^A^ 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/cu31924017069992 Cornell University Library KF 154.A512 1896 The American and English encyciopedia of 3 1924 017 069 992 Manner of citing the American and English Encyclopmdia of Law, Second Edition . A. &. E. Encycl. of L., 2d Edition. THE ENCYCLOPEDIA OF Pleading and Practice, Under the Codes and Practice Acts, at Common Law, in Equity and in Criminal Cases Compiled under the Editorial Supervision of WILLIAM M. McKlNNEY. A Companion Work of the AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW. IT covers the entire field of Pleading and Practice, and is applicable to all the States EDWARD THOMPSON CO., Publishers, Nopthpopt, I^ong Island, N. Y. THE American and English ENCYCLOPEDIA OF LAW EDITED BY DAVID S. GARLAND and LUCIUS P. McGEHEE UNDER THE SUPERVISION OF JAMES COCKCROFT SECOND EDITION Volume I NORTHPORT, LONG ISLAND, N. Y. EDWARD THOMPSON COMPANY London : C. D. CAZENOVE. 26 Henrietta Street 1R06 Copyright, 1896, BY EDWARD THOMPSON COMPANY. Ail rights reserved. MADE AT NORTHPORT, L. I., N. Y. ROBERT DRUMMOND, J. M. DUNN, Printer, Binder. 2657 PREFACE TO THE SECOND EDITION. Volume 29 recently issued, and the Index-Digest to follow shortly, con- clude the First Edition of the AMERICAN AND ENGLISH Encyclopd^ia OF Law. It is now ten years since the articles contained in Volume i were prepared. As the series was nearing completion it became a question as to how the work could best be kept abreast of the courts, and its value and usefulness preserved and, if possible, enhanced. There were but two methods worthy of consideration in which, by any possibility, this end could be attained : the first, by supplemental volumes, the ordi- nary but cumbrous and altogether unsatisfactory plan employed in con- tinuing digests; the second, by a complete revision, issuing about three volumes annually. After mature deliberation, the latter method was re- solved upon as being the more consistent with economy and convenience to the profession, and thoroughness and accuracy in the presentation of the law. It is a source of gratification to know that this course has the unqualified approval of eminent members of the bench and bar throughout the country. In the work of revision, the plan of the original will be pursued. Each treatise will be accompanied by a logical and orderly synopsis, which will subserve the twofold purpose of indicating the scope of the title and facilitating the examination of any particular branch of the subject treated. In connection with each treatise there will also be found a carefully pre- pared table of cross-references. The value and importance of this feature cannot be too highly estimated. By this means the reader is enabled to trace those parts of large and fruitful topics which, being worthy and sus- ceptible of separate discussion, constitute independent titles; also to find other subjects more or leas intimately related. It possesses the additional merit of lessening the likelihood of duplication of treatment. The text will contain in clear and accurate form the principles of law involved, which, in the notes, will be supported by an exhaustive citation of authorities, and exempHfied and fortified by concrete instances and apt quotations drawn from the cases. At the same time, theories and lengthy discussions will be studiously avoided. In both text and notes black-letter headlines will be liberally used. The practical utility. of this feature as a means of facilitating reference is patent. The citations will be grouped by states in their alphabetical order, each list being preceded by the name of the state. This will be pf great assistance PREFACE TO THE SECOND EDITION. to the lawyer in his search for the decisions of his own courts in the prep- aration of briefs. Not only are the cases of this country, both state and Federal, and of England, . exhaustively collected and thus arranged, but also the adjudications of the Canadian and other Provincial courts. It is believed that the scheme of verification in operation is the best yet devised. Every citation is copied on a card and twice compared with the original report by different corps of trained verifiers. This is a tedious and expensive process, but it is one which insures well-nigh absolute accuracy in the references. The thoroughness which characterizes the revision in the matter of cita- tions may best be shown by a comparison of the treatises of the new edition with the corresponding ones in the old. Thus, the article Abstract OF Title in the new contains 269 citations as against 38 in the old; Abduc- tion, 609 as against 87; ACCOUNTS, 1244 as against 591; Acknowledg- ments, 4070 as against 1425; ADMISSIONS, 3854 as against 11 15. The comparison might be pursued still further with similar results. This is no reflection upon the first series, as every article therein far exceeded in citations any other treatise on the same subject. It shows, rather, that with ten years of experience new and improved methods of discovering authorities have been developed, and, also, that within that period a great body of case law has arisen. Particular attention is invited to the exhaustive collection of words and phrases. This matter has never received treatment, at the hands of legal writers, commensurate with its importance. Until quite recently, no attempt had been made to index the definitions in the reports or gather them in the digests. The publishers have engaged a large force to search the reports of this country, England, and Canada, page by page, for every word and phrase that has been judicially defined. This search has been conducted under the supervision of Mr. Thomas Johnson Michie, of the Baltimore Bar, compiler of the Index-Digest, and formerly associate editor of the Encyclopaedia, who for a number of years has devoted his attention to this branch of legal literature. With this wealth of material at command, it is confidently believed that he will present the most exhaustive collection of judicial definitions extant. Since a complete revision of the work was determined upon, the whole range of the law has been examined with a view to a more scientific arrange- ment of the subjects, as well as the subdivision of others for the sake of a more comprehensive and clear presentation. Among the more prominent new titles that will appear in this volume may be mentioned the following: Abandonment and Total Loss (in Marine Insurance); Abatement OF Legacies; Abatement of Nuisances; Accommodation Paper; Ademption of Legacies; and Advice of Counsel. Others of equal importance will appear in succeeding volumes. Under the title ABBREVIATIONS will be found a complete list of the abbreviations commonly used to designate the American, British, and PREFACE TO THE SECOND EDITION. Canadian reports, together with those of the classic text-books. It 13 believed that this will be useful to all, and appreciated, especially, by those who have not reference manuals at hand. The page of the new edition is much more spacious than that of the original, containing about forty per cent more matter. By this means it is practicable to present a fuller and more complete abstract of the law without increasing the number of volumes. In a word, no effort has been or will be spared to present in convenient and accessible form a complete text-book on each topic, and, at the same time, a digest of all the law. Mr. James Cockcroft, the founder of the Encyclopaedia, and the presid- ing genius of its evolution and development, will continue his active super- vision of the work. Mr. Lucius P. McGehee, the author of a number of articles of exceptional merit, will occupy the position of associate editor. In this capacity his efforts will unquestionably be appreciated by the profession. The reception of the original by the profession generally, and the frequent and favorable citation of the same by tho courts of this and other countries, are the most flattering testimonial possible to its true worth. Now, as the result of an experience of ten years on the part of the publishers, and of the efforts of a thoroughly trained and equipped staff of writers, this volume is submitted to the profession, the first of the new edition, which, it is confidently believed, will be at once more useful in assisting them in their labors and more worthy of their com- mendation than its predecessor. David S. Garland. TABLES OF TITLES AND WORDS AND PHRASES. I. TITLES. Italics indicate cross-references. Abandonment • and Total Loss Marine Insurance), 4 . Abatement of Legacies, 42. Abatement of Nuisances, 63. Abbreviations, 97. Abduction, 162. Abode, 185. Abortion, 186. Abstract of Title, 210. Abutting Owners, 224. Accession, 247. Accessory, 257. Accident (in Equity), 277. Accident Insurance, 284. Accommodation Paper, 334. Accomplices, 389. Accord and Satisfaction, 408. Account Books, 432. Accounts, 433. Accretion, 467. Accumulations, 481. Acknowledgments, 483. Action on the Case, 583. Act of God, 584. Actus Dei, 608. Ademption of Legacies, 610. Adjacent Support, 634. Adjudicata, 641. (in Admeasurements of Dower, 642. Admiralty Jurisdiction, 645. Admissions, 670. Admixture, 724. Adoption of Children, 726. Adulteration, 738. Adultery (as a Crime), 746. Advancements, 760. Adverse Claim, 786. Adverse Enjoyment, 786. Adverse Interest, 786. Adverse Parties, 786. Adverse Possession, 787. Adverse User, 892. Adversus, 892. Advice of Counsel, 894. Advocate, 908. Affiliation, 911. Affirmation, 914. Affix, 914. Affray, 915. Affreightment, 918. African, 921. After-acquired Property, 924. After-acquired Title, 924. After-born Children, 924. Age, 927. Agency, 930. vii 11. WORDS AND PHRASES. By Thomas Johnson Michie. A, I. Abandon, i. Abatement, 41. Abdicate, 161. Abet, 182. Abeyance, 182. Abide, 183. Abiding Conviction, 184. Ability, 185. Abjure, 185. Able, 185. Able-bodied, 185. About, 196. Above, 200. Abridge, 201. Abroad, 201. Abscond — Absconding Debtor, 201. Absent — Absence, etc., 203. Absentee, 205. Absolute, 205. Absolutely, 208. Absorptive Substance, 209. Abstract, 209. Absurdity, 221. Abuse and Misuse, 221. Abut — Abutter, 222. Abutment, 223. j^cademy, 244. Accept, 245. z\cceptance, 246. Access, 246. Accident, 272. Accommodating, 333. Accompany, 388. According, 430. Accordingly, 430. According to Law, 430. Account, 431. Accountable, 431. Accountable Receipt, 432. Accountant, 432. Accounting Officer, 432. Accrue — Accrued — Accruing, 479. Accruer, Clause of, 480. Accumulated Surplus (of A Corpora- tion), 481. Accused, 481. Accustomed, 482. Acid Phosphate, 482. Acknowledge, 482. Acquaintance — Acquainted, 569. Acquets and Conquets, 570. Acquiescence, 570. Acquired, 571. Acquittal, 572. Acquittance, 572. Acquitted, 573. Acre, 574. Across, 574. Act, 575. Acting, 577. Action, 577. Actio Personalis Moritur cum Per- sona, 583. Active Trust, 583. Act of Insolvency, 600. Actual — Actually, 601. Add, 608. Addition — Additional, 608. Address of Letters, 609. Adequacy, 632. Adequate, 632. Ad Filum Aqum, 633. Adhering, 633. Adit, 633. Adjacent, 633. Adjoining, 635. Adjourn— Adjournment, 636. Adjudged, 640. Adjudicate — Adjudication, 641. TABLE OF WORDS AND PHRASES. Adjuncts, 641. Adjust — Adjustment, 641. Admeasurements, 642. Administer, 642. Administration, 643. Administrative, 644. Admission, 669. Admit, 724. Admonish, 724. Admr., 724. Adopt, 724. Adrift, 737. Ads., 737. Adult, 737. Ad Valorem, 757, Advance — Advances, 757. Advantage, 786. Advantageously, 786. Adventure, 786. Advertise, 892. Advertisements, 893. Advice, 893. Advise, 907. Advowson, 908. Aerolite, 908. Affairs, 908. Affect — Affecting, 909. Affidavit, 909. ' Affinity, 911. Affirm — Affirmative, 913. Affirmance, 913. Affirmative Pregnant, 914. Afore, 918. Aforesaid, 918. Aforethought, 920. Afoul, 920. After, 921. Afternoon, 924. Afterward — Afterwards, 924. Against, 925. IX THE AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW. A. — The article "A" is not necessarily a singular term ; it is often used in the sense of "any," and is then applied to more than one individual object.* ABANDON. (See also the title ADVERSE POSSESSION.)— To desert, to for- sake. Abandonment is the relinquishment or surrender of rights or property by one person to another ; * it includes both the intention to abandon and the 1. National Union Bank v. Copeland, 141 Mass. 257. In this case, where a debtor executed an assignment for the benefit of such creditors as should execute the assign- ment within a given time from the date, or within such further time as the trustees should allow " in and by a writing" indorsed on the instrument, it was held that the term a writing did not limit the trustees to the allowance of only one extension of time. Frequently o is the equivalent of any, and therefore, whereby section 52, English Agri- cultural Holdings Act 1883 (46 & 47 Vict., c. 61), bailiffs for levying a distress on an agri-^ cultural holding are to be appointed in writ- ing " by the judge of a county court," that does not mean "of tfte county court in the district of which the holding is," but means "of any county court;" so that a bailiff appointed by any county court judge may levy an agricultural distress anywhere. In re Sanders, 54 L. J. Q. B. 331. Authority to issue a hill of exchange has been construed to authorize the issuance of several bills, the total amount not exceeding the sum specified. Thompson v. Wesleyan Newspaper Assoc, 8 C. B. 849, 65 E. C. L. 849. A statute abolishing entail provided that " estates shall not be entailed, and when a person dies intestate his or her estate shall be divided equally," etc. It was held that a person was a general term, equivalent to " any person," and therefore included equally persons who were sole tenants and persons who were cotenants. Lowe v. Brooks, 23 Ga. 327- "A" Sea. — After the sailing of a vessel, an agent for insurers inserted in the "live-cattle clause " of a policy issued to cover such ves- sel, among the dangers insured against, " any loss occasioned by «»ea." It was held that this did not limit the insured to a loss occa- sioned by the force of a single wave, and that where cattle were carried between decks, and were injured by the tossing of the ship by heavy waves, it would render the insurers liable. Snowden w. Guion, loi N. Y. 458. " A " Distinguished from " The "—the Definite and the Indefinite Article. — In Sharff v. Com., 2 Binn. (Pa.) 514, upon an indictment for libel, the jury's verdict was: " Guilty of writing and publishing a hill of scandal," etc. The judgment on the verdict was reversed, because the defendant was not found guilty of the offense charged in the indictment. Tilghman, C.J., in his opinion said: " If it had said, guilty of th.e bill of scandal with which the defendant stands charged, or even guilty of the bill of scandal, without more, we should have been certain that the jury re- ferred to the indictment; and then perhaps it might have been fairly construed ' guilty of the offense charged in the indictment.' But the words are ' guilty of a hilloi scandal.' A hill is very different from the hill." In Graham v. Ewart, 25 L. J. Exch. 47, a grant of a right of sporting on land was held to give only a concurrent right, while a. grant of the right was held to give an ex- clusive right. Whether Parol Evidence ii Admissible to Show that "A" was Tlsed in a Definite Sense. — A writ- ten contract to furnish " a room that is im- proved and suitable" for a certain purpose is fulfilled by furnishing such a room; and parol testimony is not admissible to show that some particular room was intended by the contract- ing parties. Thompson v. Stewart, 60 Iowa 223. Used as an Equivalent of " The." — ^ is some- times read as the; e.g., an act done "with a view " of giving a creditor a fraudulent preference {English Bankruptcy Act 1869, § 92; and now Bankruptcy Act 1883, 46 & 47 Vict., c. 52, § 48) means with the view — the real, effectual, substantial, dominant view of giving a preference. Ex p. Bird, 23 Ch. Div. 695; Ex p. Taylor, 18 Q. B. Div. 295. Coot- fare InreWiXXs, 58 L. T. 871, 4 Times Rep. 284. " A "—Abbreviation Equivalent to "At."— A promissory note was worded, "value re- ceived, int. a. b% p. a." It was held that the letter a, when thus used in a note, is known and recognized among commercial and busi- ness men as standing for the word at, Atkinson V. Barber, 145 III. 418. "A" Year's Eent.— See Wades v. Figgatt, 75 Va. 575. "A" Railroad Leading to M. — See State v. Hastings, 24 Minn. 78; Van Hostrup v. Madi- son City, I Wall. (U. S.) 291. , 2. Hickman v. Link, 116 Mo. 123, quoting •with approval i Am. and Eng. Encyc. Law (ist ed.) i; Dodge v. Marden, 7 Oregon 460; State V. Seneca County Bank, 5 Ohio St. 177. " AhartAonment is a word that has acquired a technical meaning. It is defined to be the relinquishment of a right— the giving up of something to which we are entitled." Mallett V. Uncle Sam Gold Min. Co., i Nev. 204. Property is said to be ahamdoned when it is thrown away, or its possession is voluntarily forsaken by the owner. Eads v. Brazelton, 22 Ajk. 509. ABANDON. external act by which the intention is carried into effect.* 1. Hickman v. Link, ii5 Mo. 123, quoting with approval i Am. and Eng. Encyc. Law (ist ed.) i; Dodge v. Marden, 78 Oregon 460; Livermore v. White, 74 Me. 452; Clark v. Hammerle, 36 Mo. 62a; Moon v. Rollins, 36 Cal. 333; Keane v. Connovan, 21 Cal. 293; Wilson V. Daniels, 79 Iowa 132; Duffey v, Willis, 99 Mo. 132; Rowe v. Minneapolis, 49 Minn. 148; Kuschke v. St. Paul, 45 Minn. 225. See also Abandonment and Total Loss (in Marine Insurance), Vol. I., p. 32; Home- stead* Lost Property. As where an article is thrown away. M'Goon V. Ankeny, 11 111. 558. It may be inferred from mere lapse of time. Brent- linger V. Hutchinson, i Watts (Pa.) 46. See Smoot V. Wathen, 8 Mo. 522. Where the owner of a tannery sold it, but forgot to remove some hides which had been placed in the vats for tanning, and some years afterwards they were found, it was held that they were not ah»,ndoned. Livermore v. White, 74 Me. 452, 43 Am. Rep. 600. To constitute an ahandonment there must be the concurrence of the intention to abandon and the actual relinquishment of the prop- erty so that it may be appropriated by the next comer. Judson v. Malloy, 40 Cal. 299. " To constitute an ahandonment of a right secured, there must be a clear, unequivocal, and decisive act of the party — an act done which shows a determination in the individ- ual not to have a benefit which is designed for him." Breedlove v. Stump, 3 Yerg. (Tenn.) 257, quoted with approval in Dawson V. Daniel, 2 Flipp. (U. S.) 309. Trademark. (See also the title Trademarks.) — To constitute ahandonment of a trademark, an intention to abandon must be shown; mere evidence of nonuser is insufficient. Monson V. Boehm, 26 Ch. Div. 398. Intent — Questions of lawand Fact. — As intent is the essence of ahandonment, the facts of each particular case are for the jury. 2 Washb. Real Prop. (4th ed.) 370, 40 Am. Dec. 464, note; Dyer». Sanford, 9Met. (Mass.)395; Clemmins v. Gottshall, 4 Yeates (Pa.) 330; Miller w. Cresson, 5 W. & S. (Pa.) 284; Heath V. Biddle, 9 Pa. St. 273; Wiggins v. McCleary, 49 N. Y. 346; Bell V. Smith, 2 Johns. (N. Y.) 98; Wilson V. Pearson, 20 111. 81; M'Goon v. Ankeny, 11 111. 558; Hazelbaker v. Good- fellow, 64 111. 238; Taylor v. Hampton, 4 McCord (S. Car.) g6; Parkins v. Dunham, 3 Strobh. (S. Car.) 224; Banks v. Banks, 77 N. Car. 186; Weill v. Lucerne Min. Co., 11 Nev. 200; Myers v. Spooner, 55 Cal. 257; Marquart v. Bradford, 43 Cal. 526; Smith v. Gushing, 41 Cal. 97; Bell v. Bed Rock Tun- nel, etc., Co., 36 Cal. 214; Moon i/. Rollins, 36 Cal. 333; Davis v. Perley, 30 Cal. 630; Roberts V. Unger, 30 Cal.676; Masson p. Anderson, 3 Baxt. (Tenn.) 290; Landes v. Perkins, 12 Mo. 238. See also Sample v. Robb, 16 Pa. St. 305; Atchison v. McCuUoch, 5 Watts (Pa.) 13. See also Questions of Law and Fact. Abandonment Distinguished from Oift, or Bar- ter, or Surrender. — In Stephens v. Mansfield, II Cal. 363, it was held that there could be no such thing as an ahandonm,ent of land in favor of a particular individual and for a consideration. The court said: "There can be no such thing as ahandonment in favor of a particular individual, or for a considera- tion. Such act would be a gift or sale. An abandonment :s ' the relinquishment of a right, the giving up of something to which we are entitled' (Bouv.). ' Abandonm,ent must be made by the owner, without being pressed by any duty, necessity, or utility to himself, but simply because he desires no longer to possess the thing; and further, it must be made without any desire that any other person shall acquire the same; for if it were made for a consideration.it would be a sale or barter, and if without consideration, but with an intention that some other per- son should become the possessor, it would be a gift."' And see, to the same effect, Richardson v. McNulty, 24 Cal. 344. In Hagan v. Gaskill, 42 N. J. Eq. 215, a lease provided that an abandotunent of the property should annul the lease. It was held that a surrender to the lessor was not such an abandonment as would defeat the rights of creditors. The court said: " I think there is a great difference between abandon and surrender." Abandonment of Children. (See also Parent and Child.) — Abandon, as used in the Michi- gan statute against the abandonment of children, is used in its ordinary sense; i.e., "to forsake, to leave without the intention to return to; to renounce all care or protec- tion of." Shannon v. People, 5 Mich. 89. To abandon or expose a child under two years of age, as used in 24 & 25 Vict., c. 100, S 27, "includes a wilful omission to take charge of the child on the part of a. person legally bound to do so, and any mode of deal- ing with it calculated to leave it exposed to risk without protection." Steph. Cr. 196, citing Reg. v. White, L. R. i C. C. R. 311; Reg. V. Falkingham, L. R. i C. C. R. 222. In State v. Davis, 70 Mo. 468, the court said: "The ahandonment of -a. child is a statutory offense, and the language of the statute is sufficient, in an indictment, to charge the crime. Abandonynent does not mean a mere temporary absence from home, or temporary neglect of parental duty. Bouvier defines abctndonment thus: ' The act of a husband, or wife, who leaves his or her con- sort, wilfully and with an intention of causing perpetual separation.' Webster defines it as ' a total desertion; a state of being forsaken.' Additional words in the indictment would have been but definitions of the term abandnn- ment in words which perhaps would equally require definitions." Abandonment in the Sense of Desertion. (See also the title Divorce.) — "Abandonment may be defined to be the act of wilfully leaving the wife, with the intention of causing a palpable separation between the parties, and implies an actual desertion of the wife by the hus- band." Stanbrough v. Stanbrough, 60 Ind. 279. Has abandoned means that the husband has voluntarily left the wife, with an intention to forsake her entirely and never to return to her, and never to resume his marital duties towards her, or to claim his marital rights. Moore v. Stevenson, 27 Conn. 25. A wife alleged, in an action against her ABANDON. husDand for support, that he had abandoned her. The statute under which the action was brought used the word desertion. The com- plaint was held sufficient, the court saying: "The word deserted, as used in the statute, and the word abandoned, as used in the pleading, convey the same idea; that is, the act of wilfully leaving the wife with the intention of causing a palpable separation — a cessation from cohabitation." Carr v. Carr, ■6 Ind. App. 377. In Levering v. Levering, 16 Md. 218, it is said that failure to support the wife, accom- panied by intemperate habits and violence justifying her in leaving her husband, would .amount to an abandonment by him. Fersonal Froperty^Sunken Vessels. (See also Lost Property.) — Property sunk in a steam- Tjoat and unclaimed for twenty years was held to be abandoned. Creevy v. Breedlove, 12 La. Ann. 745. See Eads v. Brazelton, 22 Ark. 499; Wyman v. Hurlburt, 12 Ohio 82,40 Am. Dec. 461. Abandonment of property divests the owner of his title therein, and the finder who reduces the same to possession after such abandon- iment is not guilty of conversion. Wyman v. Hurlburt, 12 Ohio 81, 40 Am. Dec. 461. Manure. — Haslem v. Lockwood, 37 Conn. 500, 9 Am. Rep. 350. Abandonment of Invention. (See also the title Inventions.) — " A.ba/n,donment is a dedi- cation to the public — that is to say, the party has withdrawn himself from the clarim of monopoly and exclusive use which he might have had for his invention, and notwithstand- ing whatever it may be worth, it thenceforth belongs to the public — it is abandoned to the public." U. S. V. Hall, 7 Mackey (D. C.) 19. Abandon in the Sense of Leave. — In a bill of 'exceptions the term ahamdon was held by the court to have been used in the sense of ■remove. The court said: " What is meant by the expression in the bill of exceptions, that be abandoned his possession to it ? The coun- sel for the plaintiff in error contends that it means that he gave up or yielded the title to all the lots. In our opinion, its fair interpre- tation is merely that he left it, as we find in the next sentence that the term removed is used as equivalent to the term abandoned, previously employed. The lots were separate and distinct from each other, and so con- sidered by the grantor, as he refers to the plan of the city of Mobile for their boundaries. We cannot, therefore, understand the expres- sion in the bill of exceptions ' that he ■abandoned it' (the house he had built and occupied) to mean that he relinquished or yielded up his right and title to all the lots." O'Brien v. Doe, 6 Ala. 792. Abandonment of land. (See also the titles Adverse Possession; Occupancy; Real Prop- erty; Public Lands.)— In Dikes v. Miller, 24 Tex. 424, it was held that land might be abandoned. The court said: "Abandonment is the relinquishment of aright; the giving up of something to which one is entitled. If the owner Sees proper to abandon his property, and evidences his intention by an act legally sulficient to vest or divest the ownership. why may he not do so in the case of land as well as of a chattel ? It might go to the gov- ernment, instead of the first occupant, upon the principle upon which land escheated, or become derelict, belongs to the state. But I dd not perceive that that would affect the question of power in the owner to abandon the property." Approved in Tiebout v. Milli- can, 61 Tex. 517. To constitute abam^onment there must be a concurrence of the act of leaving the premises vacant so that they may be appropriated by the next comer, and the intention of not returning. Judson v. Malloy, 4oCal. 309. An abandon'ment of realty will be pre- sumed where the party leaves no property or improvement to indicate his intention to return and resume the occupancy of the land. Burke v. Hammond, 76 Pa. St. 172. The payment of taxes by the grantee in a tax deed upon the property for a portion of the time he is in possession, claiming title under the deed, is not by itself, disconnected from other circumstances, evidence that the owner has abandoned the property. Keane v. Can- novan, 21 Cal. 291. See also Davis v. Perley, 30 Cal. 630; Philadelphia v. Riddle, 25 Pa. St. 259. Abandonment of a lease. — A provision in a lease provided that the failure to make pay- ment within a certain time after such pay- ment was due should be considered "an abandorvment of this lease." The court, in construing the lease, said: " It seems tome that the words ' shall be considered an aban- donment,' etc., as employed in the lease, must be considered, in a legal aspect, when applied to this lease, as amounting to no more than, and in fact as being equivalent to, the words 'shall be considered forfeited.'" Bowyer V. Seymour, 13 W. Va. 20. Abandonment for Torts is the transfer of an animal or slave which has injured a person, in discharge of the owner's liability. Brown Law Diet.; Bouvier Law Diet.; Hynson v. Meuillon, 2 La. Ann. 798; Arnoult v. Descha- pelles, 4 La Ann. 41. Abandonment of Canals. See Canals. Abandonment of Condemnation Proceedings. See Eminent Domain. Abandonment of a Contract. See Contracts. Abandonment of a Fixture. See Fixtures. Abandonment of a Highway. See Highways. Abandonment of a Homestead. See Home- stead. Abandonment — Marine Insurance. See Aban- donment AND Total Loss (in Marine Insur- ance). Abandonment of a Hill. See Mills. Abandonment of a Mine. See Mines and Mining Claims. Abandonment of an Office. See Public Of- ficers. Abandonment of Personalty. See Lost Prop- erty. Abandonment of Bight of Way. See Rail- roads. Abandonment of Stations. See Stations. Abandonment of Streets. See Streets. Abandonment — Animals. See Animals. Abandonment — Wife. See Husband and Wife. ABANDONMENT AND TOTAL LOSS. (IN MARINE INSURANCE.) By L. P. McGehee. I. Definition, 5. II. Reason of the Doctbine, 5. III. Total Loss, 6. 1. Divisions of the Subject, 6. 2. Actual Total Loss, 6. a. Definition, 6. b. Destruction of Object Insured, 6. (1) General Principles, b. (2) Vessel Missing, 7. C. Total Loss to Insured, 7. (1) General Principles, 7. (2) Sale by Necessity, 8. (3) Cost of Repairs Exceeding Value, 8. (4) Particular Cases, 9. (a) Memorandum Articles, 9. , \b) Perishable Articles, 11. (c) Freight, 11. (d) Total Loss Only, 1 2. d. Total Loss with Benefit of Salvage, 12. 3. Constructive Total Loss, 13. a. Definition, 13. b. Criteria, 13. (i) In General, 13. (2) Quantum of Damage, 13. (a) English Rule, 13. (^) American Rule, 13. (3) Imminence of Peril, 14. (4) Zojj (?/■ Adventure — Inability to Repair, 16. «■. Computation, 16. (i) Ffl/«-«»ja facie a total loss, may be followed by 'a re- capture, which would revest the property in the assured. There may be a forcible deten- tion, which may speedily terminate, or may last so long as to end in the impossibility of bringing the ship or the goods to their desti- nation. There may be some other peril which renders the ship unnavigable, without any reasonable hope of repair, or by which the goods are partly lost, or so damaged that they are not worth the expense of bringing them, or what remains of them, to their des- tination. In all these or any similar cases, if a prudent man not insured would decline any further expense in prosecuting an adventure the termination of which will probably never be successfully accomplished, a party insured may, for his own benefit as well as that of the underwriter, treat the case as one of a total loss, and demand the full sum insured. * * * In all these cases not only the thing assured, or part of it, is supposed to exist in specie, but there is a possibility, however re- mote, of its arriving at its destination, or at least of its value being in some way affected by the measures that may be adopted for the recovery or preservation of it." In Kaltenbach v. Mackenzie, 3 C. P. Div. 476, Brett, L.J., said: "It was argued before us that this was an actual total loss. I do not stop to enter into that; it is clear that the ship was not an actual total loss; but I think we are bound to take it that she was a con- structive total loss — that is, she was in immi- nent danger of becoming a total loss to her owner. She may become a total loss to her owner either by perishing, although she has not yet perished, or she may become a total loss by reason of the cost of the repairs being greater than the value of the ship when re- paired; in either case she becomes a total loss to her owner. I think we must take it that the circumstances were such that the owner had a right to consider that in all probability the cost of repairing that ship would be greater than her value when repaired, and that she would become a total loss. There- fore he was justified in assuming there was imminent danger of her becoming a total loss; and he would, according to the rule I have enunciated, the moment he received in- formation which would lead any reasonable man to come to that conclusion, be bound to give notice of abandonment, unless he was excused." In Meagher v. ./Etna Ins. Co., 20 U. C. Q. B. 607, Robinson, C.J., said: "The test [of a total loss] by the law of England clearly is whether a prudent man would think it worth his while to attempt to save and repair the vessel; and it is assumed that he would not do it unless he had the prospect of gaining something by the attempt; in other words, that he would not make the attempt unless it appeared probable that the vessel, when got off and restored to the state she was in before the accident, would be worth as much as the operation would cost him. The English authorities have, as we conceive, at last fully established that as the criterion of a total loss." Besult of Peril not Conclusive. — In Hall v. Ocean Ins. Co., 37 Fed. Rep. 371, Car- penter, J., said: "The peril of the ship cannot be measured by the ultimate result of the efforts to save her. I am to look at the danger in which she was, rather than to the damage which she received." See also Wallace v. Thames Ins. Co., 22 Fed. Rep. 65; Orient Mut. Ins. Co. v. Adams, 123 U. S. 67; Thompson v. Mississippi Marine, etc., Ins. Co., 2 La. 239, 22 Am. Dec. 129. Though the actual injury proves less than the half value this is not conclusive. Fulton Ins. Co. V. Goodman, 32 Ala. 108: Peele v. Mer- chants' Ins. Co., 3 Mason (U. S.) 27; Bradlie V. Maryland Ins. Co., 12 Pet. (U. S.) 378; Norton v. Lexington F., etc., Ins. Co., 16 111., 235; American Ins. Co. v. Ogden, 15 Wend. (N. Y.) 532; 20 Wend. (N. Y.) 287; Mordecai V. Fireman's Ins. Co., 12 Rich. (S. Car.) 512. Contra — Ohio — Massachusetts. — The contrary Total Loss. ABANDONMENT AND TOTAL LOSS. Constructive. (4) Loss of Adventure — Inability to Repair. — When there is not a total loss by reason of the quantum of damage, or immediate imminence of total loss, yet, if the undertaking insured is broken up, or there is a lack of the means of repairing the injury sustained at the port of distress, an abandonment is justified.* c. Computation — (i) Value of Vessel. — The value of a vessel, within the rule as to one half loss, is the half of the general market value of the vessel at the time and place of the disaster, not its value for any particular voyage or purpose.* doctrine has been laid down in Ohio. Notice by the assured, of abandonment because the cost will exceed fifty per cent, does not conclude the parties, but both are bound at last by the test of the actual cost of raising and repairing. Peabody Ins. Co. v. Packet Co., 5 Am. L. Rec. (Ohio) -499. Compare also Hall w. Franklin Ins. Co.