. Vol. II Texas. — Malone V. Medford, (Tex. Civ. App. 1895) 31 S. W. 685. Washington. — Meyers r. Territory, (Wash. Terr. 1889) 20 Pac. 685. United States. — Dufour v. Lang, 54 Fed. 913, 2 U. S. App. 477, 4 C. C. A. 663; U. S. v. Goodrich, 54 Fed. 21, 12 U. S. App. 108, 4 C. C. A. 160. See 3 Cent. Dig. 'tit. "Appeal and Error," § 3043 et seq. It has been held, however, in some jurisdic- tions, that time for filing the assignment of error may be extended for good cause shown (Cannon v. McEnanley, (R. I. 1898) 41 Atl. 1016. See also Malone v. Medford, (Tex. Civ. App. 1895) 31 S. W. 685; Mitchell v. Inger- soll, 2 Cai. (X. Y.) 385, in which last case it was held that a default or failure to assign errors within the time prescribed will be set aside where no laches is imputable to plaintiff because of a delay in obtaining the transcript) ; and that, if no delay in the submission of the cause has occurred, the appeal will not be dis- missed for failure to file the assignment of errors in time (Home v. Duff, 5 Colo. 344) ; or the opposite party has not been prejudiced thereby (Texas Western R. Co. v. Gentry, 69 Tex. 625, 8 S. W. 98 ) . 40. Smith r. Hill, 83 Iowa 684, 49 X. W. 1043, 32 Am. St. Rep. 329 ; McKell v. Neil, 1 Morr. (Iowa) 271. See also Andrews r. Bur- dick, 62 Iowa 714, 16 X. W. 275; and 3 Cent. Dig. tit. "Appeal and Error," § 3048. So, it has been held in one case that objec- tion for failure to file in time is waived by filing a joinder in error. Deemer v. Falken- burg, 4 X. M. 57, 12 Pac. 717. But compare Wright v. Woolfolk, 14 Bush (Ky.) 308, in which it was held that an appellee, by filing cross-errors, does not waive his right to have the appeal dismissed for failure to file the assignment of errors within the required time. An agreement to extend the time of appel- lant to file his brief is not a waiver of the positive duty imposed on appellant by statute to file his assignment of errors on or before the first day of the term to which the appeal is returnable. Lamy v. Lamy, 4 X. M. 140, 13 Pac. 178. Extending time to prepare a bill of excep- tions does not prevent appellant from filing his assignment of errors and schedule within the time prescribed by statute, and does not extend the time to file the assignment of er- rors. Wright v. Woolfolk, 14 Bush (Ky.) 308 ; Slack v. Longshaw, 5 Ky. L. Rep. 253. APPEAL AND ERROR 1005 F. Service. Statutes and rules of court prescribing service of assignments of error must be strictly complied with. 41 The assignment should not be served until it has been filed, and, when the assignment is not tiled until the next day after service thereof, the rule to join in error and all subsequent proceedings will be set aside. 42 Service, it has been held, may be waived by noticing the cause for hearing. 43 G. Making 1 Assignment Part of Record. The assignment of errors must, generally, be attached to, and made a part of, the record, 44 or be entered on the transcript. 45 H. Amendments. The right to, in the furtherance of justice, amend assign- ments of error is very generally recognized, 46 but it is usually necessary to obtain leave of court to make the amendment. 47 A party will not be permitted to amend by filing additional assignments of error which are not founded on the merits of the case, 48 and good cause for permission to make the amendment must be shown by the party assigning. 49 When leave to file an amended assignment of 41. See 3 Cent. Dig. tit. "Appeal and Er- ror," § 3049 et seq. Thus, it has been held that, if the statute requires service on the adverse party, service on the attorney will not be sufficient. Town- shend, Appellant, 85 Me. 57, 26 Atl. 969; State v. Freeman, 127 N. C. 544, 37 S. E. 206; Smith v. Smith, 119 N. C. 314, 25 S. E. 878; State v. Price, 110 X. C. 599, 15 S. E. 116. If the statute requires a copy to be attested by a designated officer of court, service of a copy attested by appellant's counsel will not be sufficient. Wait v. Demeritt, 119 Mass. 158. If the statute requires service ten days before the first day of the term, the appeal will be dismissed if not served within the time pre- scribed. Stanley v. Barringer, 74 Iowa 34, 36 N. W. 877; Crocker v. Ankeny, 48 Iowa 206. 42. Lyme v. Ward, 1 N. Y. 531 ; and see 3 Cent. Dig. tit. "Appeal and Error," § 3051. 43. Frost v. Lawler, 34 Mich. 235 : and see 3 Cent. Dig. tit. "Appeal and Error," § 3052. 44. Williston v. Fisher, 28 111. 43 ; Martin v. Russell, 4 111. 342 ; Brown v. H. W. Boies Co., 58 111. App. 274 ; Walker v. Pratt. 55 111. App. 297; Armstrong's Appeal, 68 Pa. St. 409 ; Cameron v. Roemele, 59 Tex. 238 ; Ander- son v. Wallace, 10 Tex. 297 ; Barnes v. Miller, 3 Tex. Civ. App. 468, 22 S. W. 659. New Mexico — Putting on separate paper. — Supreme court rule No. 25 provides that all assignments of errors " shall be written on a separate paper, and filed in the cause, and shall also be copied into the brief of the appellant or plaintiff in error, and the clerk shall enter the fact of such filing on the rec- ord." It was held that a writ of error will be dismissed for non-compliance with such rule when it appears that plaintiff in error made an assignment of errors, incorporated it in a, transcript containing a statement of the case and brief, and had the same properly filed, tut did not file the assignment of error writ- ten on a separate paper. Martin v. Terry, 6 N. M. 491, 30 Pac. 951. 45. Deputy v. Hill, 85 Ind. 75 ; Vaughn v. Ferrall, 50 Ind. 221 ; Hays v. Johns, 42 Ind. 505. Pasting on transcript. — An assignment of errors which is pasted to the transcript is entered on the record. Moore v. Hammons, 119 Ind. 510, 21 N. E. 1111. In some states, however, the assignment of errors need only appear in the brief of coun- sel. Donnell Mfg. Co. v. Hart, 40 Mo. App. 512; McReavy v. Eshelman, 4 Wasn. 757, 31 Pac. 35, in which last case it is said that, in the practice of that state, technical assign- ments of error are obsolete ; that if the points of objection are readily found in the brief, the appeal will not be dismissed. See also Rana- han v. Gibbons, (Wash. 1900) 62 Pac. 773; Haugh v. Tacoma, 12 Wash. 386, 41 Pac. 173, 43 Pac. 37; Wash. Laws (1893), p. 127; Su- preme Court Rules, No. 12. See also infra, XII. 46. Buhlman v. Humphrey, 86 Iowa 597, 53 N. W. 318; Stanley v. Barringer, 74 Iowa 34, 36 N. W. 877 ; Loughran v. Des Moines, 72 Iowa 382, 34 N. W. 172; Kendig v. Overhul- ser, 58 Iowa 195, 12 N. W. 264; Brown v. Rose, 55 Iowa 734, 7 N. W. 133 ; Trudo v. An- derson, 10 Mich. 357, 81 Am. Dec. 795; Par- sons v. Copland, 5 Mich. 144; Freeborn v. Denman, 7 N. J. L. 190 ; Hastings, etc., R. Co. p. Ingalls, 13 Nebr. 279, 13 N. W. 403; Spen- cer v. Thistle, 13 Nebr. 201, 13 N. W. 208; and see 3 Cent. Dig. tit. "Appeal and Error," § 3058 et seq. 47. Casey v. Horton, 40 111. 54; Baker v. Mayo, 86 111. App. 86 ; Betts v. Glenwood, 52 Iowa 124, 2 N. W. 1012; Carpenter v. East- prn R. Co., 67 Minn. 188, 69 N. W. 720; Min- neapolis, etc., R. Co. v. Home Ins. Co., 64 Minn. 61, 66 N. W. 132; Greene v. Dwyer, 33 Minn. 403, 23 N. W. 546; Shenk v. Mingle, 13 Serg. & R. (Pa.) 29. Where opposite party has not been preju- diced.— It has been held that an amended as- signment of errors filed without leave, after appellee's argument, will not be stricken out, it appearing to have been filed in the further- ance of justice, and submission of the case not having been delayed or appellee preju- diced thereby. Bunyan v. Loftus, 90 Iowa 122, 57 N. W. 685. 48. Galbraith v. Green, 13 Serg. & R. (Pa.) 85; Shenk v. Mingle, 13 Serg. & R. (Pa.) 29 See also Myrick v. Chamblain, Minor (Ala.) 357; Parsons v. Copland, 5 Mich. 144. 49. Casey v. Horton, 40 111. 54; Anony- mous, 40 111. 54. . Exercising due care in the first instance — Under the rules of the Indiana supreme Vol. II 1006 APPEAL AND ERROR errors has been granted, but a new assignment has never been made on the tran- script or upon some paper attached thereto, as required by a rule of court, the appeal will be considered on the original assignment of errors. 50 I. Waiver of Defects in Assignment. The submission of a cause by agree- ment 51 of parties operates as a waiver of all irregularities in the assignment of errors 52 — such as that the assign ment does not contain the names of all the parties ; 5S that in the assignment of errors one of the parties is made an appellee instead of appellant ; M that the assignment of errors does not set out the names of the parties in full ; 55 or that the assignment of errors does not number the errors as required by the rules of court. 56 So, it has been held that an objection to the form of an assignment of errors, filed on the day of the hearing, will not be con- sidered, 57 and that by arguing a general assignment of errors, the objection that it is not sufficiently specific is waived, 58 and error in a charge, though not specifi- cally assigned, may be reviewed where it is discussed by the counsel for both parties. 69 Under a rule requiring appellee to file a brief upon the assignment of errors within ninety days after the submission of the cause, failure to file until a year thereafter operates as a waiver of any objection thereto unless an examina- tion of it, without suggestion of counsel, shows it to be so wanting in substance as not to present any question. 60 J. Aider fay Extrinsic Matter. According to the weight of authority, an assignment of errors should be complete in itself and not require reference to extrinsic matter to determine the question intended to be presented thereby. Hence, where an assignment of error is not sufficiently specific, it cannot be aided by statements or specifications in the briefs 61 or by reference to a motion for new trial. 62 court, amendments will not be permitted where it does not appear that due care was exercised in the first instance to make the as- signment of errors complete, and no excuse is shown for failure to make early application. Baldwin v. Sutton, 148 Ind. 591, 47 N. E. 629, 1067; Lee v. Mozingo, 143 Ind. 167, 41 N. E. 454. It has been held not a sufficient excuse for making a defective assignment that the party was in doubt how the assignment should be made. Lee v. Mozingo, 143 Ind. 667, 41 N. E. 454. Where the name of a party to the suit is omitted, the assignment of error may be amended by inserting his name. Meridian Nat. Bank v. Hauser, 145 Ind. 496, 42 N. E. 753. But see Loucheim v. Seeley, 151 Ind. 6"65, 43 N. E. 646. And it has been held that where the assignment of errors does not state the full names of the parties as required by rules of court, and appellant has asked for leave to amend, the appellate court will con- sider the case without requiring a formal amendment. MeConahey v. Poster, 21 Ind. App. 416, 52 N. E. 619. 50. Rosenbower v. Schuetz, 141 Ind. 44, 40 N. E. 256. 51. What does not amount to a submis- sion by agreement.— An agreement by appel- lees to allow appellants an extension of time within which to file their briefs, stating a request that when the same are filed the case shall be passed upon in the regular way, and afterward a second agreement for an exten- sion in which the right to make any legal ob- jection to the record or assignment of errors is reversed, does not indicate a voluntary sub- mission of the cause by agreement, and an ob- Vol. II jection to defects in the record or assignment is not waived. Brown v. Trexler, 132 Ind. 106, 30 N. E. 418, 31 N. E. 572. 52. Ridenour v. Beekman, 68 Ind. 236. 53. Dobbins v. Baker, 80 Ind. 52; Bougher v. Scobey, 16 Ind. 151. 54. Clark v. Continental Imp. Co., 57 Ind. 135. 55. Truman v. Scott, 72 Ind. 258. 56. State v. Madison County, 92 Ind. 133. 57. Watt v. Hunter, 20 Tex. Civ. App. 76, 48 S. W. 593, 49 S. W. 412; Peyton v. Cook, (Tex. Civ. App. 1895) 32 S. W. 781. 58. Michigan Cent. R. Co. v. Consolidated Car Heating Co., 69 Ped. 1, 37 U. S. App. 211, 16 C. C. A. 106. 59. Kilgore v. Jordan, 17 Tex. 341. 60. Hanover P. Ins. Co. v. Johnson, (Ind. App. 1900) 57 N. E. 277. 61. Calkins v. Chicago, etc., R. Co., 92 Iowa 714, 61 N. W. 423 ; Lamy v. Lamy, 4 N. M. 43, 12 Pac. 650; International, etc., R. Co. r. Hinzie, 82 Tex. 623 ; 18 S. W. 681 ; Cannon r. Cannon, 66 Tex. 682, 3 S. W. 36 ; Marsalis v. Thomas, 13 Tex. Civ. App. 54, 35 S. W. 795; Doe v. Waterloo Min. Co., 70 Fed. 455 44 U. S. App. 204, 17 C. C. A. 190; Grape Cfeek Coal Co. v. Farmers' L. & T. Co., 63 Ped. 891, 24 U. S. App. 38, 12 C. C. A. 350. But com- pare Gilpin v. Gilpin, 12 Colo. 504, 21 Pac. 612; Hannan v. Connett, 10 Colo. App. 171, 50 Pac. 214; Hartford v. Champion, 58 Conn. 268, 20 Atl. 471. See 3 Cent. Dig. tit. "Appeal and Error," § 3061. 62. McClellan v. Pyeatt, 50 Fed. 686, 4 V. S. App. 319, 1 C. C. A. 613. APPEAL AND ERROR 100? K. Pleading- to Assignments of Errors — l. Right to Plead or Demur. To an assignment of error the appellee or defendant in error may plead or demur, 68 and, under the practice in some states, certain defects may be availed of by motion. 64 2. Classification, Nature, and Effect of Pleas — a. In General. Pleas to assignments of error are either common or special. 65 b. Common Plea. The common plea or joinder, usually known as a plea in nullo est erratum, alleges that there is no error in the record or proceedings, and prays that the court may proceed to examine the record and affirm the judgment. 66 This plea is in the nature of a demurrer, and at once refers the matter of law arising to the judgment of the court. 67 It admits the truth of material facts well alleged, 68 but does not admit errors not properly assigned, or which cannot prop- erly be assigned, 69 as, for instance, matters that impeach or contradict the record.™ ' e. Special Pleas — (i) In General. Special pleas, on the other hand, contain the matters in confession and avoidance. 71 (n) Release of ERRORS — (a) Right to Plead and Necessity of Pleading Specially. A party against whom an error has been committed in the rendition of judgment may release such error, and his release may be pleaded in bar to his 63. Adams v. Beem, 4 Blaokf. (Ind.) 128; Acker v. Ledyard, 1 Den. (N. Y.) 677; 2 Tidd Pr. 1133. 64. Newman v. Kiser, 128 Ind. 258, 26 N. E. 1006; Alexander v. Alexander, 104 N. Y. 643, 10 N. E. 37. 65. 2 Tidd Pr. 1173. 66. Adams v. Beem, 4 Blackf. (Ind.) 128; Acker v. Ledyard, 1 Den. (N. Y.) 677; 2 Tidd Pr. 1173. 67. Adams v. Beem, 4 Blackf. (Ind.) 128; Handley v. Fitzhugh, 3 A. K. Marsh. (Ky.) 561; Benner v. Welt, 45 Me. 483; Booth v. Com., 7 Mete. (Mass.) 285; Goodridge v. Ross, 6. Mete. (Mass.) 487. By pleading in nullo est erratum, defend- ant in error admits the record to be perfect, the effect of his plea being that the record in its present state is without error ; and, there- fore, after in nullo est erratum pleaded, neither partv can allege diminution, or pray a certiorari. " But though the parties are bound by their own admission, and that equally so as to every part of the record, yet no ad- mission of the parties can or ought to restrain the courts from looking into the record before them. 2 Tidd Pr. 1174. 68. Indiana. — Rundles v. Jones, 3 Ind. 35. Maine.— Merrill v. Suffolk Bank, 31 Me. 57, 50 Am. Dec. 649 ; Smith v. Rhodes, 29 Me. Massachusetts.— Haggett v. Com., 3 Mete. (Mass.) 457; Blanchard v. Wild, 1 Mass. 342. _. „ New Hampshire.— Claggett v. Simes, 31 ■m" -pr on 'tfeio York.— Harvey v. Rickett, 15 Johns. (N. Y.) 87; Bliss v. Rice, 9 Johns. (N. Y.) 159 Pennsylvania.— Moore v. McEwen, 5 Serg. & R. (Pa.) 373. Tennessee.— Goodwin v. Sanders, 9 Yerg. {T En^land.— Okeover v. Overburgh, T. Raym. 231; Grell v. Richards, 1 Lev. 294. See 3 Cent. Dig. tit. "Appeal and Error, § 3066. 69. Riley v. Waugh, 8 Cush. (Mass.) 220; Moody v. Vreeland, 9 Wend. (N. Y.) 125; Cole v. Greene, 1 Lev. 309; Cross v. Tyer, Cro. Eliz. 665; Hayden v. Mynn, Cro. Jae. 521; 2TiddPr. 1143. 70. Riley v. Waugh, 8 Cush. (Mass.) 220; Whiting v. Cochran, 9 Mass. 532 ; Claggett v. Simes, 31 N. H. 22; Helbut v. Held, 2 Str. 684. Thus, the plea does not admit a special as- signment of errors that the issues joined were not tried (Lovett v. Pell, 22 Wend. (N. Y.) 369) ; or an assignment that the judgment was entered by the clerk without authority, (Claggett v. Simes, 31 N. H. 22). A joinder in short to an assignment of er- ror amounts, it has been held, to a plea of in nullo est erratum, and it is in effect _ an averment that the record generally is with- out error and subjects the whole to the scru- tiny of the court, and the court will not be confined exclusively to an examination of the errors assigned. David v. Ransom, 1 Greene (Iowa) 383. 71. Adams v. Beem, 4 Blackf. (Ind. 128. In favor of plaintiff .— If it be assigned as error that some of plaintiffs in error were minors at the time the judgment was ren- dered, this will be deemed admitted by a plea in nullo est erratum. Benner v. Welt, 45 Me. 483. T „ ., Appearance of infant by attorney.— If it be assigned for error that an infant appeared below by attorney, this is admitted by the common joinder. Moore v. McEwen, 5 Serg. & R. (Pa.) 373. . ... Plea setting up majority at time ot juag- j„ent.— Where one assigns for error infancy and appearance by attorney, instead of guard- ian, in the court below, a plea that, at the time of the rendition of the judgment, the party was of full age, is bad as tendering an immaterial issue. Gosling v. Acker, 25 Wend. (N. Y.) 639. Motion to quash execution.— Unless spe- cially pleaded, defendant cannot show that a motion to quash an execution had been made Vol. II 1008 APPEAL AND ERROR prosecution of a writ of error to reverse the judgment ; 72 but a release of errors by a defendant who did not join in the writ of error cannot be so pleaded. 73 A release of errors should be specially pleaded ; 74 but if a release is stated in affi- davits, without objection, it has been held that it is too late to object to the form of the proceedings. 75 , (b) Requisites of Plea. A plea of a release of errors and all its intendments will be taken most strongly against the pleader. 76 It should state the facts relied on in snch release 77 and should show that the release was based upon a good con- sideration. 78 If the plea alleges a release by plaintiff by his attorneys, such plea will be insufficient if it does not allege that they were in fact his attorneys, or had been retained or had appeared in the case. 7 * (c) Matters Admitted and Wavoed by Plea. The plea operates as a waiver of the right to join in error, and if it is adjudged bad on demurrer the judgment will be reversed. 80 Such a plea amounts to a confession of error, and admits cause of reversal unless the facts alleged in avoidance of the error are found in the pleader's favor. 8x (d) Replication to Plea. A replication to a plea of release of errors must deny or confess and avoid the cause of release set up by the plea. 82 If it is alleged that the release was obtained by fraud the facts constituting the fraud complained of must be stated. 83 (in) Statute of Limitations. The statute of limitations may be pleaded in bar of a writ of error, 84 and, in some jurisdictions, it cannot be availed of in any other manner, 85 while in other jurisdictions a motion to dismiss will lie. 86 It has also been held that this plea is not a confession of the errors of law. 87 d. Pleading Several Pleas. An application to plead several pleas to an assignment of error will not be entertained on allowing the writ of error, but and overruled in the reviewing court for the same cause assigned for error. Handley v. Fitzhugh, 3 A. K. Marsh. (Ky.) 561. 72. Illinois. — Ruckman v. Alwood, 44 111. 183; Austin v. Bainter, 40 111. 82. Indiana. — Millar v. Farrar, 2 Blackf. (Ind.) 219. Nebraska. — Shreck v. Gilbert, 52 Nebr. 813, 73 N. W. 276. Ohio. — Matthews v. Davis, 39 Ohio St. 54; Wilcox v. May, 19 Ohio 408. Tennessee. — Henly v. Robertson, 4 Yerg. (Tenn.) 171. Washington. — Lyons v. Bain, 1 Wash". Terr. 482. See 3 Cent. Dig. tit. "Appeal and Error," § 3067. Forms of pleas setting up release of errors are set out in: Arkansas. — Martin v. Hawkins, 20 Ark. 150. Illinois. — Corwin v. Shoup, 76 111. 246; Austin v. Bainter, 40 111. 82. Indiana. — Millar v. Farrar, 2 Blackf. (Ind.) 219. Missouri. — McCuteheon v. Sigerson, 34 Mo. 280. Vermont. — Vaughan v. Everts, 40 Vt. 526. 73. Martin v. Highway Com'rs, 150 111. 158, 36 N". E. 1004. 74. Georgia. — Bigby v. Powell, 25 Ga. 244, 71 Am. Dec. 168. Illinois. — School Trustees v. Hihler, 85 111. 409. Indiana. — Veach v. Pierce, 6 Ind. 48; Adams v. Beem, 4 Blackf. (Ind.) 128. Mississippi. — Vick V. Maulding, 1 How. (Miss.) 217. Vol. II Nebraska. — Treitschke v. Western Grain Co., 10 Nebr. 358, 6 N. W. 427. Virginia. — Hite v. Wilson, 2 Hen. & M. (Va.) 268. But see McCracken v. Cabel, 120 Ind. 266, 22 N. E. 136; Alexander v. Alexander, 104 N. Y. 643, 10 N. E. 37, to the effect that it is permissible to take advantage of release of er- rors by motion to dismiss. See 3 Cent. Dig. tit. "Appeal and Error," § 3067. 75. Treitschke v. Western Grain Co., 10 Nebr. 358, 6 N". W. 427. 76. Beardsley v. Smith, 139 111. 290, 28 N. E. 1079. 77. Corwin v. Shoup, 76 111. 246; Chamb- lin v. Blair, 58" 111. 385. 78. Austin v. Bainter, 40 111. 82. 79. Corwin v. Shoup, 76 111. 246. 80. Martin v. Highway Com'rs, 150 111. 158, 36 N. E. 1004; Page v. People, 99 111. 418; Fitzpatrick v. Rutter, 60 111. App. 657. See 3 Cent. Dig. tit. "Appeal and Error," § 3067. 81. Thornton v. Houtze, 91 111. 199. 82. McCuteheon v. Sigerson, 34 Mo. 280. 83. Wood v. Goss, 21 111. 604. 84. Day v. Huntington, 78 Ind. 280; Ja- cobs v. Graham. 1 Blackf. (Ind.) 392; Allen D. Marehand, 5 Ky. L. Rep. 601. 85. Acker v. Ledyard, 1 Den. (N. Y.) 677; 2 Tidd Pr. 1174. 86. Day v. Huntington, 78 Ind. 280 ; Buntin v. Hooper, 59 Ind. 589; Brooks v. Norris, 11 How. (U. S.) 204, 13 L. ed. 665. 87. Hymann v: Cook, 2 Den. (N. Y.) 201. APPEAL AND ERROR 1009 must be made after error is assigned. 88 A plea of in nullo est erratum can- Bot be joined to one of release of errors, 89 or to a plea of the statute of limita- tions,' unless there is some statutory authority therefor. 91 A joinder in error will not put in issue an allegation in the assignment of errors of interest in the party prosecuting the writ. Without a special plea denying such interest it will stand admitted. 92 J 5 3. Time of Filing Pleading. As a proceeding in error is an action and an assignment of errors in the nature of a declaration, which must be filed before defendant can plead, it is not necessary or proper that a plea in abatement to the writ should be filed before the assignment. 93 4. Effect of Failure to Plead. The practice in England is said to be to set the errors down for hearing ex parte in default of joinder of errors, 9 * and this practice has been adopted in some American states. 95 5. Objections Waived by Joinder. A joinder in error by appellee waives objections to the form of the appeal, 96 or to the sufficiency or want of notice of the appeal, 97 or failure to file a transcript within the required time. 98 The ordinary plea of no error on the appeal does not, however, cure the want of assignment of errors, 99 nor will a joinder in error cure an objection that the petition for writ of error did not describe the term at which the judgment was rendered. 1 6. Withdrawal of Joinder. "Where a party has been induced by fraud to join issues in an assignment of errors, it seems that he may be permitted to withdraw the joinder ; but as soon as he discovers the fraud he should show it to the court, and move to withdraw the joinder. 3 7. Demurrers to Assignment of Errors. A demurrer to a plea in bar of a writ of error will lie for such defects as will render a plea to the declaration or complaint in the trial court demurrable. 3 So, it has been held that objections to an application by defendant in error to withdraw his joinder in error and plead a release of errors, upon grounds affecting the merits of the proposed plea, can be properly made only on demurrer thereto. 4 After judgment against a defendant on his demurrer to an assignment of errors in fact he may withdraw the demurrer and rejoin to the assignment. 5 88. Higbie v. Comstock, 1 Den. (N. Y.) 652. A judgment for not joining in error will be 89. Parker v. Gilson, 1 Mass. 230. overruled where the attorney for the defend- 90. Acker v. Ledyard, 1 Den. (N. Y.) 677. ant in error pleads that he did not learn of 91. Evans v. Galloway, 20 Ind. 479. the judgment for several months, and that no In Louisiana appellee's joinder in error on notice of the argument had ever been served the merits, following an exception on the same on defendant or on his attorney, and that he paper as to the mode of bringing up the ap- had caused notice of retainer to be served on peal, is not a waiver of the objection (Chand- plaintiff's attorney by mail, though plaintiff's ler v. Witherspoon, 4 La. 67 ) ; and appellee attorney denied that he ever received notice may file an answer to the merits, and on the of retainer in the case. Clark v. Rawson, 1 same paper make a written motion to dismiss How. Pr. (N. Y.) 17. (Briggs v. Briscoe, 12 La. 468). 96. Carter v. Thompson, 41 Ala. 375; Ma- 92. Winne v. People, 177 111. 268, 52 N. E. gruder v. Campbell, 40 Ala. 611. See also 377 Bibb v. Hitchcock, 49 Ala. 468, 20 Am. Rep. 93. State Bank v. Ruddell, 10 Ark. 123. 288. 94. See Mayson v. Lane, 5 How. (Miss.) 11. 97. Newman v. Kiser, 128 Ind. 258, 26 N. E. 95. Elijah v. Taylor, 40 111. 79; Mayson v. 1006; Beck v. State, 72 Ind. 250; Field v. Bur- Lane, 5 How. (Miss.) 11; March v. Howell, 1 ton, 71 Ind. 380. Mo { 38 98. State v. Walters, 64 Ind. 226. See 3' Cent. Dig. tit. "Appeal and Error," 99. Lacy v. Mucker, 1 La 50 § 3071 _ s 1. Martin v. Rutherford, 6 Mart. N. S. (La.) In Colorado the practice is to reverse the 281. judgment in case of default. Murdock V. 2. Bigby v. Powell, 25 Ga. 244, 71 Am. Dec. Townsend, 1 Colo. 33. 168. . T _ In New York the practice seems to be to 3. Peabody v. Kendall, 145 111. 519, 32 N. K allow a default to be taken after the expira- 674; Pittsburgh, etc R. Co^ ^ Swinney 9 tion of the rule to join in error, after which a Ind. 399; Millar v. Earrar, 2 Blackf. (Ind.) further rule may be taken for judgment of re- 219. versal. Oppie v. Colegrove, 19 Johns. (N. Y.) 4. Clapp j v. Reid, 40 111. 12 1 124. See also Brisbin v. McLaughlin, 4 Cow. 5. Arnold v. Sandford, 14 Johns. (N. Y.) bnd i? e . 63 111. App. 160; Mullen r. Brown, 48 «£?> tt %1J<1 • „ , „ ln - App. 592; Chicago, etc., Coal Co. v. Peter- 60. Pearson v. Household Sewmg Mach. Co., son 39 111 App, 114 78 Tex. 385, 14 S. W. 890; Gant v. Timmons, 71. Levi «. Brown, 84 111 App 147- Wenz 78 Tex. 11, 14 S. W. 236; Shanks v. Carroll, 50 r. Tirrill, 48 111. App'. 41 ; Mattoon i; Holmes Tex - 1 '- u I"- App. 392; Terre Haute, etc., R. Co. v. Vol. II APPEAL AND EBB OB 1025 In Indiana, if appellee assigns cross-errors, but files no brief, the cross-errors will be stricken out.™ In Iowa the case will be examined and determined with such care as its importance demands and the time of the court will permit of It is very justly said, however, that the result is always reached with the greatest liability to error ; 73 and only such questions will be considered as are necessary to determine the case. 7 * In Kansas the court may dismiss the case, or affirm or reverse the judgment, 73 or it may consider the case on the merits. In that event, however, the court will not carefully search the record to find a theory upon which the judgment below can be sustained. 76 In Texas it has been held that a cross-appeal will be deemed abandoned where no brief is filed. 77 XIII. RECORD, AND PROCEEDINGS NOT IN RECORD. A. Matters to Be Shown by Record — 1. Jurisdiction of Appellate Court — a. In General. An appeal or writ of error will be dismissed, for want of jurisdiction, when the record fails to show affirmatively the proper taking of all the steps and the existence of all the facts necessary to confer jurisdiction upon the appellate court. 78 b. Taking and Perfecting of Proceedings for Review — (i) In General. A cause will be dismissed by the appellate court for want of jurisdiction when it does not appear from the record that any appeal was taken or writ of error sued out, 79 and the record must show to what term the writ of error is returnable. 80 In the federal courts a writ of error need not be set out in the record if the orig- inal writ of error is filed in the appellate court ; 81 but if the record does not show Goodwin, 4 111. App. 165; Cox v. Tuscola, 2 111. App. 628. 72. Sumner v. Dunkin, 42 Ind. 530. 73. Russell v. Torbet, 81 Iowa 754, 46 N. W. 1095. 74. Richardson v. Probst, 103 Iowa 241, 72 N. W. 521; Dodd v. Scott, 81 Iowa 319, 46 N. W. 1057, 25 Am. St. Rep. 492, 10 L. R. A. 360; Gilfeather v. Council Bluffs, 69 Iowa 310, 28 N. W. 610. 75. Naylor v. Beery, 7 Kan. App. 815, 52 Pac. 580. 76. Douglass v. Craig, 9 Kan. App. 885, 61 Pac. 320. 77. Randolph v. State, 73 Tex. 485, 11 S. W. 487. 78. Illinois. — Brownell v. Baker, 5 111. App. 571. Indiana.— Louisville, etc., R. Co. v. Jack- son, 64 Ind. 398. Kansas. — ■ Webber v. Carey, 2 Kan. App. 165, 43 Pac. 284; Clark v. Ottawa, 1 Kan. App. 304, 40 Pac. 1071. Louisiana. — Rathbone v. St. James Parish, 28 La. Ann. 324. Missouri. — Baldwin v. Fries, 103 Mo. 286, 15 S. W. 760. Tennessee. — Matter of Bates, 2 Heisk. (Tenn.) 533. United States. — Semple v. Hager, 4 Wall. (U. S.) 431, 18 L. ed. 402; Suydam v. Wil- liamson, 20 How. (U. S.) 427, 15 L. ed. 978; Agnew v. Dorman, Taney (U. S.) 386, 1 Red. Cas. No. 100. See 3 Cent. Dig. tit. "Appeal and Error,'' ■§ 2310. 79. Alabama. — Shulman v. Brantly, 48 Ala. 193. Florida. — Rabon v. State, 7 Fla. 9. Iowa. — J. P. Calnan Construction Co. e. Brown, 110 Iowa 37, 81 N. W. 163; Brand- [65] enburg v. Keller, 100 Iowa 747, 69 N. W. 448. Massachusetts. — Lund v. George, 1 Allen (Mass.) 403; Moore v. Lyman, 13 Gray (Mass.) 394. Mississippi. — Devane v. Calching, 2 How. (Miss.) 884. Missouri. — State v. Gabhart, 51 Mo. 147; Harper v. Standard Oil Co., 74 Mo. App. 644. New Mexico. — Wheeler v. Fick, 4 N. M. 149, 13 Pac. 217. North Carolina. — Howell v. Jones, 109 N. C. 102, 13 S. E. 889; Randleman Mfg. Co. v. Simmons, 97 N. C. 89, 1 S. E. 923. Texas.— Bennett v. Spillars, 7 Tex. 600. See 3 Cent. Dig. tit. "Appeal and Error," § 2312. The court will, of its own motion, dismiss the cause, even though appellee appears and does not raise the question of a want of jurisdiction when the record fails to show that an appeal was taken. Plummer v. Peo- ple's Bank, 73 Iowa 752, 33 N. W. 150, 74 Iowa 731. An appeal is not sufficiently shown by the record when the only thing to indicate it is a recital in the appeal bond that an appeal had been taken. Hall v. Bewley, 11 Humphr. (Tenn.) 105. Contra, Mulanphy v. Murray, 12 Mart. (La.) 429. Presumption as to judgment appealed from. — Where the record states that " on the ninth day of November the defendants per- fected an appeal to the supreme court of the state of Iowa," it will be presumed that the appeal was from the judgment recited in the former part of the record. Waller v. Waller, 76 Iowa 513, 41 N. W. 307. 80. Mills v. Bagby, 4 Tex. 320. 81. Amis v. Pearle, 15 Pet. (IT. S.) 211, 10 L. ed. 714. Vol. II 1026 APPEAL AND ERROR that the original writ of error has been indorsed as tiled by the clerk of the trial court the appellate court is without jurisdiction, even though the writ was in fact delivered to the clerk of the trial court. 82 (n) By Same Parties Against Whom Judgment Rendered. An appeal or writ of error will be dismissed for want of jurisdiction when the record fails to show distinctly and affirmatively that the appeal was taken or the writ of error sued out by the same party or parties against whom the judgment or decree com- plained of was rendered, or by their properly qualified legal representatives, 83 or by one whose rights were concluded by such judgment or decree. 84 (in) Application and Allowance or Leave. Where allowance of an appeal is necessary it is essential to the jurisdiction of the appellate court that the record should show affirmatively that appellant prayed an appeal, and complied with all the requirements of the law entitling him to it, and that the appeal was granted by the lower court. 85 A deficiency in the record in this respect has, how- ever, often been supplied either by the presence in the record of an appeal bond, or by recital, in the bill of exceptions or other part of the transcript outside of the record proper, that an appeal had been prayed and allowed. 86 (iv) Time of Taking Proceedings — (a) In General. The record must show unmistakably that the appeal was taken within the time fixed by law, or the appellate court is without jurisdiction. 87 82. Mutual L. Ins. Co. v. Phinney, 76 Fed. 617, 48 U. S. App. 78, 22 S. C. A. 425. 83. Alabama. — Collins v. Baldwin, 109 Ala. 402, 19 So. 862. Georgia. — Townsend v. Davis, 1 Ga. 495, 44 Am. Dec. 675. Illinois. — Clapp v. Beid, 40 111. 30; Ar- nold v. Kilchman, 76 111. App. 665. Kansas. — Johnson L. & T. Co. c. Burr, 7 Kan. App. 703, 51 Pac. 916. Louisiana. — Azemard v. Campo, McGloin (La.) 64. 84. Hughes i. Smith, 59 N. H. 311. 85. Arkansas: — Matthews v. Lane, 65 Ark. 419, 46 S. W. 946; Neale v. Peay, 21 Ark. 93. Louisiana. — Lewis v. Boyet, 45 La. Ann. 1220, 14 So. 119, 120; Phillips v. Her Cred- itors, 35 La. Ann. 935. Compare Edgerly v. Smith, 27 La. Ann. 97. Maine. — Moody v. Moody, 11 Me. 247. Missouri. — Swank v. Swank, 85 Mo. 198 ; State v. Missouri Pac. E. Co., 84 Mo. 129; Meyers v. Meyers, 19 Mo. App. 140. Tennessee. — Bailey i\ State, 95 Tenn. 391, 32 S. W. 250; Simmons v. Leonard, (Tenn. Ch. 1895) 36 S. W. 846. See 3 Cent. Dig. tit. " Appeal and Error," § 2315. There is a sufficient showing that an appeal was granted where the record shows that the appeal was " granted him upon giving bond and security for costs," and the bond exe- cuted on the same day was certified as a part of the record (Childress i\ Marks, 2 Baxt. (Tenn.) 12) ; where the record showed that an appeal was prayed, and that the chancellor allowed the party a certain time in which to make and file an appeal bond, but failed to show that an appeal was granted (Charleston Bank v. Johnston, 105 Tenn. 521, 59 S. W. 131) ; or, where the record shows the filing of a petition for an appeal and Vol. II its allowance, the filing and approval of a bond containing a recital that appellant had obtained an appeal and filed a copy thereof in the clerk's office, and that citation was served and duly filed, this is a plain showing that the appeal as allowed was duly filed (Harkrader v. Wadley, 172 U. S. 148, 19 S. Ct.. 119, 43 L. ed. 399). If it appear in the case on appeal that an appeal was entered in the trial court, it is no ground for dismissal that the record proper does not show that fact. Fore i>. Western North Carolina R. Co., 101 N. C. 526, 8 S. E. 335; Allison v. Whittier, 101 N. C. 490, 8 S. E. 338. Moore v. Vander- burg, 90 N. C. 10, is not in conflict, for that merely holds tkat such entry must be actu- ally made in the trial court. See also Sterner v. Hodgson, 63 Mich. 419, 30 N. W. 77, wherein it was held that, although the record did not contain the appeal affidavit which was essential to the jurisdiction of the appellate court, the judgment of the circuit court would not be disturbed when no error was assigned, and none appeared in the proceedings. 86. Edgerly v. Smith, 27 La. Ann. 97; Mulanphy c. Murray, 12 Mart. (La.) 429; Douglas v. Orr, 58 Mo. 573; Rodenbough v. Eosebury, 24 N. J. L. 491; Hudgins v. Kemp, 18 How. (U. S.) 530, 15 L. ed. 511. See also Newman v. Biggs, 78 Mo. 675. Con- tra, Anthony v. Brooks, 31 Ark. 725; Teas- dale v. Manchester Produce Co., 104 Tenn. 267, 56 S. W. 853; Craighead v. Rankin, 6 Baxt. (Tenn.) 131; Hall v. Bewley, 11 Humphr. (Tenn.) 105; O'Riley v. Zollicoffer, 4 Yerg. (Tenn.) 298. 87. Alabama. — Alabama, etc., R. Co. v. Hungerford, 41 Ala. 388. Iowa. — Wambach v. Grand Lodge, etc., 88 Iowa 313, 55 N. W. 516: Gleason v. Collett, 77 Iowa 448, 42 N. W. 367. Pennsylvania. — Horan v. Dieter, 7 Kulp (Pa.) 560. r APPEAL AND ERROll 1027 (b) Extension of Time. Where there has been an extension of time, this fact must appear in the record, either by an order of the court, or by stipulation of the parties. 88 (v) Security and Affidavits In Forma Pauperis — (a) In General. It is a rule of almost universal application that the record must, show that a bond or undertaking on appeal, conditioned and executed as prescribed by law, was filed within the required time ; 89 and in many jurisdictions it is necessary that the bond itself be inserted or copied in the record, and a mere certificate of its filing, by the clerk of the trial court, is insufficient. 90 (b) Waiver of Security. Where the parties may waive security, a stipulation to that effect must appear in the record. 91 (c) Affidavit on Appeal In Forma Pauperis. Where an appeal or writ of error is prosecuted in forma pauperis, the record must contain the affidavit thereto, an order of the trial court granting an appeal to a party as a pauper being of itself insufficient to sustain the jurisdiction of the appellate court. 92 Texas. — Houston, etc., R. Co. v. Green- wood, 40 Tex. 361. United States. — Jacobs v. Jacobs, Hempst. (TJ. S.) 101, 13 Fed. Cas. No. 7,161a. See 3 Cent. Dig. tit. " Appeal and Error," § 2313. Approval of an appeal bond in open court on the day after a demurrer was filed sufficiently shows the appeal to have been taken during the term at which the demurrer was over- ruled (McKee v. Coffee, 58 Miss. 653); and where an appeal taken after final judgment is not a matter which can appear of record, it is sufficient if the appeal bond appears to have been executed and approved within the time allowed for an appeal after judgment was rendered (Busby v. Grayham, 26 Miss. 210). Discrepancy as to date oi judgment. — Where defendant filed an amended abstract reciting that judgment was rendered June 29th, and the notice of appeal showed a judgment as of June 9th, and there was nothing to show that the appeal was not from the judgment in the case or that the order was not taken in time, it was held to be properly before the court. Kennedy v. Rosier, 71 Iowa 671, 33 N. W. 226. Presumption as to time. — An appeal from an order sustaining a demurrer will be pre- sumed to have been taken in time when the record fails to show that respondents ever served on appellants a written notice of the entry of the order. Debenture Corp. v. War- ren, 9 Wash. 312, 37 Pac. 451. Where appellant is a non-resident, and as such is entitled to more time than a resident, the record of an appeal taken within the time allowed non-residents need not show that appellant is a non-resident, the statute not requiring the fact to be stated either in the affidavit or the bond. Webster v. Spind- ler, 36 Mo. App. 355. 88. Smith v. Pollack, 58 Mo. 161. 8§. Arizona. — Sutherland v. Putnam, (Ariz.) 1890) 24 Pac. 320. California. — San Francisco, etc. Anderson, 77 Cal. 297, 19 Pac. 517 *. Reiner, 8 Cal. 340. Idaho. — Rich v. French, (Ida. Pac. 173. Montana.