( 9 Pick. (Mass.) 466, where it was held that imminent danger of a total loss is no ground for an abandonment. Thus, if a ship, being dam- aged, is abandoned on her way to a port of repair, the abandonment will be void if the vessel arrives and is repaired for less than one half value. See also Peele v. Suffolk Ins. Co., 7 Pick. (Mass.) 254, 19 Am. Dec. 286; Sewall V. U. S. Ins. Co., 11 Pick. (Mass.) 90; Reynolds v. Ocean Ins. Co., 22 Pick. (Mass.) 191; Marmaud v. Melledge, 123 Mass. 173. This is, of course, the logical consequence of the doctrine of the insurer's right to repair. See infra, this title. Right of Insurer to Repair. As to what danger justi- fies abandonment in cases of stranding, see infra, this title, Stranding and Submersion, notes. Limitations of Test of Prudent Owner. — The remarks of Chancellor Walworth, in Ameri- can Ins. Co. V. Ogden, 20 Wend. (N. Y.) 287, are (instructive as to the difference of the English and American rules, and the limita- tions of the test of the prudent owner in America. He said: "The rule of permitting the assured to abandon when the vessel has been injured to more than half the value docs not exist in England. * * * As this prin- ciple of adopting an arbitrary rule of propor- tion between the value of the vessel and the expense of repairing her at the port of distress, for the purpose of ascertaining the right of the assured to abandon as for a total loss, was substituted for the more uncertain rule which exists in England, of leaving it to the jury to determine as a matter of fact, in all cases, whether the situation of the vessel was such as to make it a justifiable case of abandon- ment, or of a sale of the ship for the benefit of all parties, the courts of this country should be cautious how they depart from the estab- lished rule, or they will find the underwriters and the assured again involved in the ruinous litigation which the adoption of a fixed and certain rule was intended to obviate. I agree that there may be cases — where the vessel is stranded, with partial wreck, or is rendered otherwise unnavigable at a distance from any regular port, and where the means of repair or the necessary funds for that purpose could not have been procured, even if the master was furnished with the ordinary powers to 16 obtain them — in which, from the necessity of the case, there must be an abandonment or sale of the wreck of the ship. Pardessus ad- mits that such cases may exist even under the present Commercial Code of France, the 3goth article of which declares that an aban- donment on the ground of incapacity to navi- gate cannot be made if the vessel stranded (echoue) may be gotten off, repaired, and put in a state to continue her course to her place of destination. (Pardessus Du Droit Com., part 3, tit. 5, c. 3, §4, note 842. Tome 3, p. 370.) * * * The principle of submitting it to a jury in each case, to decide what a prudent owner would do, for the purpose of determining the right of the assured to abandon, would necessarily lead to ruinous litigation, and would deprive both the insurers and the assured of all the benefits intended to be se- cured to them by the adoption of the rule as to the extent of the repairs exceeding half the value of the vessel. It appears to me to be wholly inconsistent with reason and jus- tice to permit both rules to stand together. The question as to what a prudent owner would do may be a very proper rule^ of deci- sion in a case of stranding, and before it is known whether the vessel can be gotten oflf, or what injury she has sustained or may sus- tain in her then situation; and the other rule cannot be applied to such a case. But the adoption of such a principle in other cases, where the vessel is safely moored in a regu- lar port, would probably have the effect here, as it has already had in England, of compell- ing underwriters to insert a stipulation in the policy that there shall be no abandonment ex- cept in case of capture, or detention, or where the vessel is stranded." 1. This test evidently shades into those already given, but is placed here for the sake of distinctness. See infra, this title, Par- ticular Cases, and 'especially thereunder Loss or Retardation of Voyage; Sale by Necessity. In Peele v. Merchants' Ins. Co., 3 Mason (U. S.) 27, Story, J., said: " If there be any general principle that pervades and governs [the cases on abandonment], it seems to be this, that the right to abandon exists when- ever, from the circumstances of the case, the ship, for all the useful purposes of a ship for the voyage, is, for the present, gone from the control of the owner, and the time when she will be restored to him in a state to resume the voyage is uncertain or unreason- ably distant, or the risk and expense are dis- proportioned to the expected benefit and ob- jects of the voyage." See also American Ins. Co. V. Ogden, 15 Wend. (N. Y.) 532. 2. Center v. American Ins. Co., 7 Cow Total Lobs. ABANDONMENT AND TOTAL LOSS. Constructive. (2) Expense of Repairs and Transshipment. — The expense of repairs is usually the main element in computing total loss.* Costs of repairs are to be esti- mated at the port of distress.* Where there is a total loss of cargo the ex- penses of transshipment and sale are to be deducted from the gross receipts of sale in computing a total loss.^ In computing a total loss on freight, no de- duction is to be made for expenses of wages and provisions.* (3) \One Third New for Old. — Whether, in estimating the quantum of loss to determine total loss or not, the deduction of one third from the cost of repairs in favor of the insurer for the value of the new materials is to be made, as in cases of partial loss, is a question upon which the decisions are confUcting." (N. Y.) 564. See infra, this title, Expense of Repairs and Transshipment, Vessels Built for Particular Trade. — As to peculiar vessels built with a view to a par- ticular trade, it was Suggested by Wood, V. C, in African Steamship Co. v. Swanzy, 2 Kay & J. 664, that the proper criterion would be the price given for the vessel and the sub- sequent deterioration. See also Grainger v. Martin, 31 L. J. Q. B. 186. 1. Farnworth v. Hyde, 18 C. B., N. S. 835; Patapsco Ins. Co. v. Southgate, 5 Pet. (U. S.) 604; Bradlie v. Maryland Ins. Co., 12 Pet. (U. S.) 378; Robinson v. Commonwealth Ins. Co., 3 Sumn. (U. S.) 220; Smith v. Manu- facturers' Ins. Co., 7 Met. (Mass.)448; Greely V. Xremont Ins. Co., 9 Cush. (Mass.) 415; Goold V. Shaw, I Johns. Cas. (N. Y.) 293; Budd V. Union Ins. Co., 4 McCord(S. Car.) i; Cohen v. Charleston F. , etc. , Ins. Co. , Dudley (S. Car.) 147; and cases generally on the American rule of fifty per cent loss. See in- fra, this title, Constructive Total Loss; Ameri- can Rule. Previous Defects. — In calculating the value of repairs, those rendered necessary by de- fects existing previous to effecting the insur- ance are not to be included. De Peyster v. Columbian Ins. Co., 2 Cai. (N. Y.) 85; Depau ■V. Ocean Ins. Co., 5 Cow. (N. Y.) 63, 15 Am. Dec. 431. Coppering. — The following cases construe a peculiar clause as to coppering, in Massachu- setts policies: Lincoln v. Hope Ins. Co., 8 Gray (Mass.) 22; Prince v. Equitable Safety Ins. Co., 12 Gray (Mass.) 527. Submerged Vessel. — The expense of raising a submerged vessel and taking her into port is to be taken into account. Sewell v. U. S. Ins. Co., II Pick. (Mass.) go; Lincoln v. Hope Ins. Co., 8 Gray (Mass.) 22; Ellicott v. Al- liance Ins. Co., 14 Gray (Mass.) 318. Stranded Vessel. — When a vessel is stranded the rigging, etc., taken from her passes by abandonment to the insurer, and is not a fund in the insured's hands to defray expenses of getting her off. King v. Hartford Ins. Co., I Conn. 333. Straining and Weakening. — It seems that no sum for straining and weakening the ship can be added to the cost of repairs to make up a fifty per cent damage. Peele v. Suffolk Ins. Co., 7 Pick. (Mass.) 254, 19 Am. Dec. 286; Sage V. Middletown Ins. Co., i Conn. 239. Must Place in Statu Quo. — In estimating the cost of repairs such sum must be taken as will place the vessel in statu quo with the same materials. Center v. American Ins. I C. of L.— 2. 17 Co., 7 Cow. (N. Y.) 564. See also Lincoln u. Hope Ins. Co., 8 Gray (Mass.) 22. 2. American Ins. Co. v. Center, 4 Wend. (N. Y.) 45; Center v. American Ins. Co., 7 Cow. (N. Y.) 564; Fulton Ins. Co. w. Good- man, 32 Ala. 108; American Ins. Co. v. Fran- cia, 9 Pa. St. 390. But aliter, if repairs could be made more cheaply and without danger at a neighboring port. Peck v. Nashville Marine, etc., Ins. Co., 6 La. Ann. 148. And see infra, this title. Duty of Insured to Repair or Transship. 3. In Portsmouth Ins. Co. v. Brazee, 16 Ohio 82, there was a valued policy on cargo consisting of flour. The flour was sunk by a collision, and afterward raised and forwarded to New Orleans, the port of destination. In consequence of its damaged condition an im- mediate sale was necessary. It was held that the broker's charges of commission for making the sale and the expense of trans- shipment from the place of the disaster were properly estimated in favor of the insured in computing a total loss. For expenses of forwarding cargo, see Farnworth v. Hyde, 18 C. B., N. S. 835. 4. Stevens v. Columbian Ins. Co., 3 Cai. (N. Y.) 43, -z Am. Dec. 247. The wages and provisions of the officers and crew while a ship is being repaired are not to be included in constructive total loss; but a reasonable allowance should be made for the custody of the vessel, if necessary- during such repairs, and for superintendence, which allowance should be charged to the account of labor, the usual deduction of one third new for old being made. Hall v. Ocean Ins. Co., 21 Pick. (Mass.) 472. Premium for Turther Insurance. — The premi- ums which would be required to insure against the risks of plunder and weather during trans- portation of goods insured from place of wreck to place of destination are not to be included in estimating fifty per cent loss. Bryant z;. Com. Ins. Co., 13 Pick. (Mass.) 543. 5. Cases against One Third Deduction. — Peele V. Merchants' Ins. Co., 3 Mason (U. S.) 27; Robinson v. Commonwealth Ins. Co., 3 Sumn. (U. S.) 220; Wallace v. Thames Ins. Co., 22 Fed. Rep. 66; Bradlie v. Maryland Ins. Co., 12 Pet. (U. S.) 378; Phillips v. St. Louis Ins. Co., 11 La. Ann. 459; Peabody Ins. Co. V. Packet Co., 5 Am. L. Rec. (Ohio) 499; American Ins. Co. v. Francia, 9 Pa. St. 390. Cases in Favor of One Third Deduction. — Dun- ning V. Merchants' Mut., etc., Ins. Co. 57 Me. 108; Heebner?/. Eagle Ins. Co.,ioGray(Mass.) 131, 69 Am. Dec- 308; Smith v. Bell, 2 Cai. lotal Loss. ABANDONMENT AND TOTAL LOSS. Constructive. (4) Salvage, General Average, and Jettison. — The salvage contribution of the party claiming a total loss is to be taken into account in his favor, to determine whether his loss reaches the proportion required for a total loss.* It is proper to take into account goods jettisoned to make up a constructive total loss.* Items proper to be included in estimating general average are not so taken into account.' (5) Under Valued Policies. — In computing a constructive total loss under a valued policy the rule in England, and that which obtains in some of the courts in the United States, is that the actual facts alone are to be considered, as in cases of partial loss. Thus a ship is a constructive total loss in the courts of the United States where this rule prevails, if it costs more than one half the actual value of the ship to repair.* In some of the states, on the other hand, the valuation in the policy is con- clusive — the damage must exceed one half the valuation therein stated.' Cas. (N. Y.) 153; Pezant v. National Ins. Co., 15 Wend. (N. Y.) 453; Fiedler v. New York Ins. Co., 6 Duer (N. Y.) 282; Gerow v. British American Assur. Co., 16 Can. Supreme Ct. Rep. 524; Sherlock v. Globe Ins. Co., i Cine. L. Bull. (Ohio) 26. But compare Peabody Ins. Co. V. Packet Co., 5 Am. L. Rec. (Ohio) 499- 1. The vessel's proportion of salvage must be taken into account in determining the one half loss necessary for abandonment. Bradlie v. Maryland Ins. Co., 12 Pet. (U. S.) 378. 2. Judah V. Randal, 2 Cai. Cas. (N. Y.) 324; Moses V. Columbian Ins. Co., 6 Johns. (N. Y.) 219; Forbes v. Manufacturers' Ins. Co., i Gray (Mass.) 371; Lord v. Neptune Ins. Co., 10 Gray (Mass.) 126. But see Monroe v. British, etc., Marine Ins. Co., 52 Fed. Rep. 777, 3 C. C. A. 280, 5 U. S. App. 179. 3. Greely v. Tremont Ins. Co., g Cush. (Mass.) 415; Sewall v. U. S. Ins. Co., 11 Pick. (Mass.) go; Winn v. Columbian Ins. Co., 12 Pick. (Mass.) 27g; Deblois w. Ocean Ins. Co., 16 Pick. (Mass.) 305, 28 Am. Dec. 245; Rey- nolds V. Ocean Ins. Co., 22 Pick. (Mass.) igi, 33 Am. Dec. 727; Orrok v. Commonwealth Ins. Co., 21 Pick. (Mass.) 456, 32 Am. Dec. 271; HaU w. Ocean Ins. Co., 21 Pick. (Mass.) 472; Ellicott «'. Alliance Ins. Co., 14 Gray (Mass.) 318; Fiedler v. New York Ins. Co., 6 Duer (N. Y.) 282. Surveyor's Fees. — Surveyor's fees are not to be included, Fiedler v. New York Ins. Co., 6 Duer (N. Y.) 282; nor expenses incurred to ascertain the extent of loss. Hall v. Ocean Ins. Co., 21 Pick. (Mass.) 472. General Average Charges Due to Insured.— Where a vessel is damaged, and vessel, cargo, and freight all belong to one person, the owner cannot recover for a total loss against the insurer, where the general aver- age contributions due the vessel from freight and cargo would bring the loss below one half. Pezant v. National Ins. Co., 15 Wend. (N. Y.)453- . ^ ' The reason given is that a contrary rule would lead to a multiplicity of suits, but this evil would not result where the owners of vessel, cargo, and freight were different per- sons, and the insured entitled to contribution need not diminish his loss by the general average due to him. Pezant v. National Ins. Co., 15 Wend. (N. Y.) 453; Maggrath v. Church, I Cai. (N. Y.) 215, 2 Am. Dec. 173; Forbes v. Manufacturers' Ins. Co., i Gray (Mass.) 371. See also Dickenson v. Jardine, L. R. 3 C. P. 63g; Lord v. Neptune Ins. Co., 10 Gray (Mass.) 126; Potter w. Providence Washington Ins. Co., 4 Mason (U. S.) 2g8. But it has been held that in any case the insured must deduct the general average due to him in making up the fifty per cent loss. Lapsley v. Pleasants, 4 Binn. (Pa.) 502. 4. In Irving v. Manning, 6 C. B. 3gi, it was held that the question of loss, whether total or not, is to be determined as if there were no policy at all; that the nature of the loss being thus determined, the quantum of com- pensation is then to be fixed by the valuation in the policy. This case was erroneously cited to the opposite doctrine in Murray v. Great Western Ins. Co., 72 Hun (N. Y.) 282. See also Peele v. Merchants' Ins. Co., 3 Mason (U. S.) 27; Patapsco Ins. Co. v. South- gate, 5 Pet. (U. S.) 604; Bradlie v. Maryland Ins. Co., 12 Pet. (U. S.) 378; Fulton Ins. Co. V. Goodman, 32 Ala. 108; Peabody Ins. Co. ■«. Packet Co., 5 Am. L. Rec. (Ohio) 4gg. Valued Policy on Freight. — The actual freight and not the valuation in the policy is de- cisive. Boardman v. Boston Marine Ins. Co., 146 Mass. 442. See also Dumas v. U. S. Ins. Co., 12 S. & R. (Pa.) 437. 5. Winn v. Columbian Ins. Co., 12 Pick. (Mass.) 27g; Deblois v. Ocean Ins. Co., 16 Pick. (Mass.) 303, 28 Am. Dec. 245; Orrok v. Commonwealth Ins. Co., 21 Pick. (Mass.) 456, 32 Am. Dec. 271; Halll v. Ocean Ins. Co., 21 Pick. (Mass.) 472; Allen v. Commercial Ins. Co., I Gray (Mass.) 154; American Ins. Co. V. Ogden, 20 Wend. (N. Y.) 287; Waller- stein V. Columbian Ins. Co., 44 N. Y. 217, 4 Am. Rep. 664; Murray v. Great Western Ins. Co., 72 Hun (N. Y.) 282; Portsmouth Ins. Co. V. Brazee, 16 Ohio, 82. This rule, said Holmes, J., in Boardman v. Boston Marine Ins. Co., 146 Mass. 442, should not be extended; in view of the state of de- cisions elsewhere, and is not to be applied to valued policies on freight. The valuation of a ship in the policy pre- vails over the valuation made by order of a prize court in determining constructive total loss in case of capture. Lovering v Mer cantile Marine Ins. Co., 12 Pick. (Mass ) 348 18 Bight of ABANDONMENT AND TOTAL LOSS. Abandonment. Under a valued policy on freight for successive voyages the valuation is distributive, and the earnings on one voyage are not to be offset against the loss happening on another, unless circumstances show that the valuation is applica- ble to the aggregate amount of successive freights.* IV. Right or Abandonment— 1. Election to Abandon.— The insured is never obliged to abandon ; he may always elect to retain the property and recover for a partial loss.* But if he wishes to claim for a total loss, he must abandon if the loss is merely constructively total.* 2. Limitations of the Eight— «. Duty of Insured to Repair or Trans- ship. — The assured impliedly warrants that he will guard with reasonable dili- gence against the risks covered by the policy, so that a loss shall not happen through his own default or negligence.* It is the duty of the insured to re- pair, if it be possible; or, if this is impossible, to transship by another vessel.' It results that a partial loss cannot be made total by the neglect of the master to repair or transship, or by an unjustifiable sale on his part.® The rule that the valuation is decisive may ■be fixed by the policy. BuUard v. Roger Williams Ins. Co., i Curt. (U. S.) 148; Cope- land V. Phoenix Ins. Co., i Woolw. (U. S.) 278. Fremimn. — Where the premium is made a part of the amount insured, the loss must ex- ceed one half the whole valuation, including premium to authorize abandonment. Orrok V. Commonwealth Ins. Co., 21 Pick. (Mass.) 456, 32 Am. Dec. 271; Hall v. Ocean Ins. Co., 21 Pick. (Mass.) 472. 1. Under a policy of insurance on freight from Boston to San Francisco, and thence to port or ports in the East Indies and to a port of discharge in the United States, with liberty to return with a cargo of guano from the Chincha Islands instead of the East Indies, freight earned on the outward voyage is not to be deducted from the valuation in the policy in computing a constructive total loss of freight on the passage from the Chincha Islands home. Thwing v. Washington Ins. Co., 10 Gray (Mass.) 443. 2. Pitman v. Universal Marine Ins. Co., 45 L. T., N. S. 46; Murray v. Pennsylvania Ins. Co., 2 Wash. (U. S.) 186; Marean v. U. S. Ins. Co., 3 Wash. (U. S.) 256; Rugely v. Sun Ins. Co., 7 La. Ann. 279, 56 Am. Dec. 603; Barney w. Maryland Ins. Co., 5 Har. & J. (Md.) 139; Bosley v. Chesapeake Ins. Co., 3 Gill & J. (Md.) 450, 22 Am. Dec. 337; Earl v. Shaw, I Johns. Cas. (N. Y.) 313, i Am. Dec. 117; Sale V. Sun Mut. Ins. Co., 3 Robt. (N. Y.) 602; Suydam w. Marine Ins. Co., 2 Johns. is entitled, by way of salvage, to the benefit of anything that may be received either from the remnants of the goods or from damages paid by third per- sons for the same loss. But the insurer stands in no relation of contract or of privity with such persons. His title arises out of the contract of insurance, and is derived from the assured alone, and can only be enforced in the right of the latter. In a court of cominon law it can only be asserted in his name, and even in a court of equity or of admiralty it can only be asserted in his right. In any form of remedy the insurer can take nothing by subrogation but the rights of the assured. * * * The right of action against another person, the equitable interest in which passes to the insurer, being only that which the as- 37 "Right of ABANDONMENT AND TOTAL LOSS. Abandonment. thereof,* from the moment of the casualty to which the abandonment refers.* But the abandonment operates as a transfer only to the extent of the insured's sured has, it follows that if the assured has no such right of action none passes to the insurer; and that if the assured's right of action is limited or restricted by lawful contract be- tween him and the person sought to be made responsible for the loss, a suit by the insurer, in the right of the assured, is subject to like limitations or restrictions," The underwriter may enforce his right in his own name in the United States courts. Monticello v. Mollison, 17 How. (U. S.) 153; Commercial Ins. Co. v. The C. D., Jr., 1 Woods (U. S.) 72; The Sydney, 27 Fed. Rep. 119. In England he must sue in the name of the insured. Simpson v. Thompson, 3 App. Cas. 279; Wilson V. Raffalovich, 7 Q. B. Div. 553. 1. Insurers' Liahilities — Wages. — The in- surers on ship are liable for the wages of sea- men earned subsequent to an abandonment. Hammond v. Essex F., etc., Ins. Co., 4 Mason (U. S.) 196; McBride v. Marine Ins. Co., 7 Johns. (N.Y.) 431. See Frothingham v. Prince, 3 Mass. 563. But the abandonee takes free from any lien for wages earned before the casualty. Daniels v. Atlantic Mut. Ins. Co., 24 N. Y. 447: Sharp w. Gladstone, 7 East 24. As between the shipowner and insurer on freight, it has been held that, in case of an abandonment, the wages are a charge on the ship and owner in exoneration of freight, and are not chargeable against the insurer. Dan- iels V. Atlantic Ins. Co., 24 N. Y. 447. The same rule applies between the insured on cargo and the insurer. Daniels v. Atlantic Ins. Co., 24 N.Y. 447; Columbian Ins. Co. v. Catlett, 12 Wheat. (U. t:) 383. Freight. — The insurer on goods is liable to the shipowner for freight, and the question arises, Does the abandonee take the salvage subject to the claim for freight? The U. S. Supreme Court has held that the claim against the abandonee could not be supported, and that the charge ought to fall on the in- sured. C61umbian Ins. Co. v. Catlett, 12 Wheat. (U. S.) 383. Mr. Phillips and Mr. Arnould are of opinion that the loss ought to fall on the insurers, but that where such charges would exceed the salvage the insurer may decline taking the salvage and settle for a total loss. 2 Ar- nould on Marine Insurance (6th ed.) 977; 2 Phillips on Insurance, §§ 1718, 1726. Expenses for Saving Property. — All the ex- penses and charges in saving the property abandoned after the abandonment are charge- able against the insurer. Daniels v. Atlantic Mut. Ins. Co., 24 N. Y. 451; Sharp v. Glad- stone, 7 East 24; Barclay v. Stirling, 5 M. & S. 6; Barker v. Phoenix Ins. Co., 8 Johns (N. Y. ) 307, 5 Am. Dec. 339; Jumel v. Marine Ins. Co., 7 Johns. (N. Y.) 412, 5 Am. Dec. 283. After capture and abandonment the insurer is liable for expenses incurred in prosecuting an appeal from the prize court. Lawrence v. Van Home, i Cai. (N. Y.) 276. But where the interests of others are ben- 38 pfited, as well as those of the insurer, the principles of general average are to be con- sidered. Jumel V. Marine Ins. Co., 7 Johns. (N. Y.), 412, 5 Am. Dec. 283. Repairs. — Insurers are liable for the ex- penses of repairing the vessel subsequent to abandonment. United Ins. Co. v. Scott, I Johns. (N. Y.) 106. Co-insurer's Liability. — The liability of sep- arate underwriters, in case of an abandon- ment accepted by them, for repairs, etc., sub- sequent to the casualty occasioning the loss,, is separate, and not as of partners, each being liable for a sum bearing the same ratio> to the expenditure as the sum underwritten by him bears to the whole sum underwritten. United Ins. Co. v. Scott, i Johns. (N. Y.) 106. Injuries Caused by Property Abandoned. — The abandonee of a vessel which has been sunk in a navigable river is bound to use proper care to prevent accidents to other vessels so long as he has the possession, control, and manage- ment of the vessel; that is, so long as by due care and exertion he can easily remove, or so far shift, its position as to prevent such in- jury; but by abandoning the wreck he may put an end to his liability. White v. Crisp, 26 Eng. L. & Eq. 532; Taylor v. Atlantic Mut. Ins. Co., 37 N. Y. 275. a. Cammell v. Sewell, 3 H. & N. 617: The Brig Sarah Ann, 2 Sumn. (U. S.) 206; Dederer V. Delaware Ins. Co., 2 Wash. (U. S.) 61; Kenedy v. Baltimore Ins. Co., 3 Har. & J. (Md.) 367, 5 Am. Dec. 499; Levering v. Mer- cantile Ins. Co., 12 Pick. (Mass.) 348; Sun Mut. Ins. Co. V. Hall, 104 Mass. 507; Mellon w. Bucks, 5 Martin, N. S. (La.) 374; Clamage- ran v. Banks, 6 Martin, N. S. (La.) 553; Hooper v. Whitney, 19 La. 267; Clarkson v. Phoenix Ins. Co., 9 Johns. (N. Y.) i; Saurez v. Sun Mut. Ins. Co., 2 Sandf. (N. Y.) 482; Mar- quette First Nat. Bank v. Stewart, 26 Mich. 83; Natchez Ins.Co.w. Buckner, 4 How. (Miss.) 63. A ratification of an abandonment dates back to the act ratified. Graham v. Ledda, 17 La. Ann. 47. Insurer Takes Free from Fre-ezisting Charges. — The insurer takes the thing abandoned, whether ship, freight, or cargo, free from all charges or incumbrances created by act of the master or owner before the casualty. Dan- iels V. Atlantic Mut. Ins. Co., 24 N. Y. 447. See also Barclay v. Stirling, 5 M. & S. 6; Sharp V. Gladstone, 7 East 24. Bottomry Bond. — If an insurer accepts the abandonment of a ship upon which a bot- tomry bond has been given, he takes it cum onere, and the holder of the bond has the first right to the salvage. Delaware Mut. Safety Ins. Co. V. Gossler, 96 U. S. 645. In deliver- ing the opinion Clifford, J., said: "By an abandonment the insurer is placed in the sit- uation of the insured whom he represents and can have no greater right than the in- sured would have had. Unlike that thf lender on bottomry loses his remedy only when the ship or other property hypoth Eight of ABANDONMENT AND TOTAL LOSS. Abandonment. interest.^ The master of the ship and agents of the insured thereupon become agents of the insurer, and the insured is not bound by their subsequent acts unless he adopts them.* ecated is wholly lost ; and, where parts are preserved, such parts are esteemed his proper goods, being presumed to be the priduct of his money; and he therefore takes prefer- ence of the owner or insurer." See Jumel v. Marine Ins. Co., 7 Johns. (N. Y.)425, 5 Am. Dec. 283. Mortgage. — Where A, who holds a mort- gage on the whole of a vessel, insures her, and B holds a prior mortgage on one half the ' vessel; upon loss of the vessel, abandonment, and payment to A as for a total loss, the in- surers take only one half the salvage, while the other half goes to A. Rice v. Cobb, g Cush. (Mass.) 302. In this case Bigelow, J., said: " So far as the rights of the parties to this case are concerned, at the time of the abandonment each was the owner of the half of the wreck of the brig ; the plaintiff by virtue of his prior mortgage on one half, the defendant by virtue of the abandonment." 1. Patapsco Ins. Co. v. Southgate, 5 Pet. (U. S.)622. Thus, if only an aliquot part of the interest of the insured in the subject of the policy is covered thereby, an abandonment transfers only such insured part. The Manitoba, 30 Fed. Rep. 129. See also Kirby v. Thames Ins. Co., 27 Fed. Rep. 221. But this rule does not apply where the in- surance reaches every part of the thing in- sured. The Manitoba, 30 Fed. Rep. 129. Thus, where a vessel valued at $13, 500 is in- sured for $11,000, an abandonment carries the whole vessel of the insured to the insurer, and not merely 11,000/13,500, i.e., 22/27 there- of. The Mary E. Perew, 15 Blatchf. (U. S.) 58. See also Cincinnati Ins. Co. v. Bake- well, 4 B. Mon. (Ky.) 541; Mutual Safety Ins. V. Cargo, Olc. Adm. 89. Contra. — Merchants', etc., Ins. Co. v. Duf- field, 2 Handy (Ohio) 122; Cincinnati Ins. Co. V. Duffield, 6 Ohio St. 200, 67 Am. Dec. 339; Phillips V. St. Louis Ins. Co., 11 La. Ann. 45g; Natchez, etc.. Packet, etc., Co. u. Louisville Underwriters, 44 La. Ann. 714; White V. Steam Tug Mary Ann, 6 Cal. 462, 65 Am. Dec. 523. In these cases it is held that where the owner of the entire property insures for less than its expressed value, an abandonment carries to the insurer only such proportionate part of the thing insured as is represented by the ratio between the actual insurance and the valuation in the policy. Pennsylvania. — The question is an open one in Pennsylvania. But it is held there that, conceding the view that the insured retains his uninsured interest after abandonment, the underwriters are not bound to look after the interests of the insured, and, when they receive nothing from the wreck, are not liable for any part of its value. Alleghany Ins. Co. V. Ransom, 6g Pa. St. 496. Salvage Eeoeived by Insured. — If the under- writers, in case of a total loss, wish to reduce the verdict by salvage received by the in- sured, they must raise the issue by pleading that such salvage has been received by the insured. Gulf of California Nav., etc., Co. V. State Invest., etc., Co., 70 Cal. 586. See supra, this title. Total Loss •with Benefit of Salvage. Freight Due from Insured. — In Dumas v. U. S. Ins. Co., 12 S. & R. (Pa.) 437, there was an insurance on freight valued at I7500. Two thirds of the goods shipped belonged to the shipowner and insured; one third belonged to other shippers. The vessel was captured, abandoned, and the insurers paid for a total loss, i.e., $7500. Afterwards the vessel and part of the cargo was re- stored and the voyage completed. By the abandonment the insurer became entitled to the freight earned. They received that from the other shippers, and the question was whether, under the valuation in the policy, the freight to which the insurer was entitled from the owner and insured was the differ- ence between the freight actually received from the other shippers and the valuation in the policy, or was to be taken as such a pro- portional part of the valuation in the policy as his own goods were of the entire cargo, i.e., two thirds of the valuation. It was held that the insured was accountable for only two thirds of the valuation. 2. Jumel V. Marine Ins. Co., 7 Johns. (N. Y.) 412, 5 Am. Dec. 283; Schmidt v. United Ins. Co., I Johns. (N. Y.) 249, 3 Am. Dec. 319; Gardere v. Columbian Ins. Co., 7 Johns. (N. Y.) 514; Gardner v. Smith, i Johns. Cas. (N. Y.) 141; Miller w. De Peyster, 2 Cai. (N. Y.)302; The Brig Sarah Ann, 2 Sumn. (U. S.) 206. See also the cases cited in the first note to this section. Supercargo. — Where the voyage is broken up before the arrival of the vessel at the port, and the cargo is abandoned, and the master delivers it to the supercargo, contrary to in- structions, this makes the supercargo agent of the master, and so agent of the insurers after abandonment; and the insurers are re- sponsible for his actions. Catlett v. Pacific Ins. Co., I Wend. (N. Y.) 561. A reasonable compromise made by a super- cargo to free a vessel from detention after capture is binding on the insurer. Welles v. Gray, lo Mass. 42. Insured Agents for Beneficial Furposes. — The insured become agents for the underwriters for all beneficial purposes relative to the in- terest of the underwriters in the property. Columbian Ins. Co. -u. Ashby, 4 Pet. (U. S.) 139; Robertson v. Western Marine Ins. Co., 19 La. 227, 36 Am. Dec. 673. After an abandonment which is not ac- cepted by the insurer the assured remains the quasi agent or trustee of the insurer, and must do what he thinks most for the interest of the parties concerned ; and if he acts with fidelity, and sells the vessel and property insured at public auction, in the usual manner, without a view to his own benefit, it is no waiver of 39 Bight of ABANDONMENT AND TOTAL LOSS. Abandonment. b. Apportionment of Freight.— In England this doctrine as to the effect of abandonment is construed, in the case of the abandonment of a ship, to carry, as an incident to the ship, the right to the whole freight pending at the time of the abandonment and subsequently earned, to the abandonee.* The the abandonment, nor will it prejudice his claim against the insurer for a total loss. Walden v. Phoenix Ins. Co., 5 Johns. (N. Y.) 310, 4 Am. Dec. 359. See also Curcier v. Phil- adelphia Ins. Co., 5 S. & R. (Pa.) 113. But see Mellon v. Bucks, 5 Martin N. S. (La.) 371. The insured on goods in this case, after abandonment to the underwriters, brought suit against the owners and master of the ship by which he had shipped the goods, for the value thereof, alleging that the goods had been lost through their misconduct. The de- fendants were insured on ship and freight in the same insurance company, and the plaintiff attached the debt which might become due to the defendants from the company on the policies on ship and freight. The plaintiff claimed a right to bring the action as agent for the insurance company by reason of his abandonment. It was held that the agency created by abandonment extended only to beneficial purposes connected with the inter- est of the insurers in the property aban- doned, and that his claim to act as agent, under the circumstances, was unfounded. See also Peirce v. Ocean Ins. Co., 18 Pick. (Mass.) 83, 29 Am. Dec. 567. Agency Relates to Time of Abandonment. — The master's agency for the insurer relates to the time of the loss to which the abandonment refers. In The Brig Sarah Ann, 2 Sumn. (U. S.) 206, Judge Story said: " Then, it is said, that as the sale was made before the aban- donment was accepted, it was a sale made by the master as agent of the owners, and that, by implication, the abandonment admits the necessity of the sale and adopts and justifies it. But here, again, I cannot admit the en- tire correctness of the argument. When a loss takes place for which an abandonment may be made, the master is not exclusively the agent of the original owners of the ship, but he is the agent of those who retroactively become owners of the ship in consequence of that event, if an abandonment is made and is justifiable. The common doctrine is that the master is the agent of all concerned in the voyage; and that he becomes, by relation, the agent of the underwriters, whenever an aban- donment has been accepted, from the time of the loss to which that abandonment refers, although the abandonment may not have been offered or accepted until months after the event. So that in the present case, if the libellants have finally accepted the abandon- ment, and it was persisted in by the owners and never withdrawn by them, but was a con- tinuing abandonment on their side, the act of the master in the sale is to be treated as his act, as agent of the libellants, and not of the original owners." Where the master purchases the insured property at a sale after abandonment and the ■ insurer confirms his acts, he takes the prop- erty cum onere, Lawrence v. New Bedford Commercial Ins. Co., 2 Story (U. S.) 471; Jumel V. Marine Ins. Co., 7 Johns. (N. Y.) 412, 5 Am. Dec. 283; but the insurer may dis- claim his acts and refuse to take the advan- tages of the purchase and settle with the in- sured for a total loss, Jumel v. Marine Ins. Co., 7 Johns. (N. Y.) 412, 5 Am. Dec. 283; or he may receive the property, reserving all rights and waiving no objections; and he is entitled to take the proceeds without any charges if the property does not yield a profit beyond the fair value of it when shipped. Lawrence v. New Bedford Commercial Ins. Co., 2 Story (U. S.) 471. See also Lawrence w. New Bedford Commercial Ins. Co., 2 Story (U. S.) 471; Peirce v. Ocean Ins. Co., 18 Pick. (Mass.) 83, 29 Am. Dec. 567; Gardere v. Co- lumbian Ins. Co., 7 Johns. (N. Y.) 514. But in Dederer v. Delaware Ins. Co., 2 Wash. (U. S.) 61, it was held that upon aban- donment, though the property vests in the in- surer by relation from the time of the loss, the master continues the agent of the insured until abandonment. Insured Retaining Interest. — Where the owner has only a part interest insured, he re- mains his own insurer as to the remainder, and, although he abandons, is still bound by the master's acts. Natchez, etc.. Packet, etc., Co. V. Louisville Underwriters, 44 La. Ann. 714. 