— State v. Millis, 19 Mont. 444, 48 Pac. 773. R. Co. v. ■ Franklin 1893) 35 North Carolina. — Sever v. McLaughlin, 82 N. C. 332. Texas. — Hayes v. Gallagher, (Tex. Civ. App. 1898) 46 S. W. 77. Washington. — Fisher v. Fisher, 9 Wash. 694, 38 Pac. 133. Wisconsin. — Eaton v. Manitowoc County, 42 Wis. 317. Contra, Stetson v. Corinna, 44 Me. 29; Sholts v. Judges, 2 Cow. (N. Y.) 506; Robin- son v. Chadwick, 22 Ohio St. 527. See 3 Cent. Dig. tit. " Appeal and Error," § 2316. Necessity of naming sureties in clerk's cer- tificate. — If the names of the sureties are shown by the record this is sufficient even though they are not named in the clerk's cer- tificate. Hall v. Wallace, 25 Ala. 438. 90. Alabama. — Spencer v. Thompson, 24 Ala. 512, where a judgment is to be super- Illinois. — Leach v. People, 118 111. 157, 8 N. E. 670; Pickering v. Mizner, 9 111. 334; Phoenix Ins. Co. v. Hedrick, 69 111. App. 184. Louisiana. — Lewis v. Boyet, 45 La. Ann. 1220, 14 So. 119, 120. Michigan. — Maynard v. Hoskins, 8 Mich. 81 Missouri.— Corbin v. Laswell, 48 Mo. App. 626. North Carolina. — McCanless v. Reynolds, 91 N. C. 244; Lytle v. Lytle, 90 N. C. 647; Wade v. Newbern, 72 N. C. 498. Texas.— Bastrop Corp. v. Gilmore, Dall. (Tex.) 573. . ,, _. Wisconsin.— Shewey v. Manning, 14 Wis. 448 Contra, San Francisco, etc., R. Co. v. Ander- son, 77 Cal. 297, 19 Pac. 517; Menard v. Montana Cent. R. Co., 22 Mont. 340, 56 Pac. 592 91. San Francisco, etc., R. Co. v. Ander- son, 77 Cal. 297, 19 Pac. 517 ; Rich v. French (Ida 1893) 35 Pac. 173; State v. Millis 19 Mont. 444, 48 Pac. 773; McCanless «. Rey- nolds, 91 N. C. 244; Lytle v. Lytle, 90 N C. 647; Sever v. McLaughlin, 82 N. L. 6<5£; Wade v. Newbern, 72 N C. 498. 92. Herd v. Dew, 9 Humphr . ( Tenn ) 364. Contra, State v. Jackson, 112 N C 849 16 S E. 906; State v. Tow, 103 N. C. 350, 9 S. E. 411. Vol. II t 1028 APPEAL AND ERROR (vi) Process or Notice — (a) Filing and Service of Notice. The record must show affirmatively an exact compliance with statutory requirements as to giving and riling notice of appeal, 93 and the serving of notice of appeal or citation in error upon the opposite party or his attorney, 94 and upon the clerk of the trial court, 95 such facts being jurisdictional. If affidavit is in record and defective, appel- lee can have appeal dismissed as » matter of right. State v. Bramble, 121 N. C. 603, 28 S. E. 269. See also Criminal Law. 93. Iowa. — State v. Wilmoth, (Iowa 1883) 15 N. W. 605. Kansas. — State v. Ashmore, 19 Kan. 544. Texas.— Hicks v. Gray, 25 Tex. 82; Ben- nett v. Spillars, 7 Tex. 600; Clark v. Burk, (Tex. Civ. App. 1896) 35 S. W. 27. Washington. — Merchants' Nat. Bank v. Ault, 14 Wash. 701, 44 Pac. 129. Wisconsin. — Shewey v. Manning, 14 Wis. 448. United States. — Jacobs v. Jacobs, Hempst. (U. S.) 101, 13 Fed. Cas. No. 7,161a. But see Hudgins v. Kemp, 18 How. (U. S.) 530, 15 L. ed. 511. See 3 Cent. Dig. tit. "Appeal and Error,'' § 2317. A recital in a decree that certain parties " in open court give notice to the Court of Civil Appeals " is sufficient to show that no- tice of appeal was given (Moon Bros. Car- riage Co. v. Waxahachie Grain, etc., Co., 13 Tex. Civ. App. 103, 35 S. W. 337) ; but an ambiguous or imperfect entry on the judge's docket, indicating that an appeal was taken, will not supply the place of a notice of ap- peal given in open court and entered of record (Forest v. Rawlings, 40 Tex. 502). If the bill of exceptions sets out the fact that notice was given in open court, and the presiding judge has signed the same as a true bill of exceptions, this establishes the fact beyond any doubt that notice of an ap- peal was given, and that it was a mere cleri- cal omission that such notice did not appear in the records of the cause. Busby v. Lynn, 37 Tex. 146. No statement of facts authenticating notice and making it part of record is necessary where an oral notice given in open court is entered on the record, a notice of appeal be- ing a necessary part of the transcript. Elma v. Carney, 4 Wash. 418, 30 Pac. 732. 94. California. — People v. Colon, 119 Cal. 668, 51 Pac. 1082; Frederick v. Tierney, 54 Cal. 583; Hill v. Weisler, 49 Cal. 146. Florida. — Kennesaw Mills Co. r. Bynum, 34 Fla. 360, 16 So. 276. Idaho. — Adams v. McPherson, (Ida. 1893) 34 Pac. 1095; Tootle v. French, 2 Ida. 745, 25 Pac. 1091. Ioiea. — Norwegian Plow Co. v. Bruning, (Iowa 1896) 65 N. W. 984; Taylor v. Taylor, 94 Iowa 493, 63 N. W. 180. Kansas. — Carr v. State, 1 Kan. 331. New York. — Eames v. Sanger, 3 Paige (N. Y.) 556. North Carolina. — Delozier v. Bird, 123 N. C. 689, 31 S. E. 834. Vol. II Ohio. — Browne v. Wallace, 16 Ohio Cir. Ct. 124. Texas.— Thomas v. Thomas, 57 Tex. 516; Thomas v. Childs, 36 Tex. 148 ; Bird Canning Co. v. Cooper Grocery Co., (Tex. Civ. App. 1900) 58 S. W. 1038. Utah. — Voorhees v. Manti City, 13 Utah 435, 45 Pac. 564. Wisconsin. — Eaton v. Manitowoc County, 42 Wis. 317; Yates v. Shepardson, 37 Wis. 315. Wyoming. — Hester v. Smith, 5 Wyo. 291, 40 Pac. 310. Contra, Perkins v. Douglass, 46 S. C. 6, 24 S. E. 42; Hudgins v. Kemp, 18 How. (U. S.) 530, 15 L. ed. 511. See 3 Cent. Dig. tit. " Appeal and Error," § 2317. Deficiency — How supplied. — Where the record fails to show service of notice of ap- peal, the deficiency may be supplied by the filing of a certified copy of proceedings in the lower court, showing that the original notice of appeal has been lost and that it has been established to the satisfaction of that court that the notice of appeal set forth in the printed transcript was duly served 1 . Knowl- ton v. Mackenzie, 110 Cal. 183, 42 Pac. 580. Service on minor. — Under Iowa Code, § 2615, service on a minor over fourteen years old being sufficient to give the court jurisdiction as to him, it is a sufficient showing that service of notice of appeal is made when the record recites that the notice was served on all the defendants according to statute, and the minor was named in the notice. Brundage v. Cheneworth, 101 Iowa 256, 70 N. W. 211, 63 Am. St. Rep. 382. Where an administrator has been substi- tuted for a deceased defendant, and the record merely recites that there was legal service of notice of appeal on all the defendants, and the administrator's name does not appear in the list of defendants set out in the notice of appeal, this is not a sufficient showing that notice of appeal was served on him. Brun- dage v. Cheneworth, 101 Iowa 256, 70 N. W. 211, 63 Am. St. Bep. 382. 95. Norwegian Plow Co. v. Bruning, ( Iowa 1896) 65 N. W. 984; Merchant v. Soleman, (Iowa 1895) 63 N. W. 464; Carr v. State, 1 Kan. 314; Eaton v. Manitowoc County, 42 Wis. 317; Yates v. Shepardson, 37 Wis. 315. See 3 Cent. Dig. tit. " Appeal and Error," § 2317. Dismissal ex mero motu. — When the record fails to show service of notice of appeal upon the clerk of the trial court, the appeal will be dismissed for want of jurisdiction, not- withstanding an appearance by the parties, and that no objection was made by them for the want of such service. State v. Clossner, 84 Iowa 401, 51 N. W. 16. APPEAL AND ERROR 102& (b) Acceptance and Waiver of Service. Where the necessity of such service has been obviated by the giving of notice of appeal in open court, 96 or by an acceptance 97 or waiver of service, 98 such facts must be shown clearly by the record. e. Jurisdictional Amount. The record must show clearly that the amount in controversy or value of the thing involved is sufficient to confer jurisdiction upon the appellate court, when such fact is jurisdictional, 99 unless it shows that the cause belongs to one of the classes expressly excepted by statute from the opera- tion of the general rule. 1 It has been held, however, that a deficiency in the record in this respect may be supplied by affidavits filed in the appellate court. 2 d. Constitutional Question. When the jurisdiction of the appellate court is dependent upon the existence of a constitutional question, the record must show clearly that the question was properly raised in the trial court, and was decided there. 3 e. Rendition and Entry of Appealable Judgment, Decree, or Order — (i) In General. , The record must show the rendition and entry in the lower court of an appealable judgment, decree, or order, presenting a final adjudication against 96. Delozier v. Bird, 123 N. C. 689, 31 S. E. 834. 97. Thomas v. Thomas, 57 Tex. 516. Con- tra, Yates v. Shepardson, 37 Wis. 315, wherein it was held that an appeal must, in the absence from the record of notice of ap- peal and service thereof, be dismissed for want of jurisdiction even though the record con- tained a stipulation, signed by the respective counsel, each admitting due service of a no- tice of appeal by the other party from the judgment. This decision was based on Wis. Laws (1860), c. 264, § 3, the court holding that causes could only be taken by appeal to the supreme court in the manner prescribed by that statute. 98. Atkinson v. Asheville St. R. Co., 113 N. C. 581, 18 S. E. 254; Bird Canning Co. v. Cooper Grocery Co., (Tex. Civ. App. 1900) 58 S. W. 1038. 99. California. — Bienenfeld v. Fresno Mill- ing Co., 82 Cal. 425, 22 Pac. 1113. Colorado. — Conly v. Boyvin, 25 Colo. 498, 55 Pac. 732. Connecticut. — Richards v. Eno, 23 Conn. 413. Illinois. — Piper v. Jaeobson, 98 111. 389. Kansas. — Roberts v. Jordan, 60 Kan. 859, 57 Pac. 938; Weil D. Pooch, 9 Kan. App. 883, 57 Pac. 1057; Werner v. Barber As- phalt-Paving Co., 7 Kan. App. 815, 53 Pac. 890. Louisiana. — Hite v. Hinsel, 39 La. Ann. 113, 1 So. 415; New Orleans v. Apken, 36 La. Ann. 419. Missouri. — Parlin, etc., Co. v. Hord, 145 Mo. 117, 46 S. W. 753. Texas. — Scottish-American Mortg. Co. v. Board of Equalization, (Tex. Civ. App. 1898) 45 S. W. 757 ; Ray V. San Antonio, etc., R. Co., 18 Tex. Civ. App. 665, 45 S. W. 479. West Virginia. — Aspinall v. Barriekman, 29 W. Va. 508, 2 S. E. 795. United States.— Hunt v. Blackburn, 127 V. S. 774, 8 S. Ct. 1395, 32 L. ed. 323 ; John- son v. Wilkins, 116 U. S. 392, 6 S. Ct. 600, 29 L. ed. 671; Agnew v. Dorman, Taney (U. S.) 386, 1 Fed. Cas. No. 100. Canada.— Ontario, etc., R. Co. v. Marche- terre, 17 Can. Supreme Ct. 141. See 3 Cent. Dig. tit. '" Appeal and Error," § 2311. Showing in bill of exceptions. — Where a bill of exceptions has been properly made part of the record, it may, upon a motion to dismiss a writ of error for want of jurisdiction, be looked to to ascertain the sufficiency or in- sufficiency of the jurisdictional amount. U. S. v. Hill, 123 U. S. 681, 8 S. Ct. 308, 31 L. ed. 275. 1. Connecticut. — Richards v. Eno, 23 Conn. 413. Illinois. — Piper v. Jaeobson, 98 111. 389. Kansas. — Atchison, etc., R. Co. v. Ander- son, 5 Kan. App. 707, 49 Pac. 108; Preston v. Barber Asphalt-Paving Co., 5 Kan. App. 882. 49 Pac. 97. Missouri. — Parlin, etc., Co. v. Hord, 145 Mo. 117, 46 S. W. 753. Texas. — Ray v. San Antonio, etc., R. Co., 18 Tex. Civ. App. 665, 45 S. W. 479. Exception — How shown. — The exception must be shown by judge's certificate (Packard v. Packard, 56 Kan. 132, 42 Pac. 335 ; Loomis v. Bass, 48 Kan. 26, 28 Pac. 1012; Missouri Pac. R. Co. v. Townsend, 8 Kan. App. 694, 56 Pac. 150), and such certificate must be incor- porated in the record itself. It is not suffi- cient if it is merely attached thereto (Missouri Pac. R. Co. v. Townsend, 8 Kan. App. 694, 56 Pac. 150 ; Sparks v. Sparks, 6 Kan. App. 750, 50 Pac. 973; Preston v. Barber Asphalt-Pav- ing Co., 5 Kan. App. 882, 49 Pac. 97 ; Atchison, etc., R. Co. v. Anderson, 5 Kan. App. 707, 49 Pac. 108 ) . Where the record on appeal does not show that the judgment passed on the con- stitutionality of a statute, statements to that effect in the briefs of counsel are insufficient to supply the deficiencies of the record. Par- lin, etc., Co. v. Hord, 145 Mo. 117, 46 S. W. 2. Broom's Succession, 14 La. Ann. 67; U S v Trans-Missouri Freight Assoc, 166 U S 290 17 S. Ct. 540, 41 L. ed. 1007 ; John- son v. Wilkins, 116 U. S. 392, 6 S. Ct. 600, 29 L- ed. 671. „ .„ nc „ ., 3. Missouri, etc., R. Co. v. Smith, 154 Mo. 300 55 S W. 470 ; Vansandt v. Hobbs, 153 Mo. 655^ 55 S. W. 147; Parlin, etc., Co. v. Hord, 145 Mo. 117, 46 S. W. 753. vol. n 1030 APPEAL AND ERROR appellant or plaintiff in error, as to some right or rights claimed by him, or the appeal or writ of error will be dismissed by the appellate court for want of jurisdiction. 4 4. Alabama. — Moses v. Katzenberger, ('Ala. 1887) 3 So. 302; Lister v. Vivian, 8 Port. (Ala.) 375. California. — In re De Leon, (Cal. 1893) 35 Pac. 309 ; Savings, etc., Soe. v. Meeks, 66 Cal. 371, 5 Pae. 624. Colorado. — Yuma County v. Lovell, 20 Colo. 80, 36 Pac. S78; Alvord v. MeGaughey, 5 Colo. 244; Northrop V. Jenison, 12 Colo. App. 523, 56 Pac. 187. Florida. — Ropes f. Eldridge, 39 Fla. 47, 21 So. 570 ; Vanhorne v. Henderson, 37 Fla. 354, 19 So. 659. Georgia. — Strolieeker r. Dessau, 72 Ga. 900; McAndrew v. Augusta Mut. Loan Assoc, 57 Ga. 607. Illinois. — Armstrong v. People, 74 111. 178 ; Arnold v. Kilchman, 76 111. App. 665; Adams v. Ellinger, 63 111. App. 479. Indiana. — -Etna L. Ins. Co. v. Benson, 142 Ind. 323, 40 N. E. 797: Grav r. Singer, 137 Ind. 257, 36 N. E. 209, 1109; Jeffersonville v. Tomlin, 7 Ind. App. 681, 35 N. E. 29. Iowa. — Perry v. Eeineger, 61 Iowa 750, 16 N. W. 136; MeKissiek r. Chandler, 58 Iowa 757, 12 N. W. 629. Kansas.—- Ft. Scott v. Deeds, 36 Kan. 621, 14 Pac. 268; Paul v. Whetstone, 28 Kan. 634; Russell r. Thompson, 1 Kan. App. 467, 40 Pac. 831. Louisiana. — Bynum v. Hamilton, 19 La. Ann. 446. Maryland. — Heiskell v. Rollins, 81 Md. 397, 32 Atl. 249. Minnesota. — Anderson v. Kittell, 37 Minn. 125, 33 N. W. 330. Mississippi. — Nelson v. Henderson, (Miss. 1895) 16 So. 911; Moody v. Nichol, 26 Miss. 109. Missouri. — State r. Wymer, 79 Mo. 277; Price r. Brown, 63 Mo. 347 ; Mills v. McDan- iels, 59 Mo. App. 331. Montana. — Brunell v. Logan, 16 Mont. 307, 40 Pae. 597. Nebraska. — New Home Sewing-Mach. Co. v. Thornburg, 56 Nebr. 636, 77 N. W. 86 ; Cas- ler v. Nordgren, 55 Nebr. 669, 76 N. W. 524. New Jersey. — Mershon v. Castree, 57 N. J. L. 484, 31 Atl. 602; Thompson v. Bowne, 39 N. J. L. 2. 'New York. — Ridgway v. Bacon, 68 Hun (N. Y.) 506. 22 N. Y. Suppl. 1016, 52 N. Y. St. 600. North Carolina. — Rosenthal e. Roberson, 114 N. C. 594, 19 S. E. 667; High v. Carolina Cent. R. Co.. 112 N. C. 385, 17 S. E. 79; Mer- ritt Milling Co. v. Finlay, 110 N. C. 411, 15 S. E. 4. Oklahoma. — Sproat v. Durland, 7 Okla. 230, 54 Pac. 458. Texas. — Hicks v. Gray, 25 Tex. 82; St. Louis, etc., R. Co. v. Wills, (Tex. Civ. App. 1895) 29 S. W. 431. Utah. — Voorhees v. Manti City, 13 Utah 435, 45 Pac. 564. Vol. n Washington. — Buckley v. Conley, 16 Wash. 338, 47 Pac. 735. Wisconsin. — Sayles v. Gudath, 9 Wis. 159; Blodget r. Hatfield, 5 Wis. 77; Wheeler v. Scott, 3 Wis. 362. United States. — Clarke v. McDade, 165 U. S. 168, 17 S. Ct. 284, 41 L. ed. 673. Canada. — Thompson v. Robinson, 16 Ont. App. 175; Grand Trunk R. Co. v. Amey, 20 U. C. C. P. 6. See 3 Cent. Dig. tit. "Appeal and Error," §§ 2285, 2286. Motion to dismiss in time if made on rehear- ing. — The writ of error must be dismissed when no final judgment is found in the record, notwithstanding the fact that the point was not raised until the rehearing of the cause. Savage v. State, 19 Fla. 561. Cause remanded for nunc pro tunc entry of order. — 'Where the record showed no judgment or order from which an appeal could have been taken, the cause was remanded for the pur- pose of allowing a nunc pro tunc entry of the order. Carter v. Elmore, 119 N. C. 296, 26 S. E. 35; Cameron v. Bennett, 110 N. C. 277, 14 S. E. 779. Judgment on demurrer. — The record must show the entry of a judgment sustaining a de- murrer. A mere showing in the record that the demurrer was sustained is insufficient. Highway Com'rs v. Rock Falls, 3 111. App. 464 ; Holloway v. Holloway, 20 Ind. 154 ; Reid v. Ramsay, (Can.) 6th June, 1879. Contra, Winfried r. Yates, Dall. (Tex.) 363, holding that, in order to authorize the supreme court to review a judgment sustaining or annulling a demurrer, it is not necessary that the record should show that there was such judgment. See also Taylor v. Coon, 79 Wis. 76, 48 N. W. 123, wherein it was held that, although a mo- tion to strike out a demurrer was noticed to be heard before the judge at chambers, yet an order made thereon which reads : " The court having heard the argument of the counsel of the respective parties, it is ordered that said demurrer be, and the same is hereby, strieken from the files in this action," will be deemed to have been made upon a hearing by the court and be held appealable. In New York an appeal from a final judg- ment overruling a demurrer will be dismissed when the appeal book fails to show a decision in writing of the issues of law raised by the demurrer, as required by N. Y. Code Civ. Proc. § 1010. Palmvra v. Wynkoop, 53 Hun (N. Y.) 82, 17 N. Y. Civ. Proc. 187, 6 N. Y. Suppl. 62, 24 N. Y. St. 824 ; McNulty v. Urban, 1 Misc. (N. Y.) 422, 21 N. Y. Suppl. 247, 50 N. Y. St. 565 [affirmed in 140 N. Y. 660, 35 N. E 893, 55 N. Y. St. 932]. Appeal from order for distribution of money. — An order for the distribution of money by a receiver may in some cases be a final judg- ment, but an appeal therefrom must present it as the final result of some proceeding, and 109. i. — Moodv v. Nichol, 26 Miss. APPEAL AND ERROR 1031 (n) Orders Affecting Judgment. Where an appeal is taken from an order allowing or denying a motion to modify, vacate, or otherwise affect the judgment the record must contain both the order and the judgment, or the appeal will be dismissed. 5 # (in) Mere Recital Insufficient. The judgment itself must be set out in the record proper, and its absence is not supplied by a mere recital in the bill ot exceptions, or other part of the record, that judgment has been entered ; 6 nor the record must show what such proceeding is. Adams v. Woods, 21 Cal. 165. Remittitur must appear in the record. — Where a judgment was rendered for a greater amount than claimed by the petition, the rec- ord must show that the remittitur was entered before the judgment was signed, and it should appear in the transcript. It is not sufficient that it appears, from a document attached to appellee's answer to the appeal, to have been filed in the recorder's office. Gantt v. Eaton, 25 La. Ann. 507. 5. Savings, etc., Soc. v. Meeks, 66 Cal. 371, 5 Pae. 624 ; Barthe v. New Orleans, McGloin (La.) 80; Brunell v. Logan, 16 Mont. 307, 40 Pae. 597 ; La Selle v. Nicholls, 56 Nebr. 458, 76 X. W. 870. Failure to indicate the page and line of the record in which a. motion to modify the judg- ment and ruling thereon appear will raise a presumption on appeal that such motion and ruling have not been embodied in the record. Martin v. Marks, 154 Ind. 549, 57 N. E. 249. Grounds of motion. — Whether or not a pro- ceeding to vacate an order allowing a claim against a decedent's estate was based on Nebr. Code, § 602, subsec. 3, providing for vacation of judgment in certain cases, is to be deter- mined from the grounds upon which the appli- cation is based, as disclosed by the record on appeal. McKenna v. McCormick, 60 Nebr. 595, 83 N. W. 844. In contempt proceedings, where an appeal is taken from the judgment of the chancellor in forcing a decree in an attachment for con- tempt, and neither the record nor the bill of exceptions sets forth such decree, the judg- ment of the chancellor will be affirmed. Gunn v. Calhoun, 51 Ga. 501. Where the record shows that two decrees were entered, the latter one being different from the first, plaintiff, on his appeal from an order overruling his motion to strike out the second decree, is not entitled to a reversal of the judgment when there is no showing in the record to sustain his assertion that the second decree was not signed until after the adjourn- ment of the term. Dickerman v. Lubiens, 70 Iowa 345, 30 N. W. 610. 6. Recital in bill of exceptions is insufficient. California. — In re De Leon, (Cal. 1893) 35 Pae. 309. Colorado. — Yuma County v. Lovell, 20 Colo. 80, 36 Pae. 878 ; Alvord v. MeGaughey, 5 Colo. 244. .Florida. — Vanhorne v. Henderson, 37 Fla. "354, 19 So. 659; Tunno v. International P., etc., Co., 34 Fla. 300, 16 So. 180. Illinois. — Alton Lime, etc., Co. v. Calvey, 47 111. App. 343. Indiana. — Gray v. Singer, 137 Ind. 257, 36 N. E. 209, 1109. Missouri. — Matter of Spencer, 61 Mo. 375. Wisconsin. — Sayles v. Gudath, 9 Wis. 159. United States. — Clarke v. McDade, 165 TJ. S. 168, 17 S. Ct. 284, 41 L. ed. 673. Recital in notice of appeal is insufficient. — Eidgway v. Bacon, 68 Hun (N. Y.) 506, 22 N. Y. Suppl. 1016, 52 N. Y. St. 600. Memorandum of clerk that " judgment was rendered in favor of the plaintiff for dollars and costs," is not the record of a final judgment; it is the mere saying of the clerk — not the consideration of the court. Whee- ler v. Scott, 3 Wis. 362. Memorandum of judge. — Where the judg- ment of the court does not appear save in the minutes and memoranda of the judge in his own docket, kept for his personal convenience and which the law does not require him to keep, the appeal will be dismissed. Launtz v. Heller, 41 111. App. 528. Recital in petition in error. — Where there ia no showing in the record of any final disposi- tion of the case, and the only allegation in the petition in error is " that the District Court erred in overruling the motion for the defend- ant below to quash a summons and dismiss the action," there is nothing for the court to review. Simpson v. Stein, 43 Kan. 35, 22 Pae. 1020. Judgment in papers not part of record.— • Where the only judgment of the lower court found in the record is among papers purport- ing to be the evidence, affidavits, and journal entries attached to the case-made, but not made a part thereof by reference, signature, or otherwise, the appeal must be dismissed. Bell v. Coffin, 51 Kan. 684, 685, 33 Pae. 296, 621. Recital in transcript is insufficient. John- son v. McFall, 61 Mo. 413. See, contra, Dens- low v. Moore, 2 Day (Conn.) 12, wherein it was held that, where the record on appeal from the judgment of the superior court contained a recital in these words : " Appeal from a de- cree of a Court of Probate, held at Hartford in the District of Hartford on the 8th day of June, 1801, approving the last will and testa- ment of Keziah Barber," this was a suffi- cient showing as to what decree of the probate court was appealed from, and would supply a deficiency in the record caused by the absence of the decree itself. Recital in appeal bond held sufficient. — Where, on an appeal to the supreme court in a cause originating in a justice's court, the justice's judgment did not appear in the rec- ord otherwise than by recital in the bond for appeal to the circuit court, it was held that this was sufficient to show that judgment had been rendered, especially in view of the fact that the party taking the appeal suffered judg- Vol. II 1032 APPEAL AND ERROR with the incorporation in the bill of exceptions of the judgment itself cure such omission from the record proper. 7 (iv) Verdict on Finding of Facts Doss Not Supply Absence of Judgment. The presence of the judgment is essential, even though the record contains a copy of a rule for judgment, 8 or the verdict of the jury, 9 or, in a trial without the intervention of a jury, the judge's findings of fact and conclusions of law. 10 (v) Effect of Judgment Against Some Parties Only. It seems, how- ever, that where there is a decree in the record, which fails to dispose of the cause as to some of defendants, the cause will be remanded, and not dismissed. 11 2. Jurisdiction of Inferior Court — a. Intermediate Court. In proceedings to review the judgment of an intermediate court the jurisdiction of such court must appear from the record, which must show the rendition of a judgment in the trial court, 12 and the taking and perfection of an appeal therefrom to such inter- mediate court within the time required by law. 18 b. Trial Court — (i) In General. On appeal or writ of error, all the facts essential to sustain the jurisdiction of the trial court must be shown affirmatively by the record, 14 particularly when the court whose judgment is under review is ment by default to be taken against him in the circuit court. McAlpin v. Pool, Minor (Ala.) 316. 7. Northrop v. Jenison, 12 Colo. App. 523, 56 Pac. 187. 8. Thompson v. Bowne, 39 N. J. L. 2. 9. Alabama. — Wagon v. Keenan, 77 Ala. 519. Illinois. — Harrison v. Singleton, 3 111. 21. Iowa. — McKissick n. Chandler, 58 Iowa 757, 12 N. W. 629; Heath v. Groce, 10 Iowa 591. Mississippi. — Parrott v. Poppenheimer, (Miss. 1895) 16 So. 911. Missouri. — Dale v. Copple, 53 Mo. 321. 10. Im re De Leon, (Cal. 1893) 35 Pac. 309; Yuma County v. Lovell, 20 Colo. 80, 36 Pac. 878 ; Alvord V. McGaughey, 5 Colo. 244 ; ^Etna L. Ins. Co. ». Benson, 142 Ind. 323, 40 N. E. 797. 11. County Com'rs v. Reeves, 5 111. App. 606. Compare Amsterdam First Nat. Bank v. Miller. 163 N. Y. 164, 57 N. E. 308 [revers- ing 24 N. Y. App. Div. 551, 49 N. Y. Suppl. 981], where the judgment of the lower court was affirmed without prejudice to the right of the party whose interests were not disposed of to bring an action for the adjudication of such interests. 12. Andrews v. Wallace, 72 Miss. 291, 16 So. 204; Wilkes v. Cornelius, 21 Oreg. 341, 23 Pac. 473; Spanish Fork City v. Thomas, 4 Utah 485, 11 Pac. 667. 13. Arkansas. — Merrill v. Manees, 19 Ark. 647. Maryland. — Cox v. Bryan, 81 Md. 287, 31 Atl. 447, 852. Mississippi. — Parrott v. Poppenheimer, (Miss. 1895) 16 So. 911; Crapoo v. Grand Gulf, 9 Sm. & M. (Miss.) 205. Missouri. — Tarwater v. Long, 36 Mo. App. 182. Oregon. — Wilkes v. Cornelius, 21 Oreg. 341, 23 Pac. 473. Texag. — Merrick v. Rogers, (Tex. Civ. App. 1898) 46 S. W. 370; Osborne v. Ayers, (Tex. Vol. II Civ. App. 1895) 32 S. W. 73. Compare Shiner v. Shiner, 14 Tex. Civ. App. 489, 40 S. W. 439 ; Bledsoe v. Gulf, etc., R. Co., 6 Tex. Civ. App. 280, 25 S. W. 314. Utah. — Spanish Fork City v. Thomas, 4 Utah 485, 11 Pae. 667. Contra, Beecher v. Conradt, 3 Abb. Dec. (N. Y.) 1 note, 11 How. Pr. (N. Y.) 181. Need not show undertaking on appeal. — Un- der Nebr. Code, § 1007, which provides that the giving of an undertaking by appellant, and its approval by the justice, are necessary to confer jurisdiction on the district court of an appeal from a justice, a judgment of the district court will nit be enjoined for want of jurisdiction, on a petition which alleges that the record does not show that an undertaking was filed, but does not allege that none was filed. Johnson v. Van Cleve, 23 Nebr. 559, 37 N. W. 320. 14. Illinois. — Miller v. Glass, 14 111. App. 177. Indiana. — Fountain County v. Coats, 17 Ind. 150. Missouri. — Cooper v. Barker, 33 Mo. App. 181. New York. — Tyroler ». Gummersbach, 28 Misc. (N. Y.) 151, 59 N. Y. Suppl. 266, 319. But the rule stated does not necessarily re- quire that the jurisdiction be set out in the- complaint and summons in such a case. Clyde, etc., Plank Road Co. v. Parker, 22 Barb. (N. Y.) 323. North Carolina. — State v. Preston, 104 N. C. 735, 10 S. E. 85; Bethea v. Byrd, 93 N. C. 141. ' Texas. — Lane v. Doak, 48 Tex. 227 ; Miller v. City Bank, 1 Tex. App. Civ. Cas. § 1287. See 3 Cent. Dig. tit. "Appeal and Error," § 2282. The whole record must be considered, how- ever, in determining whether the court below had jurisdiction, and the fact that the judg- ment entry does not show jurisdiction does not. warrant the conclusion that it did not exist. Brown v. Woody, 64 Mo. 547. APPEAL AND ERROR 1033 one of inferior and limited or of special jurisdiction, 15 or where proceedings are authorized by statute only, and are unknown to the common law 16 (a) Convention and Constitution of Court. The record on appeal or error is fatally defective if it fails to show that the lower court was duly con- vened atthe time and place and in the manner prescribed by law," and that it was presided over by the judge or judges lawfully designated for that purpose. 18 When a cause is tried by a special judge, the record must show affirmatively that he was legally selected and qualified. 19 15. Alabama. — Wilson v. Wilson, 36 Ala. 655 ; Talladega v. Thompson, 18 Ala. 694. Georgia. — Macon, etc., R. Co. v. Davis, 13 Ga. 68. Kentucky. — Hare v. Bryant, 7 J. J. Marsh. (Ky.) 375. Michigan. — Wight v. Warner, 1 Dougl. (Mich.) 384. New York. — Frees v. Ford, 6 N. Y. 176. Virginia. — Hill v. Pride, 4 Call (Va.) 107. West Virginia. — Yates v. Taylor County Ct., 47 W. Va. 376, 35 S. E. 24. Municipal court of the city of New York. — The jurisdiction of the municipal court of the city of New York will be sustained on appeal to the supreme court, appellate term, though the record does not show that defendant was a resident of the city of New York. Moore v. Rankin, 33 Misc. (N. Y.) 749, 67 N. Y. Suppl. 179, wherein, defendant having contended to the contrary, the court said : " Since the de- cision of the cases referred to by counsel for the appellant, this court has held that it is not necessary that the record should show that the defendant was a resident of the city of New York in order to sustain the jurisdiction of the court below." The case referred to by the court is Masu r. Blumenstein, 32 Misc. (N. Y.) 691, 66 N. Y. Suppl. 449 [following Worthington v. London Guarantee, etc., Co., 164 N. Y. 81, 58 N. E. 102]. 16. Levert v. Planters, etc., Bank, 8 Port. (Ala.) 104; Bates r. Planters', etc., Bank, 8 Port. (Ala.) 99; Wight v. Warner, 1 Dougl. (Mich.) 384. 17. The record should show the style of the court, the day when, and the place where, it was convened, the judge who presided, and what other officers were present (Skinner v. Beshoar, 2 Colo. 383 ; McDonald v. Penniston, 1 Nebr. 324; Jones v. Hoggard, 107 N. C. 349, 12 S. E. 286) ; and, where the record on appeal contains no placita or convening order of the court, the judgment will be reversed (Keller v. Brickey, 63"lll. 496; Planing Mill Lumber Co. v. Chicago, 56 111. 304; Chicago v. Bren- nan, 61 111. App. 247 ; High v. Carolina Cent. R. Co., 112 N. C. 385, 17 S. E. 79; State v. Preston, 104 N. C. 735, 10 S. E. 85). Must show place properly selected. — Where it appears from the record that the court was not held at the place designated by law, and it nowhere appears that the place where it was held had been properly selected, the judgment must be reversed. Baisley v. Baisley, 15 Oreg. 183, 13 Pae. 888. Where commissioners are appointed by the court to settle the estate of a decedent, the commission must appear in the record, and its existence and legality cannot be supplied by intendment or by recital in the minutes of the clerk of the county court or by the report of the commission itself. Lister v. Vivian, 8 Port. (Ala.) 375. 18. Skinner v. Beshoar, 2 Colo. 383; Keller v. Brickey, 63 111. 496; McDonald v. Penniston, 1 Nebr. 324; State v. Preston, 104 N. C. 735, 10 S. E. 85. Discrepancy as to name of judge. — Where the placita in the record, on an appeal from the county court, shows that one S is " the sole presiding judge " of that court, while the bill of exceptions shows that the case was tried before B, " one of the judges of said court," the judgment must be reversed for want of. jurisdiction in B. Stubbings v. Evanston, 156 111. 338, 40 N. E. 966. Where the various steps are taken before different judges, in the superior court of Cook county, the record should show what was done by each judge, and that he acted alone in that particular. Courson v. Browning, 78 111. 208. Compare Jones v. Albee, 70 111. 34, which holds that in cases coming from the courts of Cook county, the record should show that the court was held by one judge only, who should be the one before whom the cause was tried, and who should sign the bill of exceptions in ac- tions at law, and sign the decree and certify the evidence in suits of equity. Presumption when record shows opening by proper authority. — On an appeal from the county court the record must show that at least three judges were present to hold the court; but if it appear that three judges opened court it will be inferred that they con- tinued to hold it, notwithstanding an adjourn- ment. State' v. King, 27 N. C. 203. To same effect see Christian v. Ashley County, 24 Ark. 142. 19. Wall v. Looney, 52 Ark. 113, 12 S. W. 202; Worsham v. Murchison, 66 Ga. 715; Merrick v. Rogers, (Tex. Civ. App. 1898) 46 S. W. 370. Must show disqualification of regular judge. — In Iowa, on an appeal from a judgment rendered by the clerk of the county court, acting as judge, it must appear from the rec- ord that both the judge and the prosecuting attorney of the county were incapacitated from discharging the duties of the office. Burlington University v. Stewart, 12 Iowa 442. Must show why cause was tried before spe- cial judge. — When a, cause is tried before » special judge, the record must show how he became special judge, and why the cause was assigned to him for trial. Lane v. Doak, 48 Tex. 227; Brinkley v. Harkins, 48 Tex. 225. When oath sufficient.— When the record Vol. II 1034 APPEAL AND ERBOB (m) Jurisdiction of tee Parties — (a) Issuance and Service of Process or Waiver and Appearance. A judgment by default will be reversed unless the record shows that the trial court acquired jurisdiction of defendant by the due issuance and service of appropriate process, 20 or by defendant's appearance. 21 (b) Process and Return Must Be Copied Into Record. The summons and return, where there was personal service, and the affidavits for, order of, and proof of, publication, where there was service by publication, must be copied into the record ; M and, in their absence, service cannot be shown by a mere recital in the record. 23 shows affirmatively " that the oath pre- scribed by law was duly administered to the special judge before whom the cause was tried," it is sufficiently shown that he took the oath prescribed by the constitution. D'Ar- rigo v. Texas Produce Co., 18 Tex. Civ. App. 41, 44 S. W. 531. Notice to special judge need not be shown in record where he is called upon to preside, under the provisions of the Indiana act of 1855, in the place of another judge who is disquali- fied; and the notice given to him by such dis- qualified judge, being simply to secure his at- tendance, is not part of the record necessary to show jurisdiction. The special judge de- rives his authority from the statute and not from the notice given him by the dis- qualified judge. Benjamin v. Evansville, etc., R. Co., 28 Ind. 416. 20. Alabama. — Cook v. Rogers, 64 Ala. 406; Dow v. Whitman, 36 Ala. 604. California. — Houghton v. Tibbets, 126 Cal. 57, 58 Fac. 318. Idaho. — Applington v. G. V. B. Min. Co., (Ida. 1898) 55 Pac. 241. Illinois. — Randall v. Songer, 16 111. 27; Miller v. Glass, 14 111. App. 177. Indiana. — Cincinnati, etc., R. Co. v. Cal- vert, 13 Ind. 489 ; New Albany, etc., R. Co. v. Welsh, 9 Ind. 479. Louisiana. — Bouligny v. White, 5 La. Ann. 31. Mississippi. — Houston v. Black, (Miss. 1894) 14 So. 529. North Carolina. — Jones v. Hoggard, 107 N. C. 349, 12 S. E. 286. Texas. — Burditt v. Howth, 45 Tex. 466; Gulf, etc., R. Co. v. Eastham, (Tex. Civ. App. 1899) 54 S. W. 648. Contra, Davidson v. Farrell, 8 Minn. 258, holding that it will be presumed that defend- ant was properly in court, unless the record shows affirmatively that he was not. See 3 Cent. Dig. tit. "Appeal and Error," § 2284. Recital as to calling of defendant. — A judg- ment by default is not reversible because the record fails to show that defendant was sol- emnly called and came not. Hart v. Flynn, 8 Dana (Ky.) 190. A statement in the record that " defend- ants were severally called but came not, nor either of them," shows that they were not present by attorney or otherwise, even though one of the defendants was a corporation. Union Pac. R. Co. v. Horney, 5 Kan. 340. 21. Arkansas. — Davis v. Whittaker, 38 Ark. 435. Vol. II Florida. — Anderson v. Agnew, 38 Fla. 30, 20 So. 766.. Indiana. — Fee v. State, 74 Ind. 66; Symmes v. Major, 21 Ind. 443. Iowa. — Cooper v. Miller, 10 Iowa 532. Louisiana. — Bouligny v. White, 5 La. Ann. 31. Mississippi. — Houston v. Black, (Miss. 1894) 14 So. 529. North Carolina. — Jones v. Hoggard, 107 N. C. 349, 12 S. E. 286. Texas. — McMickle v. Texarkana Nat. Bank, 4 Tex. Civ. App. 210, 23 S. W. 428. Wisconsin. — Upper Mississippi Transp. Co. v. Whittaker, 16 Wis. 220. See 3 Cent. Dig. tit. "Appeal and Error," § 2284. Appearance of infant by attorney. — On an appeal in a motion to set aside a judgment the appellate court will not review the refu- sal of the lower court to correct an alleged error consisting of the fact that defendant, who was an infant, appeared by attorney in- stead of by guardian, unless the original rec- ord is brought up. Mains v. Cosner, 67 111. 536. 22. Alabama. — Cook v. Rogers, 64 Ala. 406; Dow v. Whitman, 36 Ala. 604. California. — Hibernia Sav., etc., Soc. v. Matthai, 116 Cal. 424, 48 Pac. 370; Kahn v. Matthai, 115 Cal. 689, 47 Pac. 698. Illinois. — Wenner v. Thornton, 98 111. 156; Randall v. Songer, 16 111. 27 . Indiana. — Fee v. State, 74 Ind. 66 ; Cincin- nati, etc., R. Co. v. Calvert, 13 Ind. 489. Kentucky. — Mims v. Mims, 3 J. J. Marsh. (Ky.) 103. Texas. — Burditt v. Howth, 45 Tex. 466; McMickle v. Texarkana Nat. Bank, 4 Tex. Civ. App. 210, 23 S. W. 428. See 3 Cent. Dig. tit. "Appeal and Error," § 2284. 23. Alabama. — Dow v. Whitman, 36 Ala. 604. California. — Houghton v. Tibbets, 126 Cal. 57, 58 Pac. 318. Compare Lick v. Stockdale, 18 Cal. 219. Illinois. — Randall v. Songer, 16 111. 27. Indiana. — Fee v. State, 74 Ind. 66 ; Cincin- nati, etc., R. Co. v. Calvert, 13 Ind. 489. Kentucky.— Mims v. Mims, 3 J. J. Marsh. (Ky.) 103. Mississippi. — Houston v. Black, (Miss. 1894) 14 So. 529. Texas. — Burditt v. Howth, 45 Tex. 466. Contra, White v. Smith, 63 Ark. 513, 39 S. W. 555 (holding that a recital is sufficient under Sandels & H. Dig. Ark. § 4191) ; Hun- APPEAL AND ERROR 1035 _ (iv) Jurisdiction of Subject -Matter. Where the subject-matter of the litigation is real estate, the record must show that the trial court had jurisdiction thereof. 24 (v) Jurisdictional Amount. "Where the jurisdiction of the trial court is dependent upon the amount involved, the record must show affirmatively that the amount in controversy is sufficient to confer jurisdiction. 25 3. Proceedings Sustaining Judgment, Order, or Decree — a. In General. The record must show that the action was properly constituted in the court below, 26 and was legally maintainable by the judgment plaintiff 27 against the judgment defendant. \Where the proceedings under review are summary in their nature, or are purely statutory, or are in derogation of the common law, or involve extraordinary remedies, the record must, as a general rule, show affirmatively everything necessary to sustain the judgment, decree, or order of the trial court. 29 It has been held that the record, in an action of tort, must show that the assess- ment of damages was founded on evidence, 80 and that any material admission made by counsel at the trial must appear in the record. 31 b. Pleadings and Joinder and Submission of Issue. It is essential that the pleadings should be set out in the record, 32 a mere recital in the record of the fact ter v. Spotswood, 1 Wash. (Va.) 145 (holding that a showing of proof of publication in a chancery decree is sufficient ) . 24. Snitjer ;;. Downing, 80 Mo. 586. Com- pare Sehad v. Sharp, 95 Mo. 573, 8 S. W. 549. 25. Gulf, etc., R. Co. v. Buford, 85 Tex. 430, 21 S. W. 678; Northern Pac. R. Co. v. Walker, 148 U. S. 391, 13 S. Ct. 650, 37 L. ed. 494. „ , 26. Markham v. Hicks, 90 N. C. 1 ; Gordon v. Sanderson, 83 N. C. 1. 27. Connell V. Brown, 17 La. Ann. 111. 28. Spence v. Rutledge, 11 Ala. 557; Brit- ton v. Scott, 21 La. Ann. 112. 29. Alabama. — Jemison v. Planters, etc., Bank, 17 Ala. 754; Hill v. State Bank, 5 Port. (Ala.) 537. Compare Barnett v. Riser, 63 Ala. 347. Illinois.— Campbell v. People, 22 111. 234 (scire facias on judgment) ; Culbertson v. Galena, 7 111. 129 (judgment based upon an ordinance) ; Siegel v. Schueck, 60 111. App. 429 (garnishment proceedings) ; Parker v. Singer Mfg. Co., 9 111. App. 383 (damages on dissolution of injunction). Indiana. — Henrie v. Sweasey, 5 Blackf. (Ind.) 273, foreign attachment. Tennessee.— Rothchilds v. Forbes, 2 Heisk. (Tenn.) 13, holding that an entry of record, showing that a motion to dismiss a certiorari is disposed of, is sufficient to show that the motion was made, though no entry appears of record to that effect. Wisconsin. — Milwaukee Harvester Co. v. Teasdale, 91 Wis. 59, 64 N. W. 422, holding that an objection, urged for the first time on appeal, that the petition for certiorari from the circuit court to the justice's court was defectively specified, and that the writ itself did not appear to have been allowed by the judge, must be affirmatively supported by the record; and that if the record is silent the objection will not be sustained. '30. Boswell v. St. Louis, etc., R. Co., 16 Mo. 470; Snider v. St. Louis, etc., R. Co., 16 Mo. 465. 31. Advance Elevator, etc., Co. v. Eddy, 16 111. App. 263. Contra, Byers v. Rothschild, 11 Wash. 296, 39 Pac. 688. 32. California. — Todd v. Winants, 36 Cal. 129; Hart v. Plum, 14 Cal. 148. Georgia. — Slater v. Mams, 60 So. 594. Illinois. — Road District No. 3 v. Miller, 156 111. 221, 40 N. E. 447 ; Olsen v. Crescio, 10 111. App. 541; Wakefield v. Pennington, 9 111. App. 374. Indiana. — Geisen v. Reder, 151 Ind. 529, 51 N. E. 353, 1060; Marsh v. Bower, 151 Ind." 356, 51 N. E. 480; Reid v. Reid, 149 Ind. 274, 49 N. E. 2. But see Bonsell v. Bonsell, 41 Ind. 476 (holding that the fact that no com- plaint appears in the record is not ground for reversal where the record showed that a com- plaint was filed, but the clerk certified that no complaint appeared on file) ; and Emerson v. Opp. 9 Ind. App. 581, 34 N. E. 840, 37 N. E. 24 (holding that where an answer has been treated and considered part of the record throughout the trial, it will be so considered on appeal, though it is not made a part of the record by an order-book entry). Iowa. — Perry v. Reineger, 61 Iowa 750, 16 N. W. 136. Kentucky. — Chambers v. Simpson, 1 T. B. Mon. (Ky.) 112. But see Gill v. Warren, 1 J. J. Marsh. (Ky.) 590, holding that a plea of non assumpsit need not be spread upon the record. Maryland.— Scholls v. Shriner, 3 Harr. & J. (Md.) 490. Missouri. — Thomason v. St. Louis, etc., R. Co., 74 Mo. 560. Nebraska.— Calmelett v. Sichl, 54 Neb. 97, 74 N W 407; Smith v. People's Bldg., etc., Assoc, 52 Nebr. 445, 72 N. W. 486. New York. — Roberts v. Jenkins, 52 JS. Y. App. Div. 491, 65 N. Y. Suppl. 385. North Carolina. — Cox v. Jones, 110 JN. U 309, 14 S. E. 782; Bethea v. Byrd, 93 N. C. 14l'; Williamson v. Rainey, 10 N. C. 9. Pennsylvania.— Ritchie v. Hastings, 2 Yeates (Pa.) 433. Vol. II 1036 APPEAL AND ERROR they were filed being wholly insufficient, 33 although in most cases, where counsel so agree, a summary will answer every purpose ; u and, where there was a trial below on the merits, the record must show a joinder and submission of issue, in order that the appellate court may ascertain the nature and state of the case, issue, or question which the parties submitted for trial or decision in the lower court. 35 e. Stipulation Waiving Jury. In jurisdictions where the right to trial by jury must be expressly waived, the written stipulation of the parties waiving the jury must appear in the record. 36 d. Selecting, Impaneling, and Swearing of Jury. The record must show that the jury were duly selected, impaneled, and sworn, in the manner and form required by law, to try the issues submitted to them. 37 Wisconsin. — Eaton v. Patchin, 20 Wis. 485. Canada. — Murphy v. Northern R. Co., 13 U. C. C. P. 32. Contra, Davidson v. Farrell, 8 Minn. 258 [followed in Libby v. Husby, 28 Minn. 40, 8 N. W. 903], wherein it was held that, unless the record shows to the contrary, it will be presumed that there were proper pleadings, it being incumbent upon plaintiff in error to show affirmatively by the record that there were in fact no pleadings. See 3 Cent. Dig. tit. "Appeal and Error," § 2289. Affidavit for appointment of receiver. — Upon an appeal from an interlocutory order appointing a receiver without notice, upon causes shown by affidavit, it is necessary that the affidavit as well as the complaint be made a part of the record. Stewart v. Adam, etc., Co., (Ind. 1899) 55 N. E. 760. Proposed answer on decree pro confesso. — Upon an appeal from an order setting aside, or refusing to set aside, a decree pro confesso or a judgment by default, the answer pro- posed to be filed by defendant must be set out in the record, or the appellate court will not review the question presented thereby (Petti- grew v. Sioux Falls, 5 S. D. 646, 60 N. W. 27 ; Wilson v. Waters, 7 Coldw. (Tenn.) 323), and even though copied into the transcript it is not part of the record unless made so by a bill of exceptions (Wilson v. Waters, 7 Coldw. (Tenn.) 323). Where counts to the complaint are with- drawn by plaintiff the record should show the withdrawal by an entry on the record proper, and it should not be left to be shown by the bill of exceptions only. Alabama Great Southern R. Co. v. Burgess, 114 Ala. 587, 22 So. 169. 33. Collins v. U. S. Express Co., 27 Ind. 11; Chambers v. Simpson, 1 T. B. Mon. (Ky.) 112. But see Gill v. Warren, 1 J. J. Marsh. (Ky.) 590, to the effect that a note of the general issue being filed is sufficient. See also infra, XIII, A, 5. A mere allegation that issue was joined is insufficient. Nye v. Wright, 3 111. 222. 34. Todd v. Winants, 36 Cal. 129. See also Lawton v. Eagle, (Kan. App. 1900) 61 Pac. 868. 35. Clagget v. Foree, 1 Dana (Ky.) 428; Smith v. MeGlasson, 7 J. J. Marsh. (Ky.) 154; Marion Mach. Works v. Craig, 18 W. Va. 559. Vol. n Sufficient showing of submission. — A rec- ord, where part of defendants made default and the others answered, showing that " this cause is submitted to the court for trial on the complaint, default, and exhibits herein filed, and after examining and deliberating the court finds," etc., sufficiently shows, on ap- peal to the supreme court, a submission of the cause for trial as to defendants who had an- swered, on the default of those who had not. Heavenridge 13. Nelson, 56 Ind. 90. Ambiguity as to issue decided.— Where a. judgment was rendered in a suit for divorce, with which was also coupled a rule for ali- mony, the record leaving it in doubt whether the issue disposed of was the question of ali- mony or the divorce itself, the judgment should be reversed and the cause remanded. Reddy v. Carroll, 47 La. Ann. 1135, 17 So. 695. Failure to decide issue submitted. — A mo- tion to dismiss a writ of error, on the ground that one of the issues did not appear by the record to have been decided, will be denied when the issue which was found by the jury made the plea upon which no issue appeared to have been decided immaterial. Dufaur v. Couprey, 6 Pet. (U. S.) 170, 8 L. ed. 359. Where a case involves questions both in law and equity, it should appear distinctly from the record that the issues on the equity side of the court were first tried and disposed of; or, if the whole action and all the issues were submitted and brought together, that fact should appear upon the record. Martin v. Zellerbach, 38 Cal. 300, 99 Am. Dec. 365. 36. Bond v. Dustin, 112 U. S. 604, 5 S. Ct. 296, 28 L. ed. 835 [followed in Spalding v. Manasse, 131 U. S. 65, 9 S. Ct. 649, 33 L. ed. 86] ; Alexander County v. Kimball, 106 U. S. 623, 2 S. Ct. 86, 27 L. ed. 311; Duncan v. Atchison, etc., R. Co., 72 Fed. 808, 44 U. S. App. 427, 19 C. C. A. 202; and see 3 Cent. Dig. tit. "Appeal and Error," § 2290. In Missouri a showing in the record of an oral waiver is sufficient. Batterton v. Sims, 73 Mo. App. 351. 37. Neal v. Peevey, 39 Ark. 337 ; McDaniel v. Hanauer, 25 Ark. 48; Irwin v. Jones, 1 How. (Miss.) 497; Beall v. Campbell, 1 How. (Miss.) 24. But see Perdue v. Burnett, Minor (Ala.) 138; Goyne v. Howell, Minor (Ala.) 62 (holding that the record need not show that the jury were sworn) ; and Rear- den v. Smith, 36 111. 204 (holding that the APPEAL AND ERROR 1037 e. Assessment of Damages Upon Default. Whenever there is a statute or a rule of practice requiring that proof shall be heard before rendition of judgment, upon defendant's default, it is essential that the record. should show compliance with such statute or rule of practice. 38 f. Verdict. Where there was a trial by jury, the record must show what the verdict of the pry was. 39 g. Findings of Fact and Conclusions of Law. Where there was a trial with- out the intervention of a jury, the record on appeal or error must disclose the trial judge s findings of fact and conclusions of law, 40 and must show that they were signed by the judge, 41 and filed with the clerk. 43 It is usually required that the findings of fact and the conclusions of law should be stated separately. 43 A appellate court, in the absence of anything in the record showing the contrary, will pre- sume that the proceedings are regular ) . See 3 Cent. Dig. tit. "Appeal and Error," § 2291. When necessity of jury must be shown. — In proceedings on a petition by the vendee of real estate to compel the personal representa- tive of his deceased vendor to make him a title, the testimony showing the necessity for n jury must be spread upon the record, as the orphans' court has no power to impanel a jury unless a real doubt arises as to some dis- puted fact. Driver v. Hudspeth, 16 Ala. 348. 38. Alabama. — Crosby v. Brantly, 20 Ala. 287. Florida. — Snell v. Irvine, 17 Fla. 234. Kentucky. — Mead v. Nevill, 2 Duv. (Ky.), 280; Marr v. Prather, 3 Mete. (Ky.) 196. Louisiana. — Escurieux v. Chapduc, 4 Rob. Bell real estate to pay debts, need not Zl I X« X d ™T mstamm S the judgment;" nor is it necessary for the rec- ™H™ f.T I i/^T 06 ^ whlch the court acted in rendering judgment on motion m behalf of the secunty against his principal in a summary proceeding* It has been held, on the other hand, that the record must show sufficient evidence to prove the material facts at issue constituting the gist of the action m e. In Equity Suits. A decree in equity will be reversed, upon appeal or error, ^.u^?°l d does not P reserv e sufficient evidence to sustain it,® either by cer- tificate, 81 bill of exceptions, 63 or by recitals in the decree itself. 63 d. Filing Longhand Manuscript of Evidence. Some statutes authorize the 57. Bree v. Bree, 51 111. 367. 58. Reading v. Holton, Hard. (Ky.) 63. 59. Illinois. — Wisner v. Kelley, 16 111. Add. 403. FF Indiana. — Westervelt v. National Paper, etc., Co., 154 Ind. 673, 57 N. E. 552; Roberts v. Lindley, 121 Ind. 56, 22 N. E. 967. Iowa.— Dickinson v. Athey, 96 Iowa 363, 65 ST. W. 326. Louisiana. — Breard v. Blanks, 51 La. Ann. 1507, 26 So. 618; Florance v. MeFarlane, 15 La. 231. Mississippi. — Officers of Court v. Port Gib- son Bank, 4 Sm. & M. (Miss.) 431. Missouri. — Chandler v. Bailey, 89 Mo. 641, 1 S. W. 745. Nebraska. — Missouri Pac. R. Co. v. Hays, 15 Nebr. 224, 18 N. W. 51.. North Carolina. — Whiehard v. Wilmington, etc., R. Co., 117 N. C. 614, 23 S. E. 437. Pennsylvania. — Litz v. Kauffman, 2 Walk. (Pa.) 227. Tennessee. — Bird v. Fannon, 3 Head (Tenn.) 12. Texas. — Mason v. Rodgers, 83 Tex. 389, 18 S. W. 811; Finlay v. Jackson, (Tex. Civ. App. 1897) 43 S. W. 310. See 3 Cent. Dig. tit. "Appeal and Error," § 2322. Sufficient statement as to evidence. — In an action brought to try the right to an office, if the record shows in any manner that all the election returns were given in evidence, the judgment will not be reversed by the appellate court even though there is no formal state- ment in the record that such returns were all in evidence. People v. Holden, 28 Cal. 123. Evidence before trial court but not in rec- ord. — The fact that certain schedules referred to in a master's report, and filed with it, do not appear in the record on appeal is no ground for reversing the decree where it is clear that the schedules were before the trial court. Snell v. De Land, 138 111. 55, 27 N. E. 707. Assertions of counsel. — Mere assertions made by counsel on appeal, unsupported by evidence in the record, will not be considered as evidence by the appellate court. Adams v. Saverv House Hotel Co., 107 Wis. 109, 82 N. Wi 703. Evidence which cannot possibly affect the issue to be passed upon by the appellate court need not be set out in the record. Ohio, etc., R. Co. v. Bath, 11 Tnd. 538. Cherokee claims. — The evidence should be included in the record on an appeal, from the court of claims, relating to the Cherokee claims. U. S. v. The Old Settlers, 148 U. S. 427, 13 S. Ct. 650, 37 L. ed. 509 [following Harvey v. TJ. S., 105 U. S. 671, 26 L. ed. 60. Alabama. — Harn v. Dadeville, 100 Ala. 199, 14 So. 9. Georgia. — Harp v. Sapp, 59 Ga. 624. But see Bugg v. Towner, 41 Ga. 315, to the effect that immaterial evidence need not be pre- served. Illinois. — Gogan v. Burdick, 182 111. 126, 55 N. E. 126; Lawrence- v. Lawrence, 181 111 248, 54 N. E. 918; Ames v. Stockhoff, 73 111. App. 427. But see Lengfelder v. Smith, 69 111. App. 238, to the effect that the rule does not apply to a decree dismissing a bill. Iowa. — State v. Roenisch, 77 Iowa 379, 42 N. W. 325. Missouri. — Laberge v. Chauvin, 2 Mo. 179; Bird v. Bolduc, 1 Mo. 701. Washington. — Proulx v. Stetson, etc., Mill Co., 6 Wash. 478, 33 Pac. 1067 ; Gilbranson v. Squier, 5 Wash. 99, 31 Pac. 423. United States. — Blease v. Garlington, 92 U. S. 1, 23 L. ed. 521; New Orleans v. TJ. S., 5 Pet. (TJ. S.) 449, 8 L. ed. 187; Conn v. Penn, 5 Wheat. (U. S.) 424, 5 L. ed. 125. Contra, Bennett v. Welch, 15 Ind. 332; Smith v. Lavin, 8 Wis. 265 ; Shaw v. Shaw, 8 Wis. 168. But see Flint v. Jones, 5 Wis. 84, where the case contained none of the evidence and the appeal was dismissed. See 3 Cent. Dig. tit. "Appeal and Error," § 2323. Rule applies only to parties seeking affirma- tive relief and is not applicable to one occupy- ing a negative position in the lower court. Alexander v. Alexander, 45 111. App. 211. Verdict of jury takes place of evidence. — Where a decree is based on the verdict of a jury, the evidence need not be preserved in the record (Kelly v. Chapman, 13 111. 530; Bonnell v. Lewis, 3 111. App. 283) ; but a de- cree entered contrary to the verdict must be sustained by evidence contained in the record (Bonnell v. Lewis, 3 111. App. 283). 61. Jackson v. Sackett, 146 111. 646, 35 N. E. 234; Moss v. McCall, 75 111. 190. 62. Harp v. Sapp, 59 Ga. 624; Wilhite v. Pearce, 47 111. 413. 63. Gogan t>. Burdick, 182 111. 126, 55 N. E. 126; Lawrence v. Lawrence, 181 111. 248, 54 N. E. 918; Ames v. Stockhoff, 73 111. App. 427. See 3 Cent. Dig. tit. " Appeal and Error," § 2323. Vol. II 10±0 APPEAL AND ERROR filing in the trial court of a translation of the stenographer's w shorthand notes of the evidence m given on the trial, and provide that, when the original manu- script of such translation is incorporated in the bill of exceptions and properly certified 66 as part of the record in review proceedings, the appellate court will con- sider such manuscript as presenting the evidence. Evidence preserved and pre- sented in this form will be disregarded unless the record shows affirmatively that it was filed in the trial court 67 before its incorporation in the bill of exceptions. 68 In Indiana, under the provisions of a recent statute, 69 where the record contains the original bill of exceptions, embracing the evidence in the cause, it is not neces- sary that the record should show affirmatively that the longhand manuscript of the evidence was filed in the clerk's office before incorporation in the bill of exceptions. 70 5. Filing of Papers Part of Record. Pleadings, motions, and other papers 64. Showing as to choice and swearing of stenographer. — Failure of the record to show affirmatively that the stenographer was elected or agreed upon by the parties, or that he was sworn to report the case, is not ground for excluding the evidence authenti- cated by the statement of the trial judge that it was all the evidence given in the cause. Gaar v. Wilson, 21 Ind. App. 91, 51 N. E. 502. 65. Original papers read in evidence, ac- companying and identified by the longhand manuscript of the evidence, may be treated as embraced therein and properly in the rec- ord. Zeis v. Passwater, 142 Ind. 375, 41 N. E. 796 [following Indiana, etc., R. Co. v. Quick, 109 Ind. 295, 9 N. E. 788-925]. 66. Must certify that all evidence is con- tained. — Even though the record shows the filing of the longhand manuscript of the evi- dence, that it was signed by the judge, and ordered made a part of the record, the evi- dence will not be considered by the appellate, court unless it appears that this was all the evidence in the case. Porter v. Fraleigh, 19 Ind. App. 562, 49 N. E. 863. Request to clerk to certify. — The record on appeal need not show appellant's request to the clerk to certify up the original report of the evidence, and, hence, it will not be pre- sumed that the clerk did not have authority to so certify the report. F. W. Cook Brewing Co. v. Bail, 22 Ind. App. 656, 52 N. E. 1002. 67. Beatty i\ Miller, 146 Ind. 231, 44 N. E. 8; McGinnis v. Boyd, 144 Ind. 393, 42 N. E. 678; Gaar v. Wilson, 21 Ind. App. 91, 51 N. E. 502; Harrison r. Snair, 76 Iowa 558, 41 N. W. 315. Compare Bunyan v. Loftus, 90 Iowa 122, 57 N. W. 685; Everling v. Holcomb, 74 Iowa 722, 39 N. W. 117. See 3 Cent. Dig. tit. "Appeal and Error," § 2325. Sufficient preservation of evidence. — Where the clerk certifies that the longhand manu- script of the evidence is embodied in the bill of exceptions, it is sufficiently shown that the manuscript was filed with the clerk (Everman v. Hyman, (Ind. App. 1891) 28 N. E. 1022) ; and where he certifies that the bill of exceptions contains a copy of the long- hand manuscript of the evidence, such evi- dence, though not previously filed, is properly Vol. II in the record (Madden v. State, 148 Ind. 183, 47 N. E. 220; Standard L., etc., Ins. Co. v. Martin, 133 Ind. 376, 33 N. E. 105). 68. Cooper v. Bartlett, 150 Ind. 693, 49 N. E. 827; Mcintosh v. Zaring, 150 Ind. 301, 49 N. E. 164; Davis v. Union Trust Co., 150 Ind. 46, 49 N. E. 817; Fitch v. Byall, 149 Ind. 554, 49 N. E. 455; Garrett v. State, 149 Ind. 264, 49 N. E. 33; Lowe v. Lowe, 40 Iowa 220. See 3 Cent. Dig. tit. " Appeal and Error," § 2325. Must he filed before bill of exceptions filed. — It being necessary to file the longhand manuscript before it is incorporated in the bill of exceptions, it follows that it must be filed within the time allowed for the filing of the bill. Indiana, etc., R. Co. v. Lynch, 145 Ind. 1, 43 N. E. 934; Lowery v. Carver, 104 Ind. 447, 4 N. E. 52. Compare Gam r. Working, 5 Ind. App. 14, 31 N. E. 821; Bunyan v. Loftus, 90 Iowa 122, 57 N. W. 685. Sufficient showing as to time of filing. — A statement by the clerk in his certificate to the transcript that the longhand manuscript was filed before it was incorporated in the bill of exceptions is sufficient to show that fact. Moore v. Hewitt, 147 Ind. 464, 46 N. E. 905. Must show filing within time allowed for ap- peal. — It is necessary that the record show that both the shorthand notes and the trans- lation thereof were filed in the trial court within the time allowed for the taking of an appeal. Chicago Lumber Co. v. Davis, 82 Iowa 731, 47 N. W. 1079; Hammond v. Wolf, 78 Iowa 227, 42 N. W. 778. Compare Slone r. Berlin, 88 Iowa 205, 55 N. W. 341 [follow- ing Hammond v. Wolf, 78 Iowa 227, 42 N. W. 778, and distinguishing Harrison v. Snair, 76 Iowa 558, 41 N. W. 315; Lowe v. Lowe, 40 Iowa 220]. See 3 Cent. Dig. tit. " Appeal and Error," § 2325. 69. Thornton's Rev. Stat. Ind. (1897), § 670. 70. Weakley v. Wolf, 148 Ind. 208, 47 N. E. 466; Decatur v. Stoops, 21 Ind. App. 397, 52 N. E. 623; National Exch. Bank v. Berry, 21 Ind. App. 261, 52 N. E. 104; Ste- vens Store Co. v. Hammond, (Ind. App. 1898) 51 N. E. 506. APPEAL AND EBBOB 1041 set out in the transcript which are required by law to be filed in the lower court, will be disregarded by the appellate court when the record fails to show that they were so filed. 71 6. Making and Filing of Bill of Exceptions, Case, or Statement — a. In General. A bill of exceptions, case, or statement found in the record will be dis- regarded by the appellate court when the record fails to show affirmatively that it was properly allowed and filed in the trial court and thereby made a part of the record, 72 and these facts must be shown by the record proper, independent of the bill itself. 73 b. Time of Making and Filing — (i) In General. It is also essential that the record should show affirmatively that the bill was tendered, signed, 74 and 71. Ritchie v. Warrensburg, 32 111. App. 181; Cates v. Woold T idge, 1 J. J. Marsh. (Ky.) 267; Davis e. Harrison, 4 Litt. (Ky.) 261; Nickell v. Fallen, 11 Ky. L. Rep. 621, 12 S. W. 767; Lamorere v. Cox, 32 La. Ann. 1045; Bloodgood v. Clark, 4 Paige (N. Y.) 574. But see, contra, Daniels v. Brodie, 54 Ark. 216, 15 S. W. 467, 11 L. R. A. 81; Nov- elty Iron Works v. Capital City Oatmeal Co., 88 Iowa 524, 55 N. W. 518; Jamison v. Weaver, 87 Iowa 72, 53 N. W. 1076 [reversing 50 N. W. 34, and distinguishing Kavalier v. Maehula, 77 Iowa 121, 41 N". W. 590; Arts ■v. Culbertson, 73 Iowa 13, 34 N. W. 490]; Smith v. Profitt, 82 Va. 832, 1 S. E. 67; and compare Hawkins v. Ball, 18 B. Mon. (Ky.) 816, 68 Am. Dec. 755; Carter v. Stennet, 10 B. Mon. (Ky.) 250; State v. Badon, 14 La. Ann. 783. Order permitting filing. — In West Virginia it seems that it is necessary that the record should also show an order of the court per- mitting the pleading to be filed. Williams v. Ewart, 29 W. Va. 659, 2 S. E. 881; Handy ■v. Scott, 26 W. Va. 710; and see 3 Cent. Dig. tit. "Appeal and Error," § 2318. The papers become part of the record, when filed, as fully as if copied into the record book of ther court (Stevison v. Earnest, 80 111. 513), and a paper is filed when it is deliv- ered to the proper officer and by him re- ceived (Hull v. Louth, 109 Ind. 315, 10 N. E. 270, 58 Am. Rep. 405; Evansville, etc., R. Co. v. Lavender, (Ind. App. 1893) 34 N. E. 109). 72. Georgia. — Spriggs v. Spriggs, 40 Ga. 510. Colorado. — Swem V. Green, 9 Colo. 358, 12 Pac. 202. Indiana. — Lowry v. Downey, 150 Ind. 364, 50 N. E. 79 ; Fitch v. Byall, 149 Ind. 554, 49 N. E. 455; Elkins (>. Bennett, 18 Ind. App. 110, 47 N. E. 472. Mississippi. — Stephenson v. Smith, 23 Miss. 507. Missouri. — Dinwiddie v. Jacobs, 82 Mo. 195; Newman v. Biggs, 78 Mo. 675; Bondu- rant v. German Ins. Co., 73 Mo. App. 477. New York: — Reese v. Boese, 92 N. Y. 632 ; Pickard v. Carr, 61 Hun (N. Y.) 624, 17 N. Y. Suppl. 605, 40 N. Y. St. 988 ; Butts v. Lowville, 25 Hun (N. Y.) 317; Todd v. U. S. Life Ins. Co., 25 Hun (N. Y.) 311; Anony- mous, 4 Wend. (N. Y) 193. Ohio.— Burk v. Pittsburg, etc., R. Co., 26 Ohio St. 643: Acheson v. Western Reserve [661 Bank, 8 Ohio 117; Corthell v. State, 11 Ohio Cir. Ct. 570, 5 Ohio Cir. Dec. 123. Washington. — Clarke County v. Clarke County, 1 Wash. Terr. 250. West Virginia. — Adkins v. Globe F. Ins. Co., 45 W. Va. 384, 32 S. E. 194; Griffith v. Corrothers, 42 W. Va. 59, 24 S. E. 569. Wyoming. — Moyer v. Preston, 6 Wyo. 308, 44 Pac. 845, 71 Am. St. Rep. 914; Geer v. Murrin, 1 Wyo. 37 ; Murrin v. Ullman, 1 Wyo. 36. See 3 Cent. Dig. tit. " Appeal and Error," § 2319. Signature of judge makes bill part of record and it is not necessary that the minutes of the court should show that it was signed and sealed and made a part of the record, although this is the usual formula (Grubbs v. Greer, 5 Coldw. (Tenn.) 160; McBride v. Union Pac. R. Co., 3 Wyo. 183, 18 Pac. 635) ; nor is it necessary that the bill should be marked "Filed" (Kimball *. Mitchell, 57 Mass. 632). Must be signed before filed or the bill will not be considered a part of the record. Chi- cago, etc., R. Co. v. Cason, 151 Ind. 329, 50 N. E. 569; Drew v. Geneva, 150 Ind. 662, 50 N. E. 871, 42 L. R. A. 814; Seiss v. Cleveland, etc., R. Co., 18 Ind. App. 707, 47 N. E. 935; Sherwood v. State, 18 Ind. App. 260, 47 N. E. 936. 73. Hoover v. Weesner, 147 Ind. 510, 45 N. E. 650, 46 N. E. 905; Beatty v. Miller, 146 Ind. 231, 44 N. E. 8; Indiana, etc., R. Co. v. Lynch, 145 Ind. 1, 43 N. E. 934; Den- man v. Warfield, 20 Ind. App. 664, 51 N. E. 345; Dinwiddie v. Jacobs, 82 Mo. 195; New- man v. Biggs, 78 Mo. 675 ; Pope ■». Thomson, 66 Mo. 661; McGrew v. Foster, 66 Mo. 30; Burk i'. Pittsburg, etc., R. Co., 26 Ohio St. 643; White v. Lapp, 4 Ohio N. P. 31, 4 Ohio Dec. 434; Klugman v. Mauk, 6 Cine. L. Bui. 665 ; Griffith ■». Corrothers, 42 W. Va. 59, 24 S. E. 569; Quaker City Nat. Bank v. Show- acre, 26 W. Va. 48. Compare Pugh v. Ayres, 47 Mo. App. 590. See 3 Cent. Dig. tit. "Appeal and Error," § 2319. 74. Alabama. — Union India Rubber Co. v. Mitchell, 37 Ala. 314; Haden v. Brown, 22 Ala. 572. Compare Ryall v. Maix, 48 Ala. 537, holding that a defect in the record in this respect will not vitiate an appeal when it appears that there has been a final judg- ment and that the appeal has been otherwise regularly taken. Vol. II 1042 APPEAL AND ERROR filed, 75 within the time prescribed by statute for making, tendering, and filing such bill. (n) Allowance and Extension of Time. When it appears from the rec- ord that the bill of exceptions was filed after the expiration of the statutory time, the record must show that the trial court allowed an extension of time for its making and filing, 76 and that it was made and filed within the time qo extended. 77 It is not sufficient that these facts appear from the bill of exceptions only, and not from the record proper. 78 7. Presentation and Reservation of Grounds of Review — a. Questions and Objections and Rulings Thereon — (i) In General. A party alleging error as a ground for reversing a judgment of a lower court must show the errors com- Arisona. — Sutherland v. Putnam, ( Ariz. 1890) 24 Pac. 320. Arkansas. — Lyon r. Evans, 1 Ark. 349. Georgia. — Newton v. Burtz, 44 Ga. 599; Justices v. Barrington, 6 Ga. 578. Indiana. — ■ Stoner v. Louisville, etc., R. Co., 6 Ind. App. 226, 33 N. E. 242; Budd v. Rutherford, (Ind. App. 1891) 28 N. E. 210. Kansas. — Brush Electric Light, etc., Co. v. Grosch, 1 Kan. App. 110, 40 Pac. 933. Ohio.— Hill v. Bassett, 27 Ohio St. 597. Wyoming. — Geer v. Murrin, 1 Wyo. 37; Murrin v. TJllman, 1 Wyo. 36. See 3 Cent. Dig. tit. "Appeal and Error," § 2320. 75. Georgia. — Vickers c. Sanders, 106 Ga. 265, 32 S. E. 102. Indiana. — White v. Gregory, 126 Ind. 95, 25 N. E. 806; Niehol v. Thomas, 53 Ind. 42; Denman v. Warfield, 20 Ind. App. 664, 51 N. E. 345. Missouri. — Eau Claire Lumber Co. v. Howard, 76 Mo. 517; Baker v. Loring, 65 Mo. 527. Tennessee. — Jones v. Moore, (Tenn. 1900) 61 S. W. 81. Tessas.— Gulf, etc., R. Co, v. Holliday, 65 Tex. 512; Polts v. Ferguson, (Tex. Civ. App. 1894) 24 S. W. 657. See 3 Cent. Dig. tit. "Appeal and Error," § 2320. Where the bill of exceptions is filed in vaca- tion it will not be disregarded on that ground unless the fact appears affirmatively from the record (Taylor v. Newman, 77 Mo. 257; Weil v. Jones, 70 Mo. 560), and when the bill is filed in vacation the clerk need not indorse the fact of the filing of the bill itself if there is an entry to that effect in the record (Fer- guson v. Thacher, 79 Mo. 511 [overruling Carter v. Prior, 78 Mo. 222 (followed in Campbell r. Missouri Pac. R. Co., 78 Mo. 639)]). 76. Anderson v. Anderson, 141 Ind. 567, 40 N. E. 131, 1082; Benson v. Baldwin, 108 Ind. 106, 8 N. E. 909; Baltimore, etc., R. Co. ('. Countryman, 16 Ind. App. 139, 44 N. E. 265; Lawson v. Mills, 150 Mo. 428; 51 S. W. 678; Rine v. Chicago, etc., R. Co., 88 Mo. 392; Nichols p. Engler, 78 Mo. App. 501. See 3 Cent. Dig. tit. "Appeal and Error," § 2321. If the bill was filed during the term at which the trial was had, it will be considered a part of the record even though the record does not Vol. II show an allowance of time for making and filing it. Ogborn v. Hoffman, 52 Ind. 439; Noblesville Gas, etc., Co. r. Teter, 1 Ind. App. 322, 27 N. E. 635; Pershing v. Canfield, 70 Mo. 140. Consent of parties to extension. — In Mis- souri, a bill of exceptions filed after the term will not be considered unless the record shows not only a copy of the order of the court allowing the extension, but the consent of the parties thereto (Johnson v. Greenleaf, 73 Mo. 671; State v. Duckworth, 68 Mo. 156; Smith v. Pollack, 58 Mo. 161; Coste v. Stifel, 8 Mo. App. 601; Bosley r. Hart, 7 Mo. App. 581) ; but the stipulation of the parties is insuffi- cient in the absence of a showing in the rec- ord that the court concurred (Campbell v. Missouri Pac. R. Co., 78 Mo. 639; Carter v. Prior, 78 Mo. 222), and the agreement of the parties must be copied into the transcript, a mere recital by the clerk that the time had been extended being insufficient (Halderman v. Sitlington, 1 Mo. App. Rep. 203). 77. Alabama. — Morris v. Brannen, 103 Ala. 602, 15 So. 865. Colorado. — Widner r. Buttles, 3 Colo. 1. Indiana. — McFadden r. Owens, 150 Ind. 213, 49 N. E. 1058; Horner v. Hoadley, 97 Ind. 600; Stames v. Sehofield, 5 Ind. App. 4, 31 N. E. 480. Missouri. — Lafollette v. Thompson, 83 Mo. 199; Eau Claire Lumber Co. v. Howard 76 Mo. 517; Bosley v. Hart, 7 Mo. App. 581. Ohio. — Felch v. Hodgman Mfg. Co., 61 Ohio St. 93, 55 N. E. 171; Heffner v. Moyst, 40 Ohio St. 112. See 3 Cent. Dig. tit. "Appeal and Error," § 2321. The record must show exact date of filing the bill, and a statement in the record that the bill was filed within the time allowed is insufficient. Dunn v. Hubble, 81 Ind, 489; Logansport Gas-Light, etc., Co. v. Davidson, 51 Ind. 472. 78. Benson r. Baldwin, 108 Ind. 106, 8 N. E. 909; Newcomer v. Perril, 83 Ind. 600; Baltimore, etc., R. Co. v. Countryman, 16 Ind App. 139, 44 N. E. 265 ; Lawson v. Mills 150 Mo. 428, 51 S. W. 678; Eau Claire Lumber Co . v. Howard, 76 Mo. 517. Contra, Glasser v. Hackett, 37 Fla. 358, 20 So. 532; Stephens £v^ le ,\ 33 Fla - 618 > 15 So - 251 5 B aker v. Chatfield, 23 Fla. 540. 2 So. 822. 2S21 3 ° ent " Dig ' tit- " A PP eal and Error," APPEAL AND ERROR 1043 plained of clearly and affirmatively by the record,™ and must show that he has been prejudicially affected thereby. 80 The record must so present the matters sought to be reviewed that the reviewing court will have before it specific ques- tions for definite determination. 81 (n) As to Pleadings. An appellate court will not consider questions affect- ing the sufficiency and form of pleadings unless the record contains the pleadings complained of, 82 and shows that the objections relied on for attacking the suffi- ciency or form thereof were duly and properly presented to the trial court, 83 (Mass.) 38; Troy, etc., R. Co. v. Newton, 8 Gray (Mass.) 596. Michigan. — Maclean v. Scripps, 52 Mich. 214, 17 N. W. 815, 18 N. W. 209; Nelson v. Chebovgan Slack-Water Nav. Co., 44 Mich. 7, 5 N. W." 998, 38 Am. Rep. 222 ; Daniels v. Clegg, 28 Mich. 32. 79. Alabama. — Findlay v. Pruitt, 9 Port. (Ala.) 195. Arizona.— U. S. v. Ellis, (Ariz. 1887) 14 Pac. 300. Nebraska. — Andrews v. Kerr, 54 Nebr. 618, 74 N. W. 1071. New Jersey. — Coxe v. Field, 13 N. J. L. 215. New Mexico. — Witt v. Cuenod, 9 N. M. 143, 50 Pac. 328. North Dakota. — Garr v. Spaulding, 2 N. D. 414, 51 N. W. 867. Texas. — International, etc., R. Co. u. Leak, 64 Tex. 654. ires* Virginia. — Griffith v. Corrothers, 42 W. Va. 59, 24 S. E. 569; Anderson v. Doo- little, 38 W. Va. 629, 18 S. E. 724. United States. — Suydam v. Williamson, 20 How. (U. S.) 427, 15 L. ed. 978. See 3 Cent. Dig. tit. " Appeal and Error," g 2295 80. Andrews v. Kerr, 54 Nebr. 618, 74 N. W. 1071; Florida R. Co. v. Smith, 21 Wall. (U. S.) 255, 22 L. ed. 513. 81. Baker r. Flagg, 99 Ga. 87, 27 S. E. 170; Rayl p. Hammond, 95 Mich. 22, 54 N. W. 693; Witt v. Cuenod, 9 N. M. 143, 50 Pac. 328. See also Detroit Western Transit, etc., Co. r. Crane, 50 Mich. 182, 15 N. W. 73. Must show that question arose during trial. — The appellate court will not consider or pass upon any question which should have been raised and decided in the lower court, unless the record shows that the question ac- tually arose during the progress of the trial, was duly and properly presented to the court for decision, and was actually decided by the court. California. — Bagley v. Cohen, 121 Cal. 604, 53 Pac. 1117. Connecticut. — Farrell v. Waterbury Horse R. Co.. 60 Conn. 239, 21 Atl. 675, 22 Atl. 544; New Haven Sav. Bank, etc., Assoc, v. McPart- lan, 40 Conn. 90. Georgia. — Farmers' Mut. Ins. Assoc, v. Aus- tin, 109 Ga. 689, 35 S. E. 122. Illinois. — Chicago, etc.. R. Co. v. Clausen, 173 111. 100, 50 N. E. 680 [affirming 70 111. App. 550] ; Chicago, etc., R. Co. v. Calumet, 151 111. 512, 40 N. E. 625. Indiana.— Lipes v. Hand, 104 Ind. 503, 1 N E 871 4 N. E. 160; Short v. Stutsman, 81 Ind. 115 ; Tarplee v. Capp, 25 Ind. App. 56, 56 N. E. 270. T Iowa.— Borland v. McNally, 48 Iowa 440. Kansas. — Moore v. Emmert, 21 Kan. 1. Maryland.— Caledonian F. Ins. Co. r. Iraub, 86 Md. 86, 37 Atl. 782 ; Gabelein v. Plaenker, 36 Md. 61. ,„ , .„ Massachusetts.— Dorman v. Kane, 5 Alien .,.,». — Barrow v. Burbridge, 41 Miss. 622 ; Hatch v. Roberts, 41 Miss. 92. Missouri. — Mumford v. Keet, 71 Mo. App. 535 ; Ashenbroedel Club v. Finlay, 53 Mo. App. 256. Nebraska. — Forbes v. Morearty, 54 Nebr. 505, 74 N. W. 822; School District No. 1 v. Bishop, 46 Nebr. 850, 65 N. W. 902. New York. — Dunekel v. Dunckel, 141 N. Y. 427, 36 N. E. 405, 57 N. Y. St. 618; Godfrey v. Godfrey, 75 N. Y. 434; Prentiss v. Weath- erly, 68 Hun (N. Y.) 114, 22 N. Y. Suppl. 680, 52 N. Y. St. 80 [affirmed in 144 N. Y. 707, 39 N. E. 858] ; Pritchard ». Hirt, 39 Hun (N. Y.) 378 ; Steubing v. New York El. R. Co., 19 N. Y. Suppl. 313. 46 N. Y. St. 799 [affirmed in 138 N. Y. 658, 34 N. E. 369, 53 N. Y. St. 186]. Oregon. — Haley v. Bevis, 23 Oreg. 238, 31 Pac. 4S4; Henderson v. Morris, 5 Oreg. 24. Texas.— Moss v. Katz, 69 Tex. 411, 6 S. W. 764 ; Blair v. Parr, 49 Tex. 85. Vermont. — Brigham v. Hutchins, 27 Vt. 569 : Allen v. Rice, 24 Vt. 647. Wyoming. — Syndicate Imp. Co. v. Bradley, 6 Wyo. 171, 43 Pac. 79, 44 Pac. 60. See 3 Cent. Dig. tit. "Appeal and Error," § 2295. Rulings of the trial court must be set out in the record. Alabama. — Davis v. Louisville, etc., R. Co., 108 Ala. 660, 18 So. 687. Colorado. — Leach v. Lothian, 10 Colo. 439, 15 Pac. 816. n ^ , Indiana.— Xenia Real Estate Co. v. Drook, 140 Ind. 259, 39 N. E. 870 ; Reeder v. English, 62 Ind. 78 ; Coleman v. Dobbins, 8 Ind. 156. South Dakota.— Johnson v. Gilmore, 6 S. D. 276, 60 N. W. 1070. , Texas.— Supreme Commandery Knights ot Golden Rule v. Rose, 62 Tex. 321. 82. Sivoly v. Scott, 56 Ala. 555; Xenia Real Estate Co. v. Drook, 140 Ind. 259, 39 N. E. 870; Keesling v. Ryan, 84 Ind. 89; Davis v. Binford, 58 Ind. 457; Kahn v. Gavit, 23 Ind. App 274, 55 N. E. 268 ; Earnest v. Shoemaker, 10 Ind. App. 696, 38 N. E. 543 ; Parks ij. Van Der APPEAL AJVD ERROR 1049 £Sf^?r; e r taken in the C0Urt below at *» time the rulings com, in £vUZZ7 T - ™- , Wh S U {t i l S ° Ught \° review the action of the trial ««"* wJerp£rJ^ u ™g ^structions, the record must show that exceptions thereto weie reserved m the manner, 15 and at the time, 16 prescribed by law or motion— A ™ ^°W IT - The . ™Ung of the trial court upon a nonsuit, ° r ,~ t0 <™ S -i P res e ntl »g a question of law, no review thereof can be had when the record fails to show that a proper exception was taken to the ruling." 270. Compare Sanger v. Vail. 4 Abb Pr (N. Y.) 217, 13 How. Pr. (N. Y.) 500. North Carolina. — Greensboro v. McAdoo, 110 N. C. 430, 14 S. E. 974; Watts v. War- ren, 108 N. C. 514, 13 S. E. 232; Ferrell v. Thompson, 107 N. C. 420, 12 S. E. 109, 10 L. R. A. 361. Texas. — Ballew v. Casey, (Tex. 1888) 9 S. W. 189; Saul v. Frame, 3 Tex. Civ. App. 596, 22 S. W. 984. United States. — Newport News, etc., R. Co v. Pace, 158 U. S. 36, 15 S. Ct. 743, 39 L. ed. 887; San Pedro, etc., Co. v. U. S., 146 U. S. 120, 13 S. Ct. 94, 36 L. ed. 911; Marion Phos- phate Co. v. Cummer, 60 Fed. 873, 13 U. S. App. 604, 9 C. C. A. 279. See 3 Cent. Dig. tit. "Appeal and Error," § 2303. Judgment on exception. — In Wisconsin, it is necessary that the record should show not only an exception to the ruling on evidence, but the judgment of the court upon the ex- ception. Nevil v. Clifford, 51 Wis. 483, 8 N. W. 296; Johannes v. Youngs, 42 Wis. 401. 14. Arizona. — Sutherland v. Putnam, (Ariz. 1890) 24 Pac. 320. Illinois. — Shober, etc., Lithographing Co. v. Kerting, 107 111. 344. Mississippi. — Deloach v. Walker, 7 How. (Miss.) 164. Missouri. — Downey v. Read, 125 Mo. 501, 28 S. W. 860; Bray v. Kremp, 113 Mo. 552, 21 S. W. 220. North Carolina. — Posey v. Patton, 109 N. C. 455, 14 S. E. 64. United States. — Hutchins v. King, 1 Wall. (U. S.) 53, 17 L. ed. 544. See 3 Cent. Dig. tit. "Appeal and Error," § 2303. 15. Illinois. — Shober, etc., Lithographing Co. v. Kerting, 107 111. 344; Indianapolis, etc., R. Co. v. Rhodes, 76 111. 285; Love v. Moyne- han, 16 111. 277, 63 Am. Dec. 306; Gaynor v. Pease Furnace Co., 51 111. App. 292. Indiana. — Indiana, etc., R. Co. v. Bundy, 152 Ind. 590, 53 N. E. 175; Jenkins v. Wil- son, 140 Ind. 544, 40 N. E. 39 ; Richardson v. League, 21 Ind. App. 429, 52 N. E. 618. Iowa. — Bowman v. Western Fur Mfg. Co., 96 Iowa 188, 64 N. W. 775; State v. Lavin, 80 Iowa 555, 46 N. W. 553. Kansas. — Kansas Pac. R. Co. v. Nichols, 9 Kan. 235, 12 Am. Rep. 494. Maryland. — Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385. Mississippi. — Bourland v. Itawamba County, 60 Miss. 996. Missouri.— Eisner v. Supreme Lodge, etc., 98 Mo. 640, 11 S. W. 991; Logan v. Enter- prise Invest., etc., Co., 47 Mo. App. 510. Nebraska. — State v. Bartley, 56 Nebr. 810, 77 N. W. 438; Lowe v. Vauehan, 48 Nebr. 651, 67 N. W. 464. North Carolina. — State v. Harris, 120 N C 577, 26 S. E. 774; Blackburn v. St. Paul F. & M. Ins. Co., 116 N. C. 821, 21 S. E. 922; Ferrell v % . Thompson, 107 N. C. 420, 12 S E 109, 10 L. R. A. 361 ; Bernard v. Johnston, 78 N. C. 25. Pennsylvania. — Thomas v. Johnson, 175 Pa St. 458, 34 Atl. 845. South Carolina. — Sullivan v. Sullivan, 20 S. C. 509. Utah. — Hadra v. Utah Nat. Bank, 9 Utah 412, 35 Pac. 508. Wisconsin. — Cotton v. Watkins, 6 Wis. 629. United States. — New Orleans, etc., R. Co. v. Jopes, 142 U. S. 18, 12 S. Ct. 109, 35 L. ed. 919; Crane v. Crane, 5 Pet. (U. S.) 190, 8 L. ed. 92; American Cent. Ins. Co. v. Heiser- man, 67 Fed. 947, 32 U. S. App. 409, 15 C. C. A. 95. See 3 Cent. Dig. tit. "Appeal and Error," § 2304. 16. Charlesworth v. Williams, 16 111. 