1. English Rule as to Freight. — Case v. Davidson, 5 M. & S. 79; Davidson w. Case, 8 Price 542; M'Carthy v. Abel, 5 East 388; Stewart v. Greenock Marine Ins. Co., 2 H. L. Cas. 159; Scottish Marine Ins. Co. v. Turner, I Macq. Cas. 334; Miller v. Woodfall, 8 El. & Bl. 493, 92 E. C. L. 493; Hickie v. Rodoca- nachi, 4 H. & N. 455; Barclay w. Stirling, 5 M. & S. 6; Thompson v. Rowcroft, 4 East 34. In Miller v. Woodfall, 8 El. & Bl. 493, the English rule and the contrasted American rule are thus stated by Lord Campbell: " The abandonees are considered as purchasers of the ship at the moment of the casualty 'to which the abandonment refers, and, although the contract of a shipowner does not run with the ship, it is well settled that, as inci- dent to the ship, the right to the whole freight, pending at the time of the sale and subsequently earned, belongs to the pur- chaser of the ship. The American courts, presuming that ship and freight are al- ways separately insured, and taking into consideration the respective right and equi- ties of the different sets of underwriters, where the loss is finally adjusted among all parties, assured and assurers, make an ap- portionment of the freight earned partly be- fore and partly after the casualty for which the abandonment on ship is made, so that the freight earned previous to the casualty may go for the benefit of the underwriters on freight to whom there has been an abandon- ment, and only the freight earned after the casualty vests in the abandonee on ship. (See the authorities collected, Arnould, § 40 Definition. ABATEMENT. Definition rule in the United States as to freight is different, and the freight is appor- tioned; that earned previous to the abandonment going to the insured, and that afterward earned belonging to the abandonee.* ABATEMENT. — " Abatement " is a generic term derived from the French abattre, and signifies the quashing, beating down, removing, or destroying of a thing.* 404.) But (as in the present case), in adjust- ing the rights of assured and assurer on ship, we do not look beyond those parties; and the abandonee of the ship, lilce the purchaser, has a right to the whole of the freight pending at the casualty although he could not claim freight paid or completely earned in a prior part of the voyage. Stewart v. Greenock Marine Ins. Co., 2 H. L. Cas. 159, I Macq. Cas. 382; Scottish Marine Ins. Co. v. Turner, i Macq. Cas. 334." In this case it was held that where the ship and goods be- long to the same person, and there is conse- quently no contract of affreightment, the abandonee succeeds to no right to freight for the whole voyage, or anything in the nature thereof, with respect to the part of the voy- age performed before abandonment; but he is entitled to compensation for the part of Jhe voyage performed after the accident. Hickie w. Rodocanichi, 4 H. & N. 455, goes far to bring the effect of the English 1-aw in accord with the American doctrine as to apportionment pro rata itineris. Here a ship having been chartered to carry troops to Calcutta was insured under a valued policy. After performing a part of the voyage she was injured by fire, and put into a port of distress, where, being found to be greatly damaged, she was abandoned to the under- writers as totally lost, and the abandonment was accepted, the captain having chartered another ship and forwarded the troops to Calcutta. The freight was received by the shipowner's agent. It was held that in for- warding the troops the captain acted as agent for the owner, and not for the under- writers, to whom the ship had been aban- doned, and was not entitled to any benefit from the freight so received. Where ship and freight were insured in separate companies, and both became a total loss by reason of a collision during the voy- age, and the insured afterward recovered from the owner of the ship at fault for the loss of their own ship and her freight, it was held that the underwriters of the ship were not entitled to recovery from the insured of any part of the amount recovered by the said insured for the loss of freight. Sea Ins. Co. V. Hadden, 13 Q. B. Div. 706. 1. United States Eule as to Freight.— Ham- mond V. Essex F., etc., Ins. Co., 4 Mason (U. S.) 196; Simonds v. Union Ins. Co., i Wash. (U. S.)443; Whitney v. New York Firemen's Ins. Co., 18 Johns. (N. Y.) 208; Davy v. Hal- lett, 3 Cai. (N. Y.) 16, 2 Am. Dec. 241; United Ins. Co. V. Lenox, i Johns. Cas. (N. Y.) 377, 2 Johns. Cas. (N. Y.)443; Hubbell v. Great Western Ins. Co., 74 N. Y. 246; Teasdale v. Charleston Ins. Co., 2 Brev. (S. Car.) igo, 3 Am. Dec. 705: Coolidge i/. Gloucester Marine Ins. Co., 15 Mass. 341. The doctrine of apportionment of freight appears not to have been decisively estab- lished when the case of Livingston v. Colum- bian Ins. Co., 3 Johns. (N. Y.) 49, was de- cided. Profits. — It seems that where there is an insurance on goods, and an abandonment thereof is made, the profits follow incidentally the principal subject, and belong to the in- surer of the goods, to the exclusion of the insurer on profits. French »•. Hope Ins. Co., 16 Pick. (Mass.) 397; Tom v. Smith, 3 Cai. (N. Y.) 245. S. See Case v. Humphrey, 6 Conn. 140. Abatement of Taxes. (See also the title Taxa- tion. ) — In Lowell v. Middlesex County, 146 Mass. 411, the court distinguishes "abate- ment" from "revaluation." Ouster by Abatement — Forcible Entry and De- tainer. — In Brown w. Burdick, 25 Ohio St. 268, it was held, where a testator died seized of an estate in fee, and, before his devisee could enter, a stranger obtained possession, that the devisee might maintain forcible entry and detainer against the stranger. The court said: " The injury of which the plaintiff in de- tainer complained was what the common law denominates ouster by abatement, which is, where a person dies seized of an inheritance, and before the heir or devisee enters, a stranger who has no right makes an entry and gets possession of the freehold. It is a figurative expression, to denote that the right- ful possession of the freehold of the heir or devisee is overthrown by the rude interven- tion of a stranger, and is always consequent upon the descent or devise of an estate in fee- simple. 3 Bla. Cora. 167-169." Abatement of Actions; Writs; Fleas in Abate- ment. See the title Abatement, i Encyc. PI. & Pr. I. 41 ABATEMENT OF LEGACIES. By F. A. P. FiSKE. I. DEPINITION, 42. U. Residuasy Legacies, 42. III. Geitebal Legacies, 45. 1. The General Rule, 45. 2. Circumstances Influencing Application of Doctrine, 46. a. Bounty, 46. b. Consideration, 48. c. Intent, 51. 3. Annuities, 54. 4. Legacy of Stock, 56. 5. Gift of Legacy Duty, 56. IV. Sfecipic and Demonstbative Legacies, 56. 1. In General, 56. 2. Specific Bequest of all the Testator's Personal Property, 59. 3. Fund Given in Fractional Parts, 59. V. Lapsed Iwtebests, 6o. VI. Statutoey Peovisions, 62. CROSS-REFERENCES. For matters of Procedure, see the title LEGACIES AND DEVISES, Encyclopedia OF Pleading and Practice. For other matters of Substantive Law and Evidence related to this subject, see the following titles in this work: ADEMPTION OF LEGACIES; ANNUITIES; DEBTS OF DECEDENTS ; EXECUTORS AND ADMINISTRATORS ; LEGA- CIES AND DE VISES ; WILLS. I. Depihition. — Abatement is the reduction of a legacy, general or specific, on account of the insufificiency of the estate of the testator to pay his debts and legacies. When the estate of a testator is insufficient to pay both debts and legacies, it is the rule that the general legacies must abate proportionably to an amount sufficient to pay the debts. If the general legacies are exhausted before the debts are paid, then, and not till then, the specific legacies abate, and proportionably.* II. Residtjaey Legacies — General Rule. — As a residuary legatee is entitled only to what remains after all debts and paramount claims upon the testator's estate are satisfied, he cannot call upon either the general or specific legatees to abate in his favor, even if the entire residue be exhausted.* 1. Bouvier Law Diet., approved in In re assets, in proportion to the value of their Neistrath, 66 Cal. 331. respective interests. The chancellor cited In Livingston v. Livingston, 3 Johns. Ch. Carters. Barnardiston, i P. Wms. 505; Long z/. (N. Y.) 148, an annuity to the widow of the Short, i P. Wms. 403. testator was made chargeable upon all the 2. No Abatement of General and Specific Lega realty. One of the devisees paid the an- oies in Pavor of Residuary Legacies. — Woerner nuity, and it was held that the various Am. Law Adm., § 452; Rop. Leg. (.2d Am. ed.) devisees must contribute, on ^ deficiency of *4ii; Purse v. Snaplin, i Atk. 418; Fonnereau 42 Besiduary Legacies. ABATEMENT OF LEGACIES. Sesiduary Legacies. Annuity Takes Precedence. — So where there is a gift of an annuity and a residuary- gift, the annuity must be paid in full, however great or small the testator's property may be. In other words, the annuity takes precedence, and the whole loss falls upon the residuary legatee.* Annuity Paid from Income — Eule Otherwise. — If, however, the testator should pro- vide in his will that the annuity should come only out of the income, and not out of the capital, the rule is otherwise.* Subsequent Deficiency of Assets. — In cases where there is a residue at the time of the testator's death, but the assets in the hands of the executor subsequently become insufficient to pay all the other legatees, the residuary legatee is not entitled to call upon the other legatees to contribute towards the loss, but must himself bear the whole of it.' V. Poyntz, I Bro. C. C. 478. See also Harley V. Moon, I Dr. & Sm. 623; Baker v. Farmer, L. R. 3 Ch. 537; Thompson v. Thompson, 3 Dem. (N. Y.) 409; Langstroth v. Golding, 41 N. J. Eq. 49, 53; Warren v. Morris, 4 IJel. Ch. 289, 304; Alsop V. Bowers, 76 N. Car. 168. Sffect of Sesiduary Legacy. — "Nothing is given by a residuary clause except upon the condition that something remains after all paramount claims upon the testator's estate are satisfied." Devens, J., in Tomlinson v. Bury, 145 Mass. 347. A gift of the rest of a specific fund after payment of debts and funeral expenses, where legacieg have been given as well, is a gift of the residue after payment of legacies as well as the debts and funeral expenses. Foxen v. Foxen, 3 N. R. 452, 13 W. R. 33. A testatrix bequeathed her diamonds upon trust for sale, thereout to be paid two lega- cies of ;£^6oo and £,']f. Y.) 196; Payne v. Williams, 4 Baxt. (Tenn.) 583; Glass v. Bennett, 89 Tenn. 478; Smith' ». Lyke, 13 Hun (N. Y.) 205; Barnes v. Allen, I Keyes (N. Y.) 390; Burnett v. Burk- head, 21 Ark. 77, 76 Am. Dec. 358; Friend v. Thompson, Wright (Ohio) 636; Schoul. Dom. Rel. (3d ed.) 57, 58. And a clear case of want of justification on the part of the par- ents should be required to be shown before they should be held responsible. Cooley on Torts (2d ed.) 265 ; Hutcheson v. Peck, 5 Johns. (N. Y.) 196. Malice must be Proved. — Before an action will lie against the parents, the husband must prove malice on their part in enticing his wife away from him; not necessarily spiteful, malicious, or revengeful conduct, but such conduct injurious to the husband and intentionally personal as malice in law would be inferred from. Hutcheson v. Peck 5 Johns. (N. Y.) 196; Westlake v. Westlake, 34 Ohio St. 635, 32 Am. Rep. 397. See Holtz V. Dick, 42 Ohio St. 23, 51 Am. Rep. 791; Friend v. Thompson, Wright (Ohio) 639 ; Rabe v. Hanna, 5 Ohio 530; Bennett w. Smith, 21 Barb. (N. Y.) 439; Campbell v. Carter, 3 Daly (N. Y.) 165. The burden of proving malice is on the plaintiff. Barnes v. Allen, I Keyes (N. Y.) 390. 3. Habeas Corpus.— Spelling on Extra Rel., § 1314; Ex p. Newton, 2 Smith 617; Rex v. Brooke, 4 Burr. 1991; Rex v. Clarkson, r 165 ■ Abduction of Husband. ABDUCTION. Modern Decisions. III. Abduction OF Husband— 1. Remediesof Wife— Common-law Rule. — At com- mon law the wife could not maintain an action for the abduction or enticement of her husband, because her legal being was merged entirely in his, and she had no standing in court ; and also because all damages recovered belonged to him absolutely.* 2. Modern Decisions. — It is held generally now that a wife may bring an action for damages against any one who in any way deprives her of the society, support, or protection of her husband. Such is the law in those states where by statute the wife has the right to sue in her own name for personal injuries and is otherwise freed from her common-law disabilities.* Stra. 445; Sanders v, Rodway, 13 Eng. L. & Eq. 463, 16 Jur. 1005. See i Fras. Dom. Rel. 240, 241; Schouler Dom. Rel. (3d ed.) 48. But where a wife is voluntarily, of her own desire and without any restraint, living apart from her husband, the court will not grant a habeas corpus on his application for the purpose of restoring her to his custody. Ex p. Sandilands, 12 Eng. L. & Eq. 463; Reg. V. Leggatt, 18 Q. B. 781, 83 E. C. L. 781; Rex V. Mead, i Burr. 542. In Reg. V. Leggatt, 18 Q. B. 781, 83 E. C. L. 781, the court, by Lord Campbell, C.J., in refusing to grant the writ, said: "We have always felt great tenderness in dealing with writs of habeas corpus. * * * The object of a habeas corpus is to restore to liberty a person who has been unjustly deprived of it. * * * But here the wife is under no restraint whatever, and is by her own de- sire living with her son, from whom it is proposed to take her. Whether the hus- band has a right to the custody of her or not is a question alieni fori; we have no juris- diction over it. If a writ of habeas corpus were to issue and the wife were to be brought before us, we could not compel her to return to her husband. She would be at liberty to go where she chose If she has no good caust for lemaining away from her husband, he may obtain a decree of the ecclesiastical court ordering her to return to him. This case is quite different from that of an infant. There the parent has a right to the custody of the child. * * * But a husband has no such right at common law to the custody of his wife." 1. Sir William 5 lackstone states the rule at common law thus: "We may observe that in these relative injuries notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself, or at least the ad- vantages accruing therefrom." 3 Black. Com. p. 142; Postlewaite v. Postlewaite, i Ind. App. 475. See also cases in succeeding notes in this section; and 26 Am. Law Rev. 36-49. 2. United States. — Mehrhoff v. Mehrhoff, 26 Fed. Rep. 13; Waldron v. Waldron, 45 Fed. Rep. 315. Connecticut. — Foot v. Card, 58 Conn. 4, 23 Am. St. Rep. 258. Illinois. — Bassett ». Bassett, 20 111. App. 543- Indiana. — Postlewaite v. Postlewaite, i Ind. App. 473; Wolf V. Wolf, 130 Ind. 599; Haynes v. Nowlin, 129 Ind. 581. Michigan. — Warren v. Warren, 89 Mich. 123. New Hampshire. — Seaver ». Adams (N. H., 1890), 19 Atl. Rep. 776. New For/5.— Bennett v. Bennett, 116 N. Y. 584; Jaynes v. Jaynes, 39 Hun (N. Y.) 40; Breiman v. Paasch, 7 Abb. N. Cas. (Brooklyn City Ct.) 249; Baker v. Baker, 16 Abb. N. Cas. (N. Y. Supreme Ct.) 293; Warner v. Miller, 17 Abb. N. Cas. (N. Y. Supreme Ct.) 221; Churchill v. Lewis, 17 Abb. N. Ca's. (N. Y. Supreme Ct.) 226; Simmons v. Simmons (Supreme Ct.),4 N. Y. Supp. 221. See also Manwarre'n v. Mason (Supreme Ct.), 29 N. Y. Supp. 915. Ohio. — Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397; Clark v. Harlan, i Cine. Super. Ct. Rep. (Ohio) 418. Conflicting Judgments. — Although the weight of authority seems to be in favor of placing the wife on an exact equality with the hus- band in this particular, and of giving her the right to bring an action on the case against whomsoever entices him away from her, yet there are many judgments which deny her this right. See Van Arnan v. Ayers, 67 Barb. (N. Y.) 544; Mulford v. Clewell, 21 Ohio St. 191; Logan V. Logan, 77 Ind. 558; Duffies v. Duffies, 76 Wis. 374, 20 Am. St. Rep. 79; Doe V. Roe, 82 Me. 503, 17 Am. St. Rep. 499. In Duffies v. Duffies, 76 Wis. 374, 20 Am. St. Rep. 79, it was held that the wife had no right, either at common law or under the statutes freeing her from her common-law disabilities, to the society, support, and af- fection of her husband, and that she could not maintain an action for damages for en- ticing him away. It would seem from the opinion that such right, together with the right to sue thefefor, must be conferred ex- pressly by statute. In Doe V. Roe, 82 Me. 503, 17 Am. St. Rep. 499, the court, by Walton, J., .said: "It is, true that a husband may maintain an action for the seduction of his wife. But such an ac- tion has grounds on which to rest that can- not be invoked in support of a similar action in favor of the wife. A wife's infidelity may impose upon her husband the support of another man's child. And what is still worse, it may throw suspicion upon the legitimacy of his own children. A husband's infidelity can inflict no such consequences on his wife. An action in favor of the hus- band for the seduction of his wife has been regarded as of doubtful expediency. It has been abolished in England. * * * If such actions were maintainable by wives, such a power would furnish them with the means of inflicting untold misery upon others, with 166 Abduction of Child. ABD UCTION. Bights of Parents. 3. Gist of the Action. — The gist of the action is the loss of the consortium or conjugal society of the husband.* 4. When Action does not Lie. — In order to maintain the action the wife must affirmatively prove that the defendant was the abductor and enticer. The action will not lie when the loss of conjugal fellowship is due to her own or her husband's misconduct.* 5. Wife's Eight to Habeas Corpus. — A wife may sue out a writ of habeas cor- pus for the unlawful abduction or detention of her husband.-'' IV. Abduction of Child — 1. Eights of Parents — General Eule. — A father has a right of action against every person who knowingly and wittingly interrupts the relation subsisting between himself and his child by enticing or abducting such child away from him, or by harboring the child after he has left the father's house.* The action lies also on behalf of the mother after the little hope of redress for themselves. At any rate we are satisfied that the law never has, and does not now, secure to wives such a power, and if it is deemed wise that they should have it, the legislature and not the court must give it to them.". 1. Lynch v. Knight, 9 H. L. Cas. 588; Foot V. Card, 58 Conn. 4, 23 Am. St. Rep. 258. See Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397; Clark v. Harlan, i Cine. Super. Ct. (Ohio) 418; Baker v. Baker, i6 Abb. N. Cas. (N. Y. Supreme Ct.) 293; Warner v. Miller, 17 Abb. N. Cas. (N. Y. Supreme Ct.) 221; Churchill v. Lewis, 17 Abb. N. Cas. (N. Y. Supreme Ct.) 226; Jaynes v. Jaynes, 39 Hun (N. Y.) 40; Big- low on Torts 1^3; Cooley on Torts 228, note. In Lynch v. Knight, g H. L. Cas. 588, the court, by Campbell, L. C, said: "If there be shown a concurrence of loss and injury from the act complained of, we are bound to say this action lies. Nor can I allow that the loss of consortium or conjugal society can give a cause of action to the husband alone. I think it may be a loss which the law may recognize, to the wife as well as to the hus- band." " If at common law the husband could maintain an action for the loss of the consor- tium of the wife, I can see no reason why, under our law, the wife cannot maintain an action for the loss of the consortium of the husband." Gilmore, C.J., in Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397. In Clark v. Harlan, i Cine. Super. Ct. Rep. (Ohio) 422, the court, by Storer, J., said: " If the husband's right to claim damages for the loss of his wife's society, his solatium, as the civilians term it, arise by virtue of the contract of marriage, the same result, for stronger reasons, should follow the loss of the husband's consortium by the wife. His care of her whole social life, his protection from injury of her person, of her property, and of her good name, are alike demanded by the marital tie and the first principles of jus- tice. He cannot lightly disregard the obliga- tions he has solemnly assumed, or ignore the relation he bears to her to whom he has pledged his affections until the bond is sev- ered by death or the judgment of the law." 2. Misconduct of the Parties. — Warner v. Miller, 17 Abb. N. Cas. (N. Y. Supreme Ct.) 221; Churchill v. Lewis, 17 Abb. N. Cas. (N. Y. Supreme Ct.) 226; Buckel v. Suss, 28 Abb. N. Cas. (N. Y. Super. Ct.) 21. Where a man frequents a bawdy-house it is held that the action of abduction or entice- ment will not lie against the keeper on mere evidence of such frequenting. Churchill v. Lewis, 17 Abb. N. Cas. (N. Y. Supreme Ct.) 226. A wife cannot maintain an action for en- ticing away her husband where the evidence shows that she herself left him and applied for a divorce. Buckel v. Suss, 28 Abb. N. Cas. (N. Y. Super. Ct.) 21. 3. Bight of Wife to Writ of Habeas Corpus.— Spelling Extra Rel., § 1314; Cobbett v. Hud- son, 15 Q. B. 988, 69 E. C. L. 988; Exp. Cob- bett, cited va. 15 Q. B. 181, note (b), 69 E. C. L. 181. In the Matter of Ferrens, 3 Ben. (U. S.) 445, the court, by Blatchford, J., said: "It has never been understood that, at common law, authority from a person unlawfully im- prisoned or deprived of his liberty was nec- essary to warrant the issuing of a habeas corpus to inquire into the cause of his de- tention. In the case of People v. Mercein (3 Hill (N. Y.) 407) the Supreme Court of New York intimate that such authority from the person detained is not ordinarily necessary. In the case of Ashby and White (14 Howell's State Trials 814) the House of Lords in England, in 1704, resolved ' that every Englishman, who is imprisoned by any authority whatsoever, has an undoubted right, by his agents or friends, to apply for and obtain a writ of habeas corpus in order to procure his liberty by due course of law.' This resolution was assented to by the House of Commons (page 826). In the present case the petitioner states, in her petition, that she is the wife of the reci'uit, and is depend- ent upon him for support. This is, I think, suflScient to authorize her to prosecute the writ." 4. Bight of Father in Case of Abduction of Child. — Schouler Dom. Rel. (3d ed.), § 260; 2 Hilliard on Torts (3d ed.) 519, 521; Kirkpat- rick V. Lockhart, 2 Brev. (S. Car.) 276; Sar- gent V. Mathewson, 38 N. H. 54; Everett v. Sherfey, i Iowa 356; Steele v. Thacher, Ware (U. S.) 91; Jones v. Tevis,4 Litt. (Ky.) 25, 14 Am. Dec. 98. See Rogers v. Smith, 17 Ind. 323, 79 Am. Dec. 483; Plummer v. Webb, Ware (U. S.) 75; Grand Rapids, etc., R. Co. 167 Abduction of Child. ABD UCTION. Gist of the Action. father's death, ^ or on behalf of one standing in loco parentis.^ 2. Gist of the Action. — The gist of the action for the abduction of a child would seem to be not the loss of service, but the loss to the parent of the comfort and society of the child, though the authorities are not in harmony upon the question.' V. Showers, 71 Ind. 451; Thompson w. How- ard, 31 Mich. 308; Emerson v. Rowland, I Mason (U. S.)45; Hills v. Hobert, 2 Root (Conn.) 48; Caughey v. Smith, 47 N. Y. 244. It is doubtful whether under the old law a father had m right of action for the ab- duction of any of his children other than his son and heir. The question was raised in Barham v. Dennis, Cro. Eliz. 770, where it was held that he had not, though the opposite view was also set forth. However, since the abolition of military tenures the action for the abduction and marriage of an heir is gone, and a parent now, in the same manner as a husband for the abduction of his wife, may proceed against the abductor of any of his children by writ of ravishment or action of trespass vi et armis de filio ziel Jilia rapto vel abducto, 3 Black. Com. 140, 141 ; Fitzherbert Nat. Brev. go; Gray v. Jefferies, Cro. Eliz. 55. 1. Mother's Right of Action. — Jones v. Tevis, 4 Litt. (Ky.) 25, 14 Am. Dec. 98. The action must be on the case and not tres- pass vi et armis. In the analogous case of an action forseduction,the samedoctrine is held. Gray v. Durland, 50 Barb. (N. Y.) 100; Ded- ham V. Natick, 16 Mass. 135; Hammond v. Corbett, 50 N. H. 501, 9 Am. Rep. 288; Mat- thewson v. Perry, 37 Conn. 435, 9 Am. Rep. 339; Furnam v. Van Sise, 56 N. Y. 435, 15 A.m. Rep. 441. On habeas corpus proceedings it has been held that a mother has no legal authority over her minor child and no right to his ser- vices. This is placed on the ground that at common law she was not bound to support him. Com. v. Murray, 4 Binn. (Pa.) 487, 5 Am. Dec. 412; Logan v. Murray, 6 S. & R. (Pa.) 175, 9 Am. Dec. 422; South v. Denniston, 2 Watts (Pa.) 477; Coon v. Moffit, 3 N. J. L. 169, 4 Am. Dec. 392; Bartley v. Richtmyer, 4 N. Y. 38, 53 Am. Dec. 338. In Worcester v. Marchant, 14 Pick. (Mass.) 510, it was held that under Massachusetts Stat. 1784, c. 72, § II, which provides that every master of a ship who shall carry or transport out of Massachusetts an infant, etc., without the consent of his parent, etc., shall be liable for the damages sustained by the parent, etc., in a special action on the case, no action could be maintained by an infant's mother or stepfather, because they have no legal right to the minor's society or services. 2. One in Loco Parentis. — In Clark v. Bayer, 32 Ohio St. 299, 30 Am. Rep. 593, the court, by Ashburn, J., said: " To recognize the doc- trine that ohe standing in loco parentis, clothed with the lawful custody of an infant under five years old, has no legal capacity to sue or maintain an action for damages, either general or special, against the child thief, would be an unwarranted restriction 168 upon the common-law rights of the citizen. It would be no less restrictive to hold that no action can be maintained for such cause, by reason of the fact that the infant, because of its tender years, is unable to render any valuable services. The action rests upon the right to service, and not upon actual ser- vices." See also State v. Bratton, 15 Am. Law Reg. N. S. 359; State v. Smith, 6 Me. 462; Dumain V. Gwynne, 10 Allen (Mass.) 272; Cone v. Dougherty, r Pa. Leg. Gaz. 13; Ex p. Wal- dron, 13 Johns. (N. Y.) 418; U. S. v. Green, 3 Mason (U. S.) 482 ; Mercein v. People, 25 Wend. (N. Y.) loi; Gishwiler v. Dodez, 4 Ohio St. 615; Ex p. Shumput, 6 Rich. (S. Car.) 344; Lyons v. Blenkin, Jac. 245. A person standing in loco parentis is en- titled to maintain this action the same as one who is actually the parent. Whitaker v. Warren, 60 N. H. 20, 49 Am. Rep. 302. Guardian. — A guardian has the same right of action as a father when his ward is stolen or ravished away from him. 3 Black. Com. 141; Fitzherbert Nat. Brev. 90, 139; 2 P.Wms. (Eng.) 108; 12 Car. II. c. 24. Stepfather. — But the rule does not extend to a stepfather. See Worcester 11. Marchant, 14 Pick. (Mass.) 510; Tubb v. Harrison, 4 T. R. 118; Freto v. Brown, 4 Mass. 676. Unless he voluntarily assumes the care and support of a stepchild. The test of the relationship is whether a person holds the child out as a member of his own family. St. Ferdinand Loretto Academy v. Bobb, 52 Mo. 357; Cooper V. Martin, 4 East 77; Sharp v. Crop- sey, II Barb. (N. Y.) 224. As to an adopted child, see Brown v. Welsh, 27 N. J. Eq. 429. Master and Apprentice. — An indictment will not lie against a man for enticing an appren- tice to leave his master's service; for such wrong is of a private nature, and to the prej- udice of a single person only. The remedy is by action on the case. Reg. v. Daniell, 6 Mod. 99. 3. Abduction of Child— Gist of the Action.— In Kirkpatrick v. Lockhart, 2 Brev. (S. Car.) 276, a father was held entitled to damages in an action of trespass vi et armis for the abduction of his daughter, although it was not laid in the declaration that he thereby lost the services of his child, and although there was no evidence of a forcible taking. The court, by Brevard, J., said: " I mention these cases to exhibit the true foundation of these kinds of actions, and to show that the al- legation of special damageper quod is founded on a mere fiction, which seems to have been suggested by a narrow technical mind, or to have originated in a base and sordid principle of pecuniary interest. In truth and justice it forms no essential ingredient in the cause of action, and is unworthy of the notice of an enlightened and feeling judicatory. We Abduction of Child. ABDUCTION. When Action does not lie. 3. When Action does not Lie. — The fact that persons who harbor and employ a child know that he wrongfully left his father's service will not support the father's action against them for enticing him away ; the father must prove that inducements were presented to the child, while in his custody and service, which caused him to leave it.* Emancipation or Abandonment of Child. — A parent may lose his right of action by emancipating his child or by turning him away or abandoning him.* are, therefore, of opinion there is no neces- sicy to resort to this absurd fiction to support an action so well founded in justice, reason, and policy. The true ground of action can- not be the loss of service, for a child may be of an age so tender or of a constitution so delicate as to be incapable of rendering any service. The true ground of action is the outrage and deprivation; the injury the father sustains in the loss of his child; the insult offered to his feelings; the heart-rend- ing agony he must suffer in the destruction of his dearest hopes, and the irreparable loss of that comfort and society which may be the only solace of his declining age." See also Redford v. McKowl, 3 Esp. 119. In Clark v. Bayer, 32 Ohio St. 2gg, 30 Am. Rep. 593, it was held that the action rested upon the right to service, and not upon actual service. There seems to be no reason why a parent or one standing in loco parentis may not sue on either ground, but he cannot do so upon both. In Thompson u. Howard, 31 Mich. 308, it was held that a person cannot take contradictory positions, and where he has a right to choose one of his modes of redress his election of one will preclude him from adopting the other. Therefore where the father brought an action on the case for the unlawful enticing away and harboring his minor son, after he had first brought assump- sit for the son's wages during the same period on the basis of an implied contract, and after a trial had submitted the case to the jury and upon their disagreeing had dis- continued the suit, it was held that the action on the case would not lie. In Evans v. Walton, L. R. 2 C. P. 615, where the plaintiff's daughter, who was about nineteen years of age, resided with him as a member of his family, and assisted him in his business, procured her mother's consent to her quitting her home for a few days by means of a fictitious letter of invita- tion dictated by the defendant, and the de- fendant then took her to a lodging-house, where she cohabited with him for nine days and then returned home, it was held that there was a sufficient continuing relation of master and servant flfe/ac/u, and sufficient evi- dence of a wrongful enticing away of the daughter by the defendant, to entitle the father to maintain the action, although there was no allegation that the defendant de- bauched her or that there was any binding contract of service between her and the plaintiff. See Hall v. Hollander, 4 B. & C. 660, 10 E. C. L. 436. 1. Butterfield v. . Ashley, 2 Gray (Mass.) 254, 6 Cush, (Mass.) 249. In this case a minor ran away from his parent and went to Boston. He told the defendant, a ship- owner, that he had run away and wanted to ship with him. The defendant at first re- fused, but consented later on the representa- tion that the boy had his father's consent. He signed shipping articles, and afterwards requested to be released. In a suit for dam- ages for enticing away a minor servant, it was held that the facts presented did not constitute an enticement, as there was no active interference on the part of the defend- ant to cause the original leaving, i Black. Com. 429; 3 Black. Com. 142; Reeve Dom. Rel. (3d ed.) 6291; 2 Chit. PI. (6th Am. ed.) 546. In Stuart v. Simpson, i Wend. (N. Y.) 376, it was held that the defendant must have knowledge that the persons he employed were the servants of another, and that such facts must be shown by the plaintiff. See 3 Stark. Ev. (Met. ed.) 1310. Child Harbored, etc., by Defendant with Knowl- edge. — But where the action is for harboring the child, if the defendant knows that he has run away from his father, and boards him and allows him to work on his farm as he pleases, and does so with the intention of en- couraging him, or with the knowledge that he was aiding or encouraging him, to remain away -from his father, the person so harbor- ing the child becomes liable to the father. Sargent v. Mathewson, 38 N. H. 54. See Cutting V. Seabury, Sprague (U. S.) 522. Notice frtts (Pa.) 355, 34 Am. Dec. 469; Preston v. Bowers, 13 Ohio St. i, 82 Am. Dec. 430. In White v. Ross, 47 Mich. 172, the facts showed a clandestine marriage between the plaintiff and the defendant's daughter which was never consummated by cohabitation; and no force was used by the parents to keep their daughter from the plaintiff. It was held that without evidence tending to show improper interference by the parents with the plaintiff's affairs, letters from the -lain tiff's wife, written after marriage, showing affection for him, were not admissible, as the state of her feelings at this stage of the case was immaterial. 2. Preston v. Bowers, 13 Ohio St. i, 82 Am. Dec. 430. 8. Bennett v. Smith, 21 Barb. (N. Y.)439. 4. Preston v. Bowers, 13 Ohio St. I, 82 Am. Dec. 430. 8. Bassett v. Bassett, 20 111. App. 543. In this case the court, by Pillsbury, J., said: " We are of the opinion that this evidence was admissible on the ground, first, that it should be considered in mitigation of damages. The plaintiff claims that by the act of the defend- ant she was deprived of the love and affec- tion of her husband, for which she claims damages. Marriage of itself cannot be con- sidered as conclusive proof of that mutual regard and love which should be entertained by husband and wife, and where one of them seeks to recover damages for the loss of love and affection, we know of no case that goes so far as to deprive the defendant of the right of showing the real feelings of the other to the plaintiff. So it has been held in cases brought by the husband for criminal conversation, that evidence as to the terms on which the plaintiff and his wife lived to- gether was competent in mitigation of dam- ages. * * * We are unable to see why the same principle should not apply in this case." But declarations of the husband, made in the absence of the defendant, to the effect that the defendant was doing all he could to bring about a separation between the plaintiff and the husband, are not admissible. Westlake ■V. Westlake, 34 Ohio St. 634, 32 Am. Rep. 397- 6. Statements of Parents as to Age of Child. — Dobson V. Cothran, 34 S. Car. 518; Taylor v. Hawkins, i McCord (S. Car.) 164. An Entry in a Family Bible as to the age of a female is inadmissible to show that she was under sixteen, unless a case is made jus- tifying the introduction of hearsay evidence. People V. Sheppard, 44 Hun (N. Y.) 565. 180 Evidence. ABDUCTION. Statements and Acts of Defendant % b. Of Parents' Consent. — Evidence of acts showing the consent of the parent to the child's abduction is admissible on behalf of the defendant; * and so the statements and acts of the parents are admissible to prove that they did not consent, and that they tried to find and bring their daughter back.* c. Of Legal Custody. — Proof of legal custody is required only when the child is taken from one other than the parent or guardian.' d. Of Female's Moral Character. — Evidence of the previous unchas- tity of the female has in some cases 'been held admissible and in others not, according to what is made the gist of the offense under the local statutes.