338; Hesler v. Degant, 3 Ind. 501 ; Citizens' St. R. Co. v. Hobbs, 15 Ind. App. 610, 43 N. E. 479, 44 N. E. 377 ; Watson v. Stotts, 68 Iowa 659, 27 N. W. 127 ; Whitney v. Olmstead, 5 Iowa 373; Gover v. Dill, 3 Iowa 337; Taylor v. Plummer, 105 N. C. 56, 11 S. E. 266; New Orleans, etc., R. Co. v. Jopes, 142 U. S. 18, 12 S. Ct. 109, 35 L. ed. 919. 17. Craig v. Hesperia Land, etc., Co., 107 Cal. 675, 40 Pac. 1057 ; Malone v. Beardsley, 92 Cal. 150, 28 Pac. 218; Pritehard v. Hirt, 39 Hun (N. Y.) 378. Sufficient showing of exception. — Where the bill of exceptions, after stating that the mo- tion to dismiss was granted, and that the court thereupon dismissed the suit, added: "To ■which ruling of the court to dismiss said suit the said plaintiff excepts and prays an appeal," it was held that this was sufficient to show that the exception was taken at the time the ruling was made. Northrup v. Smothers, 39 III. App. 588; Crews v. Cantwell, 125 N. C. 516, 34 S. E. 688. Insufficient showing of exception. — The rec- ord showed that, after plaintiff's evidence was in, defendant moved to instruct the jury to return a verdict for defendant. Pending the argument of the motion, the jury were ex- cused, and the court having sustained the motion, " and the jury being absent, the mak- ing of the entry is continued " till next day, at which time " plaintiff moves ... to dis- miss her action," and afterward, on the same day, " this matter coming on for hearing upon Vol. II 1050 APPEAL AND ERROR (vi) Findings of Fact and Decision. In a cause tried without the inter- vention of a jury, neither the judge's findings of fact, nor the judgment thereon, can be questioned in the appellate court unless the record discloses exceptions thereto, taken in the lower court, 18 and this can only be shown by the bill of exceptions. 19 e. Motions for New Trial — (i) In General. When the record does not con- tain a motion for new trial, the appellate court will not review the action of the lower court in granting or refusing such motion, 20 and will disregard matters 21 and alleged errors which should have been brought to the attention of the trial court by motion for new trial. 22 While the general rule is otherwise, it has the motion of the plaintiff, . . . the court . . . doth overrule said motion. Thereupon the jury is instructed by the court to return a verdict for the defendant, which is accord- ingly done, to which plaintiff excepts." It was held that the record showed no exception taken to the ruling of the court refusing to allow plaintiff's motion to dismiss. Westlake v. Muscatine, 85 Iowa 119, 52 N. W. 117. 18. Alabama. — Denson v. Gray, 113 Ala. 608, 21 So. 925; Hood v. Pioneer Min., etc., Co., 95 Ala. 461, 11 So. 10. California. — Hutchinson v. Ryan, 11 CaL 142. Illinois.— Martin v. Foulke, 114 111. 206, 29 N. E.-683; Sherman v. Skinner, 83 111. 584; Wehrheim v. Thiel Detective Co., 87 111. App. 565. Michigan. — Wertin v. Crocker, 47 Mich. 642, 6 N. W. 683. New York.— West v. Van Tuyl, 119 N. Y. 620, 23 N. E. 450, 28 N. Y. St. 549. See also Dainese v. Allen, 36 N. Y. Super. Ct. 98, 14 Abb. Pr. N. S. (N. Y.) 363. Contra, Mitchell v. Baratta, 17 Gratt. (Va.) 445 ; Board of Education v. Parsons, 24 W. Va. 551. See 3 Cent. Dig. tit. "Appeal and Error," § 2305. Appeal sufficient exception. — In North Caro- lina the rule is that " the appeal is itself a sufficient exception to the judgment " because the judgment, being a part of the record proper, no formal exception thereto need be entered. Delozier v. Bird, 123 N. C. 689, 31 S. E. S34. If the findings of fact, a jury be- ing waived, are not excepted to, the finding is not reviewable. White v. Morris, 107 N. C. 92, 12 S. E. 80. 19. Denson v. Gray, 113 Ala. 608, 21 So. 925; Hood v. Pioneer Min., etc., Co., 95 Ala. 461, 11 So. 10; Percy Consol. Min. Co. -». Hallam, 22 Colo. 233, 44 Pac. 509 ; Martin », Foulke, 114 111. 206, 29 N. E. 683; Wehrheim v. Thiel Detective Co., 87 111. App. 565; Ett- linger Printing Co. v. Copelin, 76 111. App. 520; Everett v. Collinsville Zinc Co., 41 111. App. 552; Lewis v. May, 22 Iowa 599. Com- pare Western Union Tel. Co. v. Trissal, 98 Ind. 566, which holds that an exception, al- though informal, is sufficient when it follows the finding and judgment in the same entry. 20. Georgia..— Cruee v. State, 63 Ga. 159. Illinois. — Horn v. Eckert, 63 111. 522. Indiana. — New Albany v. Iron Substructure Co., 141 Ind. 500, 40 N. E. 44 ; La Follette v. Higgins, 109 Ind. 241, 9 N. E. 780; Anheuser- Vol. II Busch Brewing Assoc, v. George, 14 Ind. App. 1, 42 N. E. 245. Kansas. — Illingsworth v. Stanley, 40 Kan. 61, 19 Pac. 352; Typer v. Sooy, 19 Kan. 593. Mississippi. — New Orleans, etc., R. Co. v. Allbritton, 38 Miss. 242, 75 Am. Dee. 98. Missouri. — Arnold v. Boyer, 108 Mo. 310, 18 S. W. 913; Ward v. Quinlivin, 65 Mo. 453. Montana. — Gum v. Murray, 6 Mont. 10, 9 Pac. 447; Helena First Nat. Bank v. McAn- drews, 5 Mont. 251, 5 Pac. 279. Nebraska. — Brown v. Johnson, 58 Nebr. 222, 78 N. W. 515. Tennessee. — Nashville, etc., R. Co. v. Eger- ton, 98 Tenn. 541, 41 S. W. 1035. See 3 Cent. Dig. tit. "Appeal and Error," § 2306. The record need not show a judgment, where an appeal is taken from an order denying a motion for a new trial, for the reason that, if the order is reversed, the effect is to vacate the judgment, if any has been entered. Bed- ford v. Kissick, 8 S. D. 586, 67 N. W. 609. 21. As, for instance, an objection to the form of the verdict (Weatherly v. Higgins, 6 Ind. 73), or an objection that the verdict is contrary to the evidence (Providence Gold- Min. Co. v. Marks, (Ariz. 1900) 60 Pac. 938; Ogden v. Danz, 22 111. App. 544; Hover v. Cockins, 17 Kan. 518). 22. Arizona. — Providence Gold-Min. Co. v. Marks, (Ariz. 1900) 60 Pac. 938; Sutherland v. Putnam, (Ariz. 1890) 24 Pac. 320. Arkansas. — Berman v. Wolf, 40 Ark. 251. Illinois. — Springfield F. & M. Ins. Co. v. Newman, 31 111. App. 393. Indiana. — La Follette v. Higgins, 109 Ind. 241, 9 N. E. 780; Patterson v. State, 91 Ind. 364. Kansas. — Gille v. Emmons, 61 Kan. 217, 59 Pac. 338; Cole v. Bower, 53 Kan. 468, 36 Pac. 1000. Missouri. — State v. Burckhartt, 83 Mo. 430 ; Bollinger v. Carrier, 79 Mo. 318; Furber v. Conway, 23 Mo. App. 412. Nebraska. — Chicago, etc., R. Co. v. Young, 58 Nebr. 678, 79 N. W. 556 ; Scroggin v. Na- tional Lumber Co., 41 Nebr. 195, 59 N. W. 548. Tennessee. — Nashville, etc., R. Co. v. Eger- ton. 98 Tenn. 541, 41 S. W. 1035. Washington. — Clarke County v. Clarke County Com'rs, 1 Wash. Terr. 250. Wyoming. — Garbanati v. Uinta County, 2 Wyo. 257 ; Geer v. Murrin, 1 Wyo. 37. See 3 Cent. Dig. tit. "Appeal and Error," § 2306. APPEAL AND ERE OR 1051 been held that objections to the findings of the lower court, where the trial was without a jury, will not be considered on review unless the record contains a motion for new trial. 23 The motion must be set out in the record, the weight of authority indicating the bill of exceptions as the proper place, although there is some conflict on this point. 24 The authorities are agreed, however, that a mere recital, in the bill of exceptions, that the motion was made is insufficient. 25 The absence of the motion cannot be supplied by stipulation of counsel as to the con- tents of the motion. 26 (n) 6 bounds of Motion. It is essential that the record should disclose the grounds upon which the motion for new trial was based. 27 The record must show compliance with a statutory requirement that the grounds for the motion should be stated in writing, 28 and the statement and affidavits used upon the hearing of the motion must be included in the record. 29 (in) Notice of Motion. When there is a statute requiring that notice of the motion shall be filed and served upon the adverse party, the record must show, affirmatively, compliance therewith. 30 Minnesota. — Clark v. C. N. Nelson Lumber Co., 34 Minn. 289, 25 N. W. 628. Compare Searles v. Thompson, 18 Minn. 316. New York. — Dresser v. Boatmen's F. & M. Ins. Co., 47 Hun (N. Y.) 153; Coakley v. Na- har, 36 Hun (N. Y.) 157; Alfaro v. Davidson, 39 N. Y. Super. Ct. 463 ; Gridley v. St. Francis Xavier College, 17 N. Y. Suppl. 653, 45 N. Y. St. 1; McDermott v. Conley, 11 N. Y. Suppl. 403, 33 N. Y. St. 560; Stedman v. Batchelor, 8 N. Y. Suppl. 37, 28 N. Y. St. 436. Compare Cowles v. Watson, 14 Hun (N. Y.) 41. Ohio — Randall v. Turner, 17 Ohio St. 262. Virginia. — McArter v. Grigsby, 84 Va. 159, 4 S. B. 369. 28. La Follette v. Higgins, 109 Ind. 241, 9 N. E. 780; Kissell V. Anderson, 73 Ind. 485; Kirby v. Cannon, 9 Ind. 371. But see Ottawa, etc., R. Co. v. McMath, 91 111. 104, holding that this is unnecessary, when neither the court nor the opposite party requires that it be done. 29. Bodlev v. Ferguson, 25 Cal. 584; Loucks v. Edmondson, 18 Cal. 203 ; Horn v. Eckert, 63 111. 522; Ballard v. Chicago, etc., R. Co., 51 Mo. App. 453. But the record must show that they were filed and used below (Whipple v. Hopkins, 119 Cal. 349, 51 Pac. 535; Fitz- gerald v. Wygal, (Tex. Civ. App. 1900) 59 S. W. 621), and the statement is unnecessary when the only point is as to whether it was filed in time (Harper v. Minor, 27 Cal. 30. Gum v. Murray, 6 Mont. 10, 9 Pac. 447; Helena First Nat. Bank v. McAndrews, 5 Mont. 251, 5 Pac. 279; and 3 Cent. Dig. tit. "Appeal and Error," § 2307. But in California it is held that the notice need not appear in the record, and that, in order to predicate error on its absence, the record must show affirmatively that no notice was given, the California code of civil pro- cedure not requiring that the notice should be made part of the judgment-roll. Nippert ». Warneke, 128 Cal. 501, 61 Pac. 96 270; Kahn V. Wilson, 120 Cal. 643, 53 Pac. 24; Scott v. Wood, 81 Cal. 398, 22 Pac. 871 ; Gage v. Downey, 79 Cal. 140, 21 Pac 527, 855; Pico v. Cohn, 78 Cal. 384, 20 Pac. 706; Braly v. Henry, (Cal.' 1888) 18 Pac. 798. Vol. II Appeal from court of claims. — A motion for a new trial should not be embodied in the rec- ord transmitted from the court of claims to the supreme court of the United States. Kel- logg v. U. S., 18 Ct. CI. 73. 23. Duncan v. Chandler, 5 111. App. 499; La Follette v. Higgins, 109 Ind. 241, 9 N. E. 780. 24. Horn v. Eckert, 63 111. 522; State v. Burekhartt, 83 Mo. 430; Baker v. Loring, 65 Mo. 527 ; Collins v. Barding, 65 Mo. 496 ; Ward v. Quinlivin, 65 Mo. 453; Rotchford v. Crea- mer, 65 Mo. 48; Garbanati v. Uinta County, 2 Wyo. 257 ; Geer v. Murrin, 1 Wyo. 37 ; Mur- rin v. Ullman, 1 Wyo. 36. Compare Arnold v. Boyer, 108 Mo. 310, 18 S. W. 913, and State v. Gaither, 77 Mo. 304. Must be in record proper. — Nashville, etc., R. Co. v. Egerton, 98 Tenn. 541, 41 S. W. 1035. 25. Arizona. — Sutherland v. Putnam, (Ariz. 1890) 24 Pae. 320. Kansas. — White v. Douglas, 51 Kan. 402, 32 Fac. 1092 ; Illingsworth v. Stanley, 40 Kan. 61, 19 Pac. 352. Mississippi. — New Orleans, etc., R. Co. v. Allbritton, 38 Miss. 242, 75 Am. Dee. 98. Missouri. — Collins v. Barding, 65 Mo. 496 ; Rotchford v. Creamer, 65 Mo. 48. Tennessee. — Nashville, etc., R. Co. v. Eger- ton, 98 Tenn. 541, 41 S. W. 1035. Compare Brittain v. Griggs, 88 Ga. 232, 14 S- E - 609 ' „r ,_ r, 26. Parker v. Remington Sewing-Mach. Co., 24 Kan. 31. „ , , ,,. _ 27. Arizona. — Providence Gold-Mm. Go. v. Marks, (Ariz. 1900) 60 Pac. 938; Sutherland v. Putnam, (Ariz. 1890) 24 Pac. 320. Indiana. — Earnest v. Shoemaker, 10 Ind. App. 696, 38 N. E. 543. Iowa.— Kennedy v. Des Moines, 84 Iowa 187, 50 N. W. 880. Kansas.— List v. Joekheck, 59 Kan. H3, 52 Pac. 420; Cole v. Bower, 53 Kan. 468, 36 Pae. 1000; White v. Douglas, 51 Kan. 402, 32 Pac 1092; Illingsworth v. Stanley, 40 Kan. 61, 19 ^Kentucky.— Booton v. Floyd County, 13 Ky. L. Rep. 877 ; May v. Deposit Bank, 5 Kj. l,. Rep. 682. 1052 APPEAL AND ERROR (iv) Time of Filing. It must appear clearly and affirmatively from the record that the motion for new trial was filed within the time fixed by law. 31 Where the time was extended by order of the court or agreement of counsel, the record should show these facts, and should also show that the motion was filed within the extended time. 32 (v) Decision on Motion — (a) In General. It is necessary that the record should show the disposition made by the trial judge of the motion for new trial. 33 (b) Must Be Set Out in Record Proper. The ruling or order on the motion must be set out in the record proper, 34 and not in the bill of exceptions. 85 It follows, therefore, that the ruling is not sufficiently shown by a minute entry which does not set the ruling out, 36 although it has been held that a recital in the bill of exceptions that the motion had been disposed of is sufficient. 37 (c) Grounds of Decision. It has also been held that the record must show the grounds upon which the new trial was granted or refused. 38 31. Indiana. — Wallace v. Ransdell, 90 Ind. 173; Pennsylvania Co. v. Sedwick, 59 Ind. 336. Iowa. — Rowen v. Sommers, 101 Iowa 734, 66 N, W. 897 ; MeKissiek v. Chandler, 58 Iowa 757, 12 N. W. 629. Kansas. — Julius Winkelmeyer Brewing As- soc, v. Wolff, 53 Kan. 323, 36 Pac. 711. Kentucky. — Webb v. Vermillion, 13 Ky. L. Rep. 367. Missouri. — Bollinger v. Carrier, 79 Mo. 318 ; Welsh v. St. Louis, 73 Mo. 71 ; Monett Bank v. Stone, 80 Mo. App. 406; Bruns v. Capstick, 62 Mo. App. 57. See 3 Cent. Dig. tit. "Appeal and Error," § 2308. But objection must be made in trial court or it is not available on appeal. Twist v. Kelly, 11 Nev. 377. Sufficient showing as to time. — Morrison v. Wells, 48 Kan. 494, 29 Pae. 601; Elliott v. Missouri Pac. R. Co., 8 Kan. App. 191, 55 Pac. 490; St. Louis, etc., R. Co. v. Blakely, 6 Kan. App. 814, 49 Pac. 752; Joseph Schlitz Brewing Co. v. Duncan, 6 Kan. App. 178, 51 Pac. 310; Webb v. Vermillion, 13 Ky. L. Rep. 367; Duff v. Neilson, 90 Mo. -93, 2 S. W. 222. Insufficient showing as to time. — Demske v. Hunter, 23 Mo. App. 466. 32. Pennsylvania Co. v. Sedwick, 59 Ind. 336. 33. Arizona. — Providence Gold-Min. Co. v. Marks, (Ariz. 1900) 60 Pac. 938; Fleury v. Jackson, 1 Ariz. 361, 25 Pac. 669; Sutherland v. Putnam, (Ariz. 1890) 24 Pac. 320. Indiana. — Compare State v. Hitchens, 25 Ind. App. 244, 57 N. E. 935. Iowa. — Kennedy v. Des Moines, 84 Iowa 187, 50 N. W. 880 ; MeKissiek v. Chandler, 58 Iowa 757, 12 ST. W. 629 ; Martin v. State F. Ins. Co., 58 Iowa 609, 12 N. W. 624. Kansas. — Ft. Scott v. Deeds, 36 Kan. 621, 14 Pac. 268; Rexford v. Kansas First Mortg. Co., 7 Kan. App. 663, 53 Pac. 886. Minnesota. — Granite Sav. Bank, etc., Co. v. Weinberg, 62 Minn. 202, 64 N W. 380. Mississippi. — New Orleans, etc., R. Co. v. Pressley, 45 Miss. 66 ; Byrne v. Cummings, 41 Miss. 192; Melius v. Houston, 41 Miss. 59; New Orleans, etc., R. Co. v. Allbritton, 38 Miss. 242, 75 Am. Dec. 98. Missouri. — State v. Burckhartt, 83 Mo. 430. Vol. II Nebraska. — Chicago, etc., R. Co. v. Young, 58 Nebr. 678, 79 N. W. 556; Scroggin v. Na- tional Lumber Co., 41 Nebr. 195, 59 N. W. 548. Wisconsin. — Kellogg v. Smith, 10 Wis. 135. See 3 Cent. Dig. tit. " Appeal and Error," § 2309. 34. Arizona. — - Fleury v. Jackson, 1 Ariz. 361, 25 Pac. 669. Kansas. — Rexroad v. Kansas First Mortg. Co., 7 Kan. App. 663, 53 Pac. 886. Mississippi. — Byrne v. Cummings, 41 Miss. 192; Melius v. Houston, 41 Miss. 59; New Orleans, etc., R. Co. v. Allbritton, 38 Miss. 242, 75 Am. Dec. 98. New York. — Richardson v. Hartmann, 68 Hun (N. Y.) 9, 22 N. Y. Suppl. 645, 52 N. Y. St. 41 ; Coakley e. Mahar, 36 Hun (N. Y.) 157; Levy v. Coogan, 16 Daly (N. Y.) 137, 9 N. Y. Suppl. 534, 30 N. Y. St. 553 ; Victory v. Foran, 56 N. Y. Super. Ct. 507, 4 N. Y. Suppl. 392, 24 N. Y. St. 27; Steubing v. New York El. R. Co., 19 N. Y. Suppl. 313, 46 N. Y. St. 799 [affirmed in 138 N. Y. 658, 34 N. E. 369, 53 N. Y. St. 186] ; Gridley v. St. Francis Xavier College, 17 N. Y. Suppl. 653, 45 N. Y. St. 1 ; Blohm v. Bamber, 10 N. Y. Suppl. 98, 31 N. Y. St. 816. Ohio. — Windhorst v. Wilhelms, 1 Ohio Cir. Ct. 28, 1 Ohio Cir. Dec. 17. Texas. — Forrest v. Rawlings, 40 Tex. 502. Wisconsin. — Hendricks v. Van Camp, 10 Wis. 442. 35. Byrne v. Cummings, 41 Miss. 192 ; Me- lius v. Houston, 41 Miss. 59 ; New Orleans, etc., R. Co. v. Allbritton, 38 Miss. 242, 75 Am. Dec. 98. Contra, State v. Burckhartt, 83 Mo. 430. 36. Sutherland v. Putnam, (Ariz. 1890) 24 Pac. 320 ; Blohm v. Bamber, 10 N. Y. Suppl. 98, 31 N. Y. St. 816. 37. Wilk v. Key, 117 Ala. 285, 23 So. 6; King ». Ohio Valley R. Co., 10 Ky. L. Rep. 748, 10 S. W. 631. 38. Sweetser v. Mellick, (Ida. 1898) 51 Pac. 985. And that the record must show all the facts upon which the ruling was based, other- wise it will be presumed that granting the new- trial was an exercise of the discretionary power of the court. Braid v. Lukins, 95 N. C. 123; Keller v. Gilman, 96 Wis. 445, 71 N. W. 809, holding that the statement of the trial judge showing the grounds upon which a new APPEAL AND ERROR 1053 (vi) Exception to Decision. The appellate court will not review an order or ruling, upon a motion for new trial, unless the record shows that an exception, thereto was taken by appellant S9 at the time the ruling was made or the order entered. 40 Such exception must appear in the bill of exceptions, 41 and not in the record proper. 42 _ 8. Proceedings of Intermediate Courts. On an appeal or writ of error from a ]udgment of an intermediate court having jurisdiction of appeals from courts of record, reversing a judgment of a lower court, the record must show the grounds of reversal, 43 and that the judgment of the intermediate court is conclu- sive of the case, provided the evidence shall be the same upon another trial. 44 B. Scope and Contents of Record Proper — l. matters Included — a. in General. Whatever proceedings or facts the law or practice of the court requires to be enrolled constitute and form a part of the record ; 45 but what it is not necessary to enroll does not form any part of the record unless made so by order of the court, by agreement of parties, by a demurrer to evidence, by oyer, trial was granted is no part of the record in respect to which errors may be assigned. 39. Arizona. — Sutherland v. Putnam, (Ariz. 1890) 24 Pac. 320. Arkansas. — Berman v. Wolf, 40 Ark. 251. California. — Mazkewitz v. Pimentel, 83 Cal. 450, 23 Pac. 527. Illinois. — Stern r. People, 96 111. 475 ; Love v. Moynehan, 16 111. 277, 63 Am. Dec. 306; McCormick Harvesting Mach. Co. v. Adele, 47 111. App. 542. Indiana. — Indiana Imp. Co. v. Wagner, 138 Ind. 658, 38 N. E. 49. See also State v. Hitch- ens, 25 Ind. App. 244, 57 N. E. 935. Missouri. — State v. Hitchcock, 86 Mo. 231; Wilson v. Haxby, 76 Mo. 345. Wisconsin. — Webster v. Modlin, 12 Wis. 368. See 3 Cent. Dig. tit. "Appeal and Error," § 2309; and supra, V. 40. Johnson v. Bell, 10 Ind. 363. 41. Berman v. Wolf. 40 Ark. 251; Stern v. People, 96 111. 475 ; McClurkin v. Ewing, 42 111. 283; Love v. Moynehan, 16 111. 277, 63 Am. Dec. 306. 42. Sutherland v. Putnam, (Ariz. 1890) 24 Pac. 320. But see, contra, State v. Bartley, 56 Nebr. 810, 77 N. W. 438; Gilmer v. Syden- stricker, 42 W. Va. 52, 24 S. E. 566; Van Winkle v. Blackford, 28 W. Va. 670. 43. McWhinney v. Briggs, 85 Ind. 535; Hanna v. Aebker. 84 Ind. 411; Gutperle v. Koehler, 84 Ind. 237 ; People v. Clausen, 163 N. Y. 523, 57 N. E. 739 [dismissing appeal, 50 N. Y. App. Div. 286, 63 N. Y. Suppl. 993]. Compare Shotwell v. Dixon, 163 N. Y. 43, 57 N. E. 178 [affirming 22 N. Y. App. Div. 258, 48 N. Y. Suppl. 984]. See 3 Cent. Dig. tit. " Appeal and Error," § 2326. 44. Galveston, etc., B. Co. v. Masterson, 91 Tex. 383, 43 S. W. 875. In a proceeding to review the judgment of an intermediate court it is not necessary that its proceedings should appear in the record or that the transcript should contain a bill of exceptions preserving the matters sought to be reviewed, as is required upon an appeal from a nisi prius court, since the entire rec- ord before the intermediate court is trans- ferred to the higher court by the appeal. Akron Bank v. Dole, 24 Colo. 94, 48 Pac. 1044. But see State v. Bost, 125 N. C. 707, 34 S. E. 650. 45. Montgomery v. Carpenter, 5 Ark. 264; Lenox v. Pike, 2 Ark. 14; Tustin v. Gaunt, 4 Oreg. 305. Where a statute does not prescribe what the record usually contains, as in the case of final orders, it consists of all papers and docu- ments properly filed and before the court be- low (Ankeny v. Fairview Milling Co., 10 Oreg. 390), and a bill of exceptions is unnecessary (Pieper v. Centinela Land Co., 56 Cal. 173, construing Cal. Code Civ. Proc. (1874), § 951). § 951). Bond for costs. — A prosecution bond con- stitutes a part of the record of the cause and will be included in the transcript if the cause be removed to another court. Maxwell v. Salts, 4 Coldw. (Tenn.) 233. Contra, Mont- gomery v. Carpenter, 5 Ark. 264. Fee-book and fee-bill. — Under some stat- utes, the transcript of the fee-book is a part of the record; but, unless the fee-bill is made up under the direction of the judge, it is a record merely of the action of the clerk, and not of the proceedings of the court. Yeager l>. Circle, 1 Greene (Iowa) 438. " At common law a record signified a roll of parchment upon which the proceedings and transactions of a court were entered or drawn up by its officers, and which was then de- posited in its treasury in perpetuam rei me- moriam. Such rolls were termed the record of the court, and were of such high and super- eminent authority that their truth could not be called in question. In inferior courts, or courts not of record, the proceedings were not thus enrolled, and hence the distinction between two classes of courts. In the United States, paper has universally supplied the place of parchment as the material for rec- ord, and the roll form, formerly employed, has on that account fallen into disuse; but in other respects the forms of the English records have, with some modification, been generally adopted. . . . The roll of parch- ment has given place to what is named ' the judgment-roll.' " St. Croix Lumber Co. v. Pennington, 2 Dak. 467, 11 N. W. 497. Vol. II 1051 APPEAL AND ERROR by bill of exceptions, or by special verdict. 46 In an action tried upon issues of fact the record consists of the summons, with the return thereon, the pleadings, 46. Lenox v. Pike, 2 Ark. 14. See also Pace v. Lanier, 32 Fla. 291, 13 So. 360; Sut- terfield v. Magowan, 12 S. D. 139, 80 N. W. 180 (holding nothing before the court but the judgment-roll). Bail and recognizance. — In a proceeding upon a recognizance by scire facias, the in- dorsement on the indictment of the bail fixed by the court constitutes no part Oi the record (Peacock v. People, 83 111. 331), nor does the recognizance (Richardson v. State, 31 Ala. 347; Davis v. Com., 4 T. B. Mon. (Ky.) 113). Docket entries, minutes, etc. — Ordinarily, entries in dockets, journals, or order-books, or minutes or memoranda of what takes place in court, made by the judge or by the clerk, form no part of the record. Alabama. — Lienkauff v. Tuskaloosa Sale, etc., Co., 99 Ala. 619, 12 So. 918; Baker v. Swift, 87 Ala. 530, 6 So. 153 (extracts from the clerk's docket) . California. — De Pedrorena v. Hotchkiss, 95 Cal. 636, 30 Pac. 787; Douglas v. Dakin, 46 Cal. 49. Dakota. — St. Croix Lumber Co. v. Pen- nington, 2 Dak. 467, 11 N. W. 497; Golden Terra Min. Co. v. Smith, 2 Dak. 377, 11 N. W. 98. Illinois. — Mcintosh v. Barnes, 54 111. App. 274. Indiana. — Mull p. McKnight, 67 Ind. 535. Iowa.— Gifford v. Cole, 57 Iowa 272, 10 N. W. 672, holding that a bar docket is not contemplated by Iowa Code, § 2747, making the appearance docket a part of the court records. Kentucky. — Gates v. Waltrip, 17 Ky. L. Eep. 768, 32 S. W. 414. Missouri. — Clarke v. Kane, 37 Mo. App. 258. Nebraska. — ■ Brown t). Ritner, 41 Nebr. 52, 59 N. W. 360. New York. — Scott v. Morgan, 94 N. Y. 508. Texas. — Stark r. Miller, 63 Tex. 164; Swearingen v. Wilson, 2 Tex. Civ. App. 157, 21 S. W. 74. Wisconsin. — Bimn v. Valley Lumber Co,, 63 Wis. 630, 24 N. W. 403. See 3 Cent. Dig. tit. " Appeal and Error," § 2334, But in Indiana, by statute, all proper en- tries made by the clerk and all papers per- taining to a cause and filed therein, except such as relate to collateral matters, are part of the record. Gray v. Singer, 137 Ind. 257, 36 N. E. 209, 1109 (holding order-book en- tries an essential part of the record) ; Kes- ler v. Myers, 41 Ind. 543. And in Vermont, docket entries (Spaulding v. Warner, 57 Vt. 654), and justice's records (Wheelock v. Sears, 19 Vt. 559) may be referred to as a pajrt of the case, though not made a part of the bill of exceptions. Opinion of court below. — Ordinarily, the opinion of the court below forms no part of the record. Vol. II California.— White v. Merrill, 82 Cal. 14,. 22 Pac. 1129; Wilson v. Wilson, 64 Cal. 92, 27 Pac. 861. Florida.— McLeod v. Dell, 9 Fla. 427. Illinois. — Pennsylvania Co. ;;. Versten, 140 111. 637, 30 N. E. 540, 15 L. R. A. 798; Fuller v. Bates, 96 111. 132. Maryland. — State v. Ramsburg, 43 Md. 325; Baltimore M. E. Church v. Browne, 39> Md. 160. Massachusetts. — Ooolidge v. Inglee, IS Mass. 26 ; McFadden v. Otis, 6 Mass. 323. Missouri. — Kreis v. Missouri Pac. R. Co., (Mo. 1895) 30 S. W. 310; Butcher v. Keil, 1 Mo. 262 (where on a point not presented by an issue of law) ; Field v. Crecelius, 20 Mo. App. 302. Montana. — Fant v. Tandy, 7 Mont. 443, 17 Pac. 560. New York. — Randall v. New York El. R. Co., 149 N. Y. 211, 43 N. E. 540; Dibble v. Dimick, 143 N. Y. 549, 38 N. E. 724, 62 N. Y. St. 798; Wheatland v. Pryor, 133 N. Y. 97, 30 K. E. 652, 44 N. Y. St. 311; Van Bergen V. Bradley, 36 N. Y. 316; Shute v. Jones, 78 Hun (N. Y.) 99, 28 N. Y. Suppl. 1072, 60 N. Y. St. 534; Thomas v. Tanner, 14 How. Pr. (N. Y. ) 426, the last ease distinguishing be- tween " decision " and " opinion." But see Bry- ant v. Allen, 54 N. Y. App. Div. 500, 67 ST. Y. Suppl. 89, holding that by General Practice Rules, No. 41, the opinion of the trial court is made a part of the record, and, on appeal to the appellate division, may be looked to to ascertain the grounds for the lower court's disposition of the case. Pennsylvania. — Overseers of Poor v. Over- seers of Poor, (Pa. 1886) 7 Atl. 204; Buck- ley v. Duff, 111 Pa. St. 223, 3 Atl. 823. But under the Pennsylvania act of Feb. 24, 1806, § 25, the opinion of the court might be filed as a substitute for a bill of exceptions (Down- ing v. Baldwin, 1 Serg. & R. (Pa.) 298), though it had to appear by the record that the opinion was filed at the request of one of the parties (Lancaster p. De Normandie, 1 Whart. (Pa.) 49 [distinguishing Brown v. Caldwell, 10 Serg. & R. (Pa.) 114, 13 Am. Dec. 660]). Wisconsin. — Hill v. American Surety Co., 107 Wis. 19, 81 N, W. 1024, 82 N. W. 691. United States. — England v. Gebhardt, 112 U. S. 502, 5 S. Ct. 287, 28 L. ed. 811; Gib- son v. Chouteau, 8 Wall. (U. S.) 314, 19 L. ed. 317. See 3 Cent. Dig. tit. "Appeal and Error," § 2339. This rule applies to the opinion of an inter- mediate appellate court as well as to the opinion of the trial court (Ohio, etc., R. Co. v. Wangelin, 152 111. 138, 38 N. E. 760; Moore v. Williams, 132 111. 591, 24 N. E. 617; and see 3 Cent. Dig. tit. "Appeal and Error," § 2400), and is adhered to by the United States supreme court, even though judges are required by state statute to file their opinions in writing among the papers of the cause APPEAL AND ERROR 1055 and verdict, if tried by a jury, or the decision, if tried by the court, and the judg- ment. 47 While the record ought not to show anything more than a final decision of the matters litigated, 48 there is a tendency in some states to get into, and make a part of the record, as much of the proceedings as possible ; 49 but whatever part of the proceedings should be, incorporated in the bill of exceptions is not made a part of the record by the mere entry of the clerk. 60 _ b. Proeess and Appearance. It is laid down broadly in many cases that the writ, and the officer's return of his doings in virtue of it, are a part of the record. 51 (Williams v. Norris, 12 Wheat. (U. S.) 117, 6 L. ed. 571), and though a rule of the su- preme court requires a copy of the opinion of the lower court to be annexed to and trans- mitted with the record ( England v. Gebhardt, 112 U. S. 502, 5 S. Ct. 287, 28 L. ed. 811) ; and although a different rule has been adopted, in case of review by writ of error to the su- preme court of Louisiana, since the statute of that state, and the practice thereunder, require the opinion of the court to be entered on the record (New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U. S. 18, 8 S. Ct. 741, 31 L. ed. 607; Delmas v. Merchants' Mut. Ins. Co., 14 Wall. (U. S.) 661, 20 L. ed. 757), the opinion of the court is not made a part of the record in a case coming from the circuit court of the United States by such a statute of the state in which the court sits (Parks v. Turner, 12 How. (U. S.) 39, 13 L. ed. 883). The judgment appealed from may, however, so refer to the opinion as to make it an im- portant and material part of the record (Koehler v. Hughes, 148 N. Y. 507, 42 N. E. 1051 ; Tolman v. Syracuse, etc., R. Co., 92 N. Y. 353), and, even though an opinion is not an essential part of the record, a motion to strike it from the record will not be al- lowed (Colorado Fuel, etc., Co. v. Adams, 14 Colo. App. 84, 60 Pae. 367 ; Gregg v. Spencer, 96 Iowa 501, 65 N. W. 411; Mellerup v. Travelers' Ins. Co., 95 Iowa 317, 63 N. W. 665 ; McLean v. Ficke, 94 Iowa 283, 62 N. W. 753 [but see King County v. Hill, 1 Wash. 63, 23 Pac. 926, wherein such a motion was entertained, the opinion not purporting to be a finding of facts or anything but the views of the judge] ) . Proceedings for removal of cause to federal court. — The motion to transfer a cause from the state to the federal court, and the ac- companying papers, and the ruling of the court thereon, are no part of the record unless made so by a bill of exceptions ( Rough v. Booth, (Cal. 1884) 3 Pac. 91; Wabash, etc., R. Co. v. People, 106 111. 652; Home Ins. Co. v. Heck, 65 111. Ill; American Car- bon Co. v. Jackson, 24 Ind. App. 390, 56 N. E. 862 [construing Ind. Rev. Stat. (1894), v § 662]; Singleton v. Boyle, 4 Nebr. 414), and do not become such by being filed by the clerk and copied into the transcript (Cromie v. Van Nortwick, 56 111. 353). ^ See 3 Cent. Dig. tit. " Appeal and Error, ' C 009Q Report of judge.— The report of a judge is not a part of the record proper and will be wholly disregarded by the appellate court in determining whether the judgment ought to be reversed or affirmed. Coolidge v. Inglee, 13 Mass. 26; McFadden v. Otis, 6 Mass. 323; Suydam v. Williamson, 20 How. (U. S.) 427, 15 L. ed. 978; Inglee v. Coolidge, 2 Wheat. (U. S.) 363, 4 L. ed. 261. Rules of trial court. — Unless the rules of a trial court are made a part of the record by special order or bill of exceptions, the action of the lower court, taken in accordance with its rules, cannot be reviewed. Black v. Bent, 20 Colo. 342, 38 Pac. 387; Chicago, etc., R. Co. v. McCahill, 56 111. 28 ; Harrigan v. Tur- ner, 53 111. App. 292; Rout is. Ninde, 111 Ind. 597, 13 N. E. 107. But see Waite v. Wingate, 4 Wash. 324, 30 Pac. 81; Walla Walla Printing, etc., Co. v. Budd, 2 Wash. Terr. 336, 5 Pac. 602 (holding that such rules are a part of the record of every cause tried in such court, and may be certified to the appellate court as a part of such record). 47. St. Croix Lumber Co. v. Pennington, 2 Dak. 467, 11 N. W. 497 (construing Dak. Code, § 299) ; Golden Terra Min. Co. v. Smith, 2 Dak. 377, 11 1ST. W. 98: Officers of Court v. Fisk. 7 How. (Miss.) 403; State v. Merriam, 159 Mo. 655, 60 S. W. 1112; Nicol v. Hyre, 58 Mo. App. 134; Greene County v. Wilhite, 35 Mo. App. 39. In proceedings by scire facias, the record, where there is no bill of exceptions, is made up of the writ, pleadings, verdict of the jury, or the findings of the court, as the case may be, and the judgment. Straus v. Oltusky, 62 111. App. 660; Winn v. Burt, 6 Blackf. (Ind.) 183 (holding that in a suit against replevin bail, the proceedings in the suit against the principal were no part of the record) ; Robin- son v. Tousey, 6 Blackf. (Ind.) 256 (holding that the transcript of a judgment of a justice of the peace of one county was no part of the record of a suit by scire facias issued by a justice of another county) . The name of a cause and note of appearance, made on the cover of a transcript, are no part of the record. Evans v. Hannibal, etc., R. Co., 58 Mo. App. 427. 48. Kipper v. Sizer, 2 N. Y. St. 386. 49. Brewer, J., in Leavenworth, etc., R. Co. v. Douglas County, 18 Kan. 169, 177. 50. Watts v. McLean, 28 111. App. 537; Wright v. State, 20 Ind. 23. 51. Arkansas. — Renner v. Reed, 3 Ark. 339 Dakota.— St. Croix Lumber Co. » Penning- ton 2 Dak. 467, 11 N. W. 497; Golden Terra Min. Co. v. Smith, 2 Dak. 377, 11 N. W. 98. Illinois.- Straus v. Oltusky 62 HI- App. 660; Van Cott v. Sprague, 5 111. App. 99. Vol.11 1056 APPEAL AND ERROR In other jurisdictions, however, while, if there is no appearance, the summons and return are a part of the record, 52 yet if there is an appearance, they do not con- stitute a part thereof. 53 "Where jurisdiction is acquired by other than personal service — as by appearance or by publication under the statute • — whatever con- fers jurisdiction should, by analogy, be construed to be a part of the record proper. 54 e. Pleadings — (i) In General — (a) Rule Stated. The pleadings form part of the record without a bill of exceptions ; 5S but a pleading which is treated as a nullity, because filed without leave, 56 or because a demurrer is sustained to the whole or a portion thereof, 57 is not a part of the record. So, too, pleadings which are rejected by the court are no part of the record, and an order rejecting them cannot be reviewed unless brought into the record in some legitimate way. 58 Maine.— Gore v. Elwell, 22 Me. 442. Mississippi. — Walker v. Walker, 6 How. (Miss.) 500. Missouri. — Greene County v. Wilhite, 35 Mo. App. 39. Virginia. — Hickam v. Larkey, 6 Gratt. (Va.) 210. Contra, Childs v. Risk, 1 Morr. ( Iowa ) 439. See also Gregg v. Pemberton, 53 Cal. 251 (holding that neither the writ of mandamus nor the sheriff's return, nor the acknowledg- ment of satisfaction thereon, is part of the judgment-roll) ; and Lambert v. Ensign Mfg. Co., 42 W. Va. 813, 26 S. E. 431 (wherein it was held that the writ is never a part of the record, except to sustain the judgment or pro- ceeding, unless it is made so by being read on oyer). See 3 Cent. Dig. tit. "Appeal and Error," § 2341. 52. Woods v. Brown, 93 Ind. 164, 47 Am. Rep. 369 ; Barnes r. Roemer, 39 Ind. 589 ; Ma- comber v. New York, 17 Abb. Pr. (N. Y.) 35; Thomas v. Tanner, 14 How. Pr. (N. Y.) 426. See 3 Cent. Dig. tit. "Appeal and Error," § 2341. 53. Cincinnati, etc., R. Co. v. Street, 50 Ind. 225; Jeffersonville, etc., R. Go. v. Ross, 35 Ind. 108 ; Christal v. Kelly, 88 N. Y. 285 ; Bosworth v. Vandewalker, 53 N. Y. 597. See 3 Cent. Dig. tit. "Appeal and Error," § 2341. 54. Baldwin v. McClelland, 50 111. App. 645. See also Johnson v. Layton, 5 Harr. (Del.) 252. On an inquest of lunacy the notice and in- formation correspond to the summons in an ordinary action and form a part of the rec- ord proper. Crow v. Meyersieck, 88 Mo. 411. A special appearance in writing by a party's attorney should be incorporated in a bill of exceptions, instead of being certified to by the clerk. Svndicate Imp. Co. v. Bradley, 6 Wyo. 171, 43 Pae. 79, 44 Pac. 60. 55. Alabama. — Petty v. Dill, 53 Ala. 641; Rogers v. Jones, 51 Ala. 353. Arkansas. — Shattuck v. Lyons, 62 Ark. 338, 35 S. W. 436. Georgia. — Jordan v. Gaulden, 73 Ga. 191; Bean v. Hadley, 57 Ga. 100, where the writ of error was dismissed because the record con- tained no declaration showing the nature of the action. Idaho. — Rich v. French, (Ida. 1893) 35 Vol. II Pac. 173, construing Ida. Rev. Stat. (1887), § 4456. Illinois. — Zimmerman v. Cowan, 107 111. 631, 47 Am. Rep. 476; Whiting v. Fuller, 22 111. 33 (affidavit of merits to plea) ; Van Cott v. Sprague, 5 111. App. 99. Indiana. — -Home Electric Light, etc., Co. v. Globe Tissue Paper Co., 146 Ind. 673, 45 N. E. 1108; Slagle v. Bodmer, 75 Ind. 330, holding that a verified complaint must be treated as a pleading, although by agreement it was to be treated as evidence. Iowa. — Davis v. Campbell, 93 Iowa 524, 61 N. W. 1053. Kansas. — Junction City v. Webb, 44 Kan. 71, 23 Pac. 1073. Mississippi. — Jamison v. Moon, 43 Miss. 598; Whitfield v. Westbrook, 40 Miss. 311. Nevada. — Bliss v. Grayson, 24 Nev. 422, 56 Pac. 231. iVew York. — Tuttle v. Jackson, 6 Wend. (N. Y.) 213, 21 Am. Dee. 306. North Carolina. — McKinnon v. Morrison, 104 N". C. 354, 10 S. E. 513; Thornton v. Brady, 100 N. C. 38, 5 S. E. 910. West Virginia. — Stephens v. Brown, 24 W. Va. 234. Wyoming. — Dobson v. Owens, 5 Wyo. 85, 37 Pac. 471. See 3 Cent. Dig. tit. "Appeal and Error," § 2342. 56. Mayfield v. Swearingen, 4 Mo. 220. 57. Tron v. Yohn, 145 Ind. 272, 43 N. E. 437. 58. Georgia. — Reid i: Wilson, 109 Ga. 424, 34 S. E. 608, amendment to a petition. Indiana. — Pratt v. Allen, 95 Ind. 404; Lee v. Carter, 52 Ind. 342, motion to reject an amended complaint. Kentucky. — Mitchell f.New Farmers' Bank, (Ky. 1901) 60 S. W. 375; Carpenter v. Bell, 15 Ky. L. Rep. 649, 25 S. W. 109 (petition of third person to be made party defendant) ; Bohannon v. Ellison, 9 Ky. L. Rep. 616. Ohio. — Smucker v. Wright, 3 Ohio Cir. Ct. 620, 2 Ohio Cir. Dee. 360 Virginia.— Bowyer v. Hewitt, 2 Gratt. (Va.) West Virginia. — King v. Burdett, 12 W. Va. 688. But see Sweeney v. Baker, 13 W. Va. 158, 31 Am. Rep. 757, holding that if the rec- ord otherwise shows that the rejection was excepted to, the action of the court will be re- viewed without a formal bill of exception if APPEAL AND ERROR 1057 I>e V lurrers - A deraurr er, and the action of the court thereon, are part of the record, and no bill of exceptions or case is necessary to procure a review thereof. And rulings on demurrer, not shown otherwise than by bill of excep- tions, will not be reviewed. 00 (o) Judginent on Pleadings. While a motion for judgment on the plead- ings partakes of the nature of a demurrer, in that it admits all facts that are well pleaded, yet it is not a demurrer, 61 and hence a ruling on such a motion cannot be reviewed without a bill of exceptions 62 unless the judgment recites that it was entered on the pleadings. 63 (d) Interrogatories to, and Answer of, Garnishee. In some jurisdictions interrogatories to, 64 and the answer of, 65 a garnishee are a part of the record, and need not be preserved by bill of exceptions. In other jurisdictions, however, where such answer is regarded in the nature of evidence, 66 the answer of a gar- the rejected plea has been ordered on the record. , See 3 Cent. Dig. tit. "Appeal and Error," i 2342. In chancery, where a plea or answer is re- ferred to in a decree or order as having come under the cognizance of the court either for the purpose of filing or rejecting it, it be- comes thereby part of the record and no fur- ther action by way of exception or otherwise is necessary to enable the prosecution of an appeal upon the rejection of such plea or an- swer. Barrett v. McAllister, 35 W. Va. 103, 12 S. B. 1106 [following Craig v. Sebrell, 9 Gratt. (Va. ) 131, and disapproving dictum to the contrary in Ruffner v. Hewitt, 14 W. Va. 737]. Effect of giving matter thereof in evidence. — The rule stated applies notwithstanding a memorandum in the record that the matter contained in the rejected pleas was intro- duced in evidence with the consent of the court. White v. Toneray, 9 Leigh (Va.) 347. A petition for certiorari is not in the rec- ord until it is granted. James v. Davis, 76 Ga. 100 ; Elsas v. Clay, 67 Ga. 327. 59. Alabama. — Powers v. Decatur, 54 Ala. 214. Arizona. — Maricopa County v. Rosson, (Ariz. 1895) 40 Pae. 314. California. — McEntee v. Cook, 76 Cal. 187, 18 Pac. 258. Illinois.— Chase v. De Wolf, 69 111. 47; Hamlin v. Reynolds, 22 111. 207; Atkins v. Lackawanna Transp. Co., 79 111. App. 19. Indiana.— Matlock v. Todd, 19 Ind. 130. Missouri. — State v. Campbell, 120 Mo. 396, 25 S. W. 392; Hannah v. Hannah, 109 Mo. 236, 19 S. W. 87 ; Barton v. Martin, 54 Mo. App. 134. North Carolina. — Chamblee v. Baker, 95 1ST. C. 98. Oregon. — Reynolds v. Jackson County, 33 Oreg. 422, 53 Pac. 1072. Washington. — State v. MeQuade, 12 Wash. 554, 41 Pac. 897. United States. — Suydam v. Williamson, 20 How. (U. S.) 427, 15 L. ed. 978. Contra, Harbert v. Henly, 31 Tex. 666; and see Milner v. Vandivere, 86 Ga. 540, 12 S. E. 879, holding that, under Ga. Acts (1889), p. 114, where the bill of exceptions does not specify the demurrer as material to a clear un- [67] derstanding of the error, the clerk has no au- thority to include it in the transcript, and neither the demurrer, nor rulings thereon, nor exceptions thereto, will be considered as part of the record. And see Varner v. Varner, 55 Ga. 573. See 3 Cent. Dig. tit. " Appeal and Error," § 2346. A demurrer which has been abandoned stands on the same footing as an amended pleading and is no longer a part of the record. Brown v. Saratoga R. Co., 18 N. Y. 495. Notice of overruling demurrer. — Cal. Code Civ. Proc. § 476, provides that when a demur- rer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from service of notice. Such notice is not of itself a part of the judgment-roll, but, if the party desires to have it appear that such notice was or was not given, he must incorporate the fact in a bill of exceptions. Catanich v. Hayes, 52 Cal. 338. 60. Petty v. Dill, 53 Ala. 641 [followed in Chapman v. Holding, 60 Ala. 522], wherein the court said : " We cannot sanction the looseness of practice which would obtain if we assumed the bill of exceptions correctly stated that which ought otherwise to appear of record. . . . The bill cannot ... be permitted to take the place of the record." See also Cofer v. Schening, 98 Ala. 338, 13 So. 123, holding that Ala. Code, § 2759, authorizing a plaintiff to suffer a nonsuit, and by bill of ex- ceptions reserve adverse rulings of the trial court, does not extend to rulings and decisions on demurrers to pleadings. 61. Sternberg v. Levy, 159 Mo. 617, 60 S. W. 1114, wherein the two are distinguished. 62. Hemme v. Hays, 55 Cal. 337; Hill v. Jamieson, 16 Ind. 125, 79 Am. Dee. 414 [cit- ing Kirby v. Cannon, 9 Ind. 371] ; Mechanics Bank v. Klein, 33 Mo. 559 ; Swaggard v. Han- cock, 25 Mo. App. 596. See 3 Cent. Dig. tit. "Appeal and Error, s 2355 63 Weeks v. Garibaldi South Gold Min. Co., 73 Cal. 599, 15 Pac. 302. 64. Rankin v. Simonds, 27 111. 352. 65. Rankin v. Simonds, 27 111. 352; Deffen- baugh v. Andrew, 91 111. App. 142; Burckett v. Hopson, 19 La. Ann. 489. 66. Brainard v. Simmons, 58 Iowa 464, 9 N. W. 382, 12 N. W. 484. Vol. II 1058 APPEAL AND ERROR nishee is not a part of the record proper, 67 but may become such by being identi- fied by a decree or judgment recital. 68 (b) Motions. Motions to make more specific or certain, 69 to require pleading to be separated into distinct paragraphs and numbered, 70 or for leave to file a set- off to plaintiff's demand, 71 are not a part of the record proper and can be made a part thereof only by bill of exceptions. (f) Rules or Notices to Plead. Rules or notices to plead, 78 or motions to set aside a rule to plead, 73 are not to be considered in the record, unless under stat- utory provision. 74 (n) Bills of Pabticulabs. A bill of particulars is not, strictly speaking, a part of the pleading to which it refers, and is not, therefore, a part of the record ; 75 and if a motion to compel plaintiff to file such a bill be overruled, it cannot be reviewed in the upper court unless the proper steps are taken to have it preserved in the record. 76 (in) Exhibits. It is generally held that exhibits are not part of the plead- ings, and, if not contained in a bill of exceptions or brought into the record by some substitute therefor, cannot be considered on appeal. 77 It has been held to the contrary, 78 however, and in a chancery suit exhibits which are made part of the bill or answer and filed therewith are a part of the record. 79 (iv) Instrument Sued on. If the instrument sued on is to be examined by the court on appeal, it must be made a part of the record by a bill of exceptions, or in some other legitimate way, 80 unless, where actions are brought under certain 67. Jones v. Manier, 102 Ala. 676, 15 So. 437; Bostwick v. Beach, 18 Ala. 80. See 3 Cent. Dig. tit. "Appeal and Error," § 2345. 68. Jones v. Manier, 102 Ala. 676, 15 So. 437 ; Bland v. Bowie, 53 Ala. 152. See 3 Cent. Dig. tit. "Appeal and Error," § 2345. 69. Pittsburgh, etc., R. Co. v. Indiana Horseshoe Co., 154 Ind. 322, 56 N. E. 766; Arnold v. Arnold, 140 Ind. 199, 39 N. E. 862 ; Baltimore, etc., R. Co. v. Countryman, 16 Ind. App. 139, 44 N. E. 265. Contra, Leavenworth, etc., R. Co. v. Douglas County, 18 Kan. 169, holding that Kan. Gen. Stat. § 417, including in the record " all material acts and proceed- ings of the court," is broad enough to include motions to reform the pleadings. See 3 Cent. Dig. tit. " Appeal and Error," § 2353. Where such a motion has been copied into the transcript without an order of the court, it is not brought into the record by a, refer- ence in the bill of exceptions to the motion, " Heretofore set out in this record on page 4." Ohio, etc., R. Co. v. Engrer, 4 Ind. App. 261, 30 N. E. 924. 70. Balue v. Richardson, 124 Ind. 480, 25 N. E. 11 ; Easnachjt v. German Literary Assoc, 99 Ind. 133; Union Cent. L Ins. Co. v. Huyck, 5 Ind. App. 474, 32 N. E. 580. See 3 Cent. Dig. tit. "Appeal and Error," § 2354. 71. Haney v. Clark, 1 Pinn. (Wis.) 301. See also Pledger v. Glover, 2 Port. (Ala.) 174. 72. Iglehart v. Pitcher, 17 111. 307; Le- monds v. French, 4 Greene (Iowa) 123. 73. Clodfelter v. Hulett, 92 Ind. 426. 74. Lemonds v. French, 4 Greene (Iowa) 123. 75. California. — Edelman v. McDonell, 126 Cal. 210, 58 Pac. 528. Colorado. — Fryer v. Breeze, 16 Colo. 323, 26 Pac. 817. Illinois.— Eggleston v. Buck, 24 111. 262; Robinson v. Holmes, 75 111. App. 203. vol. n New Jersey. — State St. Methodist Church v. Gordon, 31 N. J. L. 264. New York. — Arrow Steamship Co. v. Ben- nett, 23 N. Y. Civ. Proc. 234, 26 N. Y. Suppl. 948, construing N. Y. Code Civ. Proc. § 1237, which provides that a bill of particulars shall be made part of the judgment-roll only where it involves the merits or necessarily affects the judgment. See also, generally, Pleading. 76. Thomas v. Griffin, 1 Ind. App. 457, 27 N. E. 754. 77. Illinois.— Hart v. Tolman, 6 111. I. Kentucky. — Batterton v. Chiles, 12 B. Mon. (Ky.) 348, 54 Am. Dec. 539; Com. v. Cham- bers, 1 Dana (Ky. ) 11. Missouri. — Price v. Southern Ins. Co., 58 Mo. App. 554; Haarstick v. Shields, 8 Mo. App. 601. Texas. — Dunlap v. Yoakum, 18 Tex- 582. Wisconsin. — Haney v. Clark, 1 Pinn. (Wis.) 301. United States. — Reed v. Gardner, 17 Wall. (U. S.) 409, 21 L. ed. 665 [distinguishing Flanders v. Tweed, 9 Wall. (U. S.) 425, 19 L. ed. 6781. See 3 Cent. Dig. tit. "Appeal and Error," § 2348. 78. Patterson v. Collier, 77 Ga. 292, 3 S. E. 119. 79. Moss v. McCall, 75 111. 190; Perciful v. Hurd, 5 J. J. Marsh. (Ky.) 670. A mere reference in the answer, to a bill and the exhibits thereto of another suit by de- fendant against plaintiff, and a prayer that they may be taken as part of the answer, do not make such papers exhibits nor entitle them to consideration as part of the record. Sig^ gers v. Snow, 15 App. Cas. (D. C.) 407 : Shep- herd v. Shepherd, 12 Heisk. (Tenn.) 275. 80. Alabama. — Rhodes v. Walker, 44 Ala. 213. APPEAL AND ERROR 1059 statutory provisions, sucli instrument becomes part of the pleading. 81 But papers, do not become a part of the record by being tiled with the pleadings, in con- formity with a statutory provision which does not make them a part thereof. 82 Simple profert of an instrument, without oyer, does not make it a part of the record. 83 But when oyer of the instrument is given it becomes part of the plead- ing ; M and if profert is in fact, though unnecessarily, made, and oyer craved and given, the instrument becomes a part of the record. 85 (v) When Stricken Out. Where a pleading or a paragraph thereof is struck out on motion, it is as though such pleading had never been tendered, and it will not be considered part of the record unless made so by a bill of exceptions or order of court, 86 and will be stricken from the record on motion. 87 So it has been held that neither the motion to strike out a pleading or a paragraph thereof, 88 Illinois. — Boyles v. Chytraus, 175 111. 370, 51 N. E. 563; Gatton v. Dimmitt, 27 111. 400; Thompson v. Kimball, 55 111. App. 249. Indiana. — Herod V. Duck Pond Ditching Assoc, 42 Ind. 538; Dobson v. Duck Pond Ditching Assoc, 42 Ind. 312. Kentucky. — Leyman v. Morrison, 10 Ky. L. Hep. 117; Baker v. Gilbert, 4 Ky. L. Rep. 621. Mississippi. — Marshal v. Hamilton, 41 Miss. 229. Missouri. — State V. Eldridge, 65 Mo. 584. Ohio. — Burch v. Young, 2 Ohio Dec. 377. Tennessee. — Williams v. Duffy, 7 Humphr. (Tenn.) 255; McConnell v. Bead, Mart. & Y. (Tenn.) 224. Wisconsin. — Reid u. Jase, 14 Wis. 429. See 3 Cent. Dig. tit. " Appeal and Error," § 2348. It is not made a part of the record by the clerk's recital of it (McConnell v. Read, Mart. & Y. (Tenn.) 224), or by being in- dorsed on the declaration (Franey v. True, 26 111. 184). Presumption in favor of judgment. — If the instrument which is the foundation of the action is not so incorporated, every reason- able intendment must be indulged in favor of the judgment of the court being in ac- cordance with its term. Matney v. Gregg Brothers Grain Co., 19 Mo. App. 107. 81. Allen v. Young, 62 Ga. 617; Blow v. White, 41 Ga. 293 ; Hamer v. Rigby, 65 Miss. 41, 3 So. 137 (where the action was brought under Miss. Code, § 1640) ; Marshal v. Ham- ilton, 41 Miss. 229. Where, in special assessment proceedings, a statute requires that the ordinance au- thorizing the proposed improvement be re- cited in the petition, such recital makes the ordinance a part of the petition, and conse- quently of the record, and it is a sufficient recital if the ordinance is attached to the petition. Holden v. Chicago, 185 111. 526, 57 N. E. 1118; Lane v. Chicago, 185 111. 368, 56 N. E. 1127; Foss v. Chicago, 184 111. 436, 56 N. E. 1133; Lundberg v. Chicago, 183 111. 572, 56 N. E. 415. 82. Haney v. Tempest, 3 Mete (Ky.) 95; Dodd v. King, 1 Mete (Ky.) 430. 83. Pollard v. Yoder, 2 A. K. Marsh. (Ky.) 264; Harlan v. Dew, 3 Head (Tenn.) 504 On craving oyer instrument must be set out, and, where profert has been made, craving oyer, without setting out the instrument, does not make it a part of the record. Story v. Dobson, 2 Heisk. (Tenn.) 29. 84. Cummins v. Woodruff, 5 Ark. 116; Stone v. Bennett, 4 Ark. 71; Adams v. Brad- shaw, Hard. (Ky.) 555; McClelland v. Strong, Hard. (Ky.) 522; Suydam v. Wil- liamson, 20 How. (TJ. S.) 427, 15 L. ed. 978; Cook v. Gray, Hempst. (U. S.) 84, 6 Fed. Cas. No. 3,156a. See 3 Cent. Dig. tit. " Appeal and Error," § 2349. Does not make assignment thereon part of record. — Craving oyer of an instrument does not entitle the party to oyer of the assign- ment thereon and does not make such assign- ment a part of the record. Dardenne v. Ben- nett, 4 Ark. 458; Pelham v. State Bank, 4 Ark. 202 ; Clarke v. Gibson, 2 Ark. 109. 85. Kendal v. Talbot, 1 A. K. Marsh. (Ky.) 321. 86. Halpern v. Spencer, (Ark. 1898) 47 S. W. 637 ; Pelham v. Page. 6 Ark. 535 ; lad- ings v. Iddings, 134 Ind. 322, 33 N. E. 1101; Can-others v. Carrothers, 107 Ind. 530, 8 N. E. 563; Harness v. Ross, 13 Ind. App. 575, 41 N. E. 1065; Fry v. Leslie, 87 Va. 269, 12 S. E. 671. See 3 Cent. Dig. tit. "Ap- peal and Error," § 2352. Interrogatories and answers thereto which are stricken out are not in the record, unless by bill of exceptions or order of court. Helm v. Huntington First Nat. Bank, 91 Ind. 44; Klingensmith v. Reed, 31 Ind. 389. 87. Aleock v. Teeters, (Ky. 1900) 56 S. W. 723. 88. California. — Sutter v. San Francisco, 36 Cal. 112. Illinois. — Hill v. Harding, 93 111. 77; Harms v. Aufield, 79 111. 257. Indiana. — Evansville, etc., R. Co. v. Mad- dux, 134 Ind. 571, 33 N. E. 345, 34 N E. 511; Lang v. Clapp, 103 Ind. 17, 2 N E. 197; Bennett v. Seibert, 10 Ind. App. 369, 35 N. E. 35, 37 N. E. 1071. Michigan.— People v. Judges, 1 Dougl. (Mich.) 434. , „„„ Missouri.— Ray v. Brown, 80 Mo. 230; National Banking, etc., Co. v. Knaup 55 Mo. 154; Hubbard v. Quisenberry, 32 Mo. App. 459 See 3 Cent. Dig. tit. "Appeal and Error," § 2352. Vol. II 1060 APPEAL AND ERROR the notice of motion, 89 the affidavit accompanying it, 90 nor the ruling on the motion, 91 is a part of the record proper. (vi) When Substituted or Amended. "Where a pleading is amended, 92 it is superseded by the amended pleading and forms no part of the record. 93 Neither are affidavits used ou motion to amend, 94 a rejected amendment, 95 or an order allow- ing an amendment, 96 a part of the technical record. 89. Morris v. Angle, 42 Cal. 236. 90. Dimick v. Campbell, 31 Cal. 238; In- diana Mfg. Co. v. Milliean, 87 Ind. 87; Mer- Titt v. Cobb, 17 Ind, 314. 91. Alabama. — Central Georgia R. Co. v. Joseph, 125 Ala. 313, 28 So. 35. Arkansas. — Pelham v. Page, 6 Ark. 535. California. — Hawley v. Koeher, 123 Cal. 77, 55 Pae. 696 [distinguishing Abbott v. Douglass, 28 Cal. 295] ; Sutton v. Stephan, 101 Cal. 545, 36 Pac. 106. Colorado. — Brink v. Posey, 11 Colo. 521, 19 Pac. 467. Illinois.— Hill v. Harding, 93 111. 77; Harms v. Aufleld, 79 111. 257. Indiana. — Allen r. Hollingshead, 155 Ind. 178, 57 N. E. 917; Holland v. Holland, 131 Ind. 196, 30 N. E. 1075 ; Huntington v. Cast, 24 Ind. App. 501, 56 N. E. 949. Iowa. — Swafford v. Whipple, 3 Greene . Drake, 110 111. 135; Colby v. Herron, 88 111. App. 299. Indiana. — Westervelt v. National Paper, etc., Co., 154 Ind. 673, 57 N. E. 552; Morri- son *. Morrison, 144 Ind. 379, 43 N. E. 437; Gifford v. Hess, 15 Ind. App. 450, 43 N. E. 906. Iowa. — Drake v. Fulliam, 98 Iowa 339, 67 N. W. 225; Mara v. Bucknell, 90 Iowa 757, 57 N. W. 876. Kansas.— Litsey v. Moffett, 29 Kan. 507; Clark v. Parkville, etc., R. Co., 5 Kan. 654. Kentucky. — Dickerson v. Talbot, 14 B. Mon. (Ky.) 49. Maryland. — Barnes v. Blackiston, 2 Harr. & J. (Md.) 376. Massachusetts. — Willock v. Wilson, (Mass.) 1901) 59 N. E. 757. Michigan. — Peabody v. McAvoy, 23 Mich. 526. Minnesota. — Madigan v. Mead, 31 Minn. 94, 16 N. W. 539; Thompson v. Howe, 21 Minn. 98. Mississippi. — Covington v. Arrington, 32 Miss. 144; Fuqua r. Tindall, 11 Sm. & M. (Miss.) 465. Missouri. — Ray v. Brown, 80 Mo. 230; Martin v. Hagan, 8 Mo. 505; Barnes v. Buz- zard, 61 Mo. App. 346, 1 Mo. App. Rep. 653. Montana. — Blessing v. Sias, 7 Mont. 103, 14 Pac. 663 ; Higley v. Gilmer, 3 Mont. 433. Nebraska. — Bankers' L. Assoc, v. Douglas County. (Neb. 1901) 85 N. W. 54; McKenna v. Dietrich, 48 Nebr. 433, 67 N. W. 181. New York. — Matter of Clark, 58 Hun (N. Y.) 606, 11 N. Y. Suppl. 911, 34 N. Y. St. 523. North Carolina. — McKinnon v. Morrison, 104 N. C. 354, 10 S. E. 513. Oregon. — Mitchell v. Powers, 17 Oreg. 491, 21 Pac. 451; Ladd v. Higley. 5 Oreg. 296. Pennsylvania. — Tasker r. Sheldon, 115 Pa. St. 107, 7 Atl. 762; Miller v. Hershey, 59 Pa. St. 64. South Dakota. — Foley- Wadsworth Imple- ment Co. v. Porteous, 7 S. D. 34, 63 N. W. 155; Merchants Nat. Bank v. McKinney, 6 S. D. 58, 60 N. W. 162. Tennessee. — Anderson v. Middle, etc., Ten- nessee Cent. R. Co., 91 Tenn. 44, 17 S. W. 803. Texas. — Texas, etc., R. Co. v. Raney, 86 Tex. 363, 25 S. W. 11; Gulf, etc., R. Co. v. Day, (Tex. Civ. App. 1893) 22 S. W. 772; Wade-y. Buford, 1 Tex. App. Civ. Cas. § 1337. Virginia. — Metropolitan L. Ins. Co. v. Rutherford, (Va. 1900) 35 S. E. 719 [af- firming 98 Va. 195, 35 S. E. 361]. Washington.— Meeker v. Gardella, 2 Wash. Terr. 355, 7 Pac. 889. Wisconsin.— Dodge i". O'Dell, 106 Wis. 296, 82 N. W. 135; Davidson v. Davidson, 10 Wis. 86. United States. — Baltimore, etc., R. Co. v. Sixth Presb. Church, 91 U. S. 127, 23 L. ed. 260; Travelers' Protective Assoc, v. Gilbert, 101 Fed. 46, 41 C. C. A. 180. See 3 Cent. Dig. tit. "Appeal and Error," § 2367. Evidence not offered, or offered and ruled out. — Though, in an equity suit, testimony which has been objected to and ruled out will not be excluded from the record on ap- peal (Adee v. J. L. Mott Iron- Works, 46 Fed. 39), the court on appeal does not, ordinarily, consider evidence not offered, or evidence of- fered and rejected, at the hearing, though filed in the cause and copied into the record by the clerk. Florida. — Kendrick p. Latham, 25 Fla. 819, 6 So. 871; Hanover F. Ins. Co. v. Lewis, 22 Fla. 568. Illinois.— Gilchrist v. Gilchrist, 76 111. 281. Iowa. — Stephens v. Pence, 56 Iowa 257, 9 N. W. 215. Louisiana. — Sargent v. Slatter, 6 La. Ann. 72. Mississippi. — Tegarden v. Carpenter, 36 Miss. 404. New York. — Studwell v. Palmer, 5 Paige (N. Y.) 166. Tennessee. — Tavlor p. Smith, (Tenn. Ch. 1896) 36 S. W. 970. See 3 Cent. Dig. tit. " Appeal and Error,'' § 2371. Stenographer's report. — The report of the evidence as extended from the shorthand notes of the official stenographer is not part of the record on appeal, in the absence of a law al- lowing it to be filed as such. Georgia. — Macon v. Harris, 75 Ga. 761. Indiana. — Pittsburgh, etc., R. Co. v. Red- ding, 140 Ind. 101, 39 N. E. 921, 34 L. R. A. 767 ; Arbuckle v. Swim, 123 Ind. 208, 24 N. E. 105. Kansas. — Hopkins V. Hopkins, 47 Kan. 103, 27 Pac. 822. Kentucky. — McAllister v. Connecticut Mut. L. Ins. Co., 78 Ky. 531. But see Louisville City R. Co. v. Wood, 2 Ky. L. Rep. 387, hold- ing that where such report accompanies the record and is signed by the judge and referred to in the bill of exceptions, the testimony which it contains will be considered. Michigan. — Moote v. Scriven, 33. Mich. 500. North Carolina. — Silver Valley Min. Co. v. North Carolina Smelting Co., 119 N. C. 415, 26 S E. 27; Durham v. Richmond, etc., R. Co., 108 N. C. 399, 12 S. E. 1040, 13 S. E. 1. North Dakota.— Goose River Bank v. Gil- more, 3 N. D. 188, 54 N. W. 1032; Wood v. Nissen, 2 N. D. 26, 49 N. W. 103. Oregon. — Nosier B. Coos Bay, etc., R., etc., Co., (Oreg. 1901) 63 Pac. 1050. See 3 Cent. Dig. tit. "Appeal and Error," § 2370. 9. Castro v. Armesti, 14 Cal. 38 ; Wilson v. Middl°ton, 2 Cal. 54; Wall v. Hampton, 2 Mart. N. S. (La.) 361; Haney v. Clark, 1 Pinn. (Wis.) 301. 10 F C. Austin Mfg. Co. v. Johnson, 89 Fed 677, 60 U. S. App. 661, 32 C. C. A. 309. Vol. II 1064 APPEAL AND ERROR testimony in certain proceedings becomes a part of the record by being certified to or attached to other papers," and, if the case be in chancery, it becomes such by recital in the decree, by bill of exceptions, by certificate of the judge, or by a master's report. 12 So, too, a demurrer to evidence introduces the facts into the record, and its effect is to make the evidence a part thereof. 13 (n) Documentary Evidence — (a) In General. Ordinarily, neither an account, 14 a record, 15 a judgment, 16 nor other documentary evidence 17 offered at the trial is a part of the record proper ; but documentary evidence appended as an exhibit to bill or answer in chancery must come up under the clerk's certificate and is a part of the record. 18 (b) Affidavits. As a general rule, affidavits are not part of the record proper, 19 11. Davis v, Curtis, 68 Iowa 66, 25 N. W. 932 ; Powell v. Egan, 42 Nebr. 482, 60 N. W. 932 ; Howell v. Fry, 19 Ohio St. 556. 12. Bland v. Bowie, 53 Ala. 152 ; Benjamin v. Birmingham, 50 Ark. 433, 8 S. W. 183; Walker v. Abt, 83 111. 226; Martin v. Hargar- dine, 46 111. 322; Dooley v. Lackey, 55 111. App. 30 ; Ward v. Tennessee Coal, etc., R. Co., (Tenn. Ch. 1900) 57 S. W. 193. 13. Baker v. Baker, 69 Ind. 399 ; Lindley v. Kelley, 42 Ind. 294 ; Stiles v. Inman, 55 Miss. 469; Suydam v. Williamson, 20 How. (U.S.) 427, 15 L. ed. 978. See 3 Cent. Dig. tit. "Ap- peal and Error," § 2369. A mere recital by the clerk that there was a demurrer to evidence, which was sustained, has been held not to bring the question up for review. Lusk v. Parsons, 39 111. App. 380; Willisch v. Indianapolis, etc., R. Co., 10 111. App. 402. See also Crowe v. People, 92 111. 231. Sufficient identification of demurrer. — In Seldonridge v. Chesapeake, etc., R. Co., 46 W. Va. 569, 33 S. E. 293, it was objected that the demurrer was not in the record. The rec- ord recited that " the defendant demurred to the plaintiff's evidence in writing, in which demurrer the plaintiff joined," after which was the formal demurrer to evidence and the evidence. This was held a sufficient entry to make the demurrer a part of the record. A motion to strike out part of the evidence and the ruling thereon are not before the court as part of the record proper. Posey County v. Harlem, 108 Ind. 164, 8 N. E. 913. 14. Hayes v. Woods, 72 Ala. 92; Garrity v. Lozano, 83 111. 597; Peck v. Tippecanoe County, 87 Ind. 221; Cornelius v. Merritt, 2 Head (Tenn.) 97. 15. Craig v. Smith, 10 Colo. 220, 15 Pac. 337 ; Rust v. Frothingham, 1 111. 331 ; Hunter v. Heath, 76 Me. 219; Dorsey v. Whetcroft, 1 Harr. & J. (Md.) 463. 16. Deem v. Crume, 46 111. 69; Kimmel v. Shultz, 1 111. 169 ; McKenen v. Duvall, 45 Md. 501. 17. Alabama. — Stodder v. Grant, 28 Ala. 416. Colorado. — Cook v. Hughes, 1 Colo. 51. Florida. — Hanover F. Ins. Co. v. Lewis, 22 Fla. 568; Petty v. Mays, 19 Fla. 652. Georgia.— Watts v. Colquitt, 66 Ga. 492. Illinois. — Johnson v. Freeport, etc., R. Co., Ill 111. 413; Corey v. Russell, 8 111. 366; Reeve v. Peppard, 57 111. App. 556. Vol. II Indiana. — Langohr v. Smith, 81 Ind. 495. Iowa. — State v. Jones, 11 Iowa 11; Potter v. Wooster, 10 Iowa 334. Kentucky. — Byassee v. Reese, 4 Mete. (Ky.) 372, 83 Am. Dec. 481; Vaughn v. Mills, 18 B. Mon. (Ky.) 633; Jones v. Brown, 9 Ky. L. Rep. 765. Louisiana. — Twichell v. Avegno, 19 La. Ann. 294. Maine. — Starbird v. Eaton, 42 Me. 569; Kirby v. Wood, 16 Me. 81. Maryland. — Ayres v. Kain, 3 Gill & J. (Md.) 24. Massachusetts. — Pierce v. Adams, 8 Mass. 383; Storer v. White, 7 Mass. 448. Mississippi. — Gale v. Lancaster, 44 Miss. 413. Missouri. — Ivy J o. Yancey, 129 Mo. 501, 31 S. W. 937 ; Eystra v. Capelle, 61 Mo. 578. Oregon. — Fisher v. Kelly, 26 Oreg. 249, 38 Pac. 67. Tennessee. — Anderson v. Walker, Mart. & Y. (Tenn.) 200. Texas. — MeLarty v. Prior, (Tex. 1886) 2 S. W. 752. Wisconsin. — West v. Milwaukee, etc., R. Co., 56 Wis. 318, 14 N. W. 292 ; Cord v. Southwell, 15 Wis. 211. United States. — Reed v. Gardner, 17 Wall. (U. S.) 409, 21 L. ed. 665; Stockwell v. U. S., 3 Cliff. (U. S.) 284, 23 Fed. Cas. No. 13,466. Compare Carman ;;. Pultz, 21 N. Y. 547. See 3 Cent. Dig. tit. "Appeal and Error," § 2375. 18. Carey v. Giles, 10 Ga. 1. See also Fielder v. Collier, 13 Ga. 495. 19. Alabama. — Diston v. Hood, 83 Ala. 331, 3 So. 746. But see Lee v. Davis, 16 Ala. 516, wherein, on application to set aside a sale of land under xecution, the judgment entry contained a recital that the petition, answers, and affidavits of the respective par- ties were on file and submitted, and that upon inspection and consideration of these the sale was discharged, and the court thought that the affidavit under this recital formed a part of the record. California. — Clanton v. Coward, 67 Cal. 373, 7 Pac. 787; Gordon v. Clark, 22 Cal. 533. Compare Stone v. Stone, 17 Cal. 513. Illinois. — Plotke v. Chicago Title, etc., Co., 175 111. 234, 51 N. E. 754; Anderson Transfer Co. v. Fuller, 174 111. 221, 51 N. E. 251 [af- firming 73 111. App. 48] ; Fuller v. Burke, 60 111. App. 600. APPEAL AND ERROR 1065 £" Tf affi^ts are used m support of a motion for new trial,® for a eon- o wK„ . * ? aD ^ e °J venue ' 22 10 set aside or vacate a default, 23 to sustain or dissolve an injunction, 3 * to set aside or open a judgment, 25 or whether they Indiana.— Bower v. Bowen, 139 Ind. 31, 38 xt* t' III 1 Pence v - Wau gh, 135 Ind. 143, 34 JTansas.— Jenks ». School Dist., 18 Kan. 356. Massachusetts. — Warner v. Collins. 135 Mass. 26. Nebraska. — Smith Brothers L. & T. Co. v Weiss, 56 Nebr. 210, 76 N. W. 564; Miniek v Minick, 49 Nebr. 89, 68 N. W. 374. New York. — Graham v. Dunigan, 2 Bosw. (N. Y.) 516; Gallaudet v. Steinmetz, 6 Abb. N. Cas. (N. Y.) 224. North Carolina. — Maxwell v. McDowell, 50 N. C. 391; Wallace v. Reid, 32 N. C. 61. Pennsylvania. — Breitenbach v. Bush, 44 Pa. St. 313, 84 Am. Dec. 442; Dodds v. Dodds, 9 Pa. St. 315. Tennessee. — Jones v. Stockton, 6 Lea (Tenn.) 133; Kincaid v. Bradshaw, 6 Baxt. (Tenn.) 102. United States. — Baltimore, etc., R. Co. v. Sixth Presb. Church, 91 U. S. 127, 23 L. ed. 260. See 3 Cent. Dig. tit. "Appeal and Error," § 2374. Appeal from an award. — Where, by statute, it is provided that, where an appeal is taken from a judgment entered upon an award, cer- tified copies of the original affidavit upon which any application in relation to such award was founded, and of all other affi- davits and papers relating to such applica- tion, shall form a part of the record of the judgment, such affidavits are a part of the judgment-roll. Dundon v. Starin, 19 Wis. 261. See also In re Poole, 5 N. Y. Civ. Froc. 279. 20. California. — Cohen v. Alameda, 124 Cal. 504, 57 Pac. 377 ; Von Glahn v. Brennan, 81 Cal. 261, 22 Pac. 596. Colorado. — Daum v. Conley, (Colo. 1899) 59 Pac. 753; Anderson v. Sloan, 1 Colo. 33. Florida. — Reynolds v. State, 33 Pla. 301, 14 So. 723. Idaho. — Rich v. French, (Ida. 1893) 35 Pac. 173. Illinois. — Cairo, etc., R. Co. v. Easterly, 89 111. 156; Van Pelt v. Dunford, 58 111. 145; Spangenberg v. Charles, 44 111. App. 526. Indiana. — Hoskinson v. Cavender, 143 Ind. 1, 42 N. E. 358; Iddings v. Iddings, 134 Ind. 322, 33 N. E. 1101; ^Etna Ins. Co. v. Le Roy, 15 Ind. App. 49, 43 N. E. 570. Kentucky. — Faulkner v. Wilcox, 2 Litt. (Ky.) 369. Mississippi. — Ross v. Garey, 7 How. (Miss.) 47. Nebraska. — Willits v. Arena Fruit Co., 5ff Nebr. 659, 79 N. W. 624; Mercantile Trust Co. v. O'Hanlon, 58 Nebr. 482, 78 N. W. 925. Oklahoma. — Berry v. Smith, 2 Okla. 345, 35 Pac. 576. Texas. — Frizzell v. Johnson, 30 Tex. 31; Arnold v. Williams, 21 Tex. 413. Utah.— Perego v. Dodge, 9 Utah 3, 33 Pac. 221. United States.— Evans v. Stettnisch, 149 U. S. 605, 13 S. Ct. 931, 37 L. ed. 866; Stew- art v. Wyoming Cattle Ranche Co., 128 U. S. 383, 9 S. Ct. 101, 32 L. ed. 439. See 3 Cent. Dig. tit. "Appeal and Error," § 2374. 21. Arkansas. — Wise v. Martin, 36 Ark. 305; Phillips v. Reardon, 7 Ark. 256. Colorado. — Interstate Land, etc., Co. v. Patton, 21 Colo. 503, 42 Pac. 673. Dakota. — Everett v. Buchanan, 2 Dak. 249, 6 N. W. 439, 8 N. W. 31. Illinois.— Kennedy v. Whittaker, 81 111. App. 605. Indiana. — Swan v. Clark, 80 Ind. 57 ; Ful- kerson v. Armstrong, 39 Ind. 472; Rains v. Bolin, 6 Ind. App. 181, 33 N. E. 218. Missouri. — Pratt v. Rogers, 5 Mo. 51. Nebraska. — Nelson v. Johnson, 44 Nebr. 7, 62 N. W. 244; Barton v. McKay, 36 Nebr. 632, 54 N. W. 968. Nevada. — State v. Wallin, 6 Nev. 280. Oklahoma. — Kingman v. Pixley, 7 Okla. 351, 54 Pac. 494. Utah. — Hecla Gold Min. Co. v. Gisborn, 21 Utah 68, 59 Pac. 518. See 3 Cent. Dig. tit. "Appeal and Error," § 2374. 22. Arkansas. — Estes v. Chesney, 54 Ark. 463, 16 S. W. 267. Illinois. — Schlump v. Reidersdorf, 28 111. 68. Indiana. — Compton v. State, 89 Ind. 338 ; Ilorton v. Wilson, 25 Ind. 316. Mississippi. — Grant v. Planters' Bank, 4 How. (Miss.) 326. Nebraska. — Van Etten v. Kosters, 31 Nebr. 285, 47 N. W. 916. Contra, see MeGovern v. Keokuk Lumber Co., 61 Iowa 265, 16 N. W. 106; Winet v. Berryhill, 55 Iowa 411, 7 N. W. 681. 23. Arkansas. — Fidelity Ins. Co. v. Ham- mock, (Ark. 1891) 15 S. W. 360. Florida.— Parkhurst v. Stone, 36 Fk,. 463, 18 So. 596; Columbia County v. Branch, 31 Fla. 62, 12 So. 650. Indiana. — Hancock v. Fleming, 85 Ind. 571; Bingham v. Stumph, 48 Ind. 97. Michigan. — Leonard v. Woodward, 34 Mich. 514. Nebraska. — Beard v. Ringer, 41 Nebr. 831, 60 N. W. 95; Burke v. Pepper, 29 Nebr. 320, 45 N. W. 466. See 3 Cent. Dig. tit. "Appeal and Error," § 2374. 24. Hobbs v. Hunt, 34 Nebr. 657, 52 N. W. 278; Strunk v. State, 31 Nebr. 119, 47 N. W. 640; Garner v. White, 23 Ohio St. 192; Sleet v. Williams, 21 Ohio St. 82; Brown v. Ridg- way, 10 Pa. St. 42; Bowring v. Bowring, 4 Utah 185, 7 Pac. 716. See 3 Cent. Dig. tit. "Appeal and Error," § 2374. 25. California. — Ritter v. Mason, 11 Cal. 214. Illinois. — Roundy v. Hunt, 24 111. 598. Indiana. — Patton v. Camplin, 63 Ind. 512. Vol. II 1066 APPEAL AND ERROR are used on the hearing of an application for an injunction. 26 It has been held, however, that an affidavit filed with the clerk as a basis on which process is to be issued ministerially by him is, like an affidavit for publication, a part of the pro- ceedings in the case and a part of the record proper ; ^ and, in chancery, affidavits used on the hearing may form part of the record. 28 (c) Depositions. Depositions are not, ordinarily, a part of the record proper, 29 and the necessity of preserving them by some appropriate method is not obviated by agreement of counsel m or by the certificate of the clerk ; 31 but if there is a sufficient identification by reference in the record to the depositions found among the papers in the cause certified up, this will be sufficient. 32 In suits in equity, however, no bill is necessary to make depositions a part of the record, but it is sufficient if they are properly filed in the cause. 33 g. Instructions, Instructions, ordinarily, form no part of the record, 34 and Pennsylvania. — George v. Tradesmen's Bldg., etc., Assoc, 1 Walk. (Pa.) 533. Washington. — Whidby Land, etc., Co. v. Nye, 5 Wash. 301, 31 Pac. 752. See 3 Cent. Dig. tit. "Appeal and Error," § 2374. 26. Morgan v. Twitty, 64 Ga. 426; Wool- bright v. Wall. 60 Ga. 595; Turnbull v. Ellis, 35 Ind. 422; Hart c. Foley, 67 Iowa 407, 25 N. W. 679; Altschiel v. Smith, 9 Kan. 90. See 3 Cent. Dig. tit. "Appeal and Error," § 2374. 27. Bryan v. Congdon, 54 Kan. 109, 37 Pac. 1009. 28. Cohen v. Meyers, 42 Ga. 46. 29. Arkansas. — Moore v. Cairo, etc., R. Co., 36 Ark. 262. Florida. — Myers v. Roberts, 35 Fla. 255, 17 So. 358. Kansas. — Dunlap i'. MeFarland, 25 Kan. 488. Kentucky. — King v. Common School Dist. No. 23, 17 Ky. L. Rep. 803, 32 S. W. 752; Goldsmith v. Fletcheimer, 16 Ky. L. Rep. 432, 28 S. W. 21; Louisville, etc., R. Co. v. Finley, 9 Ky. L. Rep. 660, 5 S. W. 753. Louisiana. — Wiltz v. Dufau, 10 Mart. (La.) 20. Michigan. — Harvey v. McAdams, 32 Mich. 472. Minnesota. — Claflin v. Lawler. 1 Minn. 297. Mississippi. — Giegolt v. Joor, 60 Miss. 817. Nebraska. — Kyle v. Chase, 14 Nebr. 528, 16 N. W. 821 ; Nebraska City v. Baker, 1 Nebr. 180. Ohio. — Pittsburgh, etc., R. Co. v. Probst, 30 Ohio St. 104. Oregon. — Roberts v. Parrish, 17 Oreg. 583, 22 Pac. 136. Pennsylvania. — France v. Ruddiman, 126 Pa. St. 257, 17 Atl. 611; Shisler v. Keavy, 75 Pa. St. 79. Tennessee. — Neef v. Chattanooga Gas Light Co., 9 Lea (Tenn.) 467; Spurlock v. Fulks, 1 Swan (Tenn.) 289. Texas. — Harris v. Leavitt, 16 Tex. 340; Texas, etc., R. Co. v. Evans, 2 Tex. Unrep. Cas. 318. Vermont. — Sargeant v. Leland, 2 Vt. 277 ; Stearns v. Warner, 2 Aik. (Vt.) 26. Washington. — See Likens v. Cain, 4 Wash. 307, 30 Pac. 80. United States.— Craig r. Smith, 100 TJ. S. 226, 25 L. ed. 577; Baltimore, etc., R. Co. v. Vol. II Sixth Presb. Church, 91 U. S. 127, 23 L. ed. 260. See 3 Cent. Dig. tit. "Appeal and Error," § 2372. Motion to suppress depositions. — The rul- ing of the court below on a motion to sup- press a deposition cannot be considered on appeal unless proper steps are taken to pre- serve such motion and the ruling thereon. Craig v. Young, 2 Colo. 112; Pollak v. Hutch- inson, 21 Fla. 128; Smith v. Kyler, 74 Ind. 575; Hutts v. Hutts, 51 Ind. 581; Davidson v. Peck, 4 Mo. 438. See 3 Cent. Dig. tit. "Appeal and Error," § 2373. 30. Moore v. Cairo, etc., R. Co., 36 Ark. 262 ; Bacon v. Green, 36 Fla. 325, 18 So. 870. 31. Moore v. Cairo, etc., R. Co., 36 Ark. 262; Wynne v. Edwards, 7 Humphr. (Tenn.) 418 ; Hillebrant v. Brewer, 6 Tex. 45, 55 Am. Dec. 757 ; Ramsburg v. Erb, 16 W. Va. 777. 32. Bacon v. Green, 36 Fla. 325, 18 So. S70; Washington Mut. Ins. Co. v. Reed, 20 Ohio 199. Depositions not referred to or recognized in any order or decree of the court, where there is nothing to show that they were made a part of the record or that they were read on the hearing of the case, cannot be considered by the appellate court. Bloss v. Hull, 27 W. Va. 503; Hilleary is. Thompson, 11 W. Va. 113. 33. Arkansas. — Rose v. Rose, 9 Ark. 507. Illinois. — Ryan v. Sanford, 133 111. 291, 24 N. E. 428 ; Smith v. Newland, 40 111. 100. ' Iowa.— Gately v. Kniss, 64 Iowa 537, 21 N. W. 21. Kentucky. — Connelly v. Shipp, 3 Litt. (Ky.) Tennessee. — Hill v. Bowers, 4 Heisk. (Tenn.) 272. Virginia. — Day v. Hale, 22 Gratt. (Va.) 146. West Virginia.— Turnbull v. Clifton Coal Co., 19 W. Va. 299. See 3 Cent. Dig. tit. "Appeal and Error," § 2372. x 34. Arkansas. — Jones v. Buzzard, 2 Ark. 415. California. — Cohen v. Wallace, 107 Cal. 133, 40 Pac. 101 (where it was pointed out that, if properly authenticated by the judge, instructions become a part of the judgment- roll without being incorporated in the bill of exceptions) ; Matthews v. Jones, 92 Cal. 563, 28 Pac. 597. APPEAL AND ERROR 1067 they are not made a part thereof by being copied into the motion for a new trial, 35 or by reason of the fact that the refusal to give instructions requested need not be excepted to under a statute. 36 In some states, by statute, however, instructions need not be embodied in a bill of exceptions if other modes prescribed for bring- ing them into the record are carefully observed. 37 h. Proceedings on Reference. In chancery, 38 and by statute in some states, the report of a referee 39 is a part of the record. In other states it is a part of the record where the terms of the reference are general, and the referee must Colorado. — Witcher v. Watkins, 11 Colo. 548, 19 Pac. 540; Brink v. Posey, 11 Colo. 521, 19 Pac. 467; Banks v. Hoyt, 11 Colo. 399, 18 Pac. 448. Dakota. — St. Croix Lumber Co. v. Penning- ton, 2 Dak. 467, 11 K. W. 497. Florida. — Union Bank v. Call, 5 Fla. 409. But where the instruction is manifestly with- out the limits of the issue joined between the parties, and is likely to mislead the jury in making up their verdict, the court may pro- nounce upon it even in the absence of the bill of exceptions provided it be properly attested by the signature of the judge below. McKay v. Bellows, 8 Fla. 31; McKay v. Friebele, 8 Fla. 21 ; Fash v. Clark, 8 Fla. 16. Illinois. — Drew v. Beall, 62 111. 164; Mann i'. Russell, 11 111. 586; Chicago, etc., R. Co. v. Haselwood, 91 111. App. 103. Indiana. — Riley v. Allen, 154 Ind. 176, 56 N. E. 240; Van Meter v. Barnett, 119 Ind. 35, 20 N. E. 426 ; Eaken v. Thompson, 4 Ind. App. 393, 30 N. E. 1114. Indian Territory. — Case v. Hall, ( Indian Terr. 1898) 46 S. W. 180. loiva. — Pierce v. Locke, 11 Iowa 454; Ew- ing v. Scott, 2 Iowa 447. Kansas. — Kshinka v. Cawker, 16 Kan. 63 ; McArthur v. Mitchell, 7 Kan. 173. Kentucky. — Cartmel v. Unverzaught, 21 Ky. L. Rep. 1282, 54 S. W. 965; Tinsley v. White, 21 Ky. L. Rep. 1151, 54 S. W. 169. Louisiana. — Soulie v. Ranson, 29 La. Ann. 161. Massachusetts. — Parker v. Lawrence Mfg. Co., 176 Mass. 203, 57 N. E. 366; Holt v. Rob- erts, 175 Mass. 558, 56 N. E. 702. Missouri. — Greenabaum v. Millsaps, 77 Mo. 474 ; Robinson v. Hood, 67 Mo. 660. Ohio. — Pettett v. Van Fleet, 31 Ohio St. 536; Lockhart v. Brown, 31 Ohio St. 431. Pennsylvania. — Quellman v. Jacobs, (Pa. 1852) 1 Am. Law Reg. 248; Lehigh Valley F. Ins. Co. v. Tighe, 2 Pennyp. (Pa.) 505. Tennessee. — McMillan Marble Co. v. Black, 89 Tenn. 118, 14 S. W. 479; Chesapeake, etc., R. Co. v. Foster, 88 Tenn. 671, 13 S. W. 694, 14 S. W. 428. Texas. — Davis v. Calhoun, 41 Tex. 554; Henry v. Shain, 1 Tex. App. Civ. Cas. § 1074. Virginia. — Ferguson v. Wills, 88 Va. 136, 15 Va. L. J. 569, 13 S. E. 392. Washington — Medcsdf v. Bush, 4 Wash. 386, 30 Pac. 325. West Virginia.— Winters v. Null, 31 W. Va. 450, 7 S. E. 443. Wisconsin.— Collins v. Breen, /5 Wis. 60b, 44 N. W. 769; Koenigs v. Jung, 73 Wis. 178, 40 N. W. 801. ^ , ... United States.— Struthers v. Drexel, 122 U. S. 487, 7 S. Ct. 1293, 30 L. ed. 1216; Phoe- nix Ins. Co. 17. Lanier, 95 U. S. 171, 24 L. ed. 383; Sternenberg v. Mailhos, 99 Fed. 43, 39 C. C. A. 408. See 3 Cent. Dig. tit. "Appeal and Error," § 2376. 35. Whetton v. Clayton, 111 Ind. 360, 12 N. E. 513; Gheens v. Golden, 90 Ind. 427; Henley v. Bronnenberg, (Ind. App. 1892) 31 N. E. 583; Garland v. Wholebau, 20 Iowa 271. See 3 Cent. Dig. tit. "Appeal and Error," § 2376. 36. Kleinschmidt v. McDermott, 12 Mont. 309, 30 Pac. 393. 37. Alabama. — Highland Ave., etc., R. Co. v. South, 112 Ala. 642, 20 So. 1003; Alabama Great Southern R. Co. v. Dobbs, 101 Ala. 219, 12 So. 770. Florida. — Richardson v. State, 28 Fla. 349, 9 So. 704; Parish v. Pensacola, etc., R. Co., 28 Fla. 251, 9 So. 696. Indiana. — Krom v. Vermillion, 143 Ind. 75, 41 N. E. 539 ; Insurance Co. of North America v. Osborn, (Ind. App. 1901) 59 N. E. 181; Otis v. Weiss, 22 Ind. App. 161, 53 N. E. 428. Iowa. — Davis v. Campbell, 93 Iowa 524, 61 N. W. 1053; Allison v. Jack, 76 Iowa 205, 40 N. W. 811. Mississippi. — Shelby v. Brown, (Miss. 1899) 24 So. 531 ; State v. Spengler, 74 Miss. 129, 20 So. 879, 21 So. 4. Nebraska. — Blumer v. Bennett, 44 Nebr. 873, 63 N. W. 14; Eaton v. Carruth, 11 Nebr. 231, 9 N. W. 58. See also State v. Bartley, 56 Nebr. 810, 77 N. W. 438; Yates v. Kinney, 23 Nebr. 648, 37 N. W. 590. North Carolina. — Davis t'. Duval, 112 N. C. 833, 17 S. E. 528; Marshall v. Stine, 112 N. C. 697, 17 S. E. 495. Utah.— Utah Optical Co. v. Keith, 18 Utah 464, 56 Pac. 155. See 3 Cent. Dig. tit. "Appeal and Error," §§ 2377, 2378. 38. Gaylord v. Couch, 4 Day (Conn.) 374; Fouche v. Harison, 78 Ga. 359, 3 S. E. 330 ifollowed in Arendale v. Smith, 107 Ga. 494, 33 S. E. 669; Green v. Coast Line R. Co., 97 Ga. 15, 24 S. E. 814, 54 Am. St. Rep. 379, 33 L. R. A. 806] ; Ferris v. McClure, 40 111. 99; Clapp v. Sturdivant, 10 Me. 68. 39. Daune v. Connelly, (Colo. 1899) 59 Pac 753; Western Union Cold Storage Co. v. Bankers' Nat. Bank, 176 111. 260, 52 N. E 30- Ferguson v. Hamilton, 35 Barb. (N. Y.) 427 ; Bash v. Culver Gold Min. Co., 7 Wash. 122 34 Pac. 462. See also Lyddy v. Cham- berlain, 24 Hun (N. Y.) 377, holding that, where a referee's report is sent back because of defects therein and a new report is made, the latter only belongs in the judgment-roll. Vol. II 10G8 APPEAL AND ERROR make a general report on the whole case in order that judgment may be entered thereon ; m but where the reference is to report facts, or evidence and facts, the report is not part of the record. 41 i. Verdict — (i) In General. The verdict is, as a rule, a part of the record proper ; 42 but a sealed verdict, 48 or a verdict which has been set aside, 44 is not a part of the record. (il) Special Verdict, Interrogatories, and Answers. A special verdict has the effect of incorporating facts into the record, and a bill of exceptions is not necessary to make it a part thereof. 45 So, too, interrogatories and answers of the jury are held to be part of the record, 46 unless the interrogatories are rejected 47 40. Faulkner v. Hendy, 103 Cal. 15, 36 Pae. 1021. 41. Indiana. — Lee v. State, 88 Ind. 256; Beard v. Hand, 88 Ind. 183. Maine. — Vance v. Carle, 7 Me. 164. Massachusetts. — Davis v. Gay, 141 Masa. 531, 6 N. E. 549. Missouri. — Turley v. Barnes, 131 Mo. 548, 33 S. W. 172; Walton v. Walton, 17 Mo. 376. Oregon. — Van Bibber v. Fields, 25 Oreg. 527, 36 Pae. 526; Osborn v. Graves, 11 Oreg. 526, 6 Pae. 227. Montana. — Murphy v. Patterson, 24 Mont. 575, 63 Pae. 375 (holding that Mont. Code Civ. Proe. § 1196, including the findings of a referee in the judgment-roll, does not refer to findings of fact under an order to hear tes- timony, but only to findings under a referee to hear and determine issues raised by the pleadings) ; Kleinschmidt v. Her, 6 Mont. 122, 9 Pae. 901. Virginia. — -Magarity v. Shipman, 82 Va. 806, 7 S. E. 381. United States. — Dietz v. Lymer, 63 Fed. 758, 27 U. S. App. 415, 11 C. C. A. 410 {.af- firming 61 Fed. 792, 19 U. S. App. 663, 10 C. C. A. 71]. See 3 Cent. Dig. tit. "Appeal and Error,'' § 2380. Testimony, reduced to writing and signed by each of the witnesses, is reported to the court of common pleas with the certificate of the referee, in order that such court may, in entering judgment, have the testimony as a guide in considering exceptions, but it is not a part of the record which the circuit court may consider in determining whether the findings of the referee and the judgment thereof were correct. Johnson v. Johnson, 19 Ohio Cir. Ct. 610, 10 Ohio Cir. Dee. 411. Submission and award. — Where a statute authorizes parties by their submission to have the award made a judgment of the court, " the submission is as much the basis of the action as the declaration, and the award, the foundation of the judgment as the verdict of the jury," and a bill of exceptions is unneces- sary. Buntain v. Curtis, 27 111. 374. 42. Arizona. — Bashford v. Kendall, (Ariz. 1885) 7 Pae. 176. Idaho.— Rich v. French, (Ida. 1893) 35 Pae. 173. Illinois. — Chicago, etc., R. Co. v. Melville, 66 111. 329; French v. Hotehkiss, 60 111. App. 580. Iowa. — Davis v. Campbell, 93 Iowa 524, 61 N. W. 1053. Vol. II New York. — Overton v. National Bank, 3 N. Y. St. 169. See 3 Cent. Dig. tit. " Appeal and Error," § 2381. The verdict as recorded is the only one of which the appellate court will take cogniz- ance. It can be gathered only from the lan- guage used in the record of the judgment which it is sought to correct, and a copy of a paper found in the transcript, and purporting to be a verdict, will not be considered. The written memorandum declaring the verdict returned by the jury as their verdict is not a part of the record, or evidence of it. Alabama. — Comer v. Jackson, 50 Ala. 384; Patterson v. Cook, 8 Port. (Ala.) 66. California. — Coleman v. Gilmore, 49 Cal. 340, an appeal from an order denying a new trial, where the court struck from the record two papers entitled, " Verdict of Jury," and " Order Modifying Verdict." Illinois. — McRea v. Becker, 90 111. App. 439; Goldstein v. Reynolds, 86 111. App. 390. Maine. — Goodwin v. Appleton, 22 Me. 453. Minnesota. — Seeman v. Feeney, 19 Minn. 79. See 3 Cent. Dig. tit. "Appeal and Error," § 2381. An entry on the order-book that the court instructed that the " following verdict " be returned, setting it out, does not take the place of a bill of exceptions. Hall v. Dur- ham, 109 Ind. 434, 9 N. E. 926, 10 N. E. 581. 43. Rees v. Stills, 38 Pa. St. 138; Wood Paving Co. v. Biekel, 14 Phila. (Pa.) 152, 37 Leg. Int. (Pa.) 132. 44. Galley v. Galley, 13 Nebr. 200, 13 N. W. 172. 45. Clark's Code Civ. Proe. N. C. (1900), § 409 ; Suydam v. Williamson, 20 How. (U. S.) 427, 15 L. ed. 978; Daube v. Philadelphia, etc., Coal, etc., Co., 77 Fed. 713, 46 U. S. App. 591, 23 C. C. A. 420. Refusal to strike out special verdict is no part of the record paper. Tague v. Owens, 11 Ind. App. 200, 38 N. E. 541. 46. Frank v. Grimes, 105 Ind. 346, 4 N. E. 414; Boots v. Griffiths, 97 Ind. 241. Making interrogatories more specific. — An order overruling a motion to require a jury to make answers to special interrogatories more specific must be brought up by » bill of exceptions. Pittsburgh, etc., R. Co. v. In- diana Horseshoe Co., 154 Ind. 322, 56 N. E. 766. 47. De Pauw v. Kaiser, 77 Ga. 176, 3 S. E. 254. APPEAL AND ERROR 1069 or unless the interrogatories are not shown to have been properly submitted to the jury. 48 r r J j. Findings of Court. The finding of the court, signed 49 and filed, is a part of the record, without a bill of exceptions or statement ; » but an additional finding, made alter the entry of judgment and without notice to the other party, should be stricken from the transcript, 61 and, in general, special findings of fact and con- clusions of law found by the court are held not to be a part of the record proper. 52 k. Proceedings on Motion For Arrest of Judgment. Proceedings on motion in arrest will not, in the absence of a bill of exceptions, be reviewed, as such motion can be brought up only by bill of exceptions. 53 48. Aiken v. Iaing, 94 Ind. 507; Ogle v. Dill, 61 Ind. 438. Where the record discloses that questions submitted to the jury were returned into court with the general verdict, this suffi- ciently shows that the questions were in fact submitted and answered. Atchison, etc.. R. Co. v. Johnson, 3 Okla. 41, 41 Pac. 641. 49. Signature of judge. — That the finding may go on the record it is essential, in the absence of a bill of exceptions, that it should be signed by the judge (Smith v. Davidson, 45 Ind. 396; Roberts v. Smith, 34 Ind. 550; Galvin v. Syfers, 22 Ind. App. 43, 52 N. E. 96 ; [but see McCullagh v. Allen, 10 Kan. 150, where special findings not signed by the judge, but spread upon the journal by order of the court, were held as much a part of the record as the pleadings] ) ; but where conclu- sions of law immediately follow the finding of facts, both constituting one instrument, the judge's signature following the conclu- sions of law is a sufficient signing (Martin V. Marks, 154 Ind. 549, 57 N. E. 249). 50. California. — ■ Thompson r. Hancock, 51 Cal. 110; Reynolds v. Harris, 8 Cal. 617. Connecticut. — Hoadley r. Danbury Sav. Bank, 71 Conn. 599, 42 Atl. 667. Idaho. — Rich v. French, (Ida. 1893) 35 Pac. 173 [citing Ida. Rev. Stat. (1887), § 4456, subsec. 2]. Iowa. — ■ Hodges v. Goetzman, 76 Iowa 476, 41 N. W. 195 [citing Iowa Code, § 2743]. Minnesota. — Farnham v. Thompson, 34 Minn. 330, 26 N. W. 9, 57 Am. Rep. 59 ; Mor- rison v. March, 4 Minn. 422. New York. — Nobis v. Pollock, 53 Hun (N. Y.) 441, 6 N. Y. Suppl. 273, 26 N. Y. St. 155. Compare Walrath v. Abbott, 85 Hun (N. Y.) 181, 32 N. Y. Suppl. 596, 66 N. Y. St. 164. Ohio.— Ralston v. Kohl, 30 Ohio St. 92. South Dakota.— Colonial, etc., Mortg. Co. v. Bradley, 4 S. D. 158, 55 1ST. W. 1108 [citing S. D. Comp. Laws, §§ 4756, 5103]. Washington. — Dodd v. Bowles, 3 Wash. Terr. 383, 19 Pac. 156 [citing Wash. Code, § 451]. Wisconsin. — Smith v. Lewis, 20 Wis. 350. United States.— JEtna. Ins. Co. v. Boon, 95 U. S. 117, 24 L. ed. 395; Wesson v. Saline County, 73 Fed. 917, 34 U. S. App. 680, 20 C. C. A. 227. See 3 Cent. Dig. tit. " Appeal and Error, ' § 2382. 51. Hodges v. Goetzman, 76 Iowa 476, 41 N. W. 195; Loewen v. Forsee, (Mo. 1896) 35 S. W. 1138; Hamilton v. Armstrong, 120 Mo. 597, 25 S. W. 545; Kahn v. Central Smelting Co., 102 TJ. S. 641, 26 L. ed. 266. 52. Arkansas. — Bradley v. Harkey, 59 Ark. 178, 26 S. W. 827 ; Hall v. Bonville, 36 Ark. 491. Illinois. — Firemen's Ins. Co. v. Peck, 126 111. 493, 18 N. E. 752; Wehrheim v. Thiel Detective Co., 87 111. App. 565. Indiana. — McCray v. Humes, 116 Ind. 103, 18 N. E. 500; Branch v. Faust, 115 Ind. 464, 17 N. E. 898. Minnesota. — National Invest. Co. v. Schicklig, 56 Minn. 283, 57 N. W. 663 ; Prouty i\ Hallowell, 53 Minn. 488, 55 N. W. 623. Missouri. — Martin v. Martin, 27 Mo. 227; Ragan v. McCoy, 26 Mo. 166. Nevada. — • Streeter v. Johnson, 23 Nev. 194, 44 Pac. 819 (holding that the method of bringing up the finding is not altered by Nev. Acts (1895), p. 58, allowing original papers to be certified up) ; Beck v. Thompson, 22 Nev. 109, 36 Pac. 562. Texas. — Madden v. Madden, 79 Tex. 595, 15 S. W. 480. See 3 Cent. Dig. tit. "Appeal and Error," § 2382. Request for special finding. — It is indis- pensable that a request be made by one or both of the parties (Wilson r. Buell, 117 Ind. 315, 20 N. E. 231) ; but it has been held that where the court has tried a ease without a jury and is required, under stat- ute, to put the decision in writing, a special finding of facts, whether made with or with- out the request of the parties, comes in the place of a, special verdict and is part of the record, and that, in the absence of a show- ing to the contrary, a request will be pre- sumed (Delashman v. Berry, 20 Mich. 292, 4 Am. Rep. 392). 53. Wiggins v. Witherington, 96 Ala. 535, 11 So. 539; Turley v. Barnes, 131 Mo. 548, 33 S. W. 172; Ryan v. Growney, 125 Mo. 474, 28 S. W. 189, 755 ; Puller v. Thomas, 36 Mo. App. 105; Thompson v. Backenstos, 1 Oreg. 17; Rolette v. Crawford County, 1 Pinn. (Wis.) 384. Contra, Daniels v. Denver, 2 Colo. 669; Midland R. Co. v. Smith, 135 Ind. 348, 35 N. E. 284 (wherein the court said: " Where the motion relates to matters ap- parent upon the face of the record, it is not necessary to present it by bill of exceptions "). Vol. It 1070 APPEAL AND ERROR 1. Proceedings on Motion For New Trial — (i) In General. As a rule, neither the notice of motion for new trial, 54 the motion itself, nor the ruling of the court thereon, 55 form a part of the record proper. There are jurisdic- tions, however, where it is held that such motions and the rulings thereon have no place in the bill of exceptions or statement, 56 though the affidavits used on the hearing and the evidence on which the judge acted must be preserved by a bill of exceptions. 57 See 3 Cent. Dig. tit. " Appeal and Error/' § 2384. 54. Leonard v. Shaw, 114 Cal. 69, 45 Pac. 1012; Nye v. Marysville, etc., St.. R. Co., 97 Cal. 461, 32 Pac. 530; Rich v. French, (Ida. 1893) 35 Pac. 173; Linton v. Housh, 4 Kan. 535; Perego v. Dodge, 9 Utah 3, 33 Pac. 221. Contra, Arnold v. Sinclair", 12 Mont. 248, 29 Pac. 1124. See Z Cent. Dig. tit. "Appeal and Error," § 2386. 55. Alabama. — Richmond, etc., R. Co. v. Jones, 102 Ala. 212, 14 So. 786; Tyree v. Parham, 66 Ala. 424. Arizona. — Maricopa County v. Osborn, (Ariz. 1895) 40 Pac. 313; Snead v. Tietjen, (Ariz. 1890) 24 Pac. 324. Arkansas. — Beidler v. Friedell , 44 Ark. 411; Gaines v. Summers, 39 Ark. 482. California. — Larkin v. Larkin, 76 Cal. 323, 18 Pac. 396; Hearst r. Dennison, 72 Cal. 227, 13 Pac. 628. Compare remark of Hayne, C, in Randall v. Duff, 79 Cal. 115, 19 Pae. 532, 21 Pac. 610, 3 L. R. A. 754 (decided un- der Cal. Code Civ. Proc. § 952). Colorado. — Anderson i: Sloan, 1 Colo. 33. Florida. — Grady v. Jeffares, 25 Fla. 743, 6 So. 828; Orthing v. Gundersheimer, 12 Fla. 640. Idaho.— Rich r. French, (Ida. 1893) 35 Pae. 173, construing Ida. Rev. Stat. (1887), § 4467, subsec. 2. Illinois. — Young v. Wells Glass Co., 187 111. 626, 58 N. E. 605 [affirming 87 111. App. 537]; Nason v. Letz, 73 111. 371; French v. Hotchkiss, 60 111. App. 580. Louisiana. — State v. Williams, 35 La. Ann. 742. Michigan. — Stevenson r. Detroit, etc., R. Co., 118 Mich. 651, 77 N. W. 247; Monnier v. Mizner, 17 Mich. 271. Missouri. — Cooper v. Maloney, (Mo. 1901) 63 S. W. 372; Morris v. Whyte, 158 Mo. 20, 57 S. W. 1037 (holding that copying affi- davits into the bill of exceptions, in support of the motion for a new trial on the ground of misstatements to the jury in the closing arguments, was insufficient) ; Patterson v. Gallimore, 79 Mo. App. 457. Montana. — Helena First Nat. Bank v. Ir- vine, 2 Mont. 554. New York. — Kenney v. Sumner, 12 Misc. (N. Y.) 86, 33 N. Y. Suppl. 95, 66 N. Y. St. 696. And see Lord r. Van Gelder, 16 Misc. (N. Y.) 24, 37 N. Y. Suppl. 693, 73 N. Y. St. 134. Oklahoma. — Blanchard v. U. S., 6 Okla. 587, 52 Pae. 736, 54 Pac. 300; McMechan v. Christv, 3 Okla. 301, 41 Pac. 382 (constru- ing Okla. Code, § 3964). Vol. II Oregon. — Oregonian R. Co. v. Wright, 10 Oreg. 162; Thompson v. Backenstos, 1 Oreg. 17. Utah.— Perego v. Dodge, 9 Utah 3, 33 Pac. 221; People r. Smith, 3 Utah 425, 4 Pac. 242. But, under Utah Rev. Stat. § 3283, an order denying a motion for a new trial, if made in defendant's absence, or under some other circumstances, will be deemed excepted to, and become a part of the judgment-roll. Hecla Gold Man. Co. v. Gisborn, 21 Utah 68, 59 Pac. 518. Wyoming. — Rubel v. Willey, 5 Wyo. 427, 40 Pac. 761; Seibel v. Bath, 5 Wyo. 409, 40 Pae. 756 ; Perkins v. McDowell, 3 Wyo. 328, 23 Pae. 71. See 3 Cent. Dig. tit. "Appeal and Error," §§ 2385, 2387. 56. Georgia. — ■ Patterson v. Collier, 77 Ga. 292, 3 S. E. 119 (holding that exhibits at- tached to the motion and constituting the evidence in support of it, are a part of the pleadings) ; Cox v. Weems, 64 Ga. 165. Indiana. — Hunter v. Hatfield, 68 Ind. 416 (holding that though a part of the record it is sufficient if the bill of exceptions sets it out) ; Cooper v. Howard County, 64 Ind. 520. Kansas.— McCullagh v. Allen, 10 Kan. 150. Kentucky. — McAlldster v. Connecticut Mut. L. Ins. Co., 78 Ky. 531, holding that the grounds for a new trial, when filed and en- tered on the order-book, become a part of the record. Mississippi. — Barrington v. Mississippi Cent. R. Co., 32 Miss. 370. Nebraska. — Eaton r. Carruth, 11 Nebr. 231. 9 N. W. 58. North Dakota. — Goose River Bank v. Gil- more, 3 N. D. 188, 54 N. W. 1032, decided under N. D. jws (1891), c. 120, § 5, pro- viding that, on appeal from an order, the or- der appealed from and the original papers shall be transmitted to the appellate court. South Dakota. — Reagan v. McKibben, 11 S. D. 270, 76 N. W. 943 ; Daley v. Forsythe, 9 S. D. 34. 67 N. W. 948. Wisconsin. — Dunbar v. Hollinshead, 10 Wis. 505, construing Wis. Rev. Stat. c. 139, § 5. See 3 Cent. Dig. tit. "Appeal and Error," §§ 2385, 2387. 57. Indiana. — Cornell v. Hallett, 140 Ind. 634, 40 N. E. 132; Powers v. Nesbit, 127 Ind. 497, 27 N. E. 501 ; Hood v. Tyner, 3 Ind. App. 51, 28 N. E. 1033. Louisiana. — State v. Waggoner, 39 La. Ann. 919. 3 So. 119; State v. Chatman, 34 La. Ann. 881. Maine. — Maxwell v. Mitchell, 61 Me. 106. APPEAL AND ERROR 1071 (n) Statement Used on Hearing. The statement of the case used on the hearing of a motion for a new trial K is part of the record upon which an appeal from a judgment may be heard, 69 if properly authenticated and filed in accord- ance with the requirements of the statute; 60 but such statement will not be received by the appellate court as evidence of the existence of facts alleged as the ground of the motion, but such facts must be brought to the notice of the court by bill of exceptions, or something tantamount tnereto. 61 If amendments are allowed to a statement, they must be inserted in the appropriate places and the whole instrument duly authenticated ; 62 but where the amendments comprise additional matter, complete and intelligible in itself, so that inconvenience or uncertainty will not result from their occupying a separate position at the end of the statement, inserting them in that place will be sufficient. 63 m. Judgment and Proceedings Relating Thereto — (i) Motion for Judg- ment. A motion for judgment on special findings notwithstanding a general ver- dict, 64 and the ruling on a motion to direct the clerk to enter judgment nunc pro tunc,® are parts of the record proper. Montana. — Helena First Nat. Bank v. Ir- vine, 2 Mont. 554. Nebraska. — Langdon v. Wintersteen, 58 Nebr. 278, 78 N. W. 501 ; Morsch v. Besack, 52 Nebr. 502, 72 N. W. 953. See also supra, XIII, B, 6, b, (ii). See 3 Cent. Dig. tit. " Appeal and Error," §§ 2385, 2387. 58. Statement on appeal distinguished from statement on motion for new trial. — In Raymond v. Thexton, 7 Mont. 299, 17 Pac. 258, the difference between the authentication of a statement on motion for a new trial, and the authentication of a statement on appeal as provided for and. regulated by the code, was carefully consridered. The statement on appeal, it was said, may be agreed to by the parties or their attorneys, and certified to by them as correct, or it may be certified to by the judge, but in all cases the statement on motion for a new trial must be certified to by the judge. See also Harper v. Minor, 27 Cal. 107; Gregory v. Frothingham, 1 Nev. 253 (where it was held that, on a statement on motion for a new trial, the court would consider, without » statement on appeal, copies of depositions, exhibits, amendments of the clerk, notes of the judge, etc., cer- tified by the clerk as used on the hearing of the motion, and which seem to be pertinent to the ground set forth in the motion). 59. California. — Douglass v. MeFarland, 92 Cal. 656, 28 Pac. 687; Craig r. Fry, 68 Cal. 363, 9 Pac. 550. Idaho. — Hvde v. Harkness, 1 Ida. 623. Montana.— Scherrer v. Hale, 9 Mont. 63, 22 Pac. 151. Nevada.— Jones v. Adams, 18 Nev. 60, 8 Pac 798 (decided under Nevada civil proce- dure act, section 197) ; Lockwood v. Marsh, Utah.— Marks v. Culmer, 6 Utah 339, 23 Pac. 757. , J -n » See 3 Cent. Dig. tit. " Appeal and Error, s 2388 60. Authentication by waiver — Some of the earlier California cases allowed an im- plied authentication by waiver, but, under the California code of 1874, the authentica- tion of the statement on motion for a new trial has never been implied 1 . Scherrer v. Hale, 9 Mont. 63, 22 Pac. 151 [citing Hayne New Tr. & App. § 157, where the California cases are reviewed]. Statement incorporated with bill of excep- tions. — The fact that the statement and bill of exceptions are incorporated in one paper does not render either invalid, if the require- ments for their preparation have been duly observed. Spottiswood v. Weir, 66 Cal. 525, 6 Pac. 381. 61. California.— Fee v. Starr, 13 Cal. 170. Connecticut. — Chambers v. Campbell, 15 Conn. 427. Florida. — McSwain v. Howell, 29 Fla. 248, 10 So. 588. Indiana. — Ireland v. Emmerson, 93 Ind. 1, 47 Am. Hep. 364; Bake v. Smiley, 84 Ind. 212; Huhn v. Hammond First Nat. Bank, 6 Ind. App. 702, 33 N E. 663. Missouri. — Dougherty v. Whitehead, 31 Mo. 255. Montana. — Daniels v. Andes Ins. Co., 2 Mont. 500. See 3 Cent. Dig. tit. "Appeal and Error," g 0388 62. Smith v. Davis. 55 Cal. 26; Gallatin Canal Co. v. Lay, 10 Mont. 528, 26 Pac. 1001 (where it was held that tacking amend- ments on at the end of the statement, with references to the pages and lines of the origi- nal draft, was insufficient). 63. Penn Placer Min. Co. v. Schreiner, 14 Mont. 121, 35 Pac. 878. 64. Dimick v. Chicago, etc., R. Co., 80 111. 338 (where the court said "that making the motion admits the evidence as sufficient to warrant the special findings") ; Terre Haute, etc., R. Co. v. Clark, 73 Ind. 168; Salander v Lockwood, 66 Ind. 285 [overruling Shaw v. Merchants Nat. Bank, 60 Ind. 83] ; Sehaff- ner v. Kober, 2 Ind. App. 409, 28 N. E. 871. See 3 Cent. Dig. tit. "Appeal and Error," § 2391. 65. Parrott v. McDevitt, 14 Mont. 203, 36 Pac. 193. Vol. II 1072 APPEAL AND ERROR (n) The Judgment — (a) In General. The final judgment is a part of the record proper 66 and must appear therein ; 67 and, in examining the circumstances attending the entry of judgment, the court may look only into the record. 68 Where the judgment is set aside and a new judgment entered, the latter only remains in the record. 69 (b) By Confession or Consent. "When a judgment is entered by confession in vacation, 70 on the filing of the proper papers it becomes a part of the record. 71 When the judgment was entered by consent the consent must be shown ; ra but it is sufficient for the decree to recite that it was assented to, without further pre- serving in the record the evidence on which the facts were found. 73 Eeeitals con- tained in a judgment cannot be considered, however, unless they were necessary for the proper entry of the judgment. 74 (hi) Matters Subsequent to Judgment — (a) In General. Matters sub- sequent to judgment constitute no part of the record. 75 (b) Opening, Vacating, or Modifying. Neither a motion to set aside a judg- ment, 76 nor the affidavits on which such a motion is based, 77 a motion to amend nunc pro tunc, 18 nor a motion to modify a judgment, nor the reasons therefor, 79 are part of the record proper. 66. French v. Hotchkiss, 60 111. App. 580; Van Cott v. Sprague, 5 111. App. 99; Junc- tion City v. Webb, 44 Kan. 71, 23 Pae. 1073; Granite Mountain Min. Co. v. Weinstein, 7 Mont. 346, 17 Pac. 108. See 3 Cent. Dig. tit. 'Appeal and Error," § 2389. Judgment denned. — The word " judgment " in the record may mean " decree," deci- sion," or " order," according to the context. Sparrow v. Strong, 4 Wall. (U. S.) 584, 18 L. edi 410. In proceedings against garnishee, judgment against original debtor is not portion of the record. Faulks v. Heard, 31 Ala. 516; Gunn v. Howell, 27 Ala. 663, 62 Am. Dec. 785. In proceedings against sheriff and sureties for failure to return the ■execution, a judg- ment on which the execution lissued is no part of the record. Garey v. Edwards, 15 Ala. 105. Judgment rendered at a prior term against a garnishee is no part of the record on an appeal from the judgment rendered at a suc- ceeding term in the same cause. Jones v. Manier, 102 Ala. 676, 15 So. 437. 67. Sperling v. Stubblefield, 83 Mo. App. 266; National L. Ins. Co. v. Seheffer, 131 TJ. S. App. eciii, appendix, 26 L. ed. 1110. See also Terhune v. Hill, 49 111. App. 257. 68. Ogle v. Potter, 24 Mont. 501, 62 Pac. 920, holding that the court could not be con- trolled by statements contained in affidavits for a new trial, to the effect that the entry of judgment was conditioned upon a compli- ance by the referee with a. previous order, eveH though such statements furnished the ground upon which the district court based the order under consideration. 69. Paige v. Roeding, 96 Cal. 388, 31 Pae. 264, wherein the court said: "The statute clearly contemplates that there shall be but one judgment and one set of findings in the judgment-roll. ... It is only upon a bill of exceptions that we would be allowed to ex- amine into the sufficiency of the reasons which moved the court to set aside and de- clare void its first judgment rendered in the case." Vol. II 70. When entered in term-time the war- rant of attorney and the note in which the judgment is confessed become a matter of record only by being preserved in the bill of exceptions. Waterman v. Caton, 55 III. 94; Roundy v. Hunt, 24 111. 598; Magher v. Howe, 12 111. 379; Schmidt v. Bauer, 33 111. App. 92. 71. Stein v. Good, 115 111. 93, 3 N. E. 735 ; Durham v. Brown, 24 111. 93. A power of attorney to confess judgment forms no part of the record unless it be brought up by bill of exceptions or be re- cited in the judgment. Hodges v. Ashurst, 2 Ala. 301; Boyles v. Chytraus, 175 111. 370, 51 N. E. 563; Gait v. Dibrell, 10 Yerg. (Tenn.) 146. 72. San Francisco Sav. Union v. Myers, 76 Cal. 624, 18 Pac. 686, holding that the words " agreed to," written on the back of the judg- ment, was not sufficient showing. 73. Holderman v. Graham, 61 111. 359. 74. Severs v. Northern Trust Co., 1 Indian Terr. 1, 35 S. W. 232, holding that state- ments in the judgment, from which it might be inferred that the bond for costs was not filed in the court below, could not be con- sidered on appeal. 75. Morris v. Morris, 27 Miss. 370. 76. Stern v. Collier, 101 Ala. 424, 14 So. 477; Miller v. Seybert, 4 Colo. 352 (decided under Colo. Code, § 2210) ; Chouteau v. Nuckolls, 33 Mo. 148. But see Seattle, etc., R. Co. v. Johnson, 7 Wash. 97, 34 Pac. 567, an appeal from an order denying the petition to vacate the judgment, where it was held that the petition was properly in the record ; and compare Coulbourn v. Fleming, 78 Md. 210, 27 Atl. 1041. 77. Anderson v. Sloan, 1 Colo. 33; O'Brien v. Lynch, 90 111. App. 26. 78. Wiggins v. Wdtherington, 96 Ala. 535, 11 So. 539. 79. Hamrick v. Loring, 147 Ind. 229, 45 N. E. 107; Scanlin v. Stewart, 138 Ind'. 574, 37 N. E. 401, 38 N. E. 401 ; Whipple v. She- waiter, 91 Ind. 114; Evansville, etc., R. Co. v. Frank, 3 Ind. App. 96, 29 N. E. 419. APPEAL AND ERROR 1073 (o) Settmg Aside Default. Motions to set aside a default, and affidavits in support ot such motions, are not part of the record proper, and must be brought into the record by bill of exceptions or in some other method recognized bylaw. 80 (i>) Proceedings Relatmg to Costs. The ruling of the court on a motion tor the allowance of costs, or that plaintiff be required to give a bond for costs, cannot be reviewed without a bill of exceptions, or its equivalent ; 81 and where, after judgment is arrested, judgment is entered against plaintiff for costs, the latter judgment is not a part of the record on appeal from the order in arrest. 82 (e) Executions and Forthcoming Bonds. Neither the order granting execu- tion nor the motion therefor, 83 the execution nor the return thereon, 84 a motion to quash an execution, 83 a forthcoming bond and the execution thereon, 86 nor the bond for trial of right of property, nor the affidavit of claimant, 87 are a part of the record proper. n. Proceeding's for Review — (i) Certiorari. A petition for a writ of cer- tiorari which the judge refuses to sanction, 88 or a motion to quash such a writ, and the ruling of the court thereon, 89 are not part of the record proper. (n) Writ of Review. The return of an officer, properly made in obedience to a writ of review, forms a part of the record. 90 So, too, do uncontradicted affi- davits on which a motion for the writ was granted. 91 (m) Record of Intermediate Court— (a) In General. The dismissal of an appeal in the intermediate court cannot be reviewed unless the motions and affidavits therefor, and the rulings thereon, are preserved by bill of exceptions or order of court, 93 and matters which are not in the record of the intermediate 80. Arkansas. — Hurlburt v. Wheeler, etc., Mfg. Co., 38 Ark. 594. California.— White v. White, 88 Cal. 429, 26 Pac. 236. Florida. — Hellen v. Steinwender, 28 Fla. 191, 10 So. 207. Illinois.— Horn v. Neu, 63 111. 539. Mississippi. — Vickery v. Rester, 4 How. (Miss.) 293. Missouri. — Loudon v. King, 22 Mo. 336; Christy v. Myers, 21 Mo. 112. Tennessee. — Smith v. Foster, 3 Coldw. (Tenn.) 139. See 3 Cent. Dig. tit. "Appeal and Error," § 2393. 81. California. — Faulkner v. Hendy, 103 Cal. 15, 36 Pac. 1021. Indiana. — Clodfelter v. Hulett, 92 Ind. 426; Bunnell v. Studebaker, 22 Ind. 338. Maine. — Valentine v. Norton, 30 Me. 194. Montana. — Granite Mountain Min. Co. v. Weinstein, 7 Mont. 440, 17 Pac. 113. Nevada. — McFadden v. Ellsworth Mill, etc., Co., 8 Nev. 57; Howard v. Richards, 2 Nev. 128, 90 Am. Dec. 520. Wisconsin. — Perkins v. Davis, 16 Wis. 470; Cord v. Southwell, 15 Wis. 211. Texas. — Wachsmuth v. Sims, (Tex. Civ. App. 1895) 32 S. W. 821. But see St. Louis, etc., R. Co. v. Lewnght, 113 Mo. 660, 21 S. W. 310, a proceeding to condemn land, where the report of commis- sioners assessing the damages was set aside and trial had by jury, and it was held that the taxation of costs accruing after the set- ting asdde of the report of the commissioners was matter of rpeord. w„.„ " See 3 Cent. Dig. tit. " Appeal and Error, ft OQQfl 82. Powell v. Kinney, 6 Blackf. (Ind.) 359. 359. ? [68] 83. Thomas v. Savage, 8 Wis. 160. 84. Mattoon v. Burge, 1 Greene (Iowa) 153; Stephens v. Roby, 27 Miss. 744; Kohn v. Lucas, 17 Mo. App. 29. But in Georgia, in a claim case, the execution is one of the papers which, with the affidavit and claim bond, the sheriff must return under section 3736 of the code, and is a part of the record. Bosworth v. Clark, 62 Ga. 286. In garnishment proceedings, execution against the original debtor will not be con- sidered on appeal from a judgment against the garnishee. Gunn v. Howell, 27 Ala. 663, 62 Am. Dec. 785. 85. Davis v. Baldwin, 1 How. (Miss.) 550; Corby v. Tracy, 62 Mo. 511. But compare Wallop v. Scarburgh, 5 Gratt. (Va.) 1. 86. Mattheny v. Totten, 2 Sm. & M. (Miss.) 52; Sprawles v. Barnes, 1 Sm. & M. (Miss.) 629. See 3 Cent. Dig. tit. "Appeal and Error," § 2395. . 87. Kibble v. Butler, 14 Sm. & M. (Miss.) 207. 88. Warren v. State, 72 Ga. 215. 89. Snell v. Clinton M. E. Church Soc, 58 III. 290; Belleville v. Stauder, 47 111. App. 376. 90. Johns v. Marion County, 4 Oreg. 46, where the court said that though the statute did not specifically mention this class of re- turns as being included in the judgment-roll, yet, since it was the only means by which issue could be taken upon a petition, it would be impossible to make up an intelligible rec- ord without it. 91. Douglas County Road Co. v. Douglas Countv, 5 Oreg. 406. 92." Colorado.— Rutter v. Shumway, 16 Colo. 95, 26 Pac. 321; Wike v. Campbell, 5 Colo. 126. oo Illinois.— Hyatt v. Brown, 82 111. 28; Saunders v. Bernard, 11 111. App. 514. Vol. II 1074 APPEAL AND ERROR court, but which are sent up with the transcript, are no more a part of the record in the supreme court than they were in the intermediate court. 93 The reasons of the appellate court for rendering its judgment are no part of the record in the supreme court; 94 and the bill of exceptions taken in the intermediate court must show upon what that court rendered its decision, though the transcript contained the evidence in the trial court. 95 (b) Petition for Rehearing. On appeal from the supreme court of a state to the supreme court of the United States, a petition for a rehearing in the state court is no part of the record. 96 2. Certificate or Statement of Clerk or Judge. A clerk's statement in a record, or appended to a record, regarding the condition of certain documents or the existence of certain facts in the case, is, generally, no part of the record, 97 and a certificate of the clerk, made without legal authority, is powerless to bring into the record matters which are not properly there in the mode prescribed by law. 98 So, too, a paper signed by the judge, and purporting to contain the evi- dence, will not be regarded as a part of the record, such evidence not having been incorporated in the bill of exceptions, 99 nor will a recital, in an amended bill of exceptions by a trial judge, that he did not consider, in arriving at his decision, certain evidence contained in the bill of exceptions be so regarded. 1 is always a part of the record of the case. Clinton v. Missouri Pae. K. Co., 122 TJ. S. 469, 7 S. Ct. 1268, 30 L. ed. 1214. 94. Traeger v. Mutual Bldg., etc., Assoc, 189 111. 314, 59 N. E. 544. 95. Chenowith v. Lockard, 19 111. 352. 96. Grame v. Virginia Mut. Assur. Soc, 154 U. S. 676, 14 S. Ct. 1193, 26 L. ed. 740; Lagrange v. Chouteau, 4 Pet. (TJ. S.) 287, 7 L. ed. 861. 97. Arkansas. — Duke v. Crabtree, 5 Ark. 478 ; Lenox v. Pike, 2 Ark. 14. Colorado. — Burnell v. Waohtel, 4 Colo. App. 556, 36 Pae. 887. Florida. — Robinson v. L'Engle, 13 Fla. 482. Illinois. — Dyer v. Flint, 21 111. 80, 74 Am. Dec. 73; Dignan v. Gilbert, 43 111. App. 536; Jacksonville v. Cherry, 39 111. App. 617. Indiana. — Conaway v. Weaver, Smith (Ind.) 142. Louisiana. — Stark v. Bossier, 19 La. Ann. 179. Maryland. — Berry v. Derwart, 55 Md. 66. West Virginia. — Sweeney v. Baker, 13 W. Va. 158, 31 Am. Rep. 757. See 3 Cent. Dig. tit. "Appeal and Error," § 2407. 98. Melrose v. Bernard, 126 111. 496, 18 N. E. 671 ; Crosby v. Clary, 43 Mo. App. 222; Reed v. Marsh, 13 Pet. (TJ. S.) 153, 10 L. ed. 103; Fisher v. Cockerel!, 5 Pet. (TJ. S.) 248, 8 L. ed. 114. But in Turnbull v. Clifton Coal Co., 19 W. Va. 299, it was held that deposi- tions, filed in the office of the clerk by either party to a cause, might be indorsed by the clerk and the time of filing entered, and such an indorsement would be considered as an au- thorized official act and entitled to weight in determining whether the failure to recite in the decree that the cause was heard upon deposition should be considered bv the court as being a mere clerical mistake." 99. Hopkins v, Dowd, 11 Ark. 627. 1. Potter v. Gronbeck, 117 111. 404, 7 N. E. 586. Indiana. — Washington lee Co. v. Lay, 103 Ind. 48, 2 N. E. 222 ; Crumley v. Hickman, 92 Ind. 388 ; Yost v. Conroy, 92 Ind. 464, 47 Am. Rep. 156. Mississippi. — Battle v. Woolf, 22 Miss. 318. Missouri. — Crane v. Taylor, 7 Mo. 285. Nebraska. — Aldrich v. Bruss, 39 Nebr. 569, 58 N. W. 194; Barry v. Barry, 39 Nebr. 521, 58 N. W. 193. See 3 Cent. Dig. tit. "Appeal and Error," § 2399. Finding of facts by intermediate court from bill of exceptions. — Ohio Rev. Stat. § 6710, provides that " on application of any party excepting to a ruling or decision of the cir- cuit court during the trial, or on motion for a new trial, such court shall find from the evi- dence and state on the record the facts upon which the alleged error arises." This does not authorize the circuit court to make a find- ing of facts "upon which, in the absence of the bill of exceptions, the action of that court can be reviewed in the supreme court. Young v. Pennsylvania Co., 46 Ohio St. 558, 24 N. E. 595; Columbus, etc., R. Co. v. Thurstin, 44 Ohio St. 525, 9 N. E. 232. 93. Chicago, etc., R. Co. v. Harper, 128 111. 384, 21 N. E. 561 ; Chicago, etc., R. Co. v. Yando, 127 111. 214, 20 N. E. 70; Wheeler v. Dahms, 50 111. App. 531; Elsenrath v. Kall- meyer, 61 Mo. App. 430, 1 Mo. App. Rep. 638; Swope v. Smith, 1 Okla. 283, 33 Pae. 504. Proceedings in the trial court, upon remand after the judgment of reversal in the inter- mediate court, form no part of the record of such judgment on appeal to the supreme court. Collins v. Davis, 32 Ohio St. 76. The transcript of the county court, on ap- peal to the circuit court, becomes a part of the record on appeal from the latter court to the supreme court. TJ. S. Express Co. v. Meints, 72 111. 293. And see Wheelock v. Sears, 19 Vt. 559. The judgment of the court appealed from Vol. II APPEAL AND ERROR 1075 3. Order as to Contents of Record. A judge's order that certain papers be made a part of the record on appeal because used on the trial will be considered in connection with, and in corroboration of, the affidavit of one of the parties that such papers were used, and will not be reversed ; 2 but the mere direction of the trial judge that a paper be filed does not make such paper a part of the record unless the law declares that it shall become so upon such filing. 8 Where the statute authorizes the making of extrinsic matters a part of the record by order of court, 4 such an order, if made, should designate and point out with rea- sonable certainty the matters intended to be made a part of the record, leaving nothing to inference, speculation, or surmise. 5 The trial court ought not to dis- pense with any part of the record with the assent of the plaintiff in error only. 6 4. Stipulation as to Contents of Record. Parties cannot, by stipulation, make or add to the record of the court. 7 ' 5. Lost or Destroyed Record — a. In General. The appellant must bring into the appellate court a perfect record. 8 The loss of a portion of the record is no ground for reversal; 9 but if a material portion of the record has been lost, the case will be dismissed ; 10 or, in some jurisdictions, if appellant is without fault, the case will be remanded for a new trial. 11 If the original writ is lost, bo that 2. Gilpin v. Baltimore, etc., R. Co., 17 N. Y. Suppl. 520, 44 N. Y. St. 298. 3. Anderson v. Oliver, 138 Pa. St. 156, 27 Wkly. Notes Cas. (Pa.) 123, 20 Atl. 981 (where it was held that the filing or notice of evidence, in obedience to the direction of the court, did not bring them into the record) ; Barksdale v. Parker, 87 Va. 141, 12 S. E. 344 (where a deed not referred to in the pro- ceedings was placed among the files, and it was said that Va. Code, § 3459, referred to elections which shall be made from the record as already completed, and did not authorize additions thereto after final decision). Stenographer's minutes. — In Wood v. Nis- sen, 2 N. D. 26, 49 N. W. 103, construing N. D. Comp. Stat. (1887), § 5103, the court directed that the transcript of the proceed- ings at the trial, embracing the evidence as extended by the stenographer, should be an- nexed to the judgment-roll. It was held that this transcript did not become a part of the record, it lacking the essential elements of the bill of exceptions. 4. Special findings. — In Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175, the court thought it doubtful whether a special finding, ordered to be placed on file, could be regarded as a part of the record. A paper that has been struck- from the files in a chancery ease may be again brought into the record by order, as if by bill of exceptions at law. Lloyd v. McDaniel, 36 Ark. 484. 5. Russ v. Russ, 142 Ind. 471, 41 N. E. 941. See also Ohio Falls Car Co. v. Sweet, etc., Co., 7 Ind. App. 163, 34 N. E. 533, where an order to make affidavits a part of the rec- ord was held too indefinite and general. 6. Williams v. Jones, 69 Ga. 277. 7. Sternberg v. Strauss, 41 111. App. 147; Meinke v. Chicago, 9 111. App. 516; Hubbell v. U. S., 6 Ct. CI. 53. See also infra, XIII, C, 4, a. But see Grete v. Knott, 2 Ida. 18, 3 Pac. 25, holding that papers in a case which properlv form no part of the judgment-roll, and which would, on motion, have been stricken from it, may be considered on appeal as a part of the record by stipulation of the parties. See 3 Cent. Dig. tit. "Appeal and Er- ror," §§ 2357, 2358. 8. Wolf v. Smith, 6 Oreg. 73. If the judgment is lost, never found, and never entered, the record is not complete. Reichenbach «., Sage, 8 Wash. 250, 35 Pac. 1081, holding that the affidavit of the attor- ney attempting to recite the judgment, did not constitute a sufficient record. 9. Devore v. Territory, 2 Okla. 562, 37 Pac. 1092; Carland v. Heineborg, 2 Oreg. 75. In Eborn v. Chote, 22 Tex. 32, where the charge was lost, the court on appeal refused to reverse because the trial judge did not supply the charge, he having forgot it. The appellate court said : " It is fair to presume that, if there had been anything in the charge in violation of the rights of the party, it could have been set out by counsel in connec- tion with the motion, in such way as to have revived the judge's recollection. Or, if the charge was objected to, it might have been supplied by a bill of exceptions. Or, if the matter in the charge were important, and the party had no means of supplying the lost record, then it was incumbent on him to have set out fully the facts in relation to the mat- ter upon a motion for a new trial." 10. Buckman v. Whitney, 28 Cal. 555; Close v. Close, 28 Oreg. 108, 42 Pac. 128. Burned record.— In Cutting v. Tavares, etc., R. Co., 61 Fed. 150, 23 U. S. App. 363, 9 C. C. A. 40, the court refused to dismiss an appeal where the record had been burned dur- ing the trial, the transcript containing sub- sequent proceedings and as much of the prior proceedings as had been reestablished. 11 Dauchite Lumber Co. v. Lane, etc., Co., 52 La. Ann. 1937, 28 So. 232; Nichols "-Har- ris 32 La. Ann. 646; Greenville v. Old Do- minion Steamship Co., 98 N. C. 163, 3 _S. E 505; Ballard v. Caston, Harp. Eq. (b. C.) 00. See 3 Cent. Dig. tit. "Appeal and Error, § 2409. n Lack of proper diligence.— One who waits five years before making an application to Vol. II 1076 APPEAL AND ERROR it cannot be made a part of the record, the court will presume, after verdict, that there was once a good writ, and, if the writ recited in the declaration be bad, it will be presumed that the mistake was a clerical one. 12 b. Substitution of Copies and Supplying Loss by Affidavit. If the files of a court are lost or destroyed, the court 13 may, in its discretion, allow new papers to be filed ; u but such permission ought not to be given unless the court is thor- oughly satisfied of the loss or destruction, and that the substitutes proposed are true copies of the papers lost. 15 An order authorizing the filing of copies is a determination of the correctness of the copies, and papers thus substituted are entitled to the same weight as would be given to the originals. 16 A new record cannot be supplied upon ex parte affidavits of either party, 17 nor can it be sup- plied by affidavit in the appellate court ; 18 and what appellant alleges to be the substance of the testimony cannot be accepted as a substitute for the original, when appellee has never assented, and the court below has no opportunity to approve or disapprove ; 19 but, if an essential paper has been lost, the appellate court may, upon sufficient evidence, allow a new one to be substituted. 20 C. Necessity of Bill of Exceptions, Case, or Statement of Facts — l. Decisions Not Otherwise Reviewable — a. In General. Where the error sought to be remedied appears upon the record, the party aggrieved may avail himself of it on appeal or writ of error without bill of exceptions, case, statement, or other statutory remedy. 21 But rulings and decisions of the lower court, the correctness have the cause remanded for a new trial, on the ground that the statement of facts has been lost, cannot be said to be without fault. Dewees r. Hudgeons. 1 Tex. 192. 12. Turberville v. Long, 3 Hen. & M. (Va.) 309; Redman v. Edolph, 1 Saund. 317. 13. A clerk cannot supply a lost record, and cannot make up a transcript from what he states to be copies of the original papers. Dougherty v. Ringo, 7 Ky. L. Rep. 360. 14. Proper course explained. — Since a transcript on an appeal is a true copy of a record or a part of a record actually existing in the court below, if a record be lost the court cannot order that certain papers may be used on appeal. It should first order that certain papers should be substituted for those lost, and supply its own record. A transcript of the record thus supplied could be made up on appeal ( Buckman v. Whitney, 28 Cal. 555. See also De Wolf v. Boswell, 64 111. App. 664 ; Stevenson v. Seymour, 3 Cine. L. Bui. 325 ; Lane v. Jones, 2 Coldw. (Tenn.) 318); and the necessary steps to repair the loss should be taken by the party who would be preju- diced by the defective record (Martin v. White, 20 Tex. 174). 15. Troy v. Reilley, 4 111. 259. And see Steiner v. Steiner, 49 Iowa 70. 16. Hibernia Sav., etc., Soc. v. Matthai, 116 Cal. 424,48 Pac. 370. Recitals of substituted record binding. — Where the substituted record recites that de- fendant was served with process, it is not necessary that the order of substitution should show that defendant had notice of the motion to make the substitution. After the service of process parties are in court, and so con- tinue till the ease is disposed of. Mobile, etc., R. Co. v. Smith, 51 Ala. 329. 17. Troy v. Reilley, 4 111. 19. 18. Iowa. — Morris v. Steele, 62 Iowa 228, 17 N. W. 490. Oregon. — Corbitt v. Bauer, 10 Oreg. 340. Vol. II Tennessee. — Lane v. Jones, 2 Coldw. (Tenn.) 318. Vermont.— Fish v. Field, 19 Vt. 141. Washington. — Reichenbach v. Sage, 8 Wash. 250, 35 Pac. 1081. Contra. — On appeals from the municipal court of New York, where the evidence taken on the trial is lost and wholly omitted from the return, parties may, under N. Y. Code Civ. Proe. § 3056, present affidavits showing what the evidence was. Walker v. Baermann, 44 N. Y. App. Div. 587, 61 N. Y. Suppl. 91. See 3 Cent. Dig. tit. "Appeal and Error," § 2411. 19. Humphrey v. Tozier, 154 Pa. St. 410, 32 Wkly. Notes Cas. (Fa.) 229, 26 Atl. 542. 20. Hitchcock v. Shager, 32 Nebr. 477, 49 N. W. 374 (where there was no denial that a copy of an instruction, certified by the clerk to have been lost, was a correct copy) ; Van Campen v. Ribble, 17 N. J. L. 433. Loss of writ of error. — In Hawkins v. Craig, 1 B. Mon. (Ky.) 27, where » writ of error had been lost, the court received the testi- mony of its clerk to prove the issuance of the writ and that he had indorsed on the record, " W. E., issued in May, 1839," and held this sufficient to establish the date. If a necessary paper is certified as having been sent up with the record, and it is not found among the papers, it will be presumed that it was lost in transmission, and, on suitable proof, a copy may be filed. Jefferson v. Columbus, 7 Ga. 181. 21. Alabama. — Petty v. Dill, 53 Ala. 641; Rolater v. Rolater, 52 Ala. Ill; Darden v. James, 48 Ala. 33. Arkansas. — Webb v. Kelsey, 66 Ark. 180, 49 S. W. 819; Anthony v. Brooks, 31 Ark. 725. California. — Mock v. Santa Rosa, 126 Cal. 330, 58 Pac. 826; Hunt v. Steese, 75 Cal. 620, 17 Pac. 920. APPEAL AND ERROR 1077 of which cannot be determined from the record proper, must be made a part of toe transcript by bill of exceptions, case, statement of facts, or other mode pre- scribed by statute, in order to their review by the appellate court. 33 Connecticut. — Nugent v. Fair Haven, etc., R. Co., (Conn. 1900) 46 Atl. 49. District of Columbia. — Mansfield v. Win- ter, 10 App. Cas. (D. C.) 549; Evans v. Humphreys, 9 App. Cas. (D. C.) 392. Florida. — Ropes v. Snyder-Harris-Bassett Co., 35 Fla. 537, 17 So. 651; McGee v. An- trum, 33 Fla. 499, 15 So. 231. Compare Du- pont v. Baker, 14 Fla. 272; Malley v. Inger- soll, 14 Fla. 200; Bogue v. McDonald, 14 Fla. 66 (decided under the provisions of the code of 1870, subsequently repealed). Idaho. — Warren v. Stoddart, (Ida. 1899) 59 Pac. 540; Washington, etc., R. Co. v. Os- borne, 2 Ida. 527, 21 Pac. 421; Guthrie v. Phelan, 2 Ida. 89, 6 Pac. 107; Jones v. St. John Irrigating Co., 2 Ida. 58, 3 Pac. 1. Illinois. — Alley v. McCabe, 147 111. 410, 35 N. E. 615; Van Dusen *. Pomeroy, 24 111. 289 ; Baldwin v. McClelland, 50 111. App. 645. Indiana. — Doctor v. Hartman, 74 Ind. 221. Indian Territory. — Little v. Atchison, etc., R. Co., (Indian Terr. 1899) 53 S. W. 331. Iowa. — Black v. Howell, 56 Iowa 630, 10 N. W. 216; Redman v. Williamson, 2 Iowa. 488. See also Newburry v. Getehell, etc., Lumber, etc., Co., 106 Iowa 140, 76 N. W. 514. Kansas. — Deibolt v. Bradley, (Kan. 1900) 62 Pae. 431; McKinstry v. Carter, 48 Kan. 428, 29 Pac. 597. Kentucky. — Collins v. Richart, 14 Bush (Ky.) 621. Louisiana. — State v. Judge, 40 La. Ann. S09, 5 So. 407 ; Denis v. Cordeviella, 4 Mart. (La.) 654. Maryland. — Blake v. Pitcher, 46 Md. 453; Minke v. McNamee, 30 Md. 294, 96 Am. Dec. 577. Michigan. — Carney v. Baldwin, 95 Mich. 442, 54 N. W. 1081. Minnesota. — Stevens v. Stevens, (Minn. 1900) 84 N. W. 457. Missouri. — Meier v. Hinkson, 146 Mo. 458, 48 S. W. 447 ; Cunningham v. Roush, 141 Mo. 640, 43 S. W. 161; Cramer v. Akin, 49 Mo. App. 163. Montana. — Barber v. Briscoe, 8 Mont. 214, 19 Pac. 589. Nebraska. — Hines v. Cochran, 35 Nebr. 828, 53 N. W. 1118; O'Donohue v. Hendrix, 13 Nebr. 255, 13 N. W. 215. Nevada. — Peers v. Reed, 23 Nev. 404, 48 Pac. 897 ; Klein v. Allenbach. 6 Nev. 159. New Mexico. — Territory v. Browne, 7 N. M. 568, 37 Pac. 1116. New York. — Smith v. Ingham University, 76 Hun (N. Y.) 605, 23 N. Y. Civ. Proc. 393, 28 N. Y. Suppl. 220, 59 N. Y. St. 437 ; Gold- sehmidt v. Goldschmidt, 47 N. Y. Super. Ct. 184; Berger v. Dubernet, 7 Rob. (N. Y.) 1; Brown v. Hardie, 5 Rob. (N.Y.)678; Palmer v. Ranken, 56 How. Pr. (N. Y.) 354; Brush v. Blot, 42 N. Y. Suppl. 761. North Carolina. — Lyman v. Ramseur, 113 N. C. 503, 18 S. E. 690; Knowles v. Norfolk Southern R. Co., 102 N. C. 59, 9 S. E. 7; Brooks v. Austin, 94 N. C. 222; Hutchison v. Rumfelt, 82 N. C. 425. North Dakota. — Oliver v. Wilson, 8 N. D. 590, 80 N. W. 757, 73 Am. St. Rep. 784. Ohio. — Howell v. Fry, 19 Ohio St. 556. Oregon. — Taylor v. Patterson, 5 Oreg. 121 ; Rickey v. Ford, 2 Oreg. 251. South Dakota. — Kehoe v. Hanson, 6 S. D. 322, 60 N. W. 31. Tennessee. — Duane v. Richardson, (Tenn. 1900) 59 S. W. 135; Bush v. Phillips, 3 Lea (Tenn.) 63. Texas. — Gardner v. Broussard, 39 Tex. 372 ; Neill v. Newton, 24 Tex. 202; Cunningham v. Wheatly, 21 Tex. 184. Compare Dangerfield v. Paschal, 20 Tex. 536, in which it was held that although the correct rule was in no ease to revise a judgment refusing a continuance, unless the point had been reserved by bill of exceptions, yet, as the practice had always been to consider the question as raised by the entries upon the record, it should not be sud- denly changed to the prejudice of parties liti- gant. Utah. — Walker v. Hamburg-Bremen F. Ins. Co., 2 Utah 109; McClelland v. Dicken- son, 2 Utah 100. Vermont. — Small v. Haskins, 30 Vt. 172. Virginia. — Russell Creek Coal Co. v. Wells, 96 Va*. 416, 31 S. E. 614. Washington. — Swift v. Stine, 3 Wash. Terr. 518, 19 Pac. 63. Wisconsin. — Lewis v. Chicago, etc., R. Co., 97 Wis. 368, 72 N. W. 976; Noesen v. Port Washington, 37 Wis. 168. United States. — Moline Plow Co. v. Webb, 141 U. S. 616, 12 S. Ct. 100, 35 L. ed. 879; Coughlan v. District of Columbia, 106 U. S. 7, 1 S. Ct. 37, 27 L. ed. 74; Wilmington v. Ricaud, 90 Fed. 212, 32 C. C. A. 578. See 3 Cent. Dig. tit. "Appeal and Error," §§ 2417, 2472 et seq. 22. Alabama. — Mobile, etc., R. Co. v. Owen, 121 Ala. 505, 25 So. 612; Dunham v. Hatcher, 31 Ala. 483. Arizona. — Sutherland v. Putnam, (Ariz. 1890) 24 Pac. 320. Arkansas. — Bradley v. Harkey, 59 Ark. 178, 26 S. W. 827 ; St. Louis, etc., R. Co. v. Mur- phy, 38 Ark. 456. California. — Stewart v. Hollingsworth, 129 Cal. 177, 61 Pac. 936; Hawley v. Koeher, 123 Cal. 77, 55 Pac. 696. Colorado. — Sholes v. Norris, (Colo. App. 1900) 63 Pac. 124. Florida. — Dorman v. Bigelow, 1 Fla. 323. Idaho. — Jones v. St. John Irrigating Co., 2 Ida. 58, 3 Pac. 1. Illinois. — Zimmerman v. Cowan, 107 111. 631, 47 Am. Rep. 476; Tower v. Bradley, 66 111. 189; Thacker v. Bulkley, 66 111. App. 646; Boyles v. Chytraus, 66 111. App. 592; Dobson v. Hughes, 66 111. App. 487. See also Gillet V. Stone, 2 111. 539. Indiana. — Huntington First Nat. Bank v. Vol. II 1073 APPEAL AND ERROR b. Final Judgments — (i) In General. On an appeal or writ of error from a final judgment, the judgment-roll itself is the record, and there maybe no occa- Henrv, 150 Ind. 1, 58 X. E. 1057 ; Welborn r. Lewis, 42 Ind. 363. loiva. — Moss c. Appanoose County, 109 Iowa 671, 81 X. YV. 159; Acton v. Coffman, 74 Iowa 17, 36 X. W. 774. Kansas. — Dyal v. Topeka, 35 Kan. 62, 10 Pac. 161. Kentucky. — McAllister v. Connecticut Mut. L. Ins. Co., 78 Ky. 531 ; Harper v. Harper, 10 Bush (Ky.) 447. Louisiana. — Pecquet ;;. Pecquet, 17 La. Ann. 204; Graugnard v. Lombard, 14 La. Ann. 234. Maryland. — Chappell v. Real Estate Pool- ing Co., 89 Md. 258, 42 Atl. 936. Minnesota. — Wheadon v. Mead, 71 Minn. 322, 73 X. W. 975; Flibotte v. Mullen, 36 Minn. 144, 30 X. W. 448. Mississippi. — Kibble t'. Butler, 14 Sm. &M. (Miss.) 207; Berry v. Hale, 1 How. (Miss.) 315. Compare Yerger v. Greenwood, 77 Miss. 378, 27 So. 620. Missouri.— Tower v. Moore, 52 Mo. 118. Montana. — Harding v. McLaughlin, 23 Mont. 334, 58 Pac. 865; King v. Sullivan, 1 Mont. 282. Nebraska. — Gay e. Reynolds, 57 Xebr. 194, 77 S. W. 661 ; Beatrice Sav. Bank v. Beatrice Chautauqua Assembly, 54 Xebr. 592, 74 X. W. 1065. New York.— Smith v. Starr, 70 X. Y. 155; Essex County Bank v. Russell, 29 X. Y. 673; Smith v. Grant, 15 X. Y. 590; Johnson v. Whitloek, 13 X. Y. 344; Hunt v. Bloomer, 13 N. Y. 341 ; Onondaga County Mut. Ins. Co. v. Minard, 2 X. Y. 98 ; Burdick v. Collins, Seld. Xotes (X. Y.) 23; Clason v. Baldwin, 59 Hnn (X. Y.) 622, 13 X. Y. Suppl. 73, 36 X. Y. St. 550; Delano v. Harp, 37 Hun (X. Y.) 275; Matter of Potter, 32 Hun (X. Y.) 599; Young v. Cuddv, 23 Hun (X. Y.) 249; McLean v. Cole, 13 Hun (X. Y.) 300; John Douglas Co. v. Moler, 3 Misc. (X. Y.) 373, 30 Abb. X. Cas/ (X. Y.) 293, 22 X. Y. Suppl. 1045, 52 X. Y. St. 259; Bissell v. Pearse, 21 How. Pr. (X. Y.) 130; Conolly v. Conolly, 16 How. Pr. (X. Y.) 224. North Carolina. — Crinkley v. Egerton, 113 X. C. 444, 18 S. E. 669; Abernathy v. With- ers, 99 X. C. 520, 6 S. E. 376. Ohio. — Burch v. Young, 2 Ohio Dec. 377. Oregon. — Kimery v. Taylor, 29 Oreg. 233, 45 Pac. 771; Burgtorf v. Bentley, 27 Oreg. 268, 41 Pac. 163. Texas. — Galveston, , etc., R. Co. v. Cody, 92 Tex. 632, 51 S. W. 329; Madden v. Madden, 79 Tex. 595, 15 S. W. 480 ; Ackerman v. Ack- erman, (Tex. Civ. App. 1900) 55 S. W. 755. Utah.— Reever v. White, 8 Utah 188, 30 Pac. 685; Lowell v. Parkinson, 4 Utah 64, 6 Pac. 58. Virginia. — Magarity v. Shipman, 82 Va. 806, 7 S. E. 381. Washington. — Schlotfeldt v. Bull, 22 Wash. 362, 60 Pac. 1126; Stenger v. Roeder, 3 Wash. 412, 28 Pac. 748, 29 Pac. 211. West Virginia. — Turbee v. Shay, 46 W. Va. 736, 34 S. E. 746. Vol. II Wisconsin. — Midlothian Iron Min. Co', v. Dahlby, 108 Wis. 19q, 84 X. W. 152; Billings v. Oneida County, 98 Wis. 584, 74 X. W. 339; Griggs v. Docter, 89 Wis. 161, 61 X. W. 761, 46 Am. St. Rep. 824, 30 L. R. A. 360. United States. — Preston v. Prather, 137 U. S. 604, 11 S. Ct. 162, 34 L. ed. 788 [affirm- ing 29 Fed. 498] ; Shepherd v. The Schooner Clara, 102 U. S. 200, 26 L. ed. 145 ; Hildreth v. Grandin, 97 Fed. 870, 38 C. C. A. 516. And see Rio Grande Irrigation, etc., Co. v. Gilder- sleeve, 174 U. S. 603, 19 S. Ct. 761, 43 L. ed. 1103. See 3 Cent. Dig. tit. "Appeal and Error," §§ 2412 et seq., 2472 et seq. " The only office of a motion for a new trial and a bill of exceptions is to bring into the record for review matters which would not otherwise appear in it." McAllister v. Con- necticut Mut. L. Ins. Co., 78 Ky. 531. The office of a statement on appeal is to bring into the record those orders and rul- ings, together with the facts necessary to ex- plain them, which were made in other stages of the proceedings in the case, and not during the progress of the trial, and which were not contained in the judgment-roll. Harper v. Minor, 27 Cal. 107. See also De Johnson v. Sepulbeda, 5 Cal. 149. Error apparent upon judgment-roll. — In Xew York it has been held that an objection that a judgment in replevin is for money only, instead of for a return of the property, or for its value in case of its non-delivery, cannot be reviewed on appeal except on a case made and settled according to the established practice. McLean v. Cole, 13 Hun (X. Y.) 300. Appeal from territorial courts. — Under the act of congress of April 7, 1874 [18 Stat, at L. p. 27, c. 80], a statement of fact is necessary in case of an appeal from the supreme court of a territory to the supreme court of the United States. Bonnefield v. Price, 154 U. S. 672, 14 S. Ct. 1194, 26 L. ed. 1022; Gray v. Howe, 108 U. S. 12, 1 S. Ct. 136, 27 L. ed. 034. " Case on appeal " not necessary. — Where the record proper presents the matters ex- cepted to a formal statement of case is not necessary (Brooks v. Austin, 94 X. C. 222; State !'. Crook, 91 X. C. 536) ; as, for in- stance, when the case below is tried upon a case agreed or demurrer (Greensboro v. Mc- Adoo, 112 X. C. 359, 17 S. E. 178; Chamblee v. Baker, 95 X. C. 98) ; or when the appeal is from an order granting an injunction (Hamilton r. Icard, 112 X. C. 589, 17 S. E. 519). Appeal from order vacating award. — Under X. Y. Code Civ. Proc. § 2381, authorizing an appeal from an order vacating an award, and from a judgment entered upon it, as from an order for a judgment in an action, it has been held that appellant need not make or serve a case. The appeal is heard upon the papers on which the motion was made. In re Poole 5 X. Y. Civ. Proc. 279. APPEAL AND ERROR 1079 sion for anything further to present the question raised. 23 If, however, any fur- ther record is required, it must be made by bill of exceptions, case, or statement. 24 (n) By Confession. Where the judgment is entered by confession, defend- ant can only take exception by moving the court to vacate the judgment and pre- serve the evidence heard upon the motion by a proper bill of exceptions. 25 (in) On Demurrer on Case Agreed. A bill of exceptions, case, or state- ment of facts is unnecessary upon an appeal from a judgment upon a demurrer or case agreed. 26 (iv) On Demurrer to Evidence. Nor is a bill of exceptions necessary upon a demurrer to evidence, since the demurrer incorporates the evidence. 27 (v) On Report of Referee. The rule above stated ffl is applicable to a judgment entered upon the report of a referee, and where the error complained of does not appear of record it must be brought into it by the appropriate statu- tory method. 29 c. Orders After Judgment. In case of appeals or writs of error prosecuted from orders made subsequent to final judgment, a bill of exceptions, case, or statement is necessary. 30 d. On Trial by Court Without Jury — (i) In General. A bill of exceptions, case, or statement of facts is the appropriate remedy by a party aggrieved by any ruling of the court, on a trial without a jury, which would affect the conclu- sions of fact — as upon the admission or rejection of evidence; 31 but when the 23. Thompson v. Hancock, 51 Cal. 110; Wetherbee v. Carroll, 33 Cal. 549; Orman v. Keith, 1 Colo. 81; Fredericks v. Davis, 6 Mont. 457, 13 Pac. 124; Merchants' Bank v. Scott, 59 Barb. (N. Y.) 641. See also In re Poole, 5 N. Y. Civ. Proc. 279 ; Reade v. Street, 122 N. C. 301, 30 S. E. 124. 24. See supra, XIII, C, 1. a. 25. Boyles v. Chytraus, 66 111. App. 592. 26. Greensboro v. McAdoo, 112 N. C. 359, 17- S. E. 178 ; Chamblee v. Baker, 95 N. C. 98. 27. Mitchell v. Nashville, etc., R. Co., 100 Term. 329, 45 S. W. 337, 40 L. R. A. 426; Chesarjeake, etc.. R. Co. v. Sparrow, 98 Va. 630, 37 S. E. 302. 28. See supra, XIII, C, 1, a. 29. Condon v. Churchman, 32 111. App. 317 ; Miller v. Groome, 109 N. C. 148, 13 S. E. 840; Southern Fertilizer Co. v. Reams, 105 N. C. 283, 11 S. E. 467; Perry v. Hardison, 99 N. C. 21, 5 S. E. 230; Reever v. White, 8 Utah 188, 30 Pac. 685. In New York, under N. Y. Code Civ. Proc. § 998, it is not necessary to make a case -where a party intends to appeal from a. judg- ment entered upon a referee's report. Under the earlier practice it was necessary, for a party desiring to prosecute » writ of error from a judgment of the supreme court con- firming the report of a referee, to have the facts prepared in the form of a special or sup- plemental report of the referee in the nature of a bill of exceptions or special verdict, and have the same entered on the records. Kauff- man v. Copous, 16 Wend. (N. Y.) 478. Sub- sequently the correct practice, under the rules of court, required that a case should be made containing the facts found by the referee, together with His conclusions of law (Westcott i.. Thompson, 16 N. Y. 613; Otis v. Spencer, 16 N. Y. 610; Turner v. Haight, 16 N. Y. 465 ; Stratton i\ Cornfield, 2 Keyes . Armstrong, Wils. (Ind.) oDu. Minnesota. — Stevens v. Stevens, (Minn 1900) 84 N. W. 457. Texas. — Martin-Brown Co. v. Wainscott 66 Tex. 131. 1 S. W. 264. Utah. — Evans v. Jones, 10 Utah 182, 37 Pac. 262; Lowell v. Parkinson, 4 Utah 64, 6 Pac. 58. But see Schofield v. Territory, 9 N. M. 526, 56 Pac. 306, holding that, under N. M. Code Civ. Proc. § 172, providing that all motions and rulings made during the trial shall be- APPEAL AND ERROR 1083 regard to the selection, qualification, or conduct of a jury ; 46 of questions as to the competency of witnesses; 47 of alleged impropriety in an attorney's remarks in argument to the jury, or other misconduct on his part; 48 and of objections to the remarks of the lower court which are alleged to be improper. 49 to. Evidenee — (i) Necessity of Bringing Up. While generally unneces- sary under the former chancery practice, 60 in order that the evidence adduced upon the trial in the court below may be considered on an appeal or writ of error, it must be brought up by a bill of exceptions, case, or statement of facts. 51 come part of the record for purposes of re- view, and that it shall not be necessary to prepare or have settled any bill of excep- tions in order to make such matters part of the record, it is not necessary, in civil cases, to have the instructions of the court, the de- cisions of the judge granting or refusing them, or the motion for a new trial incor- porated in a bill o* exceptions. When they are in the record they can be considered. 46. People r. Board of Education, 26 111. App. 476 (competency of) ; Ohio, etc., R. Co. v. Stein, 140 Ind. 61, 39 N E. 246 (qualifica- tion) ; Boardman v. Westchester F. Ins. Co., 54 Wis. 364, 11 N. W. 417 (misconduct). 47. Questions as to the competency of wit- nesses. — Powell v. Waters, 8 Cow. (N. Y.) 669. 48. Conduct and remarks of counsel. — Georgia. — Smith r. Wellborn, 75 Ga. 799. Illinois. — Kepperly v. Ramsden, 83 111. 354 (instruction as to improper remarks) ; Snyder v. Travers, 45 111. App. 253. Iowa.— Farmer i\ Brokaw, 102 Iowa 246, 71 N. W. 246; Little Sioux Sav. Bank v. Freeman, 93 Iowa 426, 61 N. W. 936. Kansas. — Lindley v. Atchison, etc., R. Co., 47 Kan. 432, 28 Pac. 201. Minnesota. — Smith v. Kingman, 70 Minn. 453, 73 N. W. 253; Smith v. Wilson, 36 Minn. 334, 31 N. W. 176, 1 Am. St. Rep. 669; St. Martin v. Desnoyer, 1 Minn. 156, 61 Am. Dec. 494. Missouri. — Norton v. St. Louis, etc., R. Co., 40 Mo. App. 642. Nebraska. — Summers v. Simms, 58 Nebr. 579, 79 N. W. 155. Texas. — Galveston, etc., R. Co. v. Walter, (Tex. Civ. App. 1894) 25 S. W. 163. See 3 Cent. Dig. tit. " Appeal and Error," § 2431. 49. Remarks of court. — Welker v. Butler, 15 111. App. 209 ; Smith v. Kingman, 70 Minn. 453, 73 N. W. 253. 50. See supra, XIII, C, 1, e. 51. Alabama. — Pomeroy v. State, 40 Ala. 63; Hendricks v. Johnson, 6 Port. (Ala.) 472. Arizona. — Cheda v. Skinner, (Ariz. 1899) 57 Pac. 64. Arkansas.— Hall v. Bonville, 36 Ark. 491. California. — Haynes r. Backman, (Cal. 1892) 31 Pac. 746; Bunting v. Beideman, 1 Cal. 181. Colorado. — Bergundthal v. Bailey, 15 Colo. 257, 25 Pac. 86 ; Miller v. Thorpe, 4 Colo. App. 559, 36 Pac. 891. Dakota.— Fargo v. Palmer, 4 Dak. 232, 29 N. W. 463. District of Columbia. — Maulsby v. Bar- ker, 3 Mackey (D. C.) 165. Florida. — Waddell v. Cunningham, 27 Fla. 477, 8 So. 643; Pine v. Anderson, 22 Fla. 330. Georgia. — Williams v. Cheatham, 97 Ga. 341, 22 S. E. 971; Hodges v. Roberts, 79 Ga. 212, 9 S. E. 424. Illinois. — Martens v. People, 186 111. 314, 57 N. E. 871 [affirming 85 111. App. 66]; Firemen's Ins. Co. v. Peck, 126 111. 493, 18 N. E. 752; Moss v. Flint, 13 111. 570; Wehr- heim v. Thiel Detective Co., 87 111. App. 565. Indiana. — Pennsylvania Co. v. Brush, 130 Ind. 347, 28 N. E. 615; Conner v. Marion, 112 Ind. 517, 14 N. E. 488; Combs v. Pitts- burgh, etc., R. Co., (Ind. App. 1900) 58 N. E. 1064. See also Knights Templars', etc., L. Indemnity Co. v. Dubois, (Ind. App. 1900) 57 N. E. 943. Indian Territory. — Brown r. Woolsey, (In- dian Terr. 1899) 51 S. W. 965. Iowa.— Drake i: Fulliam, 98 Iowa 339, 67 N. W. 225; Mara v. Bucknell, 90 Iowa 757, 57 N. W. 876. Kansas. — Litsey v. Moffett, 29 Kan. 507 ; Clark v. Parkville, etc., R. Co., 5 Kan. 654. Kentucky. — Dickerson v. Talbot, 14 B. Mon. (Ky.) 49. Louisiana. — Mollon v. Thompson, 9 Mart. (La.) 275. M aryland.— Main r. Kinzer, 91 Md. 760. 46 Atl. 1070; Barnes v. Blackiston, 2 Harr. & J. (Md.) 376. Michigan. — Peabody v. McAvoy, 23 Mich. 526. - Minnesota. — Thompson p. Lamb, 33 Minn. 196, 22 N. W. 443 (trial by court without jury) ; St. Anthony Mill Co. v. Vandall, 1 Minn. 246. Mississippi. — Grego v. Grego, (Miss. 1900) 28 So. 817; Covington r. Arrington, 32 Miss. 144. Missouri. — Ray v. Brown, 80 Mo. 230; Martin v. Hagan, 8 Mo. 505 ; Barnes v. Buz- zard, 61 Mo. App. 346, 1 Mo. App. Rep. 653. M ontana.— Rumney Land, etc., Co. v. De- troit, etc., Cattle Co., 19 Mont. 557, 49 Pac. 395; Higley -v. Gilmer, 3 Mont. 433. Nebraska.— Doolittle »'. American Nat. Bank, 58 Nebr. 454, 78 N. W. 926 ; Hartford F Ins. Co. v. Corey, 53 Nebr. 209, 73 N. W. 674 (holding that affidavits for continuance must be embodied). Neio York.— Magie v. Baker, 14 N Y 435, • Chapin v. Thompson, 18 Hun (N. Y.) 446. See also Davie v. Van Wie, 1 Thonms. & C. (N. Y.) 530; Sturgis v. Merry, 3 How. Pr. (N. Y.) 418. Vol. n 1084 APPEAL AJVD ERROR This has been held necessary to a review of rulings of the trial court admitting or excluding evidence; 52 to the review of a decision overruling a motion for a Ohio.— Toledo v. Libbie, 19 Ohio Cir. Ct. 704. Oklahoma. — D County t. Wright, 8 Okla. 190, 57 Pac. 203; U. S. v. Choctaw, etc., R. Co., 3 Okla. 404, 41 Pae. 729. Oregon. — Carney v. Dundway, 35 Oreg. 131, 57 Pac. 192, 58 Pae. 105; Mitchell v. Powers, 17 Oreg. 491, 21 Pac. 451. Pennsylvania. — Tasker o. Sheldon, 115 Pa. St. 107, 7 Atl. 762. South Dakota. — Foley- Wadsworth Imple- ment Co. v. Porteous, 7 S. D. 34, 63 N. W. 155; Merchants Nat. Bank v. McKdnney, 6 S. D. 58, 60 N. W. 162. Texas. — Ingram v. Drinkard, 14 Tex. 351 ; Dewees v. Hudgeons, 1 Tex. 192; Campbell v. Cates, (Tex. Civ. App. 1899) 51 S. W. 268; Ragsdale v. Groos, (Tex. Civ. App. 1899) 51 S. W. 256. Washington. — Casey v. Okes, 1 7 Wash. 409, 50 Pac. 53; Meeker i\ Gardella, 2 Wash. Terr. 355, 7 Pac. 889. Compare Watson r. Sawyer, 12 Wash. 35, 40 Pac. 413, 41 Pae. 43. Wisconsin. — Concanon r. Blake, 16 Wis. 518; Merwins v. O'Day, 9 Wis. 156. United States. — Nelson t. Flint, 166 U. S. 276, 17 S. Ct. 576, 41 L. ed. 1002; Strain v. Gourdin, 2 Woods (U. S.) 380, 23 Fed. Cas. No. 13,521. See 3 Cent. Dig. tit. "Appeal and Error," § 2433 et seq. Where findings are admitted by both par- ties to be true it is unnecessary that the case contain the evidence. Tayloe v. Tayloe, 108 N. C. 69, 12 S. E. 836. Framed issues in equity. — The evidence given before a jury upon framed issues sub- mitted to them in an equity case may be in- cluded in the ease on appeal. Chapin v. Thompson, 18 Hun (N. Y.) 446. Depositions attached to bill. — -Where the oral evidence is contained in the bill of ex- ceptions, and the depositions are attached thereto as an exhibit, with » reference therein contained making them a part thereof, all of which is followed by the usual certificate of the judge, the writ of error will not be dis- missed. Atlanta, etc., R. Co. v. Wood, 48 Ga. 565. Compare Stubbs v. Central Bank, 7 Ga. ■ 258. Bill treated as case. — Where the bill of ex- ceptions contains all the evidence offered in the court below, it may be treated as a ease stated. Maulsby v. Barker, 3 Maekey (D. C.) 165. Special bill of exceptions — Statute con- strued.— Under Ind. Rev. Stat. (1894), § 642 [Rev. Stat. (1881), § 630], authorizing a spe- cial bill of exceptions to review " any ques- tion of law decided " during the progress of the cause, a special bill of exceptions will not lie to determine the sufficiency of the evidence to support the findings, as the question is one of mixed law and fact. Haney v. Farns- worth, 149 Ind. 453, 49 N. E. 383. 52. Evidence admitted or excluded should be embodied. Vol. II California. — Hagman v. Williams, 88 Cal. 146, 25 Pac. 1111; Pierce v. Minturn, 1 Cal. 470 ; Gunter v. Geary, 1 Cal. 462. Florida. — Jacksonville St. R. Co. v. Wal- ton, (Fla. 1900) 28 So. 59, holding that where the evidence does not of itself show its per- tinency and relevancy to the issue, and there is other evidence, either admitted, or prof- fered and rejected, that will connect it with the case and show such relevance and per- tinence, the connecting evidence should be set forth so as to enable the appellate court fully and fairly to pass upon the propriety or im- propriety of the admission or rejection thereof; but that testimony adduced in rebuttal or impeachment of the evidence on which any charge was predicated has no place in the ex- position, in the bill of exceptions, of the evi- dence upon which such charge was actually predicated. Georgia.— Benton v. Baxley, 90 Ga. 296, 15 S. E. 820; Jackson v. Jackson, 47 Ga. 99. Illinois — Ebner u. Maekey, 186 111. 297, 57 N. E. 834, 78 Am. St. Rep. 280 [affirming 87 111. App. 306] ; Clifford v. Drake, 110 111. 135; Masters v. Masters, 13 111. App. 611. But see Sehwarz v. Herrenkind, 26 111. 208, hold- ing that a bill need not show that the note sued on was offered in evidence to the jury, if this fact otherwise appeared in the ease. Indiana. — Roose v. Roose, 145 Ind. 162, 44 N. E. 1; Blizzard v. Hayes, 46 Ind. 166, 15 Am. Rep. 291; South Bend Chilled-Plow Co. v. Giedie, 24 Ind. App. 673, 57 N. E. 562; Elmer t. Marsh, 3 Ind. App. 558, 30 N. E. 154. Kentucky. — Chesapeake, etc., R. Co. v. Smith, 101 Ky. 707, 19 Ky. L. Rep. 1826, 42 S. W. 538. Louisiana. — Graugnard v. Lombard, 14 La. Ann. 234 (holding that the clerk's statement in his minutes that evidence was objected to does not dispense with the necessity) ; Bryan i: Dubois, 5 La. Ann. 17; Holmes v. Holmes, 6 La. 463, 24 Am. Dec. 482. Massachusetts. — Peirce v. Adams, 8 Mass. 383 ; Storer v. White, 7 Mass. 448. Michigan. — Trudo v. Anderson, 10 Mich. 357, 81 Am. Dec. 795. Mississippi. — Wright v. Alabama Bank, 6 Sm. & M. (Miss.) 251. Missouri. — St. Louis Public Schools v. Ris- ley, 40 Mo. 356. Nebraska. — Cole v. Arlington State Bank, 54 Nebr. 632, 74 N. W. 1100; Kearney County v. Kent, 5 Nebr. 227. New Jersey. — Allaire v. Hartshorne, 21 N. J. L. 665, 47 Am. Dec. 175. Ohio. — Brock v. Becker, 5 Cine. L. Bui. 852. Oregon. — Ladd v. Higley, 5 Oreg. 296. Pennsylvania. — Quellman v. Jacobs, (Pa 1852) 1 Am. L. Reg. 248. Tennessee.— Ward v. Tennessee Coal, etc., Co., (Tenn. 1900) 57 S. W. 193; Anderson v. Middle, etc., Tennessee Cent. R. Co., 91 Tenn. 44, 17 S. W. 803. APPEAL AND ERROR 1085 new trial, whether on the ground that the verdict is contrary to the evidence, 53 or where a motion for a new trial is made on the ground of newly-discovered evidence ; M to the evidence on which questions of law raised by instructions given or refused arose ; 55 and to evidence taken in a proceeding in a probate court, 56 (II) What Evidence Should Be Brought Up. Only so much of the evidence, however, as is needed to show the questions raised by appellant or plaintiff m error should be incorporated in the bill of exceptions, case, or state- ment of facts. 57 ' Texas.— Texas, etc., R. Co. v. Eaney, 86 Tex. 363, 25 S. W. 11; Loekett v. Schuren- berg, 60 Tex. 610; King v. Sassaman, (Tex. Civ. App. 1899) 54 S. W. 304. Vermont. — Keyes v. Throop, 2 Aiken (Vt.) 276. Virginia. — Norfolk, etc., R. Co. v. Shott, 92 Va. 34, 22 S. E. 811. Wisconsin. — Bue v. Ketchum, 51 Wis. 324, 8 N. W. 231 ; Shipman v. State, 44 Wis. 458. United States. — Springfield F. & M. Ins. Co. v. Sea, 21 Wall. (U. S.) 158, 22 L. ed. 511; Thompson v. Eiggs, 5 Wall. (U. S.) 663, 18 L. ed. 704 ; Northern Pac. E. Co. v. Char- less, 51 Fed. 562, 7 U. S. App. 359, 2 C. C. A. 380. See 3 Cent. Dig. tit. 'Appeal and Error," § 2436. On motion for summary relief. — The stat- ute of 13 Edw. I, c. 31, relating to bills of ex- ceptions, does not, on motion for summary relief, authorize a bill of exceptions to the opinion of the court in receiving or rejecting evidence. Murphy v. Flood, 2 Grant (Pa.) 411. See also Shortz v. Quigley, 1 Binn. (Pa.) 222. 53. Aycock v. Bainbridge Bank, 92 Ga. 575, 17 S. E. 922 ; Rowan v. Dosh, 5 111. 460 ; Mc- Laughlin v. Walsh, 4 111. 185. See also Mc- Gonnigle v. Arthur, 27 Ohio St. 251, in which it was held that where a motion for a new trial, made on the ground that the finding and judgment of the court is not supported by the law and the evidence, was overruled, and all the testimony offered before the trial court is in an agreed statement of facts, in writing, carried into the record, and found by the court to be all the testimony offered' by the parties on the trial, it is not necessary, on overruling the motion, to reembody the tes- timony in a bill of exceptions. 54. Wade v. Buford, 1 Tex. App. Civ. Cas. § 1335; Nelson v. Brixen, 7 Utah 454, 27 Pac. 578, in which latter case it was held that the newly-discovered evidence contained in a mo- tion for a new trial, though printed in the abstract, cannot be considered on appeal un- less incorporated in the statement or bill of exceptions. 55. Instructions given or refused. — Florida. — Jacksonville St. E. Co. v. Walton, (Fla. 1900) 28 So. 59, holding that if a charge is given or refused by a judge that hypothesizes a state of facts which there is no testimony tending to prove, it should be stated in the bill of exceptions that there was no evidence adduced tending to prove such state of facts. Kentucky. — Chesapeake, etc., E. Co. v. Smith, 101 Ky. 707, 19 Ky. L. Rep. 1826, 42 S. W. 538. Maryland.— Albert v. State, 66 Md. 325, 7 Atl. 697, 59 Am. Eep. 159. Michigan. — Crane v. Wayne Cir. Judge, 24 Mich. 532. United States. — Southwestern Virginia Imp. Co. v. Frari, 58 Fed. 171, 8 U. S. App. 444, 7 C. C. A. 149, holding that it is' not enough that the testimony be found in an- other part of the record. But see Keitt v. Spencer, 19 Fla. 748, to the effect that where it appears from the charge that evidence was before the trial court making pertinent certain instructions asked for by appellant, the supreme court may consider such evidence for the purpose of determining whether appellant was entitled to a ruling of the court on the questions pre- sented, though there is no bill of exceptions bringing up the testimony. 56. Armaz's Estate, 45 Cal. 259; Angevine v. Ward, 66 Ind. 460 ; Clark v. Parkville, etc., R. Co., 5 Kan. 654. See also Baker v. Hen- tig, 22 Kan. 323; Matter of Clark, 58 Hun (N. Y.) 606, 11 N. Y. Suppl. 911, 34 N. Y. St. 523, in which latter case, where an executrix elected to have her appeal from a decree of a surrogate on her accounting, " heard on the decision of the surrogate, and the decree and questions of law only," and no case contain- ing the evidence was presented, it was held that findings of fact by the surrogate could not be reviewed, nor exceptions thereto con- sidered, though mentioned in the notice of appeal. 57. Alabama. — Meredith v. Naish, 4 Stew. & P. (Ala.) 59. California. — Dobbins v. Dollarhide, 15 Cal. 374; Reynolds v. Lawrence, 15 Cal. 359; Bar- rett v. Tewksbury, 15 Cal. 354. Iowa. — Philbrick v. University Place, 106 Iowa 352, 76 N. W. 742. Missouri. — Wallace v. Boston, 10 Mo. 660;, Walls v. Gates, 4 Mo. App. 1. Nebraska. — Dietrichs v. Lincoln, etc., R. Co., 12 Nebr. 225, 10 N. W. 718. New York. — Smith v. Grant, 15 N. Y. 590. North Carolina. — Durham v. Richmond, etc., R. Co., 108 N. C. 399, 12 S. E. 1040, 13 S. E. 1 ; Green v. Collins, 28 N. C. 139. Washington. — Jones v. Jenkins, 3 Wash. 17, 27 Pac. 1022. West Virginia.— Renick v. Correll, 4 W. Va. 627. Wisconsin. — Knowlton v. Culver, 2 Pinn. (Wis.) 93, 1 Chandl. (Wis.) 25, 52 Am. Dec. 156 United States.— De Groot v. U. S., 5 Wall. (US) 419, 18 L. ed. 700; Johnston v. Jones, 1 Black [U.S.) 209, 17 L. ed. 117. Vol. II 1086 APPEAL AND ERROR 3. To Presentation of Exceptions. vVhere an exception to a ruling of the lower court fully appears on the record proper, it is not indispensable that it should be brought before an appellate court by a bill of exceptions, case, or state- ment of facts. 58 In other cases, however, a party desiring a review in an appellate court must prepare his bill of exceptions, case, or statement of facts, incorporating all exceptions taken to the rulings of the trial court which he wishes to have revised ; and filing the exceptions in the clerk's office, or serving them on the clerk or the opposite party, is insufficient. 59 Such has been held to be the rule See 3 Cent. Dig. tit. "Appeal and Error," § 2434. In appeals to the supreme court from the court of claims only such statement of fact should form part of the record as may be necessary to enable the supreme court to de- cide upon the correctness of the ruling of law of the court below. The facts so found are to be the ultimate propositions established by evidence in the nature of a special verdict, and not the evidence itself upon which these facts are founded. De Groot v. U. S., 5 Wall. (TJ. S.) 419, 18 L. ed. 700. Contrary evidence. — In Renick v. Correll, 4 W. Va. 627, it was held that the court be- low is not bound to certify to the appellate court any contrary evidence further than is sufficient to show the pertinency of an in- struction thereon predicated. But compare Knowlton v. Culver, 2 Pinn. (Wis.) 93, 1 Chandl. (Wis.) 25, 52 Am. Dec. 156, in which it was held that, if there is conflicting evi- dence upon the same point, the parties tak- ing exceptions should state the evidence at large, and aver that it is all the evidence given on the point. Irrelevant statement. — In Walsh v. Gil- mer, 3 Harr. & J. (Md.) 383, 6 Am. Dee. 502, it' was held that the court will not permit a statement of facts considered irrelevant to the subject-matter to be added to a bill of ex- ceptions taken at the trial of the cause. 58. Egolf v. Bryant, 63 Ind. 365; Farns- worth v. Coquillard, 22 Ind. 453; Winet v. Berryhill, 55 Iowa- 411, 7 N. W. 681; Laub V. Paine, 46 Iowa 550, 26 Am. Rep. 163; Cad- wallader v. Blair, 18 Iowa 420; Long v. Bil- lings, 7 Wash. 267, 34 Pac. 936; Wilson v. Pauly, 72 Fed. 129, 37 U. S. App. 642, 18 C. C. A. 475. See also Cofer v. Schening, 98 Ala. 338, 13 So. 123; Nance v. Chesney, 101 Tenn. 466, 47 S. W. 690. See 3 Cent. Dig. tit. "Appeal and Error," §§ 2442, 2443. Refusal of judgment non obstante vere- dicto.— Under Ind. Rev. Stat. (1881), § 628 [Rev. Stat. (1894), § 640], which provides that where the decision objected to is entered on the record and the grounds of objection ap- pear in the entry, exception may be taken by causing it to be noted at the end of the de- cision, the refusal of a judgment non, obstante veredicto upon the answers to the interroga- tories may be reviewed without a bill of ex- ceptions. Cargar v. Fee, 140 Ind. 572, 39 N. E. 93. 59. Alabama. — Bell v. Wallace, 81 Ala. 422, 1 So. 24. California. — Niosi v. Empire Steam Laun- dry, 117 Cal. 257, 49 Pac. 185. Vol. II Colorado. — Solomon v. Saly, 6 Colo. App. 170, 40 Pac. 150. Georgia. — Lamar v. State, 72 Ga. 205. Idaho. — Fox v. West, 1 Ida. 782. Illinois.— Union Pac. R. Co. v. Chicago, etc., R. Co., 164 111. 88, 45 N. E. 488; Mar- tin v. Foulke, 114 111. 206, 29 N. E. 683; Har- man v. Brigham, 78 111. App. 427. Indiana. — Lewis v. Godman, 129 Ind. 359, 27 N. E. 563; Adams v. La Rose, 75 Ind. 471. Maryland. — Hartsock v. Mort, 76 Md. 281, 25 Atl. 303. Massachusetts. — Barker v. Lawrence Mfg. Co., 176 Mass. 203, 57 N. E. 366. Michigan. — Cotherman v. Cotherman, 58 Mich. 465, 25 N. W. 467. Mississippi. — Harris v. Planters' Bank, 7 How. (Miss.) 346. Missouri. — Critchfield v. Linville, 140 Mo. 191, 41 S. W. 786; Rotchford v. Creamer, 65 Mo. 48; Clark v. Davis, 56 Mo. App. 206. See also Jones v. Rush, 156 Mo. 364, 57 S. W. 118. Montana. — Rooney v. Tong, 4 Mont. 596, 1 Pac. 720. Nevada. — Paul v. Cragnas, (Nev. 1900)" 59 Pac, 857, 60 Pac. 983, 47 L. R. A. 540. Setu York. — Wilcox v. Hawley, 31 N. Y. 648; Hunt v. Bloomer, 13 N. Y. 341, 12 How. Pr. (N. Y.) 567. Compare Deming v. Post, 1 Code Rep. (N. Y.) 121, wherein it was held that it is not necessary that exceptions to conclusions of law of a referee should be pre- sented by case. Wisconsin. — Merwins v. O'Day, 9 Wis. 156. United Slates. — Case v. Hall, 94 Fed. 300, 36 C. C. A. 259 ; North American L. & T. Co. v. Colonial, etc., Mortg. Co., 76 Fed. 623; Locke v. U. S., 2 Cliff. (U. S.) 574, 15 Fed. Cas. No. 8,442. # See 3 Cent. Dig. tit. "Appeal and Error," § 2441. A statement in the clerk's minutes that a bill of exceptions was sealed and placed on file (Locke v. U. S., 2 Cliff. (U. S.) 574, 15 Fed. Cas. No. 8,442) or that exceptions were taken in time (Harris v. Planters' Bank, 7 How. (Miss.) 346) cannot supply an omis- sion in the bill of exceptions. A general statement of exceptions at the end of a bill of exceptions is not enough to save specific questions for review. Robinson v. Suter, 15 Mo. App. 599. An exception merely noted becomes no part of the judgment-roll without filing a bill of exceptions. Rooney v. Tong, 4 Mont. 596 1 Pac. 720. Special exceptions set out in record. — Though special exceptions which are filed are APPEAL AND ERROR 1087 with exceptions to rulings on pleading; 60 exceptions to the admission or rejection of evidence ; 61 exceptions to the granting or refusal of instructions ; 62 exceptions to rulings upon motions ; M exceptions to the report of a referee relied on for reversal of a judgment, which must either be incorporated in the bill of excep- tions or so referred to as to identify them; 64 and exceptions taken to the findings or final judgment had in the trial court. 66 Exceptions taken during the progress of a trial may be embraced in the final bill of exceptions taken upon set forth in the record, they cannot be con- sidered unless incorporated in the bill of ex- ceptions and certified by the seal of the trial judge. Hartsock v. Mort, 76 Md. 281, 25 Atl. 303. Exceptions in county or justices' courts — Nebraska. — Under Nebr. Code Civ. Proc. §§ 988, 1086, exceptions taken in the county or justice's court must be entered on the docket, and presented to the district court by a transcript, and not by a bill of exceptions, as section 587a, authorizing the certification of the original bill of exceptions, applies only to proceedings in the supreme court review- ing judgments of district courts. Sedgwick v. Durham, 45 Nebr. 86, 63 N. W. 142. 60. Rulings on pleadings. — Alabama. — Holley v. Coffee, 123 Ala. 406, 26 So. 339. Idaho. — Berry v. Alturas County, 2 Ida. 274, 13 Pac. 233; Purdum v. Taylor, 2 Ida. 153, 9 Pac. 607 (order for judgment on plead- ings). Indiana. — Combs v. Pittsburgh, etc., R. Co., (Ind. App. 1900) 58 N. E. 1064; Brown v. Langner, 25 Ind. App. 538, 58 N. E. 743. Indian Territory. — Bell v. Eddy, (Indiai* Terr. 1899) 51 S. W. 959. Missouri. — Nichols v. Stevens, 123 Mo. 96, 25 S. W. 578, 27 S. W. 613, 45 Am. St. Rep. 514, in which it was held that an exception to a ruling permitting the amendment of a pe- tition was abandoned by not being preserved in the bill of exceptions. New York. — Sehoonmaker v. Hilliard, 55 N. Y. App. Div. 140, 67 N. Y.-Suppl. 160. 61. Admission or rejection of evidence. — Watson v. Henniger, 63 111. App. 124; Cam- bridge City First Nat. Bank v. Colter, 61 Ind. 153; Trogden v. Deckard, 45 Ind. 572; Mc- Knew v. Duvall, 45 Md. 501 ; Houston, etc., E. Co. v. Red Cross Stock Farm, (Tex. Civ. App.- 1898) 45 S. W. 741. 62. Granting or refusing instructions. — Illinois. — Eock Island v. Riley, 26 111. App. 171. Missouri. — State v. Ragsdale, 59 Mo. App. 590. North Carolina. — State v. Blankenship, 117 N. C. 808, 23 S. E. 455; Marshall v. Stine, 112 N. C. 697, 17 S. E. 495; Taylor v. Plum- mer, 105 N. C. 56, 11 S. E. 266. Texas.-— Houston, etc., E. Co. v. Eed Cross Stock Farm, (Tex. Civ. App. 1898) 45 S. W. 741. _. Wisconsin. — Stadler v. Grieben, 61 Wis. 500, 21 N. W. 629. As a general rule the exceptions to the charge must be specific and point out the er- rors. An unpointed, "broadside" exception to the charge of the court will be disregarded. State V. Webster, 121 N. C. 586, 28 S. E. 254; Burnett v. Wilmington, etc., E. Co., 120 N. C. 517, 26 S. E. 819. 63. Rulings on motions. — Wiggins v. With- erington, 96 Ala. 535, 11 So. 539; East St. Louis Electric St. E. Co. v. Cauley, 148 111. 490, 36 N. E. 106 {.affirming 49 111. App. 310] ; Mullen v. People, 138 111. 606, 28 N. E. 988; Jones v. Rush, 156 Mo. 364, 57 S.W. 118;Hart v. Walker, 31 Mo. 26; McNeil v. Home Ins. Co., 30 Mo. App. 306. A recital in the judgment order that an ex- ception has been taken to an order overrul- ing a motion for a new trial is not sufficient (East St. Louis Electric St. E. Co. v. Cauley, 148 111. 490, 36 N. E. 106 [affirming 49 111. App. 310] ) ; but where an exception to an or- der denying a new trial is shown by the bill of exceptions, matters in pais will be reviewed even though such exception is not shown by, the record, since recital of exceptions in the bill of exceptions is sufficient (Jones v. Rush, 156 Mo. 364, 57 S. W. 118). 64. Report of referee. — Turley v. Barnes, 131 Mo. 548, 33 S. W. 172; Rotchford v. Crea- mer, 65 Mo. 48 ; Trummer v. Konrad, 32 Oreg. 54, 51 Pac. 447. 65. Findings or final judgment. — Colorado Fuel Co. v. Maxwell Land-Grant Co., 22 Colo. 71, 43 Pac. 556; Patrick v. Weston, 21 Colo. 73, 39 Pac. 1083; Harris v. Colorado Trad- ing, etc., Co., 9 Colo. App. 436, 48 Pac. 900 ; McCumber v. Haynes, 9 Colo. App. 353, 48 Pac. 903; West Chicago St. R. Co. v. People, 155 111. 299, 40 N. E. 599 ; National Bank v. Le Moyne, 127 111. 253, 20 N. E. 45; Wehr- heim v. Thiel Detective Co., 87 111. App. 565; Hughey v. Rokker. 84 111. App. 473; New- ton v. Williams, 94 Wis. 222, 68 N. W. 990; Cramer v. Hanaford, 53 Wis. 85, 10 N. W. 15; Concanon v. Blake, 16 Wis. 518. See 3 Cent. Dig. tit. "Appeal and Error," § 2448. Finding of jury. — That an exception was taken to the finding of a jury as being against the evidence must appear by bill of exceptions, signed and sealed by the trial judge. Wolf v. Campbell, 23 111. App. 482. Special findings. — Exceptions to judgments on special findings of the court will be con- sidered without a bill of exceptions. Farns- worth v. Coquillard, 22 Ind. 453; Fireman s Fund Ins. Co. v. Dunn, 22 Ind. App. 332, 53 N E 251. See also Ins. Co. v. Walser, 22 Ind. 73; Matlock v. Todd, 19 Ind. 130; Ra- leigh v. Peace, 110 N. C. 32, 14 S. E. 521, 17 I R 4 330 J ' Where the judgment is part of the record proper the appeal is itself a sufficient excep- tion thereto. Murray v. Southerland 125 N C 175, 34 S. E. 270; Delozier v. Bird, ]?3 N C. 689, 31 S. E. 834; Thornton v. Brady, 100 N. C. 38, 5 S. E. 910. Vol. II 1088 APPEAL AND ERROR the denial of a motion for a new trial ; 66 but, when not so embraced or mentioned in the final bill, they are not thereby abandoned, but may be relied upon in the appellate court. 67 4. Changing Case Into Bill of Exceptions or Special Verdict — a. In General. Within the discretion of the trial court, 68 a case-made may be converted into a bill of exceptions or special verdict, leave to do so being obtained at the trial ; 69 but, unless the right to change a case into a bill of exceptions or special verdict is stipulated for and reserved at the trial, it will only be granted under special and peculiar circumstances. 70 b. Election of Alternatives. "Where the right has been granted a party to change a case-made into a special verdict or bill of exceptions, he must elect which of the alternative methods he will pursue, or whether he will proceed by the case, and he will be bound by the mode of procedure which he selects. 71 c. Effect of Failure to Change After Election. Where an election is made to .66. Ryman r. Crawford, 86 lnd. 262; Pitzer v. Indianapolis, etc., R. Co., 80 lnd. 569. 67. Hardee v. Griner, 80 Ga. 559, 7 S. E. 102; South Carolina R. Co. v. Nix, 68 Ga. 572; Jordan r. Greensboro Furnace Co., 126 ST. C. 143, 35 S. E. 247, 78 Am. St. Rep. 644; McKinnon v. Morrison, 104 N. C. 354, 10 S. E. 513. 68. A discretionary power. — Permission to make a case, with leave to turn it into a bill of exceptions or special verdict, is within the sound discretion of the court. Zabriskie v. Smith, 11 N. Y. 480; Clark v. Brown, 1 Barb. (N. Y.) 215; Hammond v. Hazard, 1 E. D. Smith (N. Y.) 314, 10 N. Y. Leg. Obs. 56. Compare Root v. King, 8 Cow. (N. Y.) 125, where it was held that if a party requests, on the trial, leave to make a case, subject to be turned into a bill of exceptions or special verdict, it is the duty of the court to allow this privilege. 69. Lutkins v. Den, 21 N. J. L. 337; Za- briskie v. Smith, 11 N. Y. 480; Beach v. Ray- mond, 1 Hilt. (N. Y.) 201 ; Hammond v. Haz- ard, 1 E. D. Smith (N. Y.) 314, 10 1ST. Y. Leg. Obs. 56; Allen v. Way, 7 Barb. (N. Y.) 585, 3 Code Rep. (N. Y.) 243; Clark v. Brown. 1 Barb. (N. Y.) 215; Beach v. Greg- ory, 3 Abb. Pr. (N. Y.) 78, 2 Abb. Pr. (N. Y.) 203; Masters v. Bailey, 1 How. Pr. (N. Y.) 42; Root v. King, 8 Cow. (N. Y.) 125; Foote v. Silsby, 1 Blatchf. (TJ. S.) 542, 9 Fed. Cas. No. 4,917. Consent of parties necessary. — A special case, with leave to turn it into a special ver- dict, can only be made by consent. It should appear in some way that such case had been agreed to by the parties, or settled in pursu- ance of an agreement at the trial, or it will be disregarded by the court upon a writ of error. Lutkins v. Den, 21 N. J. L. 337. Separation of exceptions from case. — Where, on appeal to the court of appeals, the exceptions are in the first instance stated in a case containing matter not necessary to present the legal questions arising on them, the party desiring a review in such court should procure the exceptions to be separated from the case, by or under the direction of the court below, or of a justice thereof. Zabris- kie v. Smith, 11 N. Y. 480. Vol. II Leave to change should be obtained at trial. — ■ Hammond v. Hazard, 1 E. D. Smith (N. Y.) 314, 10 N. Y. Leg. Obs. 56; Masters v. Bailey, 1 How. Pr. (N. Y. ) 42. Compare Oakley v. Aspinwall, 1 Sandf. (N. Y. ) 694;-Sloeum v. Fairehild, 7 Hill (N. Y.) 292, which were de- cided, however, as pointed out in Hammond v. Hazard, 1 E. D. Smith (N. Y.) 314, 10 N. Y. Leg. Obs. 56, under peculiar circum- stances. 70. Lutkins v. Den, 21 N. J. L. 337 ; Lewis v. Stevenson, 2 Hall (N. Y.) 271; Smith v. Caswell, 4 How. Pr. (NY.) 286, 2 Code Rep. (N. Y.) 148; Masters v. Bailey, 1 How. Pr. (N. Y.) 42; Green v. Russell, 1 How. Pr. (N.Y.) 8; Woolsey v. Camp, 3 Cow. (N. Y.) 358. Compare Oakley v. Aspinwall, 1 Sandf. (N. Y.) 694; Slocum v. Fairehild, 7 Hill (N. Y.) 292. Leave granted though right not reserved. — Leave to turn a ease into a bill of exceptions, where no such right was reserved at the trial, will only be granted where the amount in- volved is large or the questions to be raised of a novel character, affecting the merits. Harris v. Bennett, 3 Code Rep. (N. Y.) 23! See also Benedict v. New York, etc., R. Co., 3 Code Rep. (N. Y.) 15; Oakley t. Aspinwall, 1 Sandf. (N. Y.) 694; Foote v. Silsby, 2 Blatchf. (U. S.) 260, 9 Fed. Cas. No. 4,919. 71. Hammond v. Hazard, 1 E. D. Smith (N. Y.) 314, 10 N. Y. Leg. Obs. 56; Stewart r. Hawley, 22 Wend. (N. Y.) 561. A reasonable time will be granted the party in which to make his election, and the adverse party should not proceed to enforce his judg- ment without due notice to appellant of his intention. Jackson v. Sinclair, 4 Cow. (N. Y ) 43. Failure due to inadvertence. — Change al- lowed after affirmance. — After affirmance of the judgment of the lower court by the su- preme court of the United States because of the absence of a bill of exceptions, there be- ing no error patent on the face of the record, where a case made had been, through inad- vertence, carried into the record without changing it into a bill of exceptions, the de- feet not having been noticed by either party the circuit court allowed plaintiff in error to turn the case into a bill of exceptions on payment of costs. Williamson v. Suydam 4 Blatchf. (U. S.) 323, 30 Fed. Cas. No. 17 756 APPEAL AND ERROR 1089 nl\X ge t L CaSe ir ?i t0 . a biU °1 exce P tions or special verdict, but no change is in fact owS™ a PPellate court has no record upon which to review the action of the below? S the Writ ° r affirm the J ud g ment of the c° ur * a ^f; a i CA f E .° R ST f EMENT ™ Addition to Bill. The practice is not uniform in the several states as to requiring a case or statement of fact to be added to a bill of exceptions In some jurisdictions a case or statement is not required j 73 while in others, with some qualifications, the contrary rule prevails 74 6. Substitutes — a. In General. The statutory mode of bringing up for review matters not otherwise of record must be strictly pursued. Consequently, unless authorized by statute, no substitute is allowable for a bill of excep- tions, case, or statement of facts, and, where matter is sought to be brought into the record otherwise than in the manner prescribed by statute, it will be disregarded by the appellate court. 75 So it has been held that a stipulation 72. Livingston v. Radcliff, 2 N. Y. 189; Berly v. Taylor, 5 Hill (N. Y.) 577; Suydam v. Williamson, 20 How. (U. S.) 427, 15 L. ed. 978. 73. De Johnson v. Sepulbeda, 5 Cal. 149; Lee v. Kilburn, 3 Gray (Mass.) 594; Near v. Mitchell, 23 Mich. 382. See also O'Neal v. District of Columbia, MacArthur & M. (D. C.) 68, in which it was held that it is irregular to bring a suit to the general term upon a bill of exceptions and a separate case embrac- ing all the evidence. When, on the ground of insufficiency of the evidence, or excessive dam- ages, there is an appeal from an irregular overruling of a motion for a new trial, a case may then be made ; and, in order to obtain the ruling of the appellate court upon a. question of law, the exceptions should be embodied in the case. 74. Piper v. Thompson, 34 Kan. 62, 7 Fac. 793; Burns v. Burgett, 19 Kan. 162; Dull v. Drake, 68 Tex. 205, 4 S. W. 364; Devore v. Crowder, 66 Tex. 204, 18 S. W. 501; Yarzom- beek v. Grier, (Tex. Civ. App. 1895) 32 S. W. 236. See 3 Cent. Dig. tit. "Appeal and Er- ror," § 2457. Rulings upon instructions. — The rulings of the court below upon instructions will not, where there is no statement of facts, be re- vised on appeal. Hutchins v. Wade, 20 Tex. 7; Dever v. Branch, 18 Tex. 615; Armstrong v. Lipscomb, 11 Tex. 649. Qualification of rule. — A bill of exceptions is sufficient without a statement of facts when it discloses facts enough to show that the court excluded competent testimony, the rele- vancy and materiality of which appear from the pleadings. Tarlton v. Daily, 55 Tex. 92; Fox v. Sturm, 21 Tex. 406; Sublett v. Kerr, 12 Tex. 366; Salinas v. Wright, 11 Tex. 572. So, too, a statement of facts will not be re- quired, where the errors complained of are shown to have worked injury to the appel- lant (Missouri, etc., R. Co. v. Stafford, 13 Tex. Civ. App. 192, 35 S. W. 48), or where findings of fact are accepted by appellant, and the objection urged on appeal is that the conclusions of law are not properly drawn thereupon (Brown v. Kern, 21 Wash. 211, 57 Pac 798). 75. A labama.— Alabama Fruit Growing and Winery Assoc, v. Garner, 119 Ala. 70, [69] 24 So. 850; Clark v. McCrary, 80 Ala. 110. California. — Ramsbottom v. Fitzgerald, 128 Cal. 75, 60 Pac. 522; Sprigg v. Barber, 122 Cal. 573, 55 Pac. 419. Illinois. — Wheeler Chemical Works v. Bos- ton Nat. Bank, 70 111. App. 354 ; Illinois Cent. R. Co. v. Gilchrist, 9 111. App. 135 (holding a stipulation as to a certain document to be in- sufficient ) . Indiana. — Morrison v. Morrison, 144 Ind. 379, 43 N. E. 437 ; Martin v. Martin, 74 Ind. 207. Iowa. — McCarthy v. Watrous, 69 Iowa 260, 28 N. W. 586. Kansas.— State v. Bohan, 19 Kan. 28. Louisiana. — Warner v. Clark, 45 La. Ann. 863, 13 So. 203, 21 L. R. A. 502; Page v. Caetano, McGloin (La.) 250. Maryland. — National Bank v. Armstrong, 66 Md. 113, 6 Atl. 584, 59 Am. Rep. 156. Minnesota. — Osborne v. Williams, 39 Minn. 353, 40 N. W. 165; Coolbaugh r. Roemer, 32 Minn. 445, 21 N. W. 472. Missouri. — Martin v. Nugent, (Mo. 1891) 15 S. W. 422; White v. Caldwell, 17 Mo. App. 691 (holding a motion in arrest of judgment to be insufficient ) . Compare Hicks v. Hoos, 44 Mo. App. 571, where it was held that though there be no bill of exceptions certified by the stenographer, yet if the clerk has cer- tified the record entries, and the parties have served and filed abstracts, the eause will, un- der Mo. Rev. Stat. (1889), § 2253, be fully before the appellate court. Montana. — Marden v. Wheeloek, 1 Mont. 49. Compare Griggs v. Kalispell Mercantile Co., 14 Mont. 300, 36 Pac. 81. Nebraska. — Stuart v. Burcham, 50 Nebr. 823, 70 N. W. 383; Edwards v. Kearney, 14 Nebr. 83, 15 N. W. 329. Nevada. — See Gillig v. Lake Bigler Road Co., 2 Nev. 214, in which the court, while dep- recating the " inexcusable neglect " shown by the party in not presenting a proper state- ment of the grounds of error, nevertheless treated the exceptions to the rulings of the court as a substitute therefor. North Dakota^ — Brynjolfson v. Thingvalla Tp., 8 N. D. 106, 77 N. W. 284. Oklahoma. — Lookabaugh v. La Vance, 6 Okla. ."558, 49 Pac. 65, holding a transcript of Vol. II 1090 APPEAL AND ERROR between the parties to a suit; 76 an affidavit or deposition; 77 a certificate of record to be insufficient. Compare Logan County v. Harvey, 5 Okla. 468, 49 Pac. 1006. South Carolina. — Thompson v. Thompson, 6 Rich. (S. C.) 279. Texas. — Graves v. George, (Tex. Civ. App. 1899) 54 S. W. 262; Maury v. Keller, (Tex. Civ. App. 1898) 53 S. W. 59; Simpson v. Texas Tram, etc., Co., (Tex. Civ. App. 1899) 51 S. W. 655. Wisconsin. — Watson ;;. Milwaukee, 107 Wis. 328, 82 N. W. 692. United States. — Crews v. Brewer, 19 Wall. (U. S.) 70, 22 L. ed. 63 (holding a mere re- port of evidence to be insufficient) ; Lincoln Sav. Bank, etc., Co. v. Allen, 82 Fed. 148, 49 U. S. App. 498, 27 C. C. A. 87. See 3 Cent. Dig. tit. "Appeal and Error," § 2461. Allegation that court omitted to settle statement. — An allegation upon appeal that the inferior court omitted to settle a state- ment which was submitted to him cannot be taken as a substitute for the statement, nor does it constitute a reason for reversing the judgment. Hoadley v. Crow, 22 Cal. 265. Motion assuming existence of facts. — A mere motion of a party, filed in a cause, as- suming that certain facts exist, cannot be re- garded as a substitute for a bill of excep- tions or statement of facts agreed on by the parties or certified by the court, as contem- plated by the statute. Marden v. Wheelock, 1 Mont. 49. Statement as substitute for bill. — In North Carolina a statement of the case, signed by counsel of both parties, or the trial judge, is a substitute for a bill of exceptions. State v. Hart, 116 N. C. 976, 20 S. E. 1014; Chasteen v. Martin, 84 N. C. 391; Clark's Code Civ. Proc. N. C. (1883), § 550. Trial below upon agreed statement. — In Texas an agreed statement of facts on which a ease is tried in the court below, and which the court embodies or refers to in its state- ment, and expressly makes the basis thereof, is, under Tex. Rev. Stat. art. 1293, sufficient to authorize a revision of the judgment on matters growing out of such facts in the ab- sence of a statement of facts or finding of fact by the court, or an agreed case for appeal un- der Tex. Rev. Stat. arts. 1333, 1414. Bomar v. West, 87 Tex. 299, 28 S. W. 519; State v. Connor, 86 Tex. 133, 23 S. W. 1103; State v. Connor, (Tex. Civ. App. 1894) 25 S. W. 815. 76. Stipulation between parties.— Colo- rado. — MeKenzie v. Ballard, 14 Colo. 426, 24 Pac. 1 ; Ross v. Duggan, 5 Colo. 85 ; Molandin v. Colorado Cent. R. Co., 3 Colo. 173. Florida. — Bacon v. Green, 36 Pla. 325, 18 So. 870; Florida Cent., etc., R. Co. v. St. Clair-Abrams, 35 Fla. 514, 17 So. 639. Georgia. — But see Lane v. Partee, 41 Ga. 202. Illinois. — Mailers v. Whittier Mach. Co., 170 III. 434, 48 N. E. 992 [affirming 70 111. App. 17] ; Stock Quotation Tel. Co. v. Chicago Board of Trade, 144 111. 370, 33 N. E. 42 [af- firming 44 111. App. 358] ; Mosher v. Scofield, 55 111. App. 271; Everett v. Collinsville Zinc Vol. II Co., 41 111. App. 552; Schwarze v. Spiegel, 41 111. App. 351; People v. Coultas, 9 111. App. 39. Indiana. — Compare Indiana, etc., R. Co. v. Keeney, 93 Ind. 100. But see, contra, Truitt v. Truitt, 38 Ind. 16. Iowa. — Compare Bunyan v. Loftus, 90 Iowa 122, 57 N. W. 685. But see Hutchinson v. Wells, 67 Iowa 430, 25 IT. W. 690, constru- ing Iowa Code, § 3170. Louisiana. — But see Sojourner v. Charpon- tier, 10 La. 210. Missouri. — Disse v. Frank, 52 Mo. 551; Lamb v. Brolaski, 38 Mo. 51 ; Landgraf v. Saunders Press Brick Co., 80 Mo. App. 538; Heiter v. East St. Louis Connecting R. Co., 53 Mo. App. 331 ; Woodward v. Hodge, 24 Mo. App. 677; Mister v. Corrigan, 17 Mo. App. 510; Mangels v. Mangels, 8 Mo. App. 603. Nebraska. — Murphy v. Warren, 55 Nebr. 220, 75 N. W. 575 ; Denise v. Omaha, 49 Nebr. 750, 69 N. W. 119. Netp Jersey. — Robbins v. Vanderbeck, 55 N. J. L. 364, 26 Atl. 919. New York. — Bonnefond v. De Russey, 73 Hun (N. Y.) 377, 26 N. Y. Suppl. 193, 55 N. Y. St. 918 (construing N. Y. Code Civ. Proc. § 997) ; Zelinka v. Krauskopf, 1 N. Y. City Ct. 89 (construing Supreme Court Rules, No. 44). Oregon. — Kimery v. Taylor, 29 Oreg. 233, 45 Pac. 771 ; Umatilla Irrigation Co. v. Barn- hart, 22 Oreg. 389, 30 Pac. 37. Texas. — McDowell v. Fowler, 80 Tex. 587, 16 S. W. 431; Caswell v. State, (Tex. 1889) 12 S. W. 219; Cunningham v. State, 74 Tex. 511, 12 S. W. 217; Taylor v. Dupuy, (Tex. Civ. App. 1896) 38 S. W. 531. Utah. — Compare Klimer v. Schnorf, 3 Utah 442, 24 Pac. 909. Washington. — Howard v. Ross, 3 Wash. 292, 28 Pac. 526, construing Wash. Acts (1890), § 4. Wisconsin. — Leonard v. Warriner, 20 Wis. 41; Brower v. Merrill, 3 Pinn. (Wis.) 46, 3 Chandl. (Wis.) 46. But see Houlehan v. Rassler, 73 Wis. 557, 41 N. W. 720. United States. — Stelk v. McNulta, 99 Fed. 138, 40 C. C. A. 357. See 3 Cent. Dig. tit. " Appeal and Error," §§ 2357, 2358, 2464. 77. Affidavit or deposition. — California. — In re Connor, 128 Cal. 279, 60 Pac. 862; Wil- liams v. Harter, 121 Cal. 47, 53 Pac. 405. Missouri. — Scott v. Haynes, 12 Mo. App. 597. Ohio. — Young v. State, 23 Ohio St. 577. Tennessee. — Dinwiddie v. Louisville, etc., R. Co., 9 Lea (Tenn.) 309; Boren v. Cox, Peck (Tenn.) 367. Texas. — Live Oak County v. Heaton, 39 Tex. 499; Thompson v. House, 23 Tex. 178; Garnett v. Roberts, 16 Tex. 555. Virginia. — Stannard v. Graves, 2 Call (Va.) 369. Wisconsin. — See Webster v. Modlin, 12 Wis. 368, wherein plaintiff in error sought to use the affidavit of the judge before whom the cause was tried in place of a bill of ex- APPEAL AND ERROR 1091 evidence; 78 the reporter's notes of the evidence and proceedings had upon the trial of a suit; 79 the incorporation of specifications of errors of law, or par- ticulars in which the evidence is insufficient in a motion for a new trial; 80 or a brief of the evidence hied on a motion for a new trial, 81 will not dispense with the necessity of a proper bill of exceptions, case, or statement of facts. ceptions, the judge having gone out of office before any bill of exceptions was settled, and holding that he was not authorized to sign one thereafter. Without determining whether this was proper practice or not, the court af- firmed the judgment, since the only error re- lied on was a refusal to grant a new trial, and the judge's affidavit did not show that any exception was taken. The counsel for plaintiff in error sought to supply this defect by his own affidavit showing that he did ex- cept, but the court refused to adopt the prac- tice of trying the record upon affidavits of parties or counsel, while the judge, before whom the trial was had, was living. The court' further said that if the affidavit of the judge could be received in place of a bill of exceptions at all it must show that the neces- sary exceptions were taken. Wyoming. — Chadron Bank v. Anderson, 7 Wyo. 441, 53 Pac. 280. United States.— Nelson v. Flint, 166 U. S. 276, 17 S. Ct. 576, 41 L. ed. 1002. Hence, where no attempt is made to make papers or rulings of the court a part of the record except by affidavit, such papers or rul- ings will not be considered on appeal. Pardy v. Montgomery, 77 Cal. 326, 19 Pac. 530 (where affidavits purported to show the cir- cumstances under which the action was dis- missed by the lower court) ; Wilkes v. Tib- bets, (Cal. 1892) 31 Pac. 609; Parker v. Indianapolis Nat. Bank, 1 Ind. App. 462, 27 N. E. 650 (where the attorney attempted by his affidavit to support a claim to which a demurrer had been sustained) ; Buscher v. Scully, 107 Ind. 246, 5 N. E. 738, 8 N. E. 37 (where the affidavit attempted to bring into the record rulings excluding evidence and checking counsel in argument) ; Indianapolis, etc., Road Gravel Co. v.. Christian, 93 Ind. 360, (affidavit concerning rulings and evi- dence). See 3 Cent. Dig. tit. "Appeal and Error," § 2408. 78. Certificate of evidence. — Colehour v. Roby, 88 111. App. 478; Rohrof v. Schulte, 154 "ind. 183, 55 N. E. 427; Wright v. Dud- lev 8 Mich. 74. And see Western Union Tel' Co v. Powell, 94 Va. 268, 26 S. E. 828, construing Va. Code (1887), § 3484 But see Ingraham v. Gildermester, 2 Cal. 161, holding that under the two hundred and seventy-first section of the code, regulating proceedings in civil cases, where the evidence is taken down in the court below at the re- quest of a party and certified according to the statutes, it is a substitute for a bill of exceptions, or statement of facts, if no such bill or statement is made. *«■„„„ 79 Reporter's notes.— Arkansas.— Moore v. State, 65 Ark. 330, 46 S W 127 Montana.- Fant v. Tandy, 7 Mont. 443, 17 Pac. 560. , „ . „„ Oregon.— Reynolds v. Jackson County, 33 Oreg 422, 53 Pac. 1072; McQuaid v. Port- land, etc., R. Co., 19 Oreg. 535, 25 Pac. 26. South Dakota. — Merchants Nat. Bank v. McKinney, 6 S. D. 58, 60 N. W. 162. Texas. — Wentworth v. King, (Tex. Civ. App. 1899) 49 S. W. 696. Wyoming. — Johns v. Adams, 2 Wyo. 194. Compare Hamilton v. Gordon, 22 Oreg. 557, 30 Pac. 495, where it is said that there is no authority for striking from the files a ver- batim copy of the reporter's notes of the pro- ceedings at the trial made part of the record as a, bill of exceptions, in the place of a bill of exceptions, stating only the questions sought to be presented with so much of the evidence, or other matter, necessary to state the exceptions, though the supreme court will not examine such record when it is difficult to clearly ascertain the questions sought to be presented. And see Heyer v. Cunningham Piano Co., 6 Pa. Super. Ct. 504, 42 Wkly. Notes Cas. (Pa.) 14, where it was held that exceptions noted by the stenographer, by di- rection of the court, are equivalent to the formal sealing of a bill of exceptions. 80. Incorporating specifications in motion for new trial. — Arkansas. — Carroll v. Bowler, 40 Ark. 168; Berry v. Singer, 10 Ark. 483. Connecticut. — Chambers v. Campbell, 15 Conn. 427. Florida. — Richardson v. State, 28 Fla. 349, 9 So. 704 ; Parrish v. Pensacola, etc., R. Co., 28 Fla. 251, 9 So. 696. Indiana. — Nickless v. Pearson, 126 Ind. 477, 26 N. E. 478; Clouser v. Ruckman, 104 Ind. 588. 4 N. E. 202; O'Donald i». Constant, 82 Ind. 212. Missouri. — Churchman v. Kansas City, 49 Mo. App. 366. South Dakota. — Chandler v. Kennedy, 8 S. D. 56, 65 N. W. 439. Texas. — Taylor v. Davis, (Tex. 1890) 13 S. W. 642; Ballew v. Casey, (Tex. 1888) 9 S. W. 189. See 3 Cent. Dig. tit. " Appeal and Error," § 2463. Affidavits in support of motion. — In Re- publican Valley R. Co. v. Boyse, 14 Nebr. 130, 15 N. W. 364, it was held that, where af- fidavits of misconduct on the part of a juror are presented to the trial judge on a motion for a new trial, a bill of exceptions is not needed to make them a part of the record, since they become such by being attached to, and made a part of, the motion for a, new trial. Motion founded on court's minutes.— When the motion for a new trial is made on the minutes of the court, the incorpora- tion of the specifications of error in a bill of exceptions or statement is unnecessary. Chandler v. Kennedy, 8 S. D. 56, 65 N. W. 439. 81. Brief of evidence on motion for new trial. — Wetmore v. Chavers, 9 Ga. 546. Vol. n 1092 APPEAL AND EBROR b. Bill of Statement on Motion for New Trial — (i) Appeal From Order on Motion. On appeal from an order granting or refusing a new trial, any matter properly pertaining to such order, unless it may have arisen subsequent to the notice of motion, may be considered without any other statement than that used on the motion for a new trial. 82 fii) Appeal From Judgment Proper. Unless authorized by statute, or by virtue of a stipulation to that effect, a statement made on a motion for a new trial cannot, where no appeal is taken from the order denying the motion, be used as a statement on appeal from the judgment. 83 (in) Appeal From Order and Judgment. Where an appeal is taken from both the order denying the motion for a new trial and also from the judgment below, the statement on the motion may be used as the statement on appeal. 84 e. Convertibility of Modes of Procedure. Unless authorized by statute, 85 the modes of procedure for obtaining a review of the rulings and judgments of lower courts — as by bill of exceptions, case, special verdict, abstract, or statement of facts — are not convertible. Where one method is pointed out, another cannot be substituted in its place, 86 and even where a choice of methods is allowed, the 82. Casgrave v. Howland, 24 Cal. 457; Walden v. Murdock, 23 Cal. 540, 83 Am. Dec. 135; Kidd v. Laird, 15 Cal. 161, 76 Am. Dec. 472; Kleinschmidt v. McDermott, 12 Mont. 309, 30 Pae. 393; Johnson v. Wells, 6 Nev. 224, 3 Am. Rep. 245; O'Neale v. Cleaveland, 3 Nev. 485 ; Bryant v. Carson River Lumber- ing Co., 3 Nev. 313, 93 Am. Dec. 403; Alex- ander v. TJ. S., 57 Fed. 828, 15 U. S. App. 158, 6 C. C. A. 602. See 3 Cent. Dig. tit. " Appeal and Error," § 2468. 83. Arizona. — Grounds v. Ralph, 1 Ariz. 227, 25 Pac. 648. California. — Bedan p. Turney, 99 Cal. 649, 34 Pac. 442; Jue Pook Sam v. Lord, 83 Cal. 159, 23 Pac. 225, decided under Cal. Code Civ. Proc. § 950, which allows any statement or bill of exceptions used on motion for a new trial to be used on appeal from a final judgment. Compare Thompson v. Connolly, 43 Cal. 636; Peed r. Bernal, 40 Cal. 628 [overruling Treadwell v. Davis, 34 Cal. 601, 94 Am. Dec. 770] ; Casgrave c Howland, 24 Cal. 457 ; Burdge v. Gold Hill, etc., Water Co., 15 Cal. 198. Idaho. — Eunjpel v. Oregon Short Line, etc., E. Co., (Ida. 1894) 35 Pae. 700, 22 L. R. A. 725; Bradbury v. Idaho, etc., Land Imp. Co., 2 Ida. 221, 10 Pac. 620, under Ida. Code, § 653. Nevada. — Robinson v. Benson, 19 Nev. 331, 10 Pac. 441; Nesbitt -v. Chisholm, 16 Nev. 39. United States. — Head v. Hargrave, 105 TT. S. 45, 26 L. ed. 1028. See also Kerr v. Clampitt, 95 IT. S. 188, 24 L. ed. 493. See 3 Cent. Dig. tit. " Appeal and Error," § 2468. Where there is a stipulation that a state- ment of evidence on motion for a new trial shall stand as the statement on appeal, no further statement will be necessary. Head f. Hargrave, 105 U. S. 45, 26 L. ed. 1028. See also Grounds v. Ralph, 1 Ariz. 227, 25 Pae. 648; Thompson v. Connolly, 43 Cal. 636; Elder v. Frevert, 18 Nev. 278, 3 Pac. 237. Statute construed — California. — Under Cal. Code Civ. Proc. § 950, allowing any state- ment or bill of exceptions used on motion for Vol. II a new trial to be used on appeal from a final judgment, such statement cannot be used on appeal unless it was used on motion for a new trial, and for that purpose prepared and served within the ten days required by sec- tion 659. Jue Fook Sam v. Lord, 83 Cal. 159, 23 Pac. 225. Compare Elder v. Frevert, 18 Nev. 278, 3 Pac. 237, in which it was held that a statement filed too late to be available for a motion for a new trial, may be treated! as sufficient for a statement on appeal where, when made, it was treated as both a, state- ment on motion and on appeal. 84. Johnson v. Wells, 6 Nev. 224, 3 Am. Rep. 245; Bryant v. Carson River Lumber- ing Co., 3 Nev. 313, 93 Am. Dec. 403. 85. California. — Harper v. Minor, 27 Cal. 107. Michigan. — Beeson r. Hollister, 11 Mich. 193; RichaTdson v. Yawkey, 9 Mich. 139. Montana. — Kleinschmidt v. McAndrews, 4 Mont. 8, 2 Pac. 286 [affirmed in 4 Mont. 223, 5 Pac. 281]. New York. — Schwarz v. Weber, 103 N. Y. 658, 8 N. E. 728. Washington. — Jones v. Jenkins, 3 Wash. 17, 27 Pac. 1022. See also Stenger v. Roeder, 3 Wash. 412, 28 Pac. 748, 29 Pac. 211. Substitution allowed by court. — In Morse v. Evans, 6 How. Pr. (NY.) 445, it was held that where, pending a settlement of a bill of exceptions taken to his decision, a justice of the supreme court dies, the party will be allowed to make a case, containing the ex- ceptions, which may be settled by any justice of the court. 86. Frost v. O'Neil, 4 Mont. 226, 2 Pac. 315; Kleinschmidt v. McAndrews, 4 Mont. 8, 2 Pac. 286 [affirmed in 4 Mont. 223, 5 Pac. 281] ; Carolan r. Jefferson, 24 Tex. 229; Bax- ter v. Baker, (Tex. Civ. App. 1893) 22 S. W. 258 ; Stenger v. Roeder, 3 Wash. 412, 28 Pac. •748, 29 Pac. 211. See also, to the effect that a ease is not a substitute for a, bill of excep- tions special verdict, or statement of facts: Benedict v. New York, etc., R. Co., 3 Code S ep c ( ^v Y J, 15; Colie r - Brown > Co ^ ^p. ?■ S ,\-,%?- ] 416; Kin g *• Denni s. 3 How. lr ( /w Y v\*VU W t^ ft Don Bla«. 3 How. rr ( ™ ,1 t 18 '' Llvln gston v. Radcliff, 3 How. Pr. (N. Y.) 417. APPEAL AND ERROR 1093 nmtl ^ °i ^li™" eX0lude t he 0ther 5 87 ™ r can an appeal or writ of error be prosecuted partly in one mode and partly in another 88 7. effect of Failure to Make Bill, Case, or Statement. In the absence of n?L + 7ff°- r **&»??£ on ^e face of the record proper® where appellant or P~ * n er ™r /ails to make a bill of exceptions, case, or statement of facts, pre- ?h™ in « /° re q?«red by law, the order, iudgment, or decree appealed from should be affirmed, or his appeal or writ of error dismissed. 90 87. Richardson v. Yawkey, 9 Mich. 139 lnff' J ° neS V ' Jenkins > 3 Wa 3h. 17,27 Pac. 89. See supra, XIII, C, 1, a. 90. Alabama. — Turner v. Key, 31 Ala. 202; Harris v. Dillard, 31 Ala. 191. Arizona. — McAllister v. Benson Min., etc Co., (Ariz. 1888) 16 Pac. 271. California. — Howell v. Howell, 101 Cal. 115, 35 Pac. 443; Huse v. Den, (Cal. 1892) 30 Pac. 1104. Florida. — Dupont v. Baker, 14 Pla. 272; Malley v. Ingersoll, 14 Pla. 200; Bogue v. McDonald, 14 Fla. 66, all decided under the provisions of the code of 1870, repealed in 1873. But compare Ropes i\ Snyder-Harris- Bassett Co., 35 Fla. 537, 17 So. 651; Gates v. Hayner, 22 Pla. 325 ; Stewart v. Mathews, . 19 Pla. 752; Sams v. King, 18 Fla. 552. Illinois. — Chicago, etc., R. Co. v. Benham, 25 111. App. 248; Vanarsdale -v. Andrews, 7 111. App. 199. Indiana. — Boothe v. Driver, 44 Ind. 470. Louisiana. — Lockwood v. Zuntz, 23 La. Ann. 746; Hampson v. Reynaud, 2 La. Ann. 996. Maryland.— New v. Taylor, 82 Md. 40, 33 Atl. 435. Minnesota. — Duncan v. Everitt, 55 Minn. 151, 56 N. W. 591; Flibotte v. Mullen, 36 Minn. 144, 30 N. W. 448. See also Mankato First Nat. Bank v. Parsons, 19 Minn. 289; Morrison v. March, 4 Minn. 422. Missouri. — -Martin v. Nugent, (Mo. 1891) 15 S. W. 422; Snyder v. Free, 102 Mo. 325, 14 S. W. 875; Mills v. McDaniels, 59 Mo. App. 331. Neiv York. — Cowenhoven v. Ball, 118 N. Y. 231, 23 N. E. 470, 28 N. Y. St. 870; Smith v. Starr, 70 N. Y. 155; Brooke v. Tradesmen's Nat. Bank, 68 Hun (N. Y.) 129, 22 N Y. Suppl. 633, 52 N. Y. St. 31 ; Clason v. Bald- win. 59 Hun (N. Y.) 622, 13 N. Y. Suppl. 73, 36 N. Y. St. 550 ; Pope v. Dinsmore, 29 Barb. (N. Y.) 367; Vandenbergh v. Mathews, 7 N. Y. Annot. Cas. 484, 65 N. Y. Suppl. 365. See also Anonymous, 36 How. Pr. (N. Y.) 366. North Carolina. — Royster v. Burwell, 90 N. C. 24; Meekins v. Tatem, 79 N. C. 546. Ohio.— Mathers v. Bull, 18 Ohio Cir. Ct. 196, 10 Ohio Cir. Dec. 16. Pennsylvania. — Harris v. Schuylkill River East Side R. Co., 156 Pa. St. 252 27 Atl. 297 • Mehring v. Commonwealth Bldg., etc., Assoc, 17 Wkly. Notes Cas. (Pa.) 422., Texas. — Hodges v. Longscope, 23 Tex. 155 ; Lewis v. Black, 16 Tex. 652; Litton v. Thomp- son, 2 Tex. Unrep. Cas. 577. _„,„-, Washington.— Smith *. State, 5 Wash. 273, 31 Pac 865; Whittier v. Cadwell, 4 Wash. 819 820 30 Pac. 1097, 1098; Tacoma Foun- dry; etc! Co. v. Wolff, 4 Wash. 818, 30 Pac. 1053. Wisconsin. — Geekie v. Wells, 37 Wis. 362. Wyoming. — White v. Sisson, 1 Wyo. 395; Geer v. Murrin, 1 Wyo. 37; Murrin v. Ull- mann, 1 Wyo. 36. United States.— New Orleans Bank v. Cald- well, 154 U. S. 592, 14 S. Ct. 1171, 21 L. ed, 305. But compare Hines v. Cochran, 35 Nebr. 828, 53 N. W. 1118; Baldwin v. Foss, 14 Nebr. 455, 16 N. W. 480. See 3 Cent. Dig. tit. "Appeal and Error," § 2472 et seq. Where there is no statement of facts, and the record contains no fundamental error, the judgment appealed from must be affirmed. Cunningham v. Cunningham, 121 N. C. 413, 28 S. E. 525; Delafield v. Lewis Mercer Constr. Co., 115 N. C. 21, 20 S. E. 167; Juergeons v. Missouri, etc., R. Co., 16 Tex. Civ. App. 452. Failure to file case in intermediate court. — An appeal to the court of appeals from a judg- ment on a verdict subject to the opinion of the court, where the general term certifies that the record contains questions of law which should be reviewed, will not be consid- ered if there is no special case, settled under direction of the general term, containing a. concise statement of the questions of law aris- ing thereon, as provided by N. Y. Code Civ. Proe. § 1339. People v. Featherly, 131 N. Y. 597, 30 N. E. 48, 42 N. Y. St. 878 [dismissing appeal 59 Hun (N. Y.) 615, 12 N. Y. Suppl. 389, 35 N. Y. St. 156] ; Rigney v. Savory; 6 Abb. Pr. N. S. (NY.) 284 note. Statement on appeal to United States su- preme court. — Unless a, statement of the case is furnished according to the rule, the cause must either be dismissed or continued. Pey- ton v. Brooke, 3 Craneh (U. S.) 92, 2 L. ed. 376. Remandment for new trial. — Where the judge has mislaid his notes, and so cannot make a statement, the cause will be remanded for a new trial, as appellant cannot, without his fault, be deprived of his right of appeal. Porter v. Dugat, 9 Mart. (La.) 92. See also Meyer v. Mates, 15 Tex. Civ. App. 11, 37 S. W. 963, in which it was held that where, on appeal, the certificate of the trial judge and the affidavit of appellant's counsel showed that appellant did everything required of him by law to procure a statement of facts, and his failure to do so arose from the neglect of appellee's counsel to prepare, as he promised and as was his duty, a statement and present it to the judge, the judgment would be re- versed and a new trial granted. Waiver by appellee. — A waiver of a, case and exceptions by appellee cannot cure the defect of a failure on the part of appellant to make a bill of exceptions, case, or statement of facts. Dupont v. Baker, 14 Fla. 272; Mal- ley v. Ingersoll, 14 Fla. 200; Bogue v. Mc- Donald, 14 Fla. 66. Vol. II