* But evidence of illicit intercourse with other men subsequent to the alleged abduction is not admissible, nor is evidence of the immoral character of the female members of the abducted girl's family admissible in favor of the de- fendant.* e. In Mitigation of Damages. — In an action for harboring and seducing the plaintiff's child, evidence in mitigation of damages rnay be given to prove that the plaintiff and his family were of dissolute character.* 4. Evidence of Intent and Motive. — The subsequent conduct of the parties is admissible in evidence in order to prove the original intention and motive of the defendant in making the abduction.' 5. Statements and Acts of Defendant. — Voluntary confessions of the defend- ant are admissible against him.* So are letters in his handwriting without date or signature, but similar in character to other letters written by him and re- 1. Evidence Showing Consent of Parent. — The defendant, in order to prove that a girl had been encouraged by her parents to lead a lax course of life, and that she was not taken from them without their consent, may- give evidence of the fact that she was an in- mate of a bawdy-house at the time of her ab- duction. Brown v. State, 72 Md. 477. See Gravett v. State, 74 Ga. 191. In a suit for abducting ». minor child, if the father does not claim special damages, the defendant cannot show that he took the child at the request of its mother, who had been awarded the custody in divorce pro- ceedings had in another state. Rice v. Nickerson, 9 Allen (Mass.) 478, 85 Am. Dec. 777- 3. Evidence that there was no Consent. — The mother may testify that she did not consent to the defendant's taking her daughter, and also to her efforts to find her. State v. Stone, 106 Mo. i. The declarations of the father are also ad- missible to prove that he did not consent to his daughter's abduction. State v. Chisen- hall, 106 N. Car. 676. The precautions that he took to prevent her being taken may also be shown. Gravett v. State, 74 Ga. 191. But where the action is against a father for enticing away his daughter, the declarations of the defendant's wife that she took her daughter away by force and without her con- sent are not admissible, as they would in effect be making the mother a witness to charge her husband. Burnett v. Burkhead, 21 Ark. 77, 76 Am. Dec. 358; Funkhouser ». Pogue, 13 Ark. 295; Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791. 3. Exp. Estrado, 88 Cal. 316. 4. Evidence of Previous Unchastity. — Such evidence was held immaterial and rejected in People w. Demousset, 71 Cal. 5ii. See State V. Johnson, 115 Mo. 480; State w. Gib- son, III Mo. 92. But it was admitted in jus- tification in Brown v. State, 72 Md. 468; Jenkins v. State, 15 Lea (Tenn.) 674. 6. Evidence of Subsequent Illicit Intercourse, — Scruggs v. State, 90 Tenn. 81. 6. Evidence of Dissoluteness of Plaintiff and Eamily in Uitigation of Damages. — Dobson z/. Cothran, 34 S. Car. 518. Evidence of good treatment of a child after abduction is not admissible, where no damages are claimed for injury done after removal. Magee v. Holland, 27 N. J. L. 86, 72 Am. Dec. 341. Nor is a statement by a child abducted for immoral purposes, that she would not leave the house of the defendant until paid the money she had earned. Dobson v. Cothran, 34 S. Car. 518. 7. People V. Carrier, 46 Mich. 442. The fact of subsequent sexual intercourse is evi- dence of the original intention of the defend- ant in taking. State w. Johnson, 115 Mo. 480. Evidence that the defendant took the fe- male to a house of prostitution will justify a conviction of taking for " purposes of pros- titution." People V. Marshall, 59 Cal. 386. Under an indictment for abducting an heiress for motives of lucre, it has been held to be evidence to establish the motive, to show that the defendant had told third per- sons that he knew the girl would have a cer- tain sum of money when she attained her majority. Reg. v. Barratt, 9 C. & P. 387, 38 E. C. L. 167. Under a statute providing for the punish- ment of one who abducts a female infant for the purpose of prostitution, there need not be direct evidence of the purpose; if the fact and circumstances suflSciently indicate the purpose, this is enough. Ex p. Estrado, 88 Cal. 316. 8. Confession of Defendant. — State v. George, 93 N. Car. 567. Evidence. ABD UCTION—ABE YANCE. Definitions. ceived by the girl.* But evidence that the defendant committed other of- fenses similar to the one charged is not admissible against him.* 6. Corroborative Evidence! — Where a conviction cannot be had under the statutes without corroborative evidence, such evidence must extend to every material element of the offense, but it need not be in itself sufficient to estab- lish the guilt of the defendant.^ ABET. (See also the title Aider and Abettor, where the subject of aid- ing or abetting crimes is fully treated.) — The words "aid" and "abet "in legal phraseology are pretty much the synonyms of each other; they compre- hend all assistance rendered by acts, words of encouragement or support, or by presence actual or constructive to render assistance should it become necessary. No particular acts are necessary.* ABEYANCE. (See also the title REAL PROPERTY.)— This word as applied to real property, whether estates or dignities, denotes that the same are in ex- pectation, remembrance, or intendment of the law. Abeyance is said to be of two sorts, being either (first) abeyance of the fee simple, or (second) abeyance of the freehold. The first is where there is an actual estate of freehold in esse, but the right to the fee simple is suspended, and is to revive upon the happen- ing of some event ; e.g., in the case of a lease to A for life, remainder to the right heirs of B, who is alive, the fee simple is in abeyance until B dies.' Sim- ilarly, during the incumbency of each successive incumbent of a church, he having only a freehold interest therein, the fee simple is in abeyance.* The 1. Letters. — State v. Overstreet, 43 Kan. 299. But on the trial of an indictment charg- ing the defendant with abducting a woman for the purpose of marrying her, evidence that after the affair he wrote her letters threatening to kill her if she did not marry him, was held to be incompetent. State v. Maloney, 105 Mo. 10. 2. Evidence of the Commission of Other Like Offenses. — People v. Gibson, 6 N. Y. Crim. Rep. 390. In this case it was held error to admit evidence of the fact that other girls had been seen to enter the defendant's rooms, to show that he was in the habit of enticing young girls in there. Cargill v. Com. (Ky., 1890), 13 S. W. Rep. gi6. 3. State V. Keith, 47 Minn. 560; People v. Plath, 100 N. Y. 5go, 53 Am. Rep. 236. A medical examination of a young girl eight months after the commission of the alleged offense is admissible. State v. Keith, 47 Minn. 560. 4. Raiford v. State, 59 Ala. 108, citing Bouv. and Webster Diet. See also Frantz V. Lenhart, 56 Pa. St. 366. A statute providing that any one abetting in a crime might be prosecuted as principal was held not to apply to a purchaser of liquors. The court said : " But we are sat- isfied that the purchaser is not an abettor of the offense within the meaning of the statute. The abetting intended by it is a positive act in aid of the commission of the offense, a force, physical or moral, joined with that of the perpetrator in producing it. This is clear from the context, where abetting is classed with 'assisting,' 'causing,' 'hir- ing,' and 'commanding.' The abettor, within the meaning of the statute, must stand in the same relation to the crime as the criminal — approachit from the same direction, touch it at the same point. This is not the case with the purchaser of liquor. His ap- proach to the crime is from the other side; he touches it at wholly another point. It is somewhat like the case of a man who pro- vokes or challenges another to fight with him. If the other knocks him down, he has induced, but in no proper sense abetted, this act of violence. He has not contributed any force to its production. He touches the offense wholly on the other side. The purchaser of liquor, by his offer to buy, induces the seller of the liquor to make the sale, but he cannot be said to ' assist ' him in it. The whole force, moral or physical, that went to the production of the crime as such, was the seller's." 6. Co. Litt. 342*. 6. ' ' The Tee, or Inheritance, beingin Abeyance. — That is (as the word signifies) in expectation, remembrance, and contemplation in law, there being no person in esse in whom it can vest; though the law considers it as always poten- tially existing, and ready to vest whenever a proper owner appears. Thus, in a grant to John for life, and afterwards to the heirs of Richard, the inheritance is plainly granted neither to John nor to Richard, nor can it vest in the heirs of Richard till his death, nam nemo est hceres viventis; it remains, there- fore, according to Littleton and earlier writ- ers, including Blackstone, in waiting or abeyance during the life of Richard. 2 Bl. Com. 107; 3 Th. Co. Litt. 102, 103." 2 Minor Ins. (3d ed.) 74. "Mr. Fearne, however, considers that the inheritance can in no case be properly said to be in abeyance, but that it remains in the grantor, or, in the case of will, in the de- visor's heirs, until the contingency occurs on which it is to vest. 2 Bl. Com. 107, note 8; Fearne's Rem. 351, 360, 363." 2 Minor Ins. (3d ed.) 75, 388, 389. 182 Definition. ABIDE. Definition. second species of abeyance, i.e., an abeyance of the freehold itself, occurs on the death of an incumbent, and until the appointment of his successor.* It was customary in speaking of a thing in abeyance to say that it was in nubibus, which was rather a profane expression, or in gremio legis,^ the latter phrase denoting that the fee simple or freehold which was in abeyance was meanwhile under the care or protection of the law. There is no abeyance either of the fee simple or of the freehold in the case of conveyances operating under the statute of uses, for in these what is not given away remains in the grantor until it is so given.' If a freehold could commence to pass in futuro, there would be an abey- ance and want of a tenant against whom to bring a pracipe, and the law will not suffer the land to be in abeyance a single day, if possible to prevent this.* ABIDE. (See also the title Event.) — To abide a judgment, order, or award, is to perform it, to execute it, to conform to it.' When contingent remainders began to be allowed, a. question arose, which is yet scarcely settled, what becomes of the in- heritance, in such a case as this, during the life of J. S. ? A., the tenant for life, has but a life interest; J. S. has nothing, and his heir is not yet. in existence. The ancient doctrine that the remainder must vest at once or not at all, has been broken in upon; but the judges could not make up their minds also to infringe on the corresponding rule, that the fee simple must, on every feoffment which confers an estate in fee, at once depart out of the feoffor. They, therefore, sagely recon- ciled the rule which they left standing, to the contingent remainders which they had deter- mined to introduce, by affirming that, during the contingency, the inheritance was either in aheyancBf or in gremio legis^ or else in nubi- bus. Co. Litt. 342a; I P. Wms. 515, 516; Bac. Abr., tit. Remainder and Reversion (f). Mod- ern lawyers, however, venture to assert that what the grantor has not disposed of must re- main in him, and cannot pass from him until there exists some grantee to receive it. Fearne, Cont. Rem. 361. See, however, 2 Prest. Abst. 100-107, where the old opinion is maintained. And when the gift is by way of use under the statute of uses, there is no doubt that, until the contingency occurs, the use, and with it the inheritance, result to the grantor. So in the case of a will, the in- heritance, until the contingency happens, de- scends to the heir of the testator. Fearne, Cont. Rem. 351; Egerton v. Massey, 3 C. B. N. S. 338, gi E. C. L. 337; Williams on Settle- ments, 207-210. See the title Contingent Re- mainders. In Wallach v. Van Riswick, 92 U. S. 212, the court said : " It is argued on behalf of the defendant, that because, under a confiscation sale of land, or of estate therein, the pur- chaser takes an interest terminable with the life of the person whose property has been confiscated, the fee must be somewhere; for it is said that a fee can never be in abeyance ; and as the fee cannot be in the United States, they having sold all that was seized, nor in the purchaser, whose interest ceases with the life, it must remain in the person whose estate has been seized. The argument is more plausible than sound. It is a maxim of the common law that a fee cannot be in abey- iS3 a»ce. It rests upon reasons that now have no existence, and it is not now of universal ap- plication. But if it were, being a common-law maxim, it must yield to statutory provisions inconsistent with it; and it is therefore of no weight in the inquiry what was intended by the Confiscation Act and concurrentresolution. Undoubtedly there are some anomalies grow- ing out of the congressional legislation, as there were growing out of the statutes of 5th and i8th Elizabeth; but it is the duty of the court to carry into effect what Congress in- tended, though it must be by denying the ap- plicability of some common-law maxims, the reasons of which have long since disappeared. It has not been found necessary in England to hold that a reversion remained in a traitor after his attaint, though the statutes declared that the forfeiture shall be during his natural life only." 1. " The Freehold being in Abeyance. — This, at common law, is never admitted, at least by the act of the party, for two reasons: first, that if it were allowed there would be none to render the military service; second, that there would be none to sue or to be sued for the title during such abeyance. 2 Bl. Com. 107, note 7; 3 Th. Co. Litt. note G. But by the statutes of uses, wills, and grants, which dis- pense with actual livery of seisin, a convey- ance of the freehold does not put the freehold in abeyance, and is therefore freely allowed." 2 Minor Ins. (3d ed.) 75; Co. Litt. 342^. 2. Carter v. Barnardiston, i P. Wms. 516. 3. Brown's Law Diet. (Sprague's ed.). 4. The necessity under the feudal system that there should be always some one ready to perform the lord's services was not the only reason which introduced the maxim of the common law that a freehold can never be placed in abeyance. It had a better founda- tion, which continues still to exist, that there should be always some person to answer the real action brought for the recovery of the property. Lyle v. Richards, 9 S. & R. (Pa.) 322. 5. Erickson v. Elder, 34 Minn. 370; Hodge V. Hodgdon, 8 Cush. (Mass.) 294; Jackson v. State, 30 Kan. 88. A bond so conditioned is not satisfied by appearance alone. Taylor v. Hughes, 3 Me. 433; Hodge V. Hodgdon, 8 Cush. (Mass.) Definitions. ABIDING CONVICTION. Definitions. ABIDING CONVICTION. (See also the title Reasonable Doubt.)— A settled and fixed conviction following a careful examination and comparison of the whole evidence.' 294; Jackson v. State, 30 Kan. 88; Molton v. Hooks, 3 Hawks (N. Car.) 342. Arbitration. (See also the title Arbitration AND Award.) — The meaning of the term abide by is not the same as to " acquiesce in " or " not dispute." To abide by an award is the same as to abide an award, to stand to the determination of the arbitrators, and to take the consequences of the award. It means simply to await the award without re- voking the submission. It can never be con- strued to mean that the defendant should not be at liberty to dispute the validity of any award that might be made. Shaw v. Hatch, 6 N. H. 162. See Marshall v. Reed, 48 N. H^36. Where a bond was conditioned to pay stipulated damages in case defendant did not abide by and perform an award, it was held that an averment of an award in favor of plaintiff, and a refusal of defendant to pay the award on demand, showed a breach of the bond. Sleeper v. Pickering, 17 N. H. 461. Abide the Judgment. — In McGarry v. State, 37 Kan. 9, it was held that a provision to abide the judgment and orders of the court did not mean that the plaintiff or his sureties should pay or satisfy the judgment, but that he should surrender himself to the custody of the court. The court said: "Does the word abide mean pay or satisfy, or does it mean endure, or suffer, or acquiesce in, or some- thing else ? It is believed that the word abide never means pay or satisfy, while it does sometimes mean endure or suffer. And to construe the word to mean to pay or sat- isfy is to give the statute in which it is found a harsh and needlessly severe construction. It would compel a party to enter into a recog- nizance with sufficient sureties to pay or sat- isfy a judgment, if any should ever be ren- dered against him, or to go to jail and be imprisoned possibly for months before any trial could be had, and although he might be ever so innocent." Abide and FesfoTEi. — Where a bond in ne exeat was given conditioned " to abide and per- form the judgment of the court," and the surety on the bond, having placed his prin- , cipal in the custody of the court, petitioned to be released from the bond, his attorney contending that the effect of the bond was to abide the event of the suit, the motion was denied, the court stating that it could not re- gard a bond to perform, etc., as equivalent to one to abide the event of the suit, and further holding that in ne exeat a surety had no right to surrender his principal. Gris- wold. Petitioner, 13 R. I. 126. Await and Abide. — A condition of a recogni- zance on an appeal, which is conditioned for the defendant's appearance, "to await the action of the court," is not sufficient when the statute prescribes the words "to abide the judgment of the court." Wilson v. State, 7 Tex. App. 38. I " Abide the Decision." — The plaintiff in a bill in equity, praying for a discovery, for an account of the rents and profits of real estate, to which he claimed title as tenant in com- mon with the defendant, who denied his title, and for general relief, petitioned at law for partition of the premises, and by agree- ment, with consent of the court, a- docket entry was made in the action at law that it was "to abide decision" in the suit in equity. A verdict was afterwards returned by a jury on an issue framed in the suit in equity to try the title in the premises, and at the argu- ment of exceptions taken at the trial an amendment of this verdict was agreed to, and the case was sent to a master to state an account. It was held that the docket entry did not require the petitioner at law to await the final decree in equity, but partition should be ordered in conformity with the title so determined. The court said that the question was not the abstract meaning of the term, but its meaning as applied to the two cases to which it referred. Hodges v. Pin- gree, 108 Mass. 585. Abiding the Event.^For definition see supra, this title; see also the title Event; for complete treatment of the subject see i Encyc. of Pl. & Pr. 53. Where it was stipulated that several suits should abide the event of one, it was held that after being refused judgment on one ground, .taking it on another ground was no waiver of the right to take judgment upon the ground which was refused. The court said : " What was meant by the words ' abide the event ' ? Certainly not that the same order of proceedings should be taken, step by step, in the succeeding cases as in the first. The parties had in view no such par- rot-like repetition of forms without meaning, if the end was predestined. They meant the final outcome and the end of the litigation; that the side finally successful in the first case should be successful in all." Com- mercial Union Assur'. Co. v. Scammon, 35 111. App. 659. Costs Abiding Event. — See i Encyc. Pl. & Pr. 59- 1. Hopt V. Utah, 120 U. S. 439. In this case it was held that a charge to the jury in a criminal case, " that if, after an impartial comparison and consideration of all the evi- dence, they can truthfully say that they have an abiding conviction of the defendant's guilt, they have no reasonable doubt," was not erroneous. The court, by Field, J., said: "The word abiding here has the signification of settled and fixed, a conviction which may follow a careful examination and comparison of the whole evidence. It is diflicult to con- ceive what amount of conviction would leave the mind of a juror free from a reasonable doubt, if it be not one which is so settled and fixed as to control his action in the more weighty and important matters relating to his own affairs. Out of the domain of the 84 Definitions. ABILITY—ABODE. Definitions. ABILITY. (See also the title Pecuniary.) — This term has given rise to judicial construction as used in several phases. See note,* ABJUBE. A total abandonment of the state.* ABLE. See note.* ABLE-BODIED imports an absence of those palpable and visible defects which evidently incapacitate the person for performing the ordinary duties of a soldier, and does not imply an absolute freedom from all physical ailments.* ABODE. See the titles DOMICIL ; RESIDENCE ; PERMANENT (for perma- nent place of abode) ; USUAL PLACE OF ABODE. exact sciences and actual observation there is no absolute certainty. The guilt of the accused, in the majority of criminal cases, must necessarily be deduced from a variety of circumstances leading to proof of the fact. Persons of speculative minds may in almost every such case suggest possibilities of the truth being different from that established by the most convincing proof. The jurors are not to be led away by speculative notions as to such possibilities." And in Battles v. Tallman, g6 Ala. 403, it was held that an instruction that the jury must have an abiding conviction implies such a degree of certainty as would justify a verdict of guilt in a criminal case, and is, therefore, erroneous in a civil one. See also Griffiths v. State, 90 Ala. 588. 1. Constrned Equivalent to " Pecuniary Abil- ity" — Statute of Frauds. — An English statute, 9 Geo. IV., c. 14, § 6, provides that no action could be brought to charge a person by reason of a representation given concerning the ability of another person unless reduced to writing and signed. It was held that the representation should relate to the ability of the other person effectually to perform and satisfy the engagement of a pecuniary nature into which he has proposed to enter. Lyde w. Barnard, i M. & W. loi. Ability to Support Wife. (See also the title Divorce.) — Under the Vermont statute au- thori2ing a divorce on the ground of cruel neglect to support the wife when the husband has sufficient pecuniary ability to provide for her, it was held that it must be shown, to en- title the wife to a divorce, that the husband had suflicient property to provide suitable maintenance, and that it was not sufficient to show that he had the capacity to acquire ample means. And see Washburn zi. Wash- burn, 9 Cal. 475. But in Wisconsin, under a statute provid- ing a penalty for abandonment of the wife, where the husband has sufficient ability to support her, it was held that the words "be- ing of sufficient ability " referred as well to the husband's capacity or skill to earn or acquire money as to property actually owned by him. See also Keller v. Keller, 24 Wis. 522. 2. In Mead v. Hughes, 15 Ala. 141, 50 Am. Dec. 123, the court said: "The decision of this court in Arthur v. Broadnax, 3 Ala. 557, 37 Am. Dec. 707, affirms that if the husband has abjmred, the state and remains abroad. the wife meanwhile trading as a. feme sole could recover on a note which was given to her as such. We must consider the term abjure, as there used, as implying a total abandonment of the state, a departure from the state without the intention of returning; and not a renunciation of one's country, upon an oath of perpetual banishment, as the term originally implied." 3. A Maine statute declares that expenses incurred for providing nurses, etc., to an in- fected person shall be at the charge of the person sick, " if able." It was held that the possession of six hundred dollars in available personal securities rendered a person able in the meaning of the statute, where the charges were one hundred and seventy-six dollars. Hampden v. Newburgh, 67 Me. 370. 4. Darling v. Bowen, 10 Vt. 148, in which case it was held that a physical disability or bodily infirmity, notapparent, does not exempt ii person from enrolment in the militia. The enrolling officer is the judge, and error of judgment cannot be inquired into collater- ally, such as in a suit for a trespass for tak- ing and selling a mare, the property of the plaintiff, or in an amercement for nonappear- ance at training. There being no exception made by ,the charter of a city or the ordinance imposing a tax, in favor of persons not able-bodied, and no constitutional restriction upon legislation in this respect, the fact that a citizen upon whom the tax is imposed is not able-bodied. constitutes no defense to the imposition of the tax. Macomb v. Twaddle, 4 111. App. 254. A statute of Vermont, in force in 1797, pro- vided that every healthy, able-bodied person residing within that state, and being of peaceable behavior, should be deemed to be legally settled in the town in which he should have first resided for the space of one year. It was held that in determining whether a person was healthy and able-bodied within the intent of the statute, the test is not his ability or inability during the time to perform ordinary labor and thereby support himself and family, but that a person is to be deemed not to have been healthy and able-bodied who during the year received an injury which afterward resulted in permanent disability, although not incapacitating him during the year for ordinary labor. Marlborough v. Sisson, 26 Conn. 57. 185 ABORTION. By Edwin P. Cox. I. SSFINITION, 1 86. II. The Offense— How Regarded, 187. 1. At Common Law, 187. 2. By Statute.iZ?). III. Elements of the Offense, i88. 1. Pregnancy, 188. 2. Intent, 188. 3. Means, 189. 4. Results — Death of Mother — Death of Child, 190. IV. Who may be Cbiminally Liable, 191. 1. As Principals, 191. a. The Woman Herself, 191. b. Others as Principals, 191. 2. As Accessories and Accomplices, 191. a. The Wo7nan Herself, 191. b. Others as Accessories and Accomplices, 192. 3. 'Persons Selling, Advertising, or Giving Away Instruments or Drugs, etc., 192. V. Attempts, 193. VI. Evidence, 193. VII. Defenses, 195. CROSS-REFERENCES. For matters of Procedure, see i Encyclopaedia of Pleading and Practice, p. 62. For other matters of Substantive Law and Evidence related to this subject, see the following titles in this work: ACCESSORY , ACCOMPLICE; AIDER AND ABETTOR; ATTEMPTS TO COMMIT CRIME ; CIRCUMSTANTIAL EVI- DENCE; CRIMINAL LAW; DYING DECLARATIONS; EXPERT AND OPINION EVIDENCE; HEARS A Y E VIDENCE; LIBEL AND SLANDER; MEDICAL JURISPRUDENCE ; RES GESTJE. I. Definition. — By abortion is understood the act of miscarrying or produc- ing young before the natural time ; before the foetus is perfectly formed ; and to cause or produce an abortion is to cause or produce this premature bringing forth of the foetus.* 1. Abrams v. Foshee, 3 Iowa 278, 66 Am.' Abortion — Miscarriage — Premature Labor. — Dec. 77; Butler v. Wood, 10 How. Pr. (N. Y. " ' The expulsion of the ovum or embryo, w'lihia Supreme Ct.) 224. the first six weeks after conception, is tech- " The act of bringing forth what is yet im- nically miscarriage; between that time and perfect, and particularly the delivery or ex- the expiration of the sixth month, when the pulsion of the human foetus prematurely or child may by possibility live, it is termed before it is yet capable of sustaining life. abortion; if the delivery be soon after the Also, the thing prematurely brought forth, or sixth month, it is termed premature labor, product of an untimely process." Abb. Law But the criminal attempt to destroy the foe- Diet., quoted in Belt v. Spaulding, 17 Oregon tus, at any time before birth, is termed in 130. law a miscarriage, varying as we have seen 186 The Offense — How Begaided. ABORTION. At Common Law. II. The Offense — How Regarded— 1, At Common law — with Consent of woman and before ftuiokening. — According to some authorities, it never was an act punish- able at common law to commit abortion with the consent of the mother, pro- vided it was done before the child became quick;* but others are not disposed thus to restrict the criminal act, and hold that it may be committed at any stage of pregnancy.* After Quickening. — If the abortion was committed after quickening, it was punishable only as a misdemeanor ; and the attempt to commit abortion after quickening was likewise punished as a misdemeanor.^ in degree of offense and punishment, whether the attempt were before or after the child had quickened.' Chitty's Med. Jur. 410. Other writers on the subject give a similar deiinition of the term ' miscarriage.' Hob- lyn's Dictionary. The converse of this last proposition cannot be true, as there are undoubtedly many miscarriages involving no moral wrong." Smith v. State, 33 Me. 59, 54 Am. Dec. 607. Miscarriage, both in law and philology, means the bringing forth the foetus before it is perfectly formed and capable of living; and is rightfully predicated of the woman, because it refers to the act of premature de- livery. The word " abortion " in its primary meaning is synonymous with and equivalent to "miscarriage." It has a secondary mean- ing, in which it is used to denote the offspring. Mills V. Com., 13 Pa. St. 632. Whether Abortion Necessarily Imports a Crime. — In Belt V. Spaulding, 17 Oregon 130, the court said: " It will be observed, the word ' abortion ' does not occur in the sec- tion, and there is no statute deiining or punishing it as a crime. The term itself does not import a crime; it simply means, accord- ing to Webster, the act of miscarrying; the expulsion of an immature product of concep- tion; miscarriage; the immature product of an untimely birth." See also People v. Aiken, 66 Mich. 484, 11 Am. St. Rep. 512. 1. Abortion, with Mother's Consent and before Quickening. — Com. v. Parker, 9 Met. (Mass.) 263, 43 Am. Dec. 390; Com. v. Bangs, 9 Mass. 387; Com. V. Jackson, 15 Gray (Mass.) 187; Mitchell V. Com., 78 Ky. 204, 29 Am. Rep. 227; State V. Cooper, 22 N. J. L. 53, 51 Am. Dec. 248; Smith v. State, 33 Me. 48, 54 Am. Dec. 607; People v. Sessions, 58 Mich. 594; Abrams v. Foshee, 3 Iowa 274, 66 Am. Dec. 77; Hatfield v. Gano, 15 Iowa 178. In I Arch. Crim. Pr. & PI. 951 the follow- ing language is used: " Abortion as a crime is to be found only in modern treatises and modern statutes. No trace of it is to be found in the ancient common-law writers. * * * It is perfectly certain, by the unanimous con- currence of all the authorities, that that offense could not be committed unless the child had quickened." " Quick with Child." — In one instance a distinction was taken between the phrases " quick with child " and " with quick child," it being held that the former means simply having conceived. Reg, v. Wycherley, 8 C. & P. 262, 34 E. C. L. 381. See also Evans V. People, 49 N. Y. 86. The court, in State V. Cooper, 22 N. J. L. 57, 51 Am. Dec. 248; said in reference to the above: " There is no foundation whatever in law for this distinction. The ancient authorities show clearly that-the terms are synonymous, both importing that the child had quickened in the womb, and that the period had arrived when the life of the infant, in contemplation of law, had commenced. Baynton's Case, 14 State Trials 634; i Hale P. C. 368; 4 B. C. 395." According to common understanding, a woman is not " quick with child " until she has felt the child move within her. Com. v. Parker, 9 Met. (Mass.) 263, 43 Am. Dec. 396; Mitchell w. Com., 78 Ky. 204, 29 Am. Rep. 227. 8. The question was so determined by the Supreme Court of Pennsylvania in Mills w. Com., 13 Pa. St. 630. The court observes: " It is a flagrant crime at common law to at- tempt to procure the miscarriage or abortion of the woman,. because it interferes with and violates the mysteries of nature in the pro- cess by which the human race is propagated and continued. It is a crime against nature, which obstructs the fountains of life, and therefore it is punished. The next error as- signed is that it ought to have been charged in the count that the woman had become quick. But although it has been so held in Massachusetts and in some other states, it is not, I apprehend, the law in Pennsylvania, and never ought to have been the law any- where. It is not the murder of a living child which constitutes the offense, but the destruc- tion of gestation by wicked means and against nature. The moment the womb is instinct with embryo life and gestation has begun, the crime may be perpetrated." The Supreme Court of North Carolina, fol- lowing the doctrine of the case, said in refer- ence to the above extract: " This enunciation of the law, so careful and distinct in ex- pression, dispenses with the necessity for further discussion." State v. Slagle, 83 N. Car. 630. To the same effect is Com. v. Demain, 6 Pa. L. J. 29. And Mr. Bishop observes in regard to the same language: " This, in principle, seems to be the reasonable and just doctrine." Bishop Stat. Crimes, § 744. Mr. Wharton regards the question as doubtful. Whartori Cr. L. (8th ed.), § 592. 3. State V. Reed, 45 Ark. 334; Holliday v. People, 9 111. in; Com. v. Parker, 9 Met. (Mass.) 263, 43 Am. Dec. 396; Smith v. State, 33 Me. 48, 54 Am. Dec. 607; State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248; Evans v. People, 49 N. Y. 86; State v. Slagle, 82 N. Car. 630. 187 Elements of the Offense. ABORTION. Intent. Without Consent of Woman. — If done without the woman's consent, the act was held to constitute an aggravated assault.* 2. By Statute. — The statutes enacted on this subject in most of the states fail to draw any distinction between the commission of the offense, or attempt at commission, before and after the quickening of the child in the womb, making it a felony in either case. But some states still retain the distinction, punishing the act or attempt more severely when done after quickening.* III. Elements of the Offense— 1. Pregnancy— Quick with child. — Under the statutes in most of the states it is immaterial whether the woman be quick with child or not, the criminal act being complete if done at any time during pregnancy.' In Michigan, however, it is essential that the foetus be quick- ened.* 2. Intent. — It is essential. to prove the evil intent, as specified in the stat- utes, or implied from the nature of the case, in order for the crime to be com- plete, since that is the gravamen of the offense.* The intent to produce an abortion must exist when the means are used.* How Shown. — This intention may be shown by circumstances, and by either direct or indirect testimony.' 1. Abortion without Consent of Woman. — In Com. 71. Parker, g Met. (Mass.) 263, 43 Am. Dec. 396, Shaw, C.J., delivering the opinion of the court, used this language: " The use of violence upon a. woman, with an intent to procure her miscarriage, without her con- sent, is an assault highly aggravated by such wicked purpose, and would be indictable at common law." See also Smith v. State, 33 Me. 48, 54 Am. Dec. 607; State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248. 2. See the various local statutes. And see State V. Watson, 30 Kan. 281. 3. Stage of Pregnancy Immaterial. — State v. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148; Wilson V. State, 2 Ohio St. 319; Com. v. Tibbetts, 157 Mass. 519; Com. v. Taylor, 132 Mass. 261; Com. v. Wood, 11 Gray (Mass.) 85. In this latter case the court was inclined to the view that an indictment on Massa- chusetts Stat. 1845, ch. 27, for procuring a mis- carriage, could not be maintained if the foetus had previously lost its vitality so that it could never have matured into a living child. Under the Vermont statute it is not essen- tial that the foetus should be alive at the time the attempt at abortion is made. State V. Howard, 32 Vt. 380. See also State v. Stewart, 52 Iowa 284; Com. v. Grover, 16 Gray (Mass.) 602; Eckhardt v. People, 83 N. Y. 462, 38 Am. Rep. 462. When Pregnancy Ceases. — It seems that pregnancy ceases when the child has come forth from the womb, though it is still at- tached by the umbilical cord, and though the afterbirth has not been removed. Com. V. Brown, 14 Gray (Mass.) 419. 4. People V. McDowell, 63 Mich. 229. 6. Intent the (gravamen of Offense. — Reg. v. Isaacs, L. & C. 220; Reg. v. Hillman, L. & C. 343; Reg. V. Titley, 14 Cox C. C. 502; People V. Josselyn, 39 Cal. 393; Dougherty V. People, I Colo. 514; Slattery v. People, 76 111. 217; State V. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148; Com. v. Wood, II Gray (Mass.) 85; State v. Owens, 22 Minn. 238; State V. Murphy, 27 N. J. L. 112; State v. Drake, 30 N. J. L. 422; State v. Gedicke, 43 N. J. L. 86; People w. Lohman, 2 Barb. (N. Y.) 216; Wilson V. State, 2 Ohio St. 319. 6. Slattery v. People, 76 111. 217. In this case a husband assaulted and beat his wife, shebeing then about three months pregnant. Shortly afterwards she had a miscarriage. It was not proved that the husband desired or intended such a result. It was held that a conviction for abortion could not be sus- tained. 7. Evidence of Intention — Knowledge of Preg- nancy. — Evidence relating to the accused's possession of instruments to produce an abor- tion, and her use of them, and her knowledge upon the subject, and that she held herself out for the performance of such service, with the instruments, for hire, is admissible to show knowledge and intent. People v. Ses- sions, 58 Mich. 594. Acts of the defendant tending to show knowledge of a woman's pregnancy and his intention to commit an abortion on her, whether prior or subsequent to the particu- lar act charged, may be proved. Scott v. People, 141 111. 195. In Hatchard v. State, 79 Wis. 357, proof that the defendant said she had operated on hundreds of other girls was held to be ad- missible to show intent. In Com. V. Holmes, 103 Mass. 440, in order to show the intent and purpose of the act, it was admitted in evidence that the defendant had told A.'s mother to send A. to her, to get rid of her child, adding that she had operated already five times on one person. Proof of the examination of the girl by the defendant as to her pregnancy is admissible in evidence against him. People v. Josselyn, 39 Cal. 393. It was held in Powe v. State, 48 N. J. L. 34, that where there exists a fully formed belief in the existence of pregnancy, there may exist as fully formed an intent to cause a miscarriage, even without absolute knowl- edge of pregnancy. Letters of the prisoner to the woman and evidence of conversations with her are ad- missible to show intent. Hays v. State, 40 88 Ulements of the Offense. ABORTION. UeanB. Criminal Intent Implied. — The production of an abortion implies a criminal intent.* 3. Means. — The means denounced by the various statutes are the unlawful or malicious supplying, or administering to a pregnant woman, or causing or procuring to be taken by her,* any drug, poison, substance, or noxious thing,* Md. 633; Jones v. State, 70 Md. 326, 14 Am. St. Rep. 362. A woman testified that she was enceinte by defendant and that he gave her " Dr. Lyon's Spanish Drops." The prisoner testified that he did not know that she was enceinte, but that he gave her the medicine to restore menstruation. It was held that it was not reasonable to suppose that the defendant would have taken the trouble he did to pro- cure the medicine, which he doubtless knew and believed would cause a miscarriage, un- less he had known the woman was enceinte, and furnished it to her with the intention of producing an abortion. State v. Montgom- ery, 71 Iowa 630. Proof of mere advice to take medicine, where no medicine, drug, or substance of any kind is taken, is not sufficient to convict of the crime of abortion, under New York Pen. Code, § 294, providing that any person who, with intent thereby to procure the mis- carriage of a woman, advises her to take any medicine, is guilty of abortion. People ■V. Phelps, 15 N. Y. Supp. 440. It is often important in determining the intent to show who the father of the child was, and so the state may prove that a cer- tain person never had intercourse with the woman. Dunn tj. People, 29 N. Y. 523, 86 Am. Dec. 319. At a trial upon the charge of having used a certain instrument with intent to produce an abortion, evidence that the defendant also administered other unlawful treatment to the same woman on two occasions other than that named in the indictment is admis- sible to show his intent, and his knowledge that the woman was enceinte. Com. v. Corkin, 136 Mass. 429. Evidence showing that ergot was adminis- tered to the deceased shortly before her death was held to be admissible to prove that, according to popular opinion, ergot would produce abortion, since the fact proved might show a motive for administering it, and the intention with which it was done. Carter v. State, 2 Ind. 617. 1. Criminal Intent Implied. — Where an act is unlawful in itself, proof of justification must be shown by the defendant, and if he should fail in this the law implies a criminal intent. Scott v. People, 141 111. 195; Dough- erty ». People, I Colo. 514; State v. Glass, 5 Oregon 73. 2. Administering. — To constitute an admin- istering there need not be an actual manual delivery of the substance. Rex v. Cadman, I M. C. C. 114; Rex V. Harley, 4 C. & P. 369, 19 E. C. L. 423; Robbins v. State, 8 Ohio St. 131; State w. Morrow, 40 S. Car. 221. The accused may cause the drug to be taken, although it is in fact taken out of his presence. State v. Morrow, 40 S. Car. 22; Reg. V. Wilson, 7 Cox C C. 190. In Jones v. State, 70 Md. 326, 14 Am. St. Rep. 362, on an indictment under Maryland Acts 1868, ch. 179, § 2, charging that the accused " did knowingly use and cause to be used certain means" for the purpose of un- lawfully causing a miscarriage and abortion, letters from him to the woman, one of which contained minute directions as to how a bottle of ergot that accompanied it should be taken, and proof by the woman that she adminis- tered to herself the drug sent, and in other respects also followed the instructions given by him, were held to be admissible in evi- dence, although the accused was not present when the woman took the drug and did the other things which he advised her to do. But in order to convict under an indict- ment for abortion charging "an administer- ing or causing to be taken," some of the drug must be actually swallowed by the woman. > Rex V. Cadman, I M. C. C. 114; Rex v. Har- ley, 4 C. & P. 369, 19 E. C. L. 423; Reg. V. Wilson, 7 Cox C. C. 190; People v. Phelps, 133 N. Y. 267; Lamb v. State, 66 Md. 285. But under the New Jersey statute it is not necessary to aver that the poison, drug, etc., advised to be taken was actually taken or swallowed, nor is it necessary to prove it on the trial, as the advising to take the potion is the overt act made criminal by the statute. State V. Murphy, 27 N. J. L. 112. See also State V. Hyer, 39 N. J. L. 600. 3. Noxious Thing. — If a drug is dangerous to a pregnant woman, it is held to be " a noxious thing." Reg. v. Cramp, 5 Q. B. Div. 307; Dougherty v. People, i Colo. 517. Whether a thing is noxious is often a mat- ter of circumstance and quantity, and is a question for the jury. Reg. v. Hillman, 9 Cox C. C. 386; Dougherty v. People, i Colo. 517- In Reg. V. Hennah, 13 Cox C. C. 547, it was held that a thing must be noxious in it- self, and not merely when taken in excess. In Reg. V. Isaacs, L. & C. 220, it was held that a small quantity of savin and feather- few, sufficient only to produce a slight dis- turbance in the stomach, was not a noxious thing. In State v. Gedicke, 43 N. J. L. 86, Scud- der, J., delivering the opinion, said: " The poison, drug, medicine, or other thing must be noxious or hurtful in itself. If it possesses this quality, and is administered, prescribed, advised, or directed to be taken with the in- tent to cause or procure a miscarriage when the woman is pregnant with child, the crime is complete, whether in the opinion of others it is capable of producing this result or not." 189 Elements of the Offense. ABORTION. Besults — Death of Mother — of Child, or unlawfully using or causing to be used any instrument or other methods whatsoever,* with intent to procure or cause an abortion.* 4. Eesults — Death of Mother — Death of Child. — At Common Law, if the death of the woman resulted from the measures used to procure an abortion, it was murder.^ By statute in most of the states of the Union, where the death of the woman ensues from the means used, the offense has been reduced to murder in the second degree, or to manslaughter.* Death of Chlld.^At common law, according to the weight of authority, to cause the destruction of the child before it had quickened in its mother's womb was no offense, if done with the mother's consent. Although the com- mon law for many civil purposes recognizes the existence of a child from its conception, it does not for the purpose of punishing its destruction recognize it as a living being until it has quickened and stirred in its mother's womb.** 1. Mode of Accomplishment not Material. — Th e means which may be used are various, and it is sufficient to prove that the crime was committed by one of the means alleged in the indictment. Navarro u. State, 24 Tex. •App. 378 (where the means used were strik- ing, beating, and kicking); Com. v. W . 3 Pittsb. (Pa.) 463 (where the defendant ad- vised excessive exercise, and it was taken -In his absence); Com. v. Brown, 14 Gray (Mass.) 419; Scott V. People, 141 111. 195; Com. V. Snow, 116 Mass. 47. 8. Means need not be Effectual. — Under the statutes of many of the states, the drug or substance need not be effectual in causing an abortion, it being only necessary that the accused should believe it to be effectual. State V. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148; Dougherty v. People, i Colo. 514; Com. ■u. Morrison, 16 Gray (Mass.) 224; State v. Gedicke, 43 N. J. L. 86. Texas Statute. — Where it was charged that the accused administered cotton-root tea in order to procure an abortion, and expert wit- nesses introduced by' the state testified that while medical books claimed that an abortion could be produced by such treatment, they had no personal knowledge of it, but were of the opinion that cotton-root tea could not produce abortion as it was administered in the case, it was held that under the Texas Penal Code, art. 538, requiring the evidence in support of such a charge to show that the means used were calculated to produce abor- tion, no conviction could be had. Williams V. State (Tex. App., 1892), 19 S. W. Rep. 897. See also Watson v. State, 9 Tex. App. 237. 3. At Common Law. — Russell on Crimes 540; Wharton on Homicide, § 41; i East Pleas of the Crown 230; I Hale 430; 2 Bish. on Crim. Law, § 691; 4 Black. Com. 201; Tinck- ler'sCase, i East P. C. 354; Reg. v. Fret well, L. & C. 161, 9 Cox C. C. 153; State v. Moore, 25 Iowa 128, 95 Am. Dec. 776; Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815; State v. Thurman, 66 Iowa 693; State v. Baldwin, 79 Iowa 714; Peoples v. Com., 87 Ky. 487; Smith V. State, 33 Me. 48, 54 Am. Dec. 607; Com. w. Hersey, 2 Allen (Mass.) 173; Com. v. Parker, 9 Met. (Mass.) 263, 43 Am. Dec. 396; People V. Sessions, 58 Mich. 594; Com. v. Keeper of Prison, 2 Ashm. (Pa.) 227; State v. Dickin- son, 41 Wis. 299. In Com. V. Parker, g Met. (Mass.) 263, 43 Am. Dec. 396, Shaw, C.J., in delivering the opinion of the court, used this language: " So where, upon a similar attempt by drugs or instruments, the death of the mother en- sues, the party making such an attempt, with or without the consent of the woman, is guilty of the murder of the mother, on the ground that it is an act done without lawful purpose, dangerous to life, and that the con- sent of the woman cannot take away the im- putation of malice any more than in the case of a duel, where in like manner there is the consent of the parties." 4. TTnder Statute. — State v. Dickinson, 41 Wis. 299; Hatchard v. State, 79 Wis. 357; So- lander v. People, 2 Colo. 48; Com. v. Leach, 156 Mass. 99; People w. Olmstead, 30 Mich. 431; People V. McDowell, 63 Mich. 229; People V. Aikin, 66 Mich. 460, 11 Am. St. Rep. 512; State u. Moore, 25 Iowa 128, 95 Am. Dec. 776. In Maine, if the death of the mother re- sults from an attempt to destroy the child after it has become quick in its mother's womb, it is murder; if it results from an at- tempt at miscarriage prior to the quickening of the child, it is manslaughter. Smith v. State, 33 Me. 48, 54 Am. Dec. 607. Under the Illinois statute, if death is caused by producing abortion, it is murder. Beas- ley V. People, 89 111. 571. In Yundt v. People, 65 111. 373, the de- fendant produced an abortion upon a woman who was quick with child, and a fatal sick- ness followed in consequence thereof, which resulted in her death. The indictment was for manslaughter, and not for producing an abortion, under the common law or the statute. The defendant was adjudged guilty as charged. 5. At Common Law.— Mitchell v. Com., 78 Ky. 204, 29 Am. Rep. 227; State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248; Com. z'.Parker, 9 Met. (Mass.) 263, 43 Am. Dec. 391; Com. v. Bangs, 9 Mass. 387; Com. v. Jackson, 15 Gray (Mass.) 187; Abrams v. Foshee, 3 Iowa 274, 66 Am. Dec. 77; Hatfield v. Gano, 15 Iowa 178; Smith v. State, 33 Me. 48, 54 Am. Dec. 607; People w. Sessions, 58 Mich. 594. Contra. — There are, however, cases main- taining the contrary view. See State 0. Slagle, 82 N. Car. 630; Com. v. Demain, 6 190 Who may be Criminally Liable. ABORTION. As Aocessories and Accomplices. The wilful killing of an unborn child after it has quickened is not a felony, except as it is rendered so by statute, but is a misdemeanor.^ According to the better authority, if a person in attempting to commit an abortion causes a child to be born so much earlier than the natural time that it is much less capable of living, and it afterwards dies by reason of exposure to the external world, such person is guilty of murder.'' IV. Who may be Ceiminallt Liable— 1. As Principals — a. The Woman Herself. — In most of the states of the Union a woman who commits an abortion on herself is guilty of no crime, she being regarded rather as the victim than the perpetrator of the crime.* But in some of the states, and in England, she is liable to the same punishment as one who commits an abor- tion on another.* b. Others as Principals. — Under the statutes any one who unlawfully or maliciously supplies, or administers to a pregnant woman, or causes or pro- cures to be taken by her, any drug, poison, substance, or noxious thing, or un- lawfully uses or causes to be used any instrument or other means whatsoever, with intent to procure or cause an abortion, is a principal.' 2. As Accessories and Accomplices — a. The Woman Herself. — According to the weight of authority, both in England and the United States, a pregnant Pa. L. J. 29; Mills V. Com., 13 Pa. St. 633; Bish. Stat. Cr., § 746; Russell on Crimes 522. 1. By Statute. — Smith v. State, 33 Me. 48, 54 Am. Dec. 607; People v. Stockham, i Park. Cr. Rep. (N. Y.) 424; Lehman v. People, 2 Barb. (N. Y.) 216; Evans v. People, 49 N. Y. 88. By the general laws of N'ew York, the kill- ing of a quick child is manslaughter in the first degree when caused by an injury to the mother which would be murder if it resulted in the death of the mother. Evans v. People, 49 N. Y. 88. 2. Death of Child after Birth.— Reg. v. West, 2 C. & K. 784, 61 E. C. L. 784; Rex v. Senior, I M. C. C. 344; Reg. V. Trilloe, 2 M. C. C. 260; Com. V. Brown, 14 Gray (Mass.) 419; Whar- ton's Crira. L. (8th ed.), § 592; Russell on Crimes 671; 3 Coke Inst. 50; i Hawk. P. C, c. 31, § 16; 4 Black. Com. 198; i East P. C, c. 5, § 14, p. 228. Contra, r Hale 432; Saund. 21. 3. Generally Woman not Criminally Liable. — Com. V. Wood, II Gray (Mass.) 85; State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248. It is not criminal for a woman to swallow a, potion, or to consent to an operation or other means being used to procure an abor- tion. No act of hers is made criminal by statute. Her guilt or innocence remains as at common law, and her offense at common law is against the life of the child. State v. Murphy, 27 N. J. L. 112; State v. Hyer, 39 N. J. L. 598; Com. V. Boynton, 116 Mass. 343; Solander v. People, 2 Colo. 48; Smith v. Gaffard, 31 Ala. 45. It was held in Hatfield v. Gano, 15 Iowa 177, that it was the person who used the means with the pregnant woman to procure the abortion, and not the woman herself, whom the legislature intended to punish. Abrams v. Foshee, 3 Iowa 274, 66 Am. Dec. 77. 4. New York. — In Dunn v. People, 29 N. Y. 523, 86 Am. Dec. 319, it was held that a woman could not be indicted for procuring an abortion on herself, the law regarding her rather as the victim than the perpetrator of the crime. But by § 295 of the New York Penal Code of 1891 a pregnant woman who takes any medicine, drug, or substance, or uses or sub- mits to the use of any instrument or other means, with intent thereby to produce her own miscarriage, unless the same is neces- sary to preserve her life, or that of the child whereof she is pregnant, is punishable by imprisonment for not less than one year nor more than four years. See People w. Meyers, 5 N. Y. Crim. Rep. 120. See also Frazer v. People, 54 Barb. (N. Y.) 306. California. — The penal code of this state, § 275, makes it a felony for a woman to solicit of any person any medicine, drug, or sub- stance whatever, and take the same, or to submit to any operation, or to the use of any means whatever, with intent thereby to pro- cure a miscarriage, unless the same is neces- sary to preserve her life. England. — In England, by 24 and 25 Vict., c. 100, § 58, a person who commits an abor- tion on herself is equally guilty with the person who commits an abortion on another, and subject to the same punishment. 5. State V. Owens, 22 Minn. 238; Smith v. State, 33 Me. 48, 54 Am. Dec. 607; State v. Murphy, 27 N. J. L. H2. In Com. V. Brown, 14 Gray (Mass.) 419, where one defendant advised, ordered, and commanded two other defendants to admin- ister ergot to a pregnant woman, with intent to cause a miscarriage, it was held that he was a principal and not an accessory. Where it was proven that a woman offered to produce an abortion on a girl, stating thai she had operated on hundreds of others, and afterwards assisted her husband in the opera- tion, it was held that she did not act under the compulsion of the husband, but volun- tarily, and was therefore a principal. Hatch- ard V. State, 79 Wis. 357. 191 Who may be Criminally Liable. ABORTION. Fersocs Selling, Advertising, etc. woman who takes medicine or submits to other means to produce an abor- tion is not an accompHce, even though she solicits the use of the means em- ployed.* And it is held that, not being an accomplice, the woman does not need corroboration in her testimony.* But her moral implication is a proper question for consideration by the jury in weighing her testimony.' b. Others as Accessories and Accomplices. — Any person who aids, abets, or assists the woman or any other person to procure an abortion, is an accessory or accomplice.* It is essential, however, that the person so acting have knowledge that the object of the person whom he assists is to procure an abortion.' 3. Persons Selling, Advertising, or Giving Away Instruments or Drugs, etc. — In many of the states of the Union it is made a misdemeanor to sell, give away, or advertise any instrument, drug, or other means for the purpose of procuring an abortion.® 1. Woman not an Accomplice — England. — Reg. V. Boyes, i B. & S. 311; Rex v. Hargrave, 5 C. & P. 170. Kentucky. — Peoples v. Com., 87 Ky. 487. Massachusetts. — Com. v. Boynton, 116 Mass. 343; Com. v. Brown, 121 Mass. 69; Com. V. Drake, 124 Mass. 21; Com. v. Fol- lansbee, 155 Mass. 274. Minnesota. — State v. Owens, 22 Minn. 238; State V. Pearce, 56 Minn. 226. New Jersey. — State v. Hyer, 39 N. J. L. 598. New York. — -People v. Meyers, 5 N. Y. Crim. Rep. 120; Dunn v. People, 29 N. Y. 523, 86 Am. Dec. 319; People v. Vedder, 98 N. y. 630; People V. McGonegal, 136 N. Y. 62. Texas. — Watson v. State, 9 Tex. App. 237. In Com. V. Wood, II Gray (Mass.) 85, the court said: "We think the court rightly instructed the jury that the woman was not, under the statute, technically an accom- plice, for she could not have been indicted with him." Wharton's Crim. Ev., § 440, maintains that the woman is an accomplice provided she submits willingly to the operation, but is not if fraud or force is used; citing People V. Josselyn, 39 Cal. 393, to support the propo- sition. This case, however, does not sup- port the contention. The decision was ren- dered under the California statute of 1861, in which it was expressly provided that no physician or surgeon should be convicted on the uncorroborated testimony of the woman upon whom the abortion was alleged to have been performed. This statute has since been repealed. 2. Corroboration not Necessary. — Com. v. Wood, II Gray (Mass.) 85; State v. Hyer, 39 N. J. L. 598; People v. Lohman, 2 Barb. (N. Y.) 216; People v. Meyers, 5 N. Y. Crim. Rep. 120; Dunn v. People, 29 N. Y. 523, 85 Am. Dec. 319; Watson v. State, 9 Tex. App. 239- Ohio. — The Ohio Rev. Stat., §6804, punishes the woman as an aider and abettor, if she voluntarily participates in the unlawful act; and in such a case, if, on the trial of the principal, she is introduced as a witness by the state, her evidence should be regarded as that of an accomplice, and would there- fore need' corroboration. State v. McCoy (Ohio, 1894), 39 N. E. Rep. 316. 3. Weight of Testimony Question for Jury. — Com. V. Brown, 121 Mass. 69; Com. v. Drake, 124 Mass. 21; People v. Lohman, 2 Barb. (N. Y.) 216; People V. Vedder, 98 N. Y. 630; Wat- son V. State, 9 Tex. App. 239; Wandell v. State (Tex. Crim. App., 1894), 25 S.W. Rep. 27. The fact that the abortion was committed by the solicitation or consent of the woman herself does not in the slightest degree lessen the criminality of the act, after it has been proved. Com. v. Snow, 116 Mass. 47; Com. V. Wood, II Gray (Mass.) 85. 4. Third Persons as Accomplices and Accesso- ries. — Solander v. People, 2 Colo. 48; Crich- ton V. People, i Abb. App. Dec. (N. Y.) 467; State V. Pearce, 56 Minn. 226; Willingham v. State (Tex. Crim. App., 1894), 25 S. W. Rep. 424. Encouragement. — The father of the woman upon whom an abortion was performed testi- fied that the accused had told him of his daughter's pregnancy, and that he (the ac- cused) could give her a drug that would re- move it. The father replied, "All right; anything to save my child." It was held that this was sufficient encouragement to constitute the father an accomplice. Watson 71. State, 9 Tex. App. 237. Procuring Physician. — Where the defendant received a woman to board for the purpose of having an abortion performed, and after- wards procured a physician to operate on the woman, it was held that such defendant was an accessory before the fact. Com. -v. Adams, 127 Mass. 15. Accompanying Woman to Place of Performance. — Where a woman who had been an intimate companion of the deceased, knew of her pregnancy, and her intention to have an operation performed to produce abortion, accompanied her to the house of the accused, and remained in another room while the al- leged operation was being performed, it not being charged that she aided or abetted the defendant in any way in the commission of the alleged crime, it was held that she was not an accomplice of the accused. People v. McGonegal, 136 N. Y. 62. See also Com. v. Drake, 124 Mass. 21. 5. Knowledge of the Object in View Necessary. — Com. V. Follansbee, 155 Mass. 274. In Texas, any person who furnishes the means for procuring an abortion, knowing the purpose intended, is guilty as an accom- plice. Tex. Pen. Code, § 532. 6. Statutes. — See, for example, the statutes 192 Attempts. ABORTION. Evidence, V. Attempts. — It is a punishable offense to attempt to commit an abortion, whether the effort is successful or not.* An attempt implies both a purpose and an actual effort to effect that purpose." VI. Evidence — The Woman. — The evidence of the woman upon whom the abortion is committed is admissible, and conviction may be had upon her un- corroborated testimony ; her credibility as a witness being a question for the jury.' Dying Declarations. — The courts are divided as to whether or not the dying decla- rations of the woman are admissible in evidence against the accused.* It is held, under the common-law rule, that where the death of the woman is not the subject of the charge, her dying declarations are not admissible.* Ees Gestae. — Certain acts and declarations which are contemporaneous with the main fact under consideration, and so connected with it as to illustrate its character, are properly admissible in evidence as being part of the res gestce.^ If the woman is not technically an accom- plice, she may, nevertheless, conspire with others to produce the abortion, and the cqn- spiracy being shown, her acts and declara- tions in furtherance of the common design are evidence against others engaged with her in the criminal act. Solander ». People, 2 Colo. 48. In Ohio, the woman is regarded as an ac- complice, and her testimony therefore needs corroboration. State v. McCoy (Ohio, 1894), 39 N. E. Rep. 316. See, generally, the title ACCOMPIICES. 4. Admissibility of Dying Declarations.— Rex V. Hutchinson, 2 B. & C. 608, note; Storer & Heard Crim. Abor. Z08; People v. Davis, 56 N. Y. 95; State v. Harper, 35 Ohio St. 78, 35 Am. Rep. 596. In Railing v. Com., no Pa. St. 100, overrul- ing Com. V. Bruce, 5 Crim. L. Mag. 680, it was held that death considered in and of it- self is not a constituent element of the of- fense of abortion; therefore dying declara- tions are inadmissible against the defendant in a prosecution charging that crime. Dying declarations of the woman have been received in evidence in the following cases: Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815; State v. Leeper, 70 Iowa 748; Maine v. People, 9 Hun (N. Y.) 113; Rhodes V. State, 128 Ind. 189; State v. Baldwin, 79 Iowa 714; Peoples v. Com., 78 Ky. 487. In Minnesota, the dying declarations of the woman have been held admissible as evi- dence, even where her husband was charged as an accomplice. State v. Pearce, 56 Minn. 226. 5. Com. V. Homer, 153 Mass. 343; People V. Davis, 56 N. Y. 95; State v. Harper, 35 Ohio St. 78, 35 Am. Rep. 596; Reg. v. Hind, 8 Cox C. C. 300. Generally. — The general rule is, that dying declarations are admissible only when the death of the woman is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. Rex V. Mead, 2 B. & C. 605, 9 E. C. L. 196; I Greenl. Ev., § 156; Rex v. Lloyd, 4 C. & P. 233, 19 E. C. L. 360; Runyan v. Price, 15 Ohio St. 8, 86 Am. Dec. 459; People v. Davis, 56 N. Y. 95. See the title Dying Declara- tions. 6. Res Gestce. — i Greenl. Ev., g 108; Solan- der V. People, 2 Colo. 48; People v. Mc- 193 of Indiana, Iowa, Massachusetts, Ohio, Rhode Island, and Vermont. Where the statute against supplying in- struments for the purpose of procuring abor- tion requires the instrument to be of a char- acter fitted for that purpose, the defendant cannot be convicted where he gives a preg- nant woman a common English catheter, even though he told her at the time that it would procure a miscarriage, as that is not the purpose for which that instrument is made. State v. Forsythe, 78 Iowa 59'$. 1. Failure of Attempt Immaterial. — It is not necessary that the attempt should have the effect intended, nor that the drug adminis- tered should be likely to produce the result. The criminal intention is the main considera- tion. State V. Owens, 22 Minn. 238. The guilt is not determined by the success or failure of the effort. State v. Reed, 45 Ark. 333; Slattery v. People, 76 111. 217; Scott V. People, 141 111. 195; Bassett v. State, 41 Ind. 303; State v. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148; Smith v. State, 33 Me. 48, 54 Am. Dec. 607; Com. v. Taylor, 132 Mass. 261; State V. Murphy, 27 N. J. L. 112; State V. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248; State V. Gedicke, 43 N. J. L. 86; State v. Slagle, 82 N. Car. 630; Bishop on Statutory Crimes, § 744. 2. Attempt Defined. — " An attempt is an intent to do a particular thing, with an act toward it falling short of the thing intended." ] Bish. Crim. L., § 728; Scott v. People, 141 111. 195. See, generally, the title Attempt to Commit Crime. 3. Woman upon whom the Abortion is Com- mitted as a Witness. — It was held in People v. Vedder, 98 N. Y. 30, that the woman upon whom an abortion is committed is not an ac- complice, and, theref6re, the provision of the code prohibiting a conviction upon the testi- mony of an accomplice, unless 'corroborated, does not apply to her testimony. Dunn v. People, 29 N. Y. 523, 86 Am. Dec. 319; Watson V. State, 9 Tex. App. 237; Com. v. Wood, 11 Gray (Mass.) 85; State v. Hyer, 39 N. J. L. 568; People v. Meyers, 5 N. Y. Crim. Rep. 120; People V. Lohman, 2 Barb. (N. Y.) 216. In State v. Dyer, 59 Me. 303, the victim of the abortion was held to be a competent wit- ness, even though her husband was indicted as an accessory. Com. v. Reid, 8 Phila. (Pa.) 385; Navarro v. State, 24 Tex. App. 378. I C. of L. — 13. Svidence. ABORTION. Evidence. Death of the Woman. — The death of the woman may be proved as a part of the history of the case,* and then the procurement of the abortion is the cor- pus delicti.^ Evidence may also be introduced as to the cause of death. ^ Experts. — It is allowable to introduce physicians as medical experts, in order to prove whether or not an abortion has been committed on the woman, and, in case of death, whether or not death was the result of an abortion.* Medical Books. — It is held that medical books are not admissible evidence, but that medical men may give their opinions as witnesses, which opinions may, in a measure, be founded on the contents of standard medical books as a part of their general knowledge.® Instruments. — Evidence that instruments calculated to produce abortion were found in the possession of the accused is admissible, and such instruments may be exhibited to the jury.* Dowell, 63 Mich. 229; People i;. Davis, 56 N. Y. 95; State V. Glass, 5 Oregon 73. Upon a. trial on the charge of abortion, where the fact of the deceased party's going to the house of the defendant for the purpose of having him perform an abortion on her was material, it was held that the declara- tions of the deceased as to her purpose in going there, made at the time she departed for defendant's house, were competent evi- dence as part of the res gesta. State v. Howard, 32 Vt. 380. But a Xarrative of a Fast Transaction is not admissible in evidence, it being merely hear- say. Maine v. People, 9 Hun (N. Y.) 113; Com. V. Felch, 132 Mass. 23; Hays v. State, 40 Md. 633; People v. Aikin, 66 Mich. 460, II Am. St. Rep. 512; State v. Clements, 15 Oregon 237. • Declarations to a Physician. — On a prosecu- tion for abortion, a physician, who, after the commission of the crime, was selected by the public prosecutor to attend and examine the woman, and did attend and examine her with her consent, was allowed to testify, as a witness for the prosecution, to his opin- ion, founded on his observations of the wom- an and her narration of the circumstances, that an abortion had been committed. The woman was alive at the time of the trial. It was held that his testimony was inadmissible, because it was a narration of past events and not part of the res gesta. People v. Murphy, loi N. Y. 126, 54 Am. Rep. 661. See also Com. V. Hersey, 2 Allen (Mass.) 173. Exclamations Indicating Present Pain, made immediately after the operation was charged to have been performed, have been held ad- missible. Com. V. Fenno, 134 Mass. 217; Rhodes v. State, 128 Ind. 189; Com. v. Leach, 155 Mass. 99. 1. Proof of Death of the Woman. — Com. v. Thompson, 159 Mass. 56; People v. Van Zile, 143 N. Y. 368. 2. Corpus Delicti. — Traylor v. State, loi Ind. 65; People V. Aiken, 66 Mich. 460, 11 Am. St. Rep. 512. 8. Cause of Death. — People v. Aikin, 66 Mich. 460, II Am. St. Rep. 512. The injured parts of the body of the de- ceased, preserved in spirits, maybe exhibited to the jury, jn. connection with the testimony of the physician who made the post-mortem examination, in order to show the cause of Com. Brown, 14 the woman's death, Gray (Mass.) 419. Evidence of cuts, wounds and bruises found in the womb of the deceased is admissible in order to prove that death was ca!used by an abortion or attempted abortion. Com. v. Blair, 126 Mass. 40. 4. Expert Testimony. — Com. v. Leach, 156 Mass. 99; Com. v. Thompson, 159 Mass. 56; Com. V. Follansbee, 155 Mass. 274; Carter v. State, 2 Ind. 617; Slattery v. People, 76 111. 217; State V. Glass, 5 Oregon 73. A physician testifying as an expert that he has discovered no traces of an abortion may properly be asked whether under such cir- cumstances an abortion would occur. Bath- rick V. Detroit Post, etc., Co., 50 Mich. 629, 45 Am. Rep. 63; State v. Smith, 32 Me. 370. Where experts have testified that a woman could not have introduced a sea-tangle tent into her uterus without aid, it is competent for the defense to prove by another witness that she has often introduced the same in- strument into her own uterus unaided. Com. V. Leach, 156 Mass. gg. It was held to be error to allow a medical expert to give an opinion founded partly upon dying declarations of the victim of an alleged abortion. People v. Murphy, loi N. Y. 126, 54 Am. Rep. 661. It is improper to permit a witness who nursed the deceased during the last days of her sickness to give her opinion as to what caused the death of the deceased, without proof of any minute examination of the per- son of the deceased, or of any facts on which she based her opinion, or of any knowledge or experience in such matters. People v. Olmstead, 30 Mich. 431. 5. Admissibility of Medical Books. — Collier V. Simpson, 5 C. & P. 73, 24 E. C. L. 219; Carter v. State, 2 Ind. 617; I Greenl. Ev., § 5g5, note 3. In Massachusetts, in accordance with well- settled practice, medical books are not al- lowed to be read in evidence. Com. -ii. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401; Com. V. Brown, 121 Mass. 6g. 6. Instruments. — People v. Vedder, 34 Hun (N. Y.) z8o; Com. v. Brown, 14 Gray (Mass.) 419. In Com. V. Blair, 126 Mass. 40, evidence that the accused had such an instrument in 194 Defenses. ABORTION. Defenses. Circumstances. — The evidence to convict of the crime of abortion, with the ex- ception of the testimony of the victim, is almost always circumstantial, and therefore the question as to the admissibility of collateral facts in evidence is often to be determined by the nature of each case ; evidence that would be admissible in one case would not necessarily be admissible in another.* Burden of Proof— As to Necessity of Abortion. — ^Where the statute makes it an es- sential element of the offense that the abortion was not necessary to save the Ufe of the woman, a majority of the courts hold that the burden is on the prosecution to prove the absence of such necessity.* As to Advice of Physician. — But it is held that the burden of proof is on the de- fendant to show that he had the advice of a physician that the operation was necessary, the latter fact being one peculiarly within the knowledge of the de- fendant.* VII. Defenses. — The fact that the operation is necessary to preserve the life of the woman or the child is a valid defense ; * also the fact that it was ad- State V. Meek, 70 Mo. 355, 35 Am. Rep. 427; Hatchard v. State, 79 Wis. 357; States. Clem- ents, 15 Oregon 237. It is a general rule of law that the burden of proof is upon the party who bases his cause of action upon a negative allegation. Exceptions to the rule obtain only when the proof is readily at the command of the de- fendant, and is practically beyond the reach of the prosecution. The circumstances at- tending the procurement of an abortion, tend- ing to prove that it was unnecessary for the purpose of preserving the life of the mother, ordinarily can be shown quite as easily on the part of the prosecution as the fact of necessity for that purpose can be proved by the defendant. Moody v. State, 17 Ohio St. no. Contra, Bradford v. People, 20 Hun (N. Y.) 309. 3. Advice of Fhyiician as to Necessity — Proof of. — State V. Meek, 70 Mo. 355, 35 Am. Rep. 427; Hatchard v. State, 79^15.357. See also Moody V. State, 17 Ohio St. no. In State w. Meek, 70 Mo. 355, 35 Am. Rep. 427, Hough, J., delivering the opin- ion of the court, said: "In cases like the one before us, it has been held that while it is necessary for the state to produce some evidence that the abortion was un- necessary to save the life of the mother, the burden of showing that it was advised by a physician to be necessary for that purpose is upon the defendant, and this for the rea- son that from the very nature of the case it might be impossible for the state to prove that such advice was not given, while tes- timony that it was so advised, being in its nature of a secret and confidential character and peculiarly within the knowledge of the defendant, could generally be easily pro- duced by him." Where the evidence shows that the defend- ant operated with a knife upon the womb of a healthy woman nineteen years of age, and shortly afterwards she was delivered of a partly grown child, and was immediately at- tacked with peritonitis, of which she died, it raises an irresistible inference that it was not necessary to kill the child in order to save the mother's life. Hatchard v. State, 79 Wis. 357. 4. Necessity a Defense. — Bassett v. State, 41 his possession five months before the time of the alleged operation was admitted. Where an indictment charges an attempt to procure an abortion by means of several different instruments, it is not necessary to prove that the accused used all the instru- ments described. It is sufiBcient to prove the use of one of the instruments as alleged. Scott V. People, 141 111. 195. It is not necessary to prove the character of the instruments. Com. tj. Snow, 116 Mass. 47- 1. Evidence Ordinarily Circumstantial — Illus- trations.— On a trial upon the charge of abortion, evidence that ^ foetus was found secreted about the building where the opera- tion was alleged to have been performed was held to be aximissible, as tending very strongly to show the corpus delicti. State w. Howard, 32 Vt. 380. Where defendant is charged with having procured an abortion upon a woman who was at that time an inmate of her house, it is competent to show the character of the Tiouse — that it is a house of ill fame — so that the jury may judge whether the place is one where the alleged crime could be safely at- tempted, without fear of detection. Hays w. State, 40 Md. 633. The prosecution having proved that the •defendant had administered medicine to the deceased, which might have the result of producing an abortion, and that an abortion was produced, from the effects of which she died; it was held that a circular published by defendant three years previously, tending to show that he was in the business of con- sulting in reference to the procuring of abor- tions, was admissible evidence. Weed v. People, 3 Thomp. & C. (N. Y.) 50. On the trial of a charge of manslaughter in the commission of abortion, which resulted in the death of the mother, evidence of a woman who attended the mother the day Tiefore her death, washing her and changing her clothes, as to the condition of the bed and the clothes, and also as to a peculiar, offensive odor which she observed, was held to be admissible. People ». Olmstead, 30 Mich. 431. 2. Necessity of Abortion — Proof of. — i Greenl. Ev., § 78; Moody v. State, 17 Ohio St. no; 195 Defenses. ABOR T ION— ABO UT. Definition. vised to be necessary by a physician.* The intent to produce an abortion must exist when the means are used ; hence it would be a good defense, if proven, that the abortion was the result of accident.* ABOUT. (See also the title MORE OR LESS.) — The term "about" in its common acceptation means near to, in action ; or near to, in the performance of some act ; ' or near to, in quantity. Ind. 303; State ». Owens, 22 Minn. 238; State V. Clements, 15 Oregon 237; State w. Stokes, 54 Vt. 179. If the destruction of a quick child is neces- sary in order to preserve the life of the mother, it is a complete defense to the charge of abortion. State v. Fitzporter, 93 Mo. 390. The "necessity " mentioned in the various statutes is inten i^d to cover only those cases where the death of the mother might reason- ably be expected to result from natural causes unless the child is destroyed; the fact that the woman has threatened to commit suicide unless relieved of her child, is not such a "necessity" as the statutes contem- plate. Hatchard v. State, 79 Wis. 357. As to the burden of proving the necessity, see supra, this title, Evidence; also the title Burden of Proof. 1. Advice of Physician a Defense. — State v. Meek, 70 Mo. 355, 35 Am. Rep. 427; State V. Fitzporter, 93 Mo. 390. The statutes of some states require that two physicians shall advise the operation to be necessary in order tci» constitute a valid de- fense; and it has been held in Wisconsin, under the statute, that it was no defense to the charge that one of the defendants, who was a physician, thought the operation nec- essary to save the mother's life, if the evi- dence showed that it was in fact not neces- sary for that purpose. Hatchard v. State, 79 Wis. 357. See also State v. Mclntyre, 19 Minn. 93; Moody v. State, 17 Ohio St. no. 2. Accident a Defense. — Slattery v. People, 76 111. 217. Consent of Woman no Defense. — The fact that the woman consented to the operation is no defense to the charge of abortion. Smith v. State, 33 Me. 48, 54 Am. Dec. 607; Crichton i-. People, 6 Park. Cr. Rep. (N. Y.) 363; Com. V. Wood, II Gray (Mass.) 85; Com. w. Snow, 116 Mass. 47. Nonpregnancy no Defense. — It is held in Eng- land, and in some of the United States, that the fact that the woman was not pregnant at the time of the attempt is no defense to a charge of attempt to commit abortion, since the injury to the mother is the real offense. Reg. V. Goodhall, 2 Cox C. C. 40; State v. Howard, 32 Vt. 380; Com. w. Wood, 11 Gray (Mass.) 86; Wilson v. State, 2 Ohio St. 319; Powe V. State, 48 N. J. L. 34; Com. v. Taylor, 132 Mass. 261; Com. v. Tibbetts, 157 Mass. 519; Com. v. Follansbee, 155 Mass. 274. 3. Webst. Diet., followed in Jackson v. Burke, 4 Heisk. (Tenn.) 614. Contract to Fay Claim of About One Hundred and Fifty Dollars. — Where the defendant con- tracted to pay a claim of about one hundred and fifty dollars, it was held that he n-«ast pay the claim although it amounted to tifty dollars more, the claim being otherwise iden- tified. Turner v. Whidden, 22 Me. 121. About the Person — Concealed Weapons. (See also the title Carrying Concealed Weap- ons.) — In Warren tj. State, 94 Ala. 80, a. con- viction was sustained for carrying concealed weapons ' ' about the person," on proof that the defendant carried a pistol in a hand satchel, which was suspended from his shoulder by a strap around his neck, although the satchel was locked and the key kept in his pocket. In State v. McManus, 89 N. Car. 555, a con- viction was sustained for carrying concealed weapons about the person. The defendant testified that he was carrying the pistol in his dinner basket to exchange it for a watch. The court said : " It is insisted that the pis- tol, if in the basket and concealed, was not about the person of the defendant, though upon his lap. Such is not the meaning of the statute. The language is not 'concealed on his person,' but ' concealed about his per- son;' that is, concealed near, in close proxin)- ity to him, and within his convenient control and easy reach, so that he could promptly use it if prompted to do so by any violent motive. If the pistol was concealed in the basket, and that was in the defendant's lap, on his arm, or fastened about his person, or if placed near his person though not touching it, this would be sufiicient. It makes no difference how it is concealed, so it is on or near to and within the reach and control of the person charged." A person who, being in the room of an- other where there are several persons, has a pistol in his vest pocket, and wilfully or knowingly covers or keeps it from sight, vio- lates the statute. Owen v. State, 31 Ala. 387- A charge that a person carried a pistol about his person is supported by proof that he carried it in his hand. Woodward v. State, 5 Tex. App. 296. Assignment for Benefit of Creditors. — Where an assignment was made "in trust to pay the debts due the following persons, viz.," and then followed the names and debts, and a debt due one creditor was put down "about $11,000," which was in fact upwards of thir- teen thousand dollars, it was held that the trust included the latter sum. Browne v. Weir, 5 S. & R. (Pa.) 400. To the same effect see Chapin v. Clarke, 7 Grant's Ch. (U. C.) 75. And see generally the title As- signment FOR THE Benefit of Creditors. About to Expire— Appointment of Officer.— It was provided in Mississippi that the governor should fill by appointment, with the advice and consent of the senate, offices the terms of whose incumbents were about to expire. It was held that the appointment was to be made at the session of the legislature imme- diately preceding the expiration of the term. 196 Definition. ABOUT. Definition. The Supreme Court of the United States has laid down three rules for the construction of the terms " about " or " more or less " in executory contracts The court said: "The meaning is (since the senate only convenes periodically, unless by extraordinary convocation of the legislature), the governor shall make his nomination to that body at a session immediately preceding the expiration of the term. That satisfies the intent of the words ' about to expire.' " Brady V. Howe, 50 Miss. 617. Charter Party. — A charter party provided that the ship should proceed to the port of loading and there load " a full and complete cargo of iron ore, say ahout iioo tons." The charterer provided a cargo of ten hundred and eighty tons, the actual capacity of the ship being twelve hundred and ten tons. It was held that the words "say about iioo tons" were not mere words of expectation, but words of contract, and that the charter- er's undertaking was not to load the ship up to her actual capacity, but that three percent was a fair amount of excess over eleven hun- dred tons to allow in estimating what was a full and complete cargo of about eleven hun- dred tons, and consequently the cargo actu- ally provided fell short of the charterer's obli- gation by fifty-three tons. Morris v. Levison, I C. P. Div. 155. In The Alert, 61 Fed. Rep. 504, where a steamer's charter provided that the vessel should be delivered for the charterer's use ''about April loth," it was held that the word about would not warrant any failure to de- liver on the date named, except such as oc- curred through accidental causes arising upon a voyage commenced in due season to arrive at the date named under the usual condi- tions of navigation, and did not justify any delay in making a seasonable start. About to Sail. — The words "about to sail from Benizaf with cargo for Philadelphia," contained in a charter party, were held to mean, under the circumstances of the case, to sail as soon as with reasonable diligence a cargo could be got on board. The court said: " The word about can only be construed with reference to the subject matter and cir- cumstances with regard to which it is used; it has a more uncertain meaning than the words 'almost,' 'nearly,' 'well-nigh,' and unless I adopt the method last above indicated, I think we are entirely without any guide in ascertaining its meaning as used in this char- ter, and what was the intention of the parties expressed by it." Von Lingen v. Davidson, I Fed. Rep. 178. It was held in Hawes v. Lawrence, 4 N. Y. 345, that a contract for sale of oil " to arrive per ship Marcia, sailed from London on or about the 15th of March," contained a mere representation as to the time of sailing, and not a warranty, and that the vendees were bound though the ship did not sail until March 26th. See generally the title Charter Party. Pleading— In Lippincott v. Smith, 4 N. J. L. 106, it was held that an allegation in the state of demand that defendant " about the month of September " took away, etc., was sufficient. Southard, J., dissented. And see Corey v. Swagger, 74 Ind. 211. About the Premises — Intoxicating Liquors. — . (See also the title Intoxicating Liquors.) The Alabama statute provides that it shall be unlawful for any person without a license to sell vinous or spirituous liquors in any quan- tity, if the same is drunk on or about the premises. This statutory prohibition em- braces places over which the seller has no le- gal right to exercise authority or control, but which are so near his premises, and so situ- ated in relation thereto, that they are within the mischief intended to be remedied; but where the liquor is taken by the purchaser, in the quart measure of the seller, to a place on the opposite side of the street, out of view of the seller's house, about fifty feet distant therefrorn, and in front of another store, and is there drunk, the court cannot assume, as a legal conclusion, that such place is within the statute. Easterling v. State, 30 Ala. 46. In Whaley v. State, 87 Ala. 83, it was held that if liquor sold by the defendant was drunk within five or six steps of his store and in full view of the premises, it was drunk about his premises in the meaning of the statute, and that it would avail nothing that the liquor was drunk by the purchaser in the public road, over which the defendant had no control, or that the defendant failed to notice the fact and time of its being drunk. The court died, as supporting this decision, the following cases and authorities: Christian v. State, 40 Ala. 376; Pearce v. State, 40 Ala. 720; Brown V. State, 31 Ala. 353; Patterson v. State, 36 Ala. 297; Powell v. State, 63 Ala. 177; East- erling V. State, 30 Ala. 46; Clark's .^an. Cr. Law, §§ i6og, 1610. On the authority of Pearce v. State, 40 Ala. 720, it was held that the defendant was prop- erly convicted of selling liquor "drunk on or about his premises " (Code, § 4204), on proof that the liquor was sold from a jug, which he had, in a field where he was working with others, more than a mile from his house, and in the plantation of another person, over which he had no control. Powell v. State, 63 Ala. 177. "About Arriving." — In a complaint against a railroad company for negligence, it was averred that the plaintiff attempted to de- scend the steps when the train was "about arriving." The court said: "About, in the connection here used, means nearly, not far from; that is, near, not far from, the arrival of the train." Alabama G. S. R. Co. v. Arnold, 84 Ala. 159. "About" — Attachment Laws. (See also the title Attachment.) — In Jackson v. Burke, 4 Heisk. (Tenn.) 614, the complainant alleged that he had reason to believe "that the defendant will convey and dispose of his property." This was held not suflScient to authorize the issuance of an attachment. The court said: "The word about, in the sense of the attachment laws, must be taken in its common acceptation as defined by lexi- 97 Definition. ABO UT. Definition. of sale, and the cases set out in the notes will be found in accord with these rules : cographers, ' near to in action, or near to in the performance of some act.' Webst. Diet. We hold that to authorize an attachment, on the ground that the defendant is ahowt fraudulently to dispose of his property, the charge in the affidavit, if not in the words of the statute, must import that defendant is on the eve of such fraudulent disposition of his property; and we are of opinion that the charge that the defendant will dispose of his property in order to defraud his creditors is not sufficient to authorize the issuance of an attachment." See also McHaney v. Caw- thorn, 4 Heisk. (Tenn.) 509; Wrompelmeir v. Moses, 3 Baxt. (Tenn.) 467. Compare Frere ■V. Perret, 25 La. Ann. 500, set out below. In Meyers v. Farrell, 47 Miss. 283, the court, in construing the term " aftowt to remove," as used in the attachment law of that state, said: " What is the meaning of the term ' about to remove ' ? A.hout — does that imply the next hour, or day, or week, or month ? Does the statute convey the idea that necessarily the act must be done within any definite space of time ? The implication is quite strong that the 'removal' will shortly occur, but no more definiteness and precision is set forth than the word ahout imports. Among the definitions or senses in which the word is used, given by lexicographers, are ' near to, in performance of some act,' 'concerned in,' 'engaged in,' etc. Webster's Unabridged Dictionary. It is an ordinary word of no artificial or technical signification, and should receive the rendering which is given to it in common parlance. If the debtor is engaged in the act or is near to the performance of the act of ' removal,' if he entertains the pur- pose and is making preparations to carry it out, then the creditor is entitled to the writ. It would be hurtful in practice to attempt to declare precisely what is implied in the terms ' about to remove.' For experience would show that many meritorious cases would fall within the intendment of the remedy, which might be excluded by a rule laid down in ad- vance. We think it wiser and safer in the administration of practical justice to leave each case, as it arises, to be governed by its own special facts." In Elliott V. Keith, 32 Mo. App. 585, the trial court thus instructed the jury upon the meaning of the term "about to remove" : "Before you can find that he was about to do so, you must believe * * * defendant was preparing and intended tomake an imme- diate removal." The appellate court held the instruction too narrow, and reversed the de- cision, saying: " The evidence in the case at bar undoubtedly tended to show that the de- fendant contemplated removing from this state to Washington Territory. If he had a fixed purpose to do so, and was making prep- arations to that end by disposing of all of his property and converting it into money at the time suit was instituted, the mere fact that he was not ready to step aboard the train, or to instantly start, ought not to defeat the attach- ment. Of course he must have been about to go, intending to go, etc., and it devolves upon plaintiff to establish that fact as contra- distinguished to a reasonable belief upon plaintiff's part that the defendant was about to go. But we are of opinion that the in- struction under consideration limited and narrowed the meaning of the statute too much. The words of the statute adopted in this clause of plaintiff's affidavit for attach- ment create a right. They have no technical significance, and should receive the rendering given to them in common parlance. It is safer to adopt them verbatim, in instructions, and trust the average understanding of jurors with a proper interpretation of them." In Bennett v. Avant, 2 Sneed (Tenn.; 152, a distinction is drawn between the word " ab- sconding" and the words " a6ou« to abscond." Where the defendant contended that the term " will convert," instead of " is about to convert," her property into money, was too vague and indefinite to authorize the attach- ment against her, it was held that the allega- tions and affidavit in the case substantially complied with the law and justified the at- tachment. Frere v. Perret, 56 La. Ann. 500. But see, contra, Jackson v. Burke, 4 Heisk. (Tenn.) 614, set out above. Descriptions of Land. — The word about, where the context limits and restrains its meaning, does not materially impair the cer- tainty of a description. Corey v. Swagger, 74 Ind. 211; Adams v. Harrington, 114 Ind. 72. In an action of ejectment the plaintiff failed to establish the exact dimensions or the exact locality of the premises claimed. The words of description used in the instru- ment which he relied upon were, " being about 30 feet," etc. It was held that this did not fix the dimensions of the lot. Finelite v. Sinnott, 57 N. Y. Super. Ct. 57. By the use of the term about, in describing the length of the line in a deed of convey- ance, it is understood that exact precision was not intended; but if the place where the monument stood, by which the distance was controlled and determined, cannot be ascer- tained, the grantee must be limited to the number of rods or feet given. Cutts v. King, 5 Me. 482. A description of a piece of land as contain- ing "about seven acres" and bounded by a canal was held to include to the centre of the canal. Without that there would have been only about six acres. Goodyear v. Shana- han, 43 Conn. 204. The description of the quantity of land, though corresponding in the number of acres with the statement in a. former conveyance, and especially when accompanied with the qualifying words " more or less " or about so many acres, does not furnish strong evi- dence of the purpose of the grantor to restrict the limits of the premises to those which were conveyed in such former deed. Wheeler V. Randall, 6 Met. (Mass.) 529. 198 Definition. ABOUT. Definition. First. Where the goods are identified by reference to independent circum- stances, e.g., all the goods deposited in a certain warehouse, or all that may- be manufactured by the vendor in a certain establishment, or to be shipped in certain vessels, and the quantity is named with the quaHfication of "about," or " more or less," or words of like import, the contract applies to the specific goods, and the naming of the quantity is not regarded as in the nature of a warranty, but only as an estimate of the probable amount, in reference to which good faith is all that is required of the party making it. Second. Where no such independent circumstances are referred to, and the engagement is to furnish goods to a certain amount, the quantity specified is material, and governs the contract. The addition of the qualifying words, in such cases, only provides against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure, or weight. Third. But the qualifying words may be supplemented by other stipula- tions or conditions, e.g., " as much as the seller shall manufacture or the buyer shall require," and they will then govern the contract.* A contract to convey "about sixty-five acres " cannot be performed by conveying thirtv-six acres. Baltimore, etc., See. v. Smith, 54 Md. 187, 39 Am. Rep. 374. The court said: " The force of the qualifying word, we think, is simply that while the par- ties do not bind themselves to the precise quantity of sixty-five acres, it imports that the actual quantity is a near approximation to that mentioned; that is to say, within a frac- tion of an acre, or perhaps it might cover a discrepancy of one or two acres." In Bodley v. Taylor, 5 Cranch (U. S.) 224, Marshall, C.J., says that where an entry upon public lands is to begin at a designated point about seven miles from another well- known place, and when the former cannot be found, about seven miles may be taken to mean seven miles. So in Johnson v. Pannel, 2 Wheat. (U. S.) 206, it was held that, in ascer- taining a place to be found by its distance from another place, the vague words about, "nearly," or the like, are to be rejected if there are no other words rendering it neces- sary to retain them, and the distance mentioned is to be taken positively. Where an entry calls for land on a certain creek ' ' about seven miles " from its mouth, the word about must be rejected and the distance taken in a straight line. Sanders v. Morrison, 2 T. B. Mon. (Ky.) 109. See also Shipp v. Miller, 2 Wheat. (U. S.) 316; Cutts v. King, 5 Me. 482. " If in a contract in writing to sell land the tract is described as containing 'about one hundred and forty acres,' the import of the qualifying word about is simply that the actual quantity is a near approximation to that mentioned. When there is found to be a material and variable variation, a court of equity, upon a petition for specific perform- ance, will give the word its proper effect. In this case the county surveyor, upon actual measurement, found one hundred and thirty- four and seventy-four hundredths acres in the tract. It was of the value of about fifty- five dollars per acre." Stevens v. McKnight, 40 Ohio St. 341. ' In stating also'the number of acres con- veyed, it is usual to represent it as about so many; yet the word about, although it negatives the conclusion that entire precision is intended, is without any legal operation whatever. In these cases it is properly'used, and carries with it a meaning readily under- stood, as do many other words which do not vary, in legal construction, the extent of the premises conveyed. If this word, then, when pi-operly used, is without legal effect, I cannot consider it as having any influence in this deed, where, no fixed terminating point being stated, it appears to be used improperly, and without definite meaning." Purinton v. Sedgley, 4 Me. 286. In Bellknap v. Sealey, 14 N. Y. 147, 67 Am. Dec. 120, the contract was to convey a parcel containing about nine acres of land. Upon survey the parcel contained but four and a fraction acres. This was held to be a mate- rial misrepresentation. 1. Executory Contract of Sale — Contracts to Fur- nish "About So Much." — Brawley v. United States, 96 U. S. 168; approved in Benjamin on Sales, § 691. (See also the titles Sales; More or Less.) It is well settled that while the term abouta certain amount is not precise, it does, nevertheless, indicate an approxima tion in quantity. Sample v. Upton, 74 Mich. 416; Renter v. Sala, 4 C. P. Div. 239; Salmon V. Boykin, 66 Md. 541. About, in this sense, means not far from. Indianapolis Cabinet Co. V. Herrmann, 7 Ind. App. 467. A contract which called for the delivery of "about five hundred tons nitrate of soda" was construed to be a contract for the sale of five hundred tons, with such exception covered by the word about as the variance usually found to exist in such cases, arising from some little difference in the mode of weighing, might require; and it was held to be not performed by delivering four hundred tons. Bourne v. Seymour, 16 C. B. 336. The plaintiffs agreed to purchase of the defendants " a6o«« 300 quarters, more or less," of rye. The ship brought three hundred and fifty quarters, and the defendants refused to deliver any part unless the plaintiffs would ac- cept the whole. It was held that by the words about and "more or less" the parties could not be taken to have contemplated so large ^99 Definition. ABOVE. Definition, ABOVE.- see note.* -For the construction of this word as used in corporate charters, an excess as fifty over three hundred quar- ters. Cross V. Eglin, 2 B. & Ad. 106, 22 E. C. L. 35. See Brawley w. U. S., 96 U. S. 168. Where there was a contract to furnish ahout one thousand tons of iron, an offer of four hundred tons was held not a sufficient performance. Norrington v. Wright, 115 U. S. 188. In an agreement to sell "a cargo of old railroad iron , to be shipped per barque Charles William, ^' * * at thirty dollars per ton, de- livered on the wharf, * * * dangers of the seas" excepted — about 300 or 350 tons," the figures "about 300 or 350 tons" are lin- doubtedly to be taken as part of the con- tract; but taken with the context, they mani- festly express an estimate only, and do not control the descriptive clause designating and limiting the subject of the contract. And accordingly it was held that the delivery at port of discharge of as much as a vessel sea- worthy and in good order could carry, though only two hundred and twenty-seven tons, was a compliance. Pembroke Iron Co. v. Parsons, 5 Gray (Mass.) 589. But the term strongly indicates that no warranty of quan- tity was intended. The plaintiffs having been informed by S., a commission agent, that the defendants had a quantity of old iron in their yard for sale, "ahout 150 tons," wrote to the defend- ants: " We are buyers of good wrought scrap- iron free of light and burnt iron, for our American house, and understand from S. that you have for sale" about 150 tons. We can offer you ios. per ton." There were three intermediate letters relating to the place of delivery and expense of carting, and then the defendants wrote: "We accept your offers for old iron, viz., 8oj. per ton, we de- livering alongside vessel in one of the Lon- don docks. Please let us know when you can send a man here to see it weighed, and also inform us where to send it." Before S. saw the plaintiffs he had seen in the yard of the defendants, who were builders, a heap of iron, and said: " You seem to have about 150 tons there." The reply was, " Yes, or more." The defendants delivered only forty-four tons, that being the quantity of the heap in the yard. The plaintiffs recovered fifty pounds damages in an action for short de- livery. It was held that the words "about 150 tons" were merely words of estimate and expectation, and there was no warranty as to quantity, and therefore the defendants were not bound to deliver one hundred and fifty tons; that the subject matter of the contract was not one hundred and fifty tons of iron, but the iron which S. had seen in the de- fendant's yard. McLay v. Perry, 44 L. T., N. S. 152. The plaintiffs, by written contract, sold to defendants a quantity of linseed oil, " to ar- rive per ship Marcia from London, sailed on or about the 15th of March ult." It was held that the statement in the contract as to the time of sailing was a mere representation and not a warranty, and, being made without fraud, that the defendants were bound to accept and pay for the oil, although the ves- sel did not sail until the 26th of March. Hawes v. Lawrence, 4 N. Y. 345. In McConnel v. Murphy, L. R. 5 P. C. 203, where the sale was of " all of the spars manufactured by A., say about 5oo, averaging 16 inches, the above spars will be out of the lot manufactured by J. B.," the court held that a tender of four hundred and ninety-six spars, which were all of the specified lot that averaged six- teen inches, was a substantial performance of the contract by the vendor. These words, " say about 600," were held to be words of expectation and estimate only, not amount- ing to an understanding that the quantity should be six hundred. The case of Gwillim V. Daniell, 2 C. M. & R. 61, 5 Tyr. 644, was approved and followed; and the effect of the word "say," when prefixed to the word about, was considered as emphatically mark- ing the vendor's purpose to guard him- self against being supposed to have made any absolute promise as to quantity. See, further, Leeming v. Snaith, 16 Q. B. 275; Barker v. Windle, 6 El. & Bl. 675; Hayward V. Scougall, 2 Campb. 56. In Moore v. Campbell, 10 Exch. 323, 23 L. J. Exch. 310, the sale was of fifty tons of hemp, and the vendor offered the buyer two delivery orders from a warehouse for about thirty tons and about twenty tons, respectively, which the buyer declined unless the vendor would guarantee that the whole quantity amounted to fifty tons. The vendor refused, and on the trial offered evidence that it was the usage of trade in Liverpool, where the contract was made, to insert the word about in delivery orders of goods warehoused. It was held that, if this evidence had been offered in ref- erence to the purchase of fifty tons of goods contracted to be sold and delivered simply, the evidence would be inadmissible; but if the contract was to sell and deliver goods in a warehouse, and there was a known usage of the place that warehousemen would not ac- cept delivery orders in any other form, by reason of objecting to make themselves re- sponsible for any particular quantity, the delivery warrants made in that form would, if tendered, be a sufficient compliance with the vendor's duty under the contract. 1. Above and Below. — In McLeod v. Bur- roughs, 9 Ga. 213, where a charter declared " that it shall not be lawful for any person or persons at any time or times to build any bridge or keep any ferry on the river Great Ogeechee within five miles either above or below " another bridge on the same stream, it was held that the distance of five miles was to be measured on the course of the river. The court said: "Having first spoken of a bridge or ferry on the river, the natural mean- ing of above and 'below' would seem to be above and below in the course of that river; otherwise the meaning of those words is indefi- Definitions. ABRIDGE— ABSCONDING DEBTOR. Definitians. ABRIDGE. — To abridge means to epitomize, to reduce, to contract.* ASROAD. — As to when the term " abroad " is used as equivalent to the expression " beyond the sea," see the title BEYOND THE Seas.* ABSCOND— ABSCONDING DEBTOR. (See also the titles ATTACHMENT ; Arrest.) — To abscond, in a legal sense, means to hide, conceal, or absent one's self clandestinely, with the intent to avoid legal process.* nite. If above and below be not on the line of the river, where is above, and where below ? The ordinary meaning of these words, used in such connection, is not that of location — it cannot be here, because, in other words in this section, the location of the prohibited bridge and ferry is fixed— but that of course or direction." Restriction on Loans by Savings Bank. — In Williams v. McDonald, 42 N. J. Eq. 395, the court said: " The words of the restriction are awkwardly expressed, but mean at least double the amount of the sum invested and double all encumbrances. The word above signifies excess, and the word ' double ' qualifies this excess, so that it may read double the investment and double the en- cumbrances. This is an ordinary and ap- proved estimate of real estate as security for loans." This case was approved in Williams V. McKay, 46 N. J. Eq. 25. 1. Story V. Holcombe, 4 McLean (U. S.) 310. This was a case of copyright, in which the court held that a fair abridgment, though injuring the sale of the original work, was not an infringement. See the title Copy- right. Abridgment. — To constitute a true and proper abridgment of a work, the whole must be preserved in its sense: and then the act of abridgment is an act of understanding, employed in carrying a larger work into a smaller compass, and rendering it less ex- pensive, and more convenient both to the time and use of the reader. Strahan v. Newberry, Lofft's Rep. 775. Abridgment Distinguished from Compilation. — In Story v. Holcombe, 4 McLean (U. S.) 314, cited above in this note, the court makes a distinction between compilation and abridg- ment, saying : ' ' Between a compilation and an abridgment there is a clear distinction; and yet it does not seem to have been drawn in any opinion cited. A compilation consists of selected extracts from different authors; an abridgment is a condensation of the views of the author. The former cannot be extended so as to convey the same knowledge as the original work: the latter contains an epitome of the work abridged, and consequently con- veys substantially the same knowledge. The former cannot adopt the arrangement of the works cited; the latter must adopt the ar- rangement of the work abridged. The for- mer infringes the copyright, if matter tran- scribed, when published, shall impair the value of the original book: a. iaii abridgment, though it may injure the original, is law- ful." 2. Naval Officers — Mileage. — The United States statute allows a certain mileage to officers for traveling expenses when under orders, but allows only expenses when travel- ing abroad. It was held that an officer travel- ing from San Francisco to New York by way of Panama was entitled to mileage. The court said: "We think the Court of Claims was correct in its conclusion that the question whether travel is abroad ox within the United States should be determined by the termini of the journey rather than by the route actually taken. Instances are frequent where an officer ordered from one place to another within the United States is obliged to perform the whole or a substantial part of his journey either upon the high seas or upon foreign soil. If, for example, he were ordered from Buffalo to Detroit, or from New York to Galveston by sea, it would be sticking in the bark to speak of either as ' travel abroad,' because in one case the most direct route lies through Canada, and in the other the voyage is made upon the high seas. While the voyage in question was not literally ' in the United States,' it was such within the intent and spirit of the enactment. An officer is to be understood as traveling abroad when he goes to a foreign port or place under orders to proceed to that place, or from one foreign port to another, or from a foreign port to a home port. But where he is ordered to pro- ceed from one place in the United States to another, and the government for its own purpose requires him to proceed by sea rather than by land, he ought not thereby to be disentitled. to his mileage by the nearest traveled route." Lewis v. Monson, 151 U. s. 545. 3. Attachment.— Gandy v. Jolly, 34 Neb. 536, quoting with approval I Am. AND Eng. Encyc. of Law (ist ed.), p. 34. The court in this case holds also that it is not necessary to depart from the state. It may not be known for some time whether the debtor has left the state or not. So in Stouffer v. Niple, 40 Md. 477, it is held that if one secretly removes from his usual place of residence, with the intention to evade the payment of his just debts, or to injure or defraud his creditors, he will be regarded as having absconded, although he may not have left the state, and he may be proceeded against, under the law of attachment, as an abscond- ing debtor. See also Field v. Adreon, 7 Md. 213. If a person depart from his usual resi- dence, or remain absent therefrom, or con- ceal himself in his house so that he cannot be served with process, with intent un- lawfully to delay or defraud his creditors, he is an absconding debtor. But if he depart from the state or from his usual abode with the intention of returning, and without any fraudulent design, he has not ab- sconded or absented himself within the in- tendment of the law. Where a debtor de- Definition, ABSCOND— ABSCONDING DEBTOR. Definition, parts from one town and goes to another in the same state, where he works openly for over three months, he does not abscond, though his whereabouts are unknown to his friends in the first mentioned town. The question of withdrawal with the view to elude process is one for the jury. Fitch v. Waite, 5 Conn. 117. Where the statute provides for the case of a debtor absconding, an attachment stating that he is about to abscond does not allege sufficient cause for the issuance of the writ. To abscond in a legal sense means to hide, con- ceal, or absent one's self clandestinely, with the intent to avoid legal process. Bennett w. Avant, 2 Sneed (Tenn.) 152. The word abscond imports that the par- ties did reside within the district and had re- moved themselves privately and fraudulently. Dunlop V. Harris, 5 Call (Va.) 47. A certificate of a magistrate that a debtor is not about to i. 2, As Modified by Statute, 263. VI. Accessory Before the Fact, 264. 1. Generally, 264. 2. Intent, 264. 3. Relation between Crime and Incitement, 265. VII. Accessory After the Fact, 266. 1. Generally, 266. 2. The Felony Complete, 266. 3. Accessory's Knowledge of Felony, 267. 4. Accessory's Act of Assistance, 267. 5. Harboring Wife or Kindred, 268. VIII. Accessory Guilty also in Another Capacity, 269. IX. Evidence, 269. X. Punishment, 270. XI. Jurisdiction, 271. XII. Extradition of Accessories, 271. CROSS-REFERENCES. As to the Indictment and Trial, see i Encyclopedia of Pleading and Practice p. 66. For matters related to the subject ACCESSORY, see the following titles in the ENCYCLOPEDIA OF Law: ACCOMPLICE ; AIDER AND ABETTOR; CRIMINAL LAW; and the titles where 'particular crimes are treated. I. Definitions — Accessory Generally, — An accessory is one who is not the chief actor in a felonious offense, nor present at its performance, but is in some way concerned therein, either before or after the act committed. ^ 1. 4 Bl. Com. 34; U. S. V. Hartwell, 3 Cliff. These definitions embody the common-law (U. S.) 227; Able V. Com., 5 Bush (Ky.) 6g8; conception of an accessory. Statutory defini- Connaughty u. State, i Wis. 171, 60 Am. Dec. tions have substantially changed the meaning 370. of the term in several states. Thus, .in the II- An accessory is "one who participates in /z'km'j Criminal Code the term is so defined as to a felony too remotely to be deemed a princi- include principals in the second degree, i Starr pal." I Bishop New Crim. Law, § 663. & Curtis's Illinois Annot. Stats. 828, *{ 331. I C. of L.— 17. 257 Accessory Distinguished ACCESSORY. from Principal. Accessory Before the Fact. — An accessory before the fact is one who, being absent at the time the crime is committed, yet procures, counsels, or commands another to commit it.* Accessory After the Fact. — An accessory after the fact is one who, knowing the felony to have been committed, receives, relieves, comforts, or assists the felon.* II. AccESSOEY Distinguished from Peihcipal '— 1. Constructive Presence.— It results from the definitions that absence from the scene of the crime is neces- sary to constitute an accessory either before or after the fact.* The most ancient authorities of the law recognized a third species of accessories, namely, accessories at the fact. These, however, were at an early period distinguished as principals in the second degree, or aiders and abettors. To bring one within this class, his presence at the commission of the felony is necessary ; but it is held a presence, in construction of law, if he is near enough to render assistance to the main design should the need arise.** Thus, constructive presence may be actual absence. But in all cases the accused is an accessory merely, if he is too far from the scene of the crime to render assistance if the occasion should arise.* 1. I Hale p. C. 615; U. S. v. Hartwell, 3 Cliff. (U. S.) 227; Griffith v. State, 90 Ala. 583; Hately v. State, 15 Ga. 346; People v. Katz, 23 How. Pr. (N. Y. Supreme Ct.) 93; State v. Ricker, 29 Me. 86; State v. Sims, 2 Bailey (S. Car.) 31; Com. v. Smith, 11 Allen (Mass.) 256; Able V. Com., 5 Bush (Ky.) 698; State v. Cas- sady, 12 Kan. 550; State v. Maxent, 10 La. Ann. 743; Myer v. State, 42 Miss. 642. Mr. Bishop's definition, quoted in Spear v. Hiles, 67 Wis. 361, is "a person whose will contributes to a felony committed by another as principal, while he himself is too far away to aid in the felonious act." i Bishop New Crim. Law, § 673. Accessories before the fact are termed accom- plices in the Penal Code of Texas. Cook v. State, 14 Tex. App. loi; Ogle v. State, 16 Tex. App. 361. 2. I Hale P. C. 618; 4 Bl. Com. 37; U. S. v. Hartwell, 3 Cliff. (U. S.) 227; State v. Davis, 14 R. I. 283; Loyd V. State. 42 Ga. 221; Wren ■u. Com., 26 Gratt. (Va.) 952; Tully v. Com., II Bush (Ky.) 154; State v. Cassady, 12 Kan. 423; Harris v. State, 7 Lea (Tenn.) 124; War- den V. State, 24 Ohio St. 146. 3. Principal and Accessory Before the Fact Dis- tinguished. — In State v. Poynier, 36 La. Ann. 572, Manning, J., observed: " The distinction between principals and accessories before the fact is in most cases a distinction without a difference, and often requires nice and subtile verbal refinements to express it. In some of our states it has been abolished by statute^in others, judicial decisions have attenuated it until it is perceptible only by a close mental effort. The fact is, it is not a creature of stat- utory law, but wholly of judicial construction, the origin of which is so vague and indetermi- nate that the text-writers have not found out where to place it. It is supposed to have orig- inated at a time when criminal lawyers puzzled their wits and taxed their ingenuity to invent metaphysical shades of distinction, such for in- stance as that between principals and accesso- ries at the fact, which once existed but is now exploded. The distinction between principals and accesscries before the fact is fast follow- ing its kindred technical refinement." 4. Absence Necessaryto Constitute an Accessory. — If the party were present when the offense was committed, he is not an accessory. Rexw. Gordon, i Leach C. C. 515; i East P. C. 352; Rex V. Butteris, 6 C. & P. 147. See Reg. v. Brown, 14 Cox C. C. 144; Able v. Com., 5 Bush (Ky.)698; Hately v. State, 15 Ga. 346; Dugger V. State, 27 Tex. App. 95; U. S. v. Hartwell, 3 Cliff. (U. S.) 221; State v. Farr, 33 Iowa 561; 4 Bl. Com. 35. See also remarks of Shope, J., in Usselton v. People, 149 111. 612. How Uodified by some of the Criminal Codes.— But it is otherwise under the peculiar defini- tion of the criminal codes of some of the states: " An accessory is he who stands by, and aids, abets or assists, or who, not being present, aid- ing, abetting or assisting, hath advised, en- couraged, aided or abetted the perpetration of the crime." i Starr & Cur. Illinois Annot. Stats. 828, § 331; Usselton v. People, 149 111. 612. So in Nevada, see State w. Hamilton, 13 Nev. 386. See also statutes of California. See also infra this title, Dependence of Accessory on Principal — As Modified by Statute. 5. See the title Aider AND Abettor; see also I Russell's Crim. L. 49. 6. I Hawk P. C. c. 29, §16; State z/. Poynier, 36 La. Ann.- 577; State v. Hamilton, 13 Nev. 386; Reg. V. Tuckwell, Car. & M. 215; Wixson V. People, 5 Park. Cr. Rep. (N. Y.) 119; Rex v. Scares, R. & R. C. C. 25; Rex ■v. Manners, 7C. & P. 801; True V. Com., 90 Ky. 651; Com. i'. Knapp, 9 Pick. (Mass.) 496; 20 Am. Dec. 491; State ' w. Wisdom, 8 Port. (Ala.) 511; Rex v. Kelly, R. & R. C. C. 421. "The last cited case," says Sir James Stephen, Dig. Crim. L. art. 37, note, " perhaps marks the line between a principal in the second degree and an acces- sory. In that case B. stole horses and brought them to A., who was waiting half a mile off; A. and B. then rode away on them. It was held that A. was an accessory before the fact." " Although an act be committed in pursuance of a previously concerted plan between the parties, those who are not present, or so near as to be able to afford aid and assistance at the time when the offense is committed, are not principals." 'Per Goldihwaite, J., in State v. Wisdom, 8 Port. (Ala.) 511, citing Rex v. Soares, R. & R. 25; Rex V. Davis, R. & R. 113; Arch- bold's Crim. L. 40. ^S8 Accessory Distinguislied ACCESSOEY. from Principal. 2. Actors in a Common Criminal Design. — The principle that, ?-jiry.— Lippincott v. Stokes, 6 N. J. Eq. 122. North Carolina. — Harrisons. Battle, I Dev. & B. Eq. (N. Car.) 215. 2. Harding v. Glyn, i Atk. 469; Brown v. Higgs, 8 Ves. Jr. 561; Gibbs v. Marsh, 2 Met. (Mass.) 243. See also the cases cited in the note immediately preceding. And see, gen- erally, the title Powers. Mr. Greenleaf, in his addition to ch. 18, tit. 32, vol. 4, of Cruise's Digest, says: "When the power is in the nature of a trust, which it is the duty of the donee to execute, he is considered by a court of equity as a trustee for the exercise of it; and it will not permit his negligence, accident or other circumstances, to disappoint the interests of those for whose benefit he is called upon to execute." 3. See the cases cited throughout this sec- tion. 4. Toilet V. Toilet, 2 P. Wms. 489; Morse V. Martin, 34 Beav. 500; American, etc., Mortgage Co. v. Walker, 31 Fed. Rep. 103; Freeman v. Eacho, 79 Va. 43. See also the title Powers. 6. American, etc., Mortgage Co. v. Walker, 31 Fed. Rep. 103; i Story Eq. Jur. (13th ed.), p. lOI. 6. Purchasers. — Fothergill v. Fothergill, Freem. Ch. 257; Sergeson v. Sealey, 2 Atk. 214; Wade V. Paget, i Bro. C. C. 363; Jackson V. Jackson, 4 Bro. C. C. 462; Schenck v. En- glewood, 3 Edw. (N. Y.) 175; Beatty v. Clark, 2oCal. 11; Thorp v. McCullum,6 111. 615. And purchasers will be held to embrace lessees. Doe w. Weller, 7 T. R. 478; Shannon V. Bradstreet, i S. & L. 52. 7. Creditors.— Wilkes v. Holmes, g Mod. 485; Thompson v. Towne, 2 Vern. 319; Flem- ing V. Buchanan, 3 De G., M. & G. 976; Mayer v. McCune, 59 How. Pr. (N. Y. C. PI.) 78; Porter v. Turner, 3 S. & R. (Pa.) 108. 8. Wives and Legitimate Children. — Hervey v. Hervey, i Atk. 567; Kettle v. Townsend, i Salk. 187; Toilet v. Toilet, 2 P. Wms. 489; Affleck V. Affleck, 3 Sm. & Giff. 394; Proby V. Landor, 28 Beav. 504; Dennison v. Goeh- ring, 7 Pa. St. 175, 47 Am. Dec. 305. 9. Charities.— Atty. -Gen. v. Tancred, i Eden 14; Innes v. Sayer, 7 Hare 377, affirmed on appeal, 3 M. & G. 606; Pepper's Will, i Pars. Eq. Cas. (Pa.) 436. 10-. Husbands. — Watt i/.Watt, 3 Ves. Jr.244; Hughes V. Wells, 9 Hare 749. 11. Illegitimate Children. — Tudor ».Anson,2 Ves. 582. 12. Bemote Eolations. — Goodwyn v. Good- wyn, I Ves. 228; Goring v. Nash, 3 Atk. 189; Strode v. Russel, 2 Vern. 621; Tudor v. An- son, 2 Ves. 5B2. 13. Strangers.— Smith v. Ashton, 2 Freem. 309; Sergeson v. Sealey, 2 Atk. 415. 14. Donee of the Power.— Ellison v. Ellison, 6 Ves. Jr. 656. 15. Darlington v. Pulteney, Cowp. 267; Mc- In What Cases ACCIDENT {IN EQUITY). Equity will not Interpose. 4. Confusion of Boundaries. — Another instance of the exercise of the equitable jurisdiction, partly referable to the occasion of accident, is where confusion .exists relative to the boundaries between adjoining estates.* And in case of a rent charge where, on account of such confusion, the remedy by distress therefor is defeated, equity will grant relief.** 5. Lost Instruments. — One of the most familiar instances of equitable inter- ference on the ground of accident is where bonds or other instruments giving legal rights have been lost.* As this subject will be treated exhaustively else- where in this work, further reference here is unnecessary.* 6. Other Instances. — There are certain other cases in which this extraordinary jurisdiction will be exercised, and which are referable to the occasion of accident. Administration of Estates— Deficiency of Assets. — If an executor or administrator pays debts, legacies, or distributive shares upon the supposition that the assets are adequate to meet all demands, and it turns out that they are inadequate, he may obtain relief in equity, as otherwise he would innocently suffer from what the law regards as an accident.' Bills and Notes— Accidental Omission of Indorsement. — Where, upon the transfer of a bill of exchange or promissory note, an indorsement thereof is intended, but is accidentally omitted, the transferror, or, in the event of his death, his executor or administrator, may be compelled in equity to make the indorsement.* Failure of Contract of Apprenticeship — Bankruptcy of Master. — Where a minor is bound out as apprentice, and a large premium is paid to the master, who becomes bankrupt in the course of the apprenticeship, equity will interpose and appor- tion the premium, upon the ground of the failure of the contract by reason of accident.'^ Annuity Secured by Public Stock— Reduction of Latter by statute. — Where an annuity is directed by a will to be secured by pubhc stock, and an investment therein is made, sufficient at the time, but subsequently rendered insufficient by an act of parliament in reference to the stock, equity will decree the deficiency to be made up by the residuary legatees, on the ground of accident.^ IV. In What Cases Equity will not Interpose— 1. General Principles— Equal Equities. — Relief from the consequences of accident is never given when the party against whom it is asked has an equity equal to or greater than that of the party seeking it.' Negligence. — And the same is true when the accident is the result of the negligence or fault of the party invoking the aid of the court.** Bryde w. Wilkinson, 29 Ala. 662; Smith w. 6. Watkins v. Maule, 2 J. & W. 243. See Bowes, 38 Md. 463. also the title Reformation of Instruments. 1. Wetherbee w. Dunn, 36 Cal. 255; Beatty 7. Hale v. Webb, 2 Bro. Ch. 78, I Story V. Dixon, 56 Cal. 6ig. See also the title Eq. Jur. (13th ed.), p. gg. See, generally, Boundaries. the titles Apprentice; Contracts. 2. Leeds v. Powell, i Ves. 171. See also 8. Davies v. Wattier, 1 Sim. & Stu. 463; the title Boundaries. ' May v. Bennett, i Russ. 370; i Story Eq. Jur. 3. See East India Co. v. Boddam, 9 Ves. (13th ed.) 100. See, generally, the title Jr. 466; Kemp v. Pryor, 7 Ves. Jr. 237; Annuities. Bsomley v. Holland, 7 Ves. jr. ig; Atkinson 9. t Fonblanque's Eq., bk. I, c. 4, § 25, V. Leonard, 3 Bro. C. C. 218; Bohart v. and notes; 2 Fonblanque's Eq., bk. 2, c. 5, Chamberlain, 99 Mo. 622; Hickman v. Paint- § 2, and notes. And see Maiden v. Merrill, er, II W. Va. 386. 2 Atk. 8. When a Bond is Burnt or Cancelled by acci- Bona Fide Purchasers. — It is a general rule dent there is an appropriate case for equi- that courts of equity will not interfere to table relief. Skip v. Huey, 3 Atk. 93. grant relief against a bona fide -^VurzV&itt for 4. See the title Lost Papers. a valuable consideration, without notice, on 5. Edwards ■,o, 2. Presumptions, 331. 3. Establishing a Proviso Limiting the Insurer's Liability, 332. IX. Amount of Recoveey, 332. CROSS-REFERENCES. For matters of PROCEDURE, see the title INSURANCE, ENCYCLOPAEDIA OF PLEADING AND Practice. As to -provisions against intoxicants, see the title ALCOHOLISM, INTEMPERANCE, AND NARCOTICS {IN INSURANCE). As to rights, etc., of beneficiaries, see the title BENEFICIARIES (IN INSURANCE). For other matters of SUBSTANTIVE Law and Evidence related to this subject see the following titles : ARBITRATION AND AWARD ; BENEVOLENT OR BENE- FICIAL ASSOCIATIONS ; BY-LA WS ; EMPLOYERS' LIABILITY INSUR- ANCE; INSURANCE: LIFE INSURANCE. And for other kinds of insurance, see ABANDONMENT AND TOTAL LOSS {IN MARINE INSURANCE); BOILER INSURANCE; CREDIT INSURANCE; CYCLONE INSURANCE ; DEVIATION (IN MARINE INSURANCE); ELE- VATOR INSURANCE; ENDOWMENT INSURANCE; FIDELITY INSUR- . ANCE; FIRE INSURANCE; HAIL INSURANCE; LIGHTNING INSUR- ANCE; LLOYDS' ASSOCIATIONS ; LIVE-STOCK INSURANCE; MARINE INSURANCE; OVER-INSURANCE ; PLATE-GLASS INSURANCE; REIN- SURANCE; RENT INSURANCE; TITLE INSURANCE; TONTINE IN- SURANCE. I. Definition. — Accident Insurance is an insurance against personal injury, or loss of life, by accident, and, though applied to a particular class of risks, depends upon essentially the same principles as other kinds of insurance. The value of the interest insured is not capable of exact determination after loss, as in the case of fire and marine insurance, but it may be fixed by the parties within such limits as will not make it a wager policy.* Distinguished from Casualty Insurance. — The distinguishing feature of accident in- surance is that it indemnifies against the effects of accidents resulting in bodily injury or death. Its field is not to insure against loss or damage to property although occasioned by accident. So far as the latter class of insurance has been developed, it has been with reference to boilers, plate-glass, and perhaps to domestic animals, and injuries to property by street-cars, and is popularly, known as Casualty Insurance.* Field of Accident Insurance Extended. — Accident insurance was originally confined to accidents to the person of the insured, but it has lately been extended to cover contracts of indemnity of the assured against losses by injuries to per- sons in whom he has an insurable interest, because legally liable for the con- sequences of the accident.' 1. May on Insurance (3d ed.), §§ 7, 535. or as landlord or tenant for such injuries 2. See the titles Boiler Insurance; Plate- to persons other than employees or persons GLASS Insurance; and the other kinds of injured by elevators, or as a builder or con- Casualty Insurance. tractor for such injuries to workmen em- 3. Employers' Liability Assur. Corp. v. ployed by other contractors, and to the Merrill, 155 Mass. 404. Here it was held public, caused by the assured and his own that policies of insurance to indemnify the workmen, but not caused by a subccntrac- assured, as owner of a horse, vehicle, or tor or his workmen, all .cover legitimate elevator causing accidental personal in- varieties of accident insurance, and may law- juries for which he may be legally liable, fully be issued by a foreign insurance com- against claims for compensation therefor, pany licensed to issue accident policies and 285 The Application. ACCIDENT INSURANCE. The Application. . II. The AppIICATION — Policy Referring to Application.— Where the policy pro- vides that " in consideration of the statement of facts warranted to be true in the application for this policy, and of the payment " of certain sums, the company " hereby insures," etc., the application so referred to in the policy constitutes a part of the contract of insurance.^ And in such case there can be no recovery if the statements in the application are not true.* And this, regardless of whether the statements were or were not material to the risk, since the agreement of the parties is conclusive and the question of materiality is no longer an open one.^ Application not Made Part of the Contract. — But where the application is not made a part of the contract and the policy contains no warranty of the truth of the statements in the application, both the materiality and the truth of the state- ments of the assured in applying for the policy are to be determined by the jury ; and in an action on the policy a recovery may not be defeated unless such statements, or some of them, are found to be both material and untrue.* Statements Expressing the Applicant's Understanding of the Effect of the Insurance. — State- ments in the application expressing the applicant's understanding of what will be the effect of the insurance cannot control the legal construction of the policy subsequently issued and accepted, notwithstanding the application war- rants the facts stated therein to be true, and the policy is expressed to be made " in consideration of the warranties made in the application." " Policy Differing from Application. — Where the policy as delivered contains provi- sions not in the application, and which are not accepted by the applicant, they may be treated as waived by the company, and constituting no part of the in- surance contract.* General Eule of Construction. — The contract of insurance is construed liberally in favor of the insured, it being held, usually, that the failure of the applicant to mention a physical infirmity from which he had at a former period suffered, but from which he was at the time of the application free, so that it did not increase his liability to accidental injury, nor contribute in any respect to the injury in question, will not affect the policy.' employers' liability policies, or by any com- and operated himself, doing every part of pany organized under the Massachusetts In- the work alone which could be done by one sufance Act of 1887, c. 214, § 29, cl. 5; and man; that he tended his own boilers, ran the fact that a foreign insurance company his own engine, pumped his wells, " pulled " has issued such policies is not a cause for his wells, and made his own repairs, without the revocation of its license. See the title assistance except upon extraordinary occa- Employers' Liability Insurance. sions. It was held that the representations 1. Standard L., etc., Ins. Co. v. Martin, made by the insured were incorrect, and 133 Ind. 376. that the certificate was, for that reason, 2. Murphey v. American Mut. Ace. Assoc. void. (Wis., 1895), 62 N. W. Rep. 1057. 3. New York Fidelity, etc., Co. v. Alpert, In Cram v. Equitable Ace. Assoc, 58 Hun 67 Fed. Rep. 460. (N. Y.) II, the application was by the terms 4. New York Fidelity, etc., Co. v. Alpert, of the certificate subject to the condition 67 Fed. Rep. 460. " that all the statements and representations 5. Accident Ins. Co. v. Crandal, 120 U. S. contained in the application for this certifi- 527. cate are warranted to be correct and true in 6. Dailey v. Preferred Masonic Mut. Ace. all respects. And if this certificate * « * Assoc. (Mich., 1894), 60 N. W. Rep. 694, re- has been * * * obtained through misrepre- versing (Mich., 1894) 57 N. W. Rep. 184. In sentation * * * then the same shall be ab- this case it was held that where the applica- solutely null and void." The application tion contained no restriction as to entering for the certificate required an answer to the and leaving cars in motion, but the policy following question: " 4th. Occupation ? If excluded such risks, yet expressly made the more than one, name them all"; which was application a part of the contract, an action answered, " Oil producer; " and also to the might be maintained for an accident caused following question I "State the duties re- by such risks. quired of you under that occupation;" which 7. Standard L., etc., Ins. Co. v. Martin, was answered,. " Supervising only." The 133 Ind. 376. undisputed evidence was that the insured Statements as to Bodily or Uental Infirmity. had a small lease of oil lands upon which K-aanamic murmur, indicating no structural he had two or more wells which he managed defect of the heart, but caused by a tempo- 286 Payment of Fremiums. ACCIDENT INSURANCE. In Greneral. III. Payment of Peemitjms — 1. In General. — The same general rules in re- gard to the payment of premiums, giving notice as to same, etc., which govern other insurance, apply in the case of accident insurance.* Ordinarily the rary weakened condition of the body, is not within the meaning of the term " bodily or mental infirmity " in the application in which the applicant states his freedom from such infirmity. Manufacturers' Ace. Indemnity Co. V. Dorgan, 58 Fed. Rep. 945. Erysipelas. — In a suit on an accident policy where the petition alleged that the deceased died of erysipelas, resulting from an acci- dental laceration of the finger, an answer averring that in the contract of insurance the deceased had warranted " that he had never had, and had not then, any todily or mental infirmity, whereas in truth * * * said deceased had on various occasions prior thereto been afflicted with, and was then sub- ject to and infected with, erysipelas, * * * and that he eventually died of erysipelas," was held to be demurrable as failing to state a de- fense, because it did not show that erysipelas was an infirmity which increased the risk of death in the event of accident. Bernays v. U. S. Mutual Ace. Assoc, 45 Fed. Rep. 455. Nearsightedness. — In Gotten v. Fidelity, etc., Co., 41 Fed. Rep. 506, the application con- tained a warranty that the applicant did not have, neither was subject to, any bodily in- firmity. The evidence showed that he was nearsighted. This was held to be not a bodily infirmity within the meaning of the warranty. Fits. — The insured stated that he was not suffering from any disease which would re- tard recovery or be aggravated by personal injury; that he never had fits, disorders of the brain, or bodily or mental infirmity which would thereby render him liable to personal injuries. There was evidence that the de- ceased had been thrown from a horse, strik- ing his head, and had fits. There was also testimony by those who had known him for years, that he was strong and robust, and that they had never known of his having any ailment. It was held that the weight of the evidence was not in favor of misrepre- sentations as to his physical condition. Brink v. Guaranty Mut. Ace. Assoc. (Su- preme Ct.), 28 N. Y. St. Rep. 921. Former Insanity. — The defendant insured M. against accidents. M. had been a canvas- ser for the defendant, and the president had cautioned him not to insure insane persons. M. had been insane, but had been pronounced cured. He did not disclose this fact upon his application for insurance, but stated that there were no circumstances rendering him peculiarly liable to accident. It was held that the conversation with the president had no bearing upon the application, and that if the deceased did not conceal any facts which in his own mind were material in mak- ing the application the policy was not void. Mallory v. Travelers' Ins. Co., 47 N. Y. 52, 7 Am. Rep. 410. Statements as to Occupation. — The application stated that the insured was a " livery stable proprietor not working." It was shown that he employed men to do the work, but some- limes harnessed and drove the horses him- self. It was held that the statements suffi- ciently apprised the defendant of the char- acter of his duties, and that if anything more definite was required it was the defendant's duty to ascertain the facts by proper in- quiries. Brink v. Guaranty Mut. Aec. Assoc. (Supreme Ct.), 28 N. Y. St. Rep. 921. In Murphey v. American Mut. Ace. Assoc. (Wis., 1895), 62 N. W. Rep. 1057, the policy was conditioned upon the truthfulness of the representations in the application. On the issue as to whether the plaintiff at the time of the application was a carpenter, he testified that at the time of the application he was ''cutting cordwood," that afterward he was " framing timbers — framing|sets and caps." Several witnesses, without being contradicted, testified that he was not a carpenter. It was held that a finding of the jury that the plaintiff was a carpenter should be set aside as against the evidence. In Perrins v. Marine, etc., Ins. Soc, 2 El. & El. 317, 105 E. C. L. 316, the insured de- scribed himself as " A. B., Esq." He was, in fact, an ironmonger. It was held that the policy was not thereby avoided. This was upon the ground that the statement was sim- ply imperfect, and not untrue. Statement as to Other Insurance. — In Craig v. Imperial Union Ace. Assoc. Co., i Scot. L. T. R. 646, the insured being asked, " Have you ever been insured with other com- panies?" answered that he was insured in The Railway Passenger Co., but concealed the fact that he was also insured with The General Accident Corporation. There was no evidence that he acted fraudulently. It was held that the fact undisclosed had no bearing on the risk, and therefore did not affect the contract. Statement as to Marriage. — In Standard L., etc., Ins. Co. v. Martin, 133 Ind. 376, the facts in the application were warranted to be true, and the application contained the following: "Write policy payable, in case of death by accident under its provisions, to Mrs. Fred. Martin, whose relation to me is that of wife." The insured was a single man. The statement was held to be neither a warranty nor a material representation. But see Smith v. Baltimore, etc., R, Co. (Md. , 1895), 32 Atl. Rep. 181. Here the applica- tion provided that the truth of answers to questions should be a condition precedent to the payment of benefits, and that the benefi- ciaries whom the insured could name werelim- ited to wife and children if married, and father and mother if single. The deceased named as his beneficiary a person whom he falsely alleged to be his wife. It was held on de- murrer in an action by the child of a former wife of the deceased, who at the time of his taking the policy had been divorced, that there could be no recovery, on the ground that the applicant's misstatement defeated the right of anybody to recover. 1. See Simpson v. Accidental Death Ins. Co., 2 C. B. N. S. 257, 89 E. C. L. 256; also 287 Payment of Fremiums. ACCIDENT INSURANCE. In General. premiums are payable in instalments, and the policies provide that there shall be no recovery thereon for injuries which are received during any insurance period for which the premium has not been actually paid.* When Policy Takes Effect. — Where the application, expressly made a part of the policy, provides that the company shall not be liable for injuries occurring be- fore the "receipt and acceptance" of the application and fee, the insurance is not operative until acceptance, and the company is not estopped to den)'^ lia- bility for injuries received by the applicant prior thereto, by having received the application and retained the fee.* Inconsistency between Application and Policy. — But where the application states that the applicant will be entitled to no benefits " until after the receipt and accept- ance of this application and the membership fee and the amount of one assess- ment " by a designated officer, and the policy provides for the payment of a certain sum upon its delivery, and a further sum, but without specifying when the latter is payable, the policy takes effect upon the delivery thereof and the payment of the sum called for by the policy upon delivery.' Defanlt in Premium Falling Due after the Accident. — Where the policy provides for indemnity if the death of the insured occurs within ninety days after acci- dent, and from the effects thereof, and death does so occur within the time limited, the circumstance that before the death of the insured his policy ex- pired because of default in paying an assessment falling due after the acci- dent does not relieve the company from liability, since its liability attached immediately upon the occurrence of the injury.* Premium Sent by Mail, — -The question whether an assessment, claimed to have been remitted to the company by post, was in fact received by it prior to the injury of the assured, is one for the jury to determine.' received April 5th. Across the face of the application was written the following, " ac- cepted April 8th," which was the same date as the issuance of the policy. Insured died April I2th. The pleading of the plaintiff did not allege that it was accepted at any other date, but it was argumentatively stated that the application was received on April 5th and not rejected. It was held that this pleading Was not sufficient to overcome the effect of the written acceptance set out in the plea as a bar thereto, and the agree- ment on the part of the assured that the liability of the company should not extend to any injury prior to the date of such ac- ceptance. Oral Agreement for Present Insurance— Wiscon- sin. — Under R. S. Wisconsin, § 1979, an oral agreement for present insurance made by the agent of an accident insurance company is binding upon the latter, although the ap- plication signed by the person to be insured contained (unknown to the applicant) a pro- vision that the company should not be liable for any injury happening prior to the receipt and acceptance of the application and mem- bership fee by the secretary and general manager, and the policy subsequently issued bore date two days later than the oral agree- ment. Mathers v. Union Mut. Ace. Assoc, 78 Wis. 588. 3. Bushaw v. Women's Mut. Ins., etc., Co. (Supreme Ct.), 8 N. Y. Supp. 423. 4. Burkheiser v. Mutual Ace. Assoc, 61 Fed. Rep. 816. 5. National Masonic Ace Assoc, v. Burr (Neb., 1895), 62 N. W. Rep. 466. See also the title Presumptions. the title Insurance, and the various kinds of insurance under their specific titles. Notice. — Where, according to the certificate of membership in an association operating on the assessment plan, members were en- titled to one month, after notice of the as- sessment, to pay the same, and on the en- velope containing the certificate was indorsed " first assessment payable February ist," the failure to pay before that date an assess- ment made January 1st, and of which the member had received no notice, was held not to forfeit the certificate. Ball v. North West- ern Mut. Ace Assoc, 56 Minn. 414. Where the by-laws of a mutual benefit as- sociation provided for the forfeiture of mem- bership in the event of the failure of the member to pay any assessment " within thirty days from the date of the notice thereof," a notice which was mailed so as to reach the insured November 30th, and which demanded payment on or before December 28th, was held not sufficient to sustain a forfeiture. U. S. Mutual Ace Assoc, etc., v. Mueller, 151 111. 254. 1. Simpson v. Accidental Death Ins. Co., 2 C. B. N. S. 257, 8g E. C. L. 256. See infra, this title, Payment by Order on Wages. 2. "Receipt and Acceptance" of Application. — Coker v. Atlas Ace Ins. Co. (Tex. Civ. App., 1895), 31 S. W. Rep. 703. In this case it was expressly stated in the application that the company would not be liable for any bodily injury happening prior to the receipt and acceptance of the application and the membership fee by the general agent in Bos- ton. The application had been given to the agent in Texas April 2d. The injury was Payment of Fremiums. ACCIDENT INSURANCE. Waiver of Condition. 2. Payment by Order on Wages. — It is customary for companies insuring rail- way and other corporation employees to take orders from the insured on his employer to pay the premiums as they fall due, the amount of the same to be deducted from his wages. In such cases it is generally held that the insurer must notify the insured of the nonpayment of his order before he may insist upon the forfeiture of the policy.* A provision, in a policy issued to a railroad employee, that the insured shall leave in the hands of a designated ofificial of the road the instalments of premium as agreed in an order of the insured on such ofificial to retain the in- stalments out of his wages, is complied with by the insured leaving the instal- ments in the hands of the designated official without seeing that he turns them over to the company.* In one instance where the company failed to present the order for payment before the death of the insured, although several months had intervened, it was held estopped to set up the defense of nonpayment of the premium.^ 3. Waiver by Agent of Conditrion as to Payment. — The company may be bound by the waiver, on the part of its general agent, of the conditions of the policy as to payment of premiums.* 1. Eury V. Insurance Co., 89 Tenn. 427; Lyon V. Travelers' Ins. Co., 55 Mich. 141. In this latter case it was held that the pay- ment of premiums will be presumed to have been made out of a fund provided and as- signed for that purpose until notice of non- payment is given to the insured. Where the company waives a cash pay- ment of the premium and accepts in lieu thereof an order for the same, given by the insured on a third person, and gives a re- ceipt for the amount, it cannot defeat a re- covery on the policy and insist upon a for- feiture as for nonpayment of the premium without having given the insured notice of the nonpayment of the order. National Ben. Assoc. V. Jackson, 114 111. 533. The court here distinguishes the case from one where the insured gives his promissory note for the premium which he fails to pay.at matur- ity, and where the policy provides for for- feiture for nonpayment of the note. Payment of Premium by Order on Employer — No Wages Earned. — In Bane v. Travelers' Ins. Co., 85 Ky. 677, the company issued to the plaintiff an accident policy for one year from January loth. In payment of the premiums plaintiff gave an order on his employer for twenty dollars, payable in instalments of five dollars each, to be deducted from his wages for the months of January, February, March, and April. The drawee of the order did not accept it, but paid the January and February instalments. He did not pay those of the two months succeeding, the plaintiff not working during that time. On the first of May the plaintiff resumed work, and on the loth of the same month there was due him more than ten dollars; and on the 28th of the same month he met with the accident for which the action on the policy was brought. The company did not demand the balance of the order from the drawee, nor notify the plaintiff of its nonpayment, nor return or offer to return it, nor notify the plaintiff that the contract was at an end. The policy by its terms divided the twelve months into four periods, of two, two, I C. of L. — 19. three, and five months, respectively, and provided that each of the four instalments of the order should apply to the payment of the premium for a single period, and that np liability should be incurred by reason of an accident occurring within a period for which the instalment should not have been actual- ly paid. It was held that the action, under the circumstances, could not be maintained. To the same effect is McMahon ». Travelers' Ins. Co., 77 Iowa 229. 2. Fidelity, etc., Co. v. Johnson (Miss., 1895), 17 So. Rep. 2. 3. Cotten v. Fidelity, etc., Co., 41 Fed. Rep. 506. 4. Waiver by General Agent.— Standard Ace. Ins. Co. V. Friedenthal, i Colo. App. 5. In this case the person who delivered the policy having the apparent authority of a general agent, and therefore being such as to third persons, the insurer was held bound by his waiver as to the condition of payment of premiums. See also Mathers v. Union Mut. Arc. Assoc, 78 Wis. 588. Waiver by Soliciting and Collecting Agent. — In Kerlin I/. National Ace. Assoc. (Ind., 1893), 35 N. E. Rep. 39, it is held that an agent of an insurance company with authority to so- licit applications and collect premiums has authority to waive a provision in the policy calling for payment of premiums in quarterly instalments, and to accept payment of the whole annual premium in advance. Here the insured tendered the collection agent the full amount of his annual premium, and the agent accepted only a part thereof and prom- ised to pay the company the residue in satis- faction of a debt owing by him to the in- sured. It was held that the company was bound by the agent's waiver of the cash pay- ment, since the insured, who acted in entire good faith, had a right to rely on the agent's ' representation that the transaction consti- tuted payment in full of the premium. But in Cronkhite v. Accident Ins. Co. of North America, 35 Fed. Rep. 26, it is said that while authority to give credit and to change the terms of the policy belongs to 289 Payment of Premiums. ACCIDENT INSURANCE. Forfeiture for Nonpayment 4. Estoppel to Deny Payment — By language of Policy. — The company may be estopped by reason of the terms of the policy to deny that the premiums have been paid.* By Acknowledgment of Payment in Policy. — And it has been held, on grounds of public policy, that the company will be estopped to prove, for the purpose of avoiding the contract of insurance, that the premium, acknowledged in the policy to have been paid, was not in fact paid.* 5. Forfeiture for Nonpayment. — The clause providing for forfeiture for non- payment of premiums is inserted in the policy for the benefit of the insured and may be waived by him ; and courts will find a waiver upon slight evidence when the equity of the claim made is, under the contract, in favor of the insured.^ the general agent having power to complete the contract, it does not extend to a mere subagent or soliciting agent who is charged merely with the matter of collecting pre- miums or soliciting insurance. The facts in this case were as follows: A obtained an ac- cident policy, the general agent giving him until November ist, following, to pay the premium. At that date, in company with B, who was a soliciting agent for the company, and who had conducted the negotiations with A and was authorized to collect the premium, A went to the general agent's office to make the payment, but was informed by the per- son who had acted as general agent at the time of the issuance of the policy that he was no longer such agent, and that his successor was absent. Thereupon A and B went out, and the latter promised the former that he would return in the afternoon and himself pay the amount of the premium and look to him for reimbursement. He did call at the office several times during the afternoon, but was unable to find the general agent, so the premium was not paid. It was held, in an action on the policy, that A had not exercised sufficient diligence to avoid a forfeiture for nonpayment of the premium. , 1. When Insurer Estopped to Deny Payment as against the Beneficiary. — Kline v. National Ben. Assoc, iii Ind. 462, 60 Am. Rep. 703. In this case it was held that where both the policy of insurance, which provides that it is incontestable except on the ground of fraud, and the application state, the one by express words and the other by a clear im- plication, that the consideration has been paid, the insurer is estopped to deny payment as against the beneficiary, and the policy is enforcible by the latter, although part of the premium was not in fact paid, but in- stead orders were given therefor by the in- sured on his employer, who at his request refused to pay them, and notwithstanding the orders stipulated that if they were not paid the insured's right would be thereby for- feited. See also Wright v. Mutual Ben. L. Assoc, 43 Hun (N. Y.) 61; Wood v. Dwarris, II Exch. 493; Wheelton v. Hardisty, 8 El. & Bl.'232, 92 E. C. L. 231. S. Provident L. Ins. Co. v. Fennell, 49 111. 180; Teutonia L. Ins. Co. v. Anderson, 77 111. 386; Illinois Cent. Ins. Co. v. Wolf, 37 111. 354- Payment of Indemnity — Not Conclusive of Pay- ment of Premium. — In Melin v. Accident Ins. Co. of North America, 70 Wis. 579, the facts were these: A policy for one year was is- sued to a brakeman, who gave an order on the railroad company by which he was em- ployed, for the premiums, aggregating thirty dollars, payable in four equal instalments. The policy provided that in the event of any injury to the insured before the actual pay- ment of the first instalment, then the sum of all unpaid instalments called for by said order should be deducted from the amount due for such injury, and the order should thereupon be cancelled. Each instalment was to pay the premium for a definite insurance period, the periods being two, two, three, and five months, respectively. There was to be no liability by reason of any injury occurring in any insurance period for which the pre- mium had not been actually paid. Before the payment of the first instalment the in- sured was injured, and the company paid him $22.50 in cash and credited the first instal- ment of I7.50 as paid. Nothing was ever paid on the order of the railroad company. Just before the expiration of the year the insured was killed. In an action on the policy it was held that the cash payment to the insured on account of his injury, to which under the policy he was not entitled unless the instalments of premium had been paid, did not raise a conclusive presumption that all such instalments had in fact been paid. 3. Waiver of Forfeiture. — Lyon v. Travelers' Ins. Co., 55 Mich. 141. An insurance company will not be per- mitted to insist upon a forfeiture if by any agreement, either express or implied by the course of its conduct, it induces the insured honestly to believe that the premiums will be received after the appointed day. Sweet- ser V. Odd Fellows Mut. Aid Assoc, 117 Ind. 97; Painter v. Industrial L. Assoc, 131 Ind. 69. In Equitable Ace. Ins. Co. v. Van Etten, 40 111. App. 232, the policy was issued in consideration of promissory notes given by the appellee for the premium; and the policy was conditioned that it should be void if any such note due before the happening of the accident was not paid when due; the last of such notes (the others being then paid) was due and unpaid seven months before the ac- cident. The notes were on their face pay- able at the office of the company at Chicago. From the evidence it appeared that such notes were more frequently in fact paid by 290 ♦Jonaideration of the Terms ACCIDENT INSURANCE. of the Policy. IV. FoEM, Scope, and Genekal Nature or Policy. — The ordinary accident policy provides for an indemnity of a fixed sum per week in case of accidental injury, for twenty-six weeks, and a fixed sum in case of death within ninety ■days after the accident.* The more recent policies also provide for a fixed sum in case of loss of sight, hands, or feet, which was a provision formerly more generally inserted in English policies. Where an insurance company is authorized to insure against disabilities to persons by sickness or disease or other bodily infirmity it may issue general accident policies. One who loses a leg or arm, or is otherwise disabled, wheth- er temporarily or permanently, by external or violent means, is one suffering from an imperfection, and is to that extent disabled by a bodily infirmity.* As applied to liability insurance the policies cover injuries for which the insured may be responsible under the Employers' Liability Acts, generally called " Employers' Liability Policy," or injuries for which the insured may be legally liable either to employees or to the public' In the absence of a statutory provision requiring the contracts of insurance to be in writing they may be parol.* Accordingly the policy may be reformed so as to conform to the nature of the understanding between the parties where it does not express the contract between the parties as they understood it.' V. Consideration of the Terms of the Poiicy— 1. Accidents and Injuries "Usually Insured against— «. Accidental Injuries in General— Accident Defined. — ^An accident, according to the generally received meaning of the term, is de- fined as the happening of an event without the aid and design of a person, and which is unforeseen,* and in this sense the word is to be understood, in the ab- lieing sent to the places where the insured ■were employed, or elsewhere by casual meet- ings between agents of the company and the insured, and that the company, if the notes were not paid when due, still treated them and the policies as in force by sending notices to the assured, and also sending the notes in the hands of agents to collect them. The testimony of the appellee was that the agent of the company told him that he would collect at the place of business of the appel- lee, and that the other three notes for pre- miums on the policy were in fact so paid. The only part of this testimony disputed by the appellants was that, as to one of the three notes, it was paid by deduction from a former claim of the appellee. In fact the note in question was in the hands of an agent for collection probably before it was due. He ■did not present it, but laid it away and forgot it, and no notice was given to the appellee by anybody of anything calling his attention to the matter. It was held that under the cir- cumstances the appellant could not insist upon a forfeiture. 1. For a standard form of accident policy, see Richards on Insurance (2d ed.), p. 598, Appendix. See Dawson v. Accident Ins. Co., 38 Mo. -A-pp. 355, for a policy which insured as an accident indemnity policy simply, and provided no indemnity in case of instant death. 2. Miller v. American Mut. Ace. Ins. Co., ■92 Tenn. 167. 3. Employers' Liability Assur. Co. v. Mer- xill, 155 Mass. 404. 4. In Rhodes v. Railway Pass. Ins. Co., 5 Lans. (N. Y.) 71, the plaintiff met the de- fendant's agent in the street and gave him 50 cents premium for a day's insurance. The agent promised to make out the policy. It was held that the plaintiff could maintain an action on the contract after loss. 5. Frank v. Pacific Mut. L. Ins. Co. (Neb., 1895), 62 N. W. Rep. 454. In this case the defendant's agent issued a ticket to plaintiff stating verbally that one third.of the amount of the policy would be paid in case of the loss of a foot. The ticket did not contain this provision. It was held that the policy could be reformed to the agreement as mutually un- derstood. In Henderson v. Travelers' Ins. Co., 65 Fed. Rep. 438, the insured asked for a policy which would cover intentional injuries inflicted by another, and the policy was is- sued with the exception against liability for such injuries, and was reformed after loss. See infra, this title, Agents. Ultra Vires Contract. — Where an insurance company, which under its charter can insure only against accidents to travelers, issues a general accident policy, the contract is ultra vires, and the remedy of the insured is in dis- affirmance of the contract and for an account- ing. Miller v. American Mut. Ace. Ins. Co., 92 Tenn. 167. See, generally, the title Ultra Vires. 6. Paul V. Travelers' Ins. Co., 112 N. Y. 472, 8 Am. St. Rep. 758. Accidental is ^that which happens with- out design or expectation ; it is defined as "the happening of. an event without the design and aid of a person, and which 291 Consideration of the Terms ACCIDENT INSURANCE of the Policy. sence of plain unequivocal exceptions and provisions, in a policy insuring against injury or death caused by accidental means.* If a result is such as follows from ordinary means voluntarily employed and in a not unusual or unexpected way, it cannot be called a result effected by accidental means.* But if in the act which precedes the injury something is unforeseen." This definition excludes the idea of design, and makes the event wholly involuntary. The opposite of acci- dent is design, volition, intent. Williams v. U. S. Mutual Ace. Assoc. (Supreme Ct.), 14 N. Y. Supp. 728, 38 N. Y. St. Rep. 378. An accident is an event that takes place without one's foresight or expectation; an event which proceeds from unknown causes and therefore not expected ; a chance, casual- ty, contingency. Accidental signifies happen- ing by chance or unexpectedly; taking place not according to the usual course of things; casual, fortuitous. North American L. , etc., Ace. Ins. Co. V. Burroughs, 69 Pa. St. 43, 8 Am. Rep. 212; Mallory v. Travelers' Ins. Co., 47 N. Y. 52, 7 Am. Rep. 410. An accident is an event happening without any human agency, or, if happening through human agency, an event which under the cir- cumstances is unusual and not expected to the person to whom it happens. McGlinchey v. Fidelity, etc., Co., 80 Me. 251, 6 Am. St. Rep. 190. An accident is that which takes place without one's foresight or expectation. Burkhard v. Travelers' Ins. Co., 102 Pa. St. 262, 48 Am. Rep. 205; Equitable Ace. Ins. Co. o. Osborn, 90 Ala. 201; Ripley v. Rail- way Pass. Assur. Co. (U. S. C. C), 2 Bige- lovv Life & Ace. Ins. Cas. 738; Providence L. Ins., etc., Co. v. Martin, 32 Md. 315; Supreme Council, etc., v. Garrigus, 104 Ind. 140, 54 Am. Rep. 298. S^ma violence, casualty, or vis major is necessarily involved in the term "accident." Sinclair v. Maritime Pass. Assur. Co., 3 El. & El. 478, 107 E. C. L. 476. For a review of the various definitions of the term "accident," see Lovelace v. Travelers' Protective Assoc. (Mo., 1894), 28 S. W. Rep. 877. ■ See also Fenwick v. Schmalz, L. R. 3 C. P. 313; Richards v. Travelers' Ins. Co., 89 Cal. 170, 23 Am. St. Rep. 455; Duncan v. Preferred Mut. Ace. Assoc. (Super. Ct.), 13 N. Y. Supo. 620; Schneider v. Provident L. Ins. Co., 24 Wis. 28, I Am. Rep. 157. Death by Accident has been defined to be death from any unexpected event which hap- pens as by chance, or which does not take place according to the usual course of things. North American L., etc., Ins. Co. v. Bur- roughs, 69 Pa. St. 51,8 Am. Rep. 212; Bacon V. U. S. Mut. Ace. Assoc, 44 Hun (N. Y.) 607. 1. U. S. Mut. Ace. Assoc, v. Barry, 131 U. S. 121; Ripley w. Railway Pass. Assur. Co. (U. S. C. C), 2 Bigelow's Ins. Cas. 738, affirmed in 16 Wall. (U. S.) 336; Richards v. Trav. Ins. Co., 8g Cal. 170, citingi Am. & Eng. Eneyc. of Law (ist ed.) 87; Supreme Council, etc. V. Garrigus, 104 Ind. 140; Lovelace v. Trav. Protective Assoc. (Mo., 1894), 28 S.W. Rep. 877; Providence L. Ins., etc., Co. v. Mar- tin, 32 Md. 315; Schneider v. Provident L. Ins. Co., 24 Wis. 28, I Am. Rep. 157. In Lovelace v. Travelers' Protective As- soc. (Mo., 1894), 28 S. W. Rep. 877, it was held that the word " accident " in a policy of accident insurance was to be interpreted so as to give effect to the intention of the parties as expressed by the language they had used, and the term being no further limited than by its use in contradistinction to " death from natural causes," it was to be given its usual, natural, and popular meaning. 3. U. S. Mut. Ace. Assoc, v. Barry, 131 U. S. 100. Injury Besnlting &om Swinging Indian Clnbs. — Where death was alleged to have occurred by reason of injury sustained from exercis- ing with Indian clubs, it was held that if the deceased used the clubs for exercise, and, in the ordinary way of taking such exercise, without the occurrence of any unusual cir- cumstance interfering with such use, or causing any unforeseen, accidental, or invol- untary movement of the body, and in the use of the clubs in this manner there oc- curred the rupture of a blood-vessel, then the cause of the injury was not accidental; on the other hand, if there occurred any un- foreseen accident, or involuntary movement of the body of the deceased which brought about in connection with the use of the clubs the injury, or if there occurred any unfore- seen or unexpected circumstance which in- terfered with or obstructed the usual course of the exercise, and thereby was produced an involuntary movement, strain, or wrench- ing of the body by means of which the injury was caused, then the means might be said to be accidental. McCarthy v. Travelers' Ins. Co. (U. S., 1879), 7 Rep. 486. Jumping from a Train. — Where a person was injured internally by jumping in great haste from a railroad train at a station and run- ning a considerable distance, which action was not necessary to his safety, but was voluntarily undertaken to effect an impor- tant object which required haste, the injury cannot be said to be caused by accidental means within the meaning of the policy. Southard v. Railway Pass. Assur. Co., 34 Conn. 574. Sunstroke. — Sunstroke or heat prostration contracted in the course of one's ordinary business is not an accidental injury within the terms of a policy insuring against bodily injury sustained through " external, violent, and accidental means," but expressly ex- cepting " any diseases or bodily infirmity." Dozier v. Fidelity, etc., Co., 46 Fed. Rep. 446. In Sinclair v. Maritime Pass. Assur. Co., 3 El. & El. 478, 107 E. C. L. 476, the policy assured against "any personal injury from or by reason or in consequence of, any acci^ dent w.hich should happen to him, or upoa any ocean, sea, river, or lake." The assured was the master of a ship, and in the course 292 Consideration of the Terms ACCIDENT INS U RANGE. of the Policy, unforeseen, unexpected, and unusual occurs which produces the injury, then the injury has resulted through accidental means.* of his voyage arrived on the southwest coast of India, and in the usual course of his voca- tion suffered sunstroke, from the effei ts of which he died. It was held that his death must be considered as having resulted from a natural cause, and not from accident wiiiun the meaning of the policy. The policy did not contain the words " external, violent," and yet the chief justice held that the term " accident," as used in the policy, involved necessarily some violence, casualty, or vis major. He said: " We cannot think disease produced by the action of a known cause can be considered as accidental. Thus disease or death engendered by exposure to heat, cold, damp, the vicissitudes of climate, or atmospheric influences, cannot, we think, properly be said to be accidental; unless, at all events, the exposure is itself brought about by circumstances which may give it the character of accident. Thus, by way of illustration, if, from the effects of ordinary exposure to the elements, such as is common in the course of navigation, a mariner should catch cold and die, such death would not be accidental; although if, being obliged by shipwreck or other disasters to quit the ship and take to the sea in an open boa;t, he re- mained exposed to wet and cold for some time, and death ensued therefrom, the death might properly be held to be the result of accident. It is true that in one sense dis- ease or death, through the direct effect of a known natural cause, such as we have re- ferred to, may be said to be accidental, inas- much as it is uncertain beforehand whether the effect will ensue in any particular case. Exposed to the same malaria or infection one man escapes, another succumbs. Yet diseases thus arising have always been con- sidered not as accidental, but as proceeding from natural causes. In the present in- stance the disease called 'sunstroke,' al- though the name would at first seem to imply something of external violence, is, so far as we are informed, an inflammatory disease of the brain, brought on by exposure to the too intense heat of the sun's rays. It is a dis- ease to which persons exposing themselves to the sun in a tropical climate are more or less liable, just as persons exposed to the other natural causes to which we have re- ferred are liable to disastrous consequences therefrom. The deceased in the discharge of his ordinary duties about his ship became thus affected, and so died." Unforeseen Result of Ordinary Occupation. — "Where it appeared that the deceased, who had just risen from bed and was in the act of putting on his stockings, died suddenly, and that the cause of death was pressure upon the heart, resulting from the fact that the colon of the deceased had fallen out of its place and become folded, it was held that the death was not accidental within the mean- ing of a policy insuring against "bodily in- jiiry caused by violent, accidental, external, and visible means." Clidero v. Scottish Ace. Ins. Co., 29 Scot. L. Rep. 303. Lord Adams, in delivering the judgment, said: "A per- son may do certain acts, the result of which may produce unforeseen consequences and may produce what is commonly called acci- dental death; but the means are exactly what the man intended to use, and did use, and was prepared to use. The means were not accidental, but the result might be acci- dental. Now, if that is so, where does the question of accident come in here ? There is no evidence * * * that anything unusual or exceptional occurred as to the means or cause of this death. The man was just do- ing what he meant to do, and apparently a most unfortunate and unexpected result hap- pened — the man's death." 1. U. S. Mutual Ace. Assoc, v. Barry, 131 U. S. 100. Thus the following injuries have been held to have resulted through accidental means: Disease Caused by Accident. — Strains caused by stooping or lifting. Hamlyn v. Crown Accidental Ins. Co. (1893), i Q. B. 750; Mar- ' tin V. Travelers' Ins. Co., i F. & F. 505; Owen V. Travelers' Ins. Co. (Ind.), 12 Ins. L. J. 75; Reynolds v. Equitable Ace. Assoc, 49 Hun (N. Y.) 605, 59 Hun (N. Y.) 13; Gale 11. Mutual Aid, etc., Assoc, 66 Hun (N. Y.) 600. Peritonitis caused while using a pitchfork. North American L., etc., Ins. Co. v. Bur- roughs, 69 Pa. St. 43, 8 Am. Rep. 212; or by a fall, Barry v. U. S. Mutual Ace Assoc, 23 Fed. Rep. 712; 131 U. S. 100; Freeman v. Mercantile Mut. Ace. Assoc, 156 Mass. 351. Dejth from hernia caused by a fall. Fit- ton ». Accidental Death Ins. Co., 17 C. B. N. S. 122, 112 E. C. L. 122; 2 Bigelow Ins. Cas. 649; Travelers' Ins. Co. v. Murray, 16 Colo. 296; or from pneumonia resulting from weak- ened condition caused by accidental injury. Isitt V. Railway Pass. Assur. Co., 22 Q. B. Div. 504; Peck v. Equitable Ace Assoc, 52 Hun (N. Y.) 255. Tetanus caused by an accidental cut. Trav- elers' Ins. Co. V. Melick, 65 Fed. Rep. 178. Blood poison or erysipelas resulting from a fall or cut accidentally received. Martin V. Equitable Ace Assoc, 61 Hun (N. Y.) 467; Accident Ins. Co. v. Young, 20 Duval (Mont- real) 280. Fever following a fall and wound. Stand- ard L. , etc., Ins. Co. v. Thomas (Ky., 1891), 17 S. W. Rep. 275. Bright's disease following a fall. Cross v. Ry. Ace. Ins. Co. (N. P., 1871), citeiiin Bliss on Life Insurance (ist ed.) 71. Rupture of the tympanum of the ear caused by diving. Rodey v. Travelers' Ins. Co., 3 N. Mex. 316. See infra, this title. Accidents and Injuries Usually Excepted. Accident Caused by Disease. — An injury re- sulting from an attack of disease, as vertigo or fits, is a ground for recovery under an accident policy. Tennant v. Travelers' Ins. Co., 31 Fed. Rep. 322; Manufacturers' Ace, Indemnity Co. v. Dorgan, 58 Fed. Rep. 945. 293 Coasideration of the Terms ACCIDENT INSURANCE. of the Poli tjr. negligence— Intention. — The definition does not exclude an injury caused in part by the neghgence of the insured,* nor injuries inflicted on the insured intentionally by another where the injury is not the result of misconduct or participation of the insured party.* b. External, Violent, and Accidental Means. — Accident policies usually restrict the liability of the insured to injuries effected through external, violent, and accidental means. This provision is construed beneficially for the insured. The term " external " refers to the means of the injury and not to the injury itself,' and the fact that an injury is accidental and unnatural imports 7 C. C. A. 581; Reynolds v. Accidental Ins. Co., 22 L. T. N. S. 820, 18 W. R. 1141; Win- spear V. Accident Ins. Co., 6 Q. B. Div. 42, 42 L. T. N. S. 900; Lawrence v. Accidental Ins. Co., 7 Q. B. Div. 2i6. See infra, this title, Accidents and Injuries Usually Excepted. Death hy riight. — Death by fright, caused by a horse running away, is an accidental injury within the meaning of the policy. McGlinchey v. Fidelity, etc., Co., 80 Me. 251, 6 Am. St. Rep. igo. Drowning. — So death by drowning. Trew v. Railway Pass. Assur. Co., 5 H. & N. 2ii, 6 H. & N. 839, 7 Jur. N. S. 878; Winspear w. Accident Ins. Co., 6 Q. B. Div. 42; Reynolds V. Accidental Ins. Co., 18 W. R. 1141; Manu- facturers' Ace. Indemnity Co. v. Dorgan, 58 Fed. Rep. 945; Supreme Council v. Boyle (Ind., 1894), 37 N. E. Rep. 1105; Couadeau V. American Ace. Co. (Ky., 1894), 25 S. W. Rep. 6; Mallory v. Travelers' Ins. Co., 47 N. Y. 52, 7 Am. Rep. 410; Tucker v. Mutual Ben. Life Co., 50 Hun (N. Y.) 50; Wehle v. U. S. Mutual Ace. Assoc, 11 Misc. Rep. (N. Y. Super. Ct.) 36; Knickerbocker Casualty Ins. Co. V. Jordan, 7 Cine. L. Bull. (Ohio) 71; McDonald v. Refugee Assur. Co. (Scotland), 27 Scot. L. R. 764, 17 Sess. Cas. (Scot.)' 955. Asphyxiation. — So asphyxiation by gas in , the atmosphere. Paul v. Travelers' Ins. ' Co. , 112 N. Y. 472, 8 Am. St. Rep. 758; Pickett V. Pacific Mut. L. Ins. Co., 144 Pa. St. 79; U. S. Mutual Ace. Assoc, v. Newman, 84 Va. 52. Somnamhulism. — So falling from a window or car while walking in sleep. Travelers' Ins. Co. V. Harvey, 82 Va. 949; Scheiderer V. Travelers' Ins. Co., 58 Wis. 13, 46 Am. Rep. 618. Poison. — So taking poison by mistake. Healey v. Mutual Ace. Assoc, 133 111. 556, 23 Am. St. Rep. 637, reversing 35 111. App. 17. As to taking poison when there is a special provision in the policy excepting death by poison, see infra, this \SA&, Accidents and In- juries Usually Excepted. Suicide while Insane. — So death by the in- sured's hanging himself while insane. Ac- cident Ins. Co. w. Crandal, 120 U. S. 527. Stepping off Cars. — So stepping off a train of cars and falling through a concealed hole in a bridge. Burkhard v. Travelers' Ins. Co., 102 Pa. St. 262, 48 Am. Rep. 205. Stumbling under a Bailroad Train. — ^^So stum- bling and falling under a railroad train. Equitable Ace. Ins. Co. v. Osborn, 90 Ala. 201. Fighting. — So death resulting from a fight in which the insured was the aggressor, though ignorant that his opponent was armed. Lovelace v. Travelers' Protective Assoc. (Mo., 1894), 28 S. W. Rep. 877. Sting of Insect. — So death caused by the sting of a venomous insect. Preferred Mut. Ace. Assoc. V. Beidleman, I Monaghan (Pa.) 481. 1. Freeman v. Travelers' Ins. Co., 144 Mass. 572; Providence L. Ins., etc., Co. v. Martin, 32 Md. 310; Schneider v. Provident L. Ins. Co., 24 Wis. 28, i Am. Rep. 157. There is nothing in the definition of the word "accident " which excludes negligence . of the insured party as one of the elements contributing to produce the result. An ac- cident may be an unusual result of a known cause and, therefore, unexpected to the par- ties. Freeman v. Travelers' Ins. Co., 144 Mass. 572. 2. Accident Ins. Co. of North America v. Bennett, go Tenn. 256, citing i Am. and Eng. Encyc. of Law (ist ed.), pp. 88, 89; Supreme Council, etc., v. Garrigus, 104 Ind. 133. Intentional Injury. — Where another inten- tionally injures a person, the injury not be- ing the result of misconduct or the participa- tion of the injured party, but being unfore- seen, it is as to him accidental, although inflicted intentionally by the other party. Hutchcraft n. Travelers' Ins. Co., 87 Ky. 300, 12 Am. St. Rep. 484; Phelan v. Trav. Ins. Co., 38 Mo. App. 640; Richards v. Travelers' Ins. Co., 89 Cal. 170, 23 Am. St. Rep. 455, citing i Am. and Eng. Encyc. of Law (ist ed.). 87; Ripley v. Ra.jway Pass. Assur. Co., 2 Bige- low Ins. Cas. 738; Jones v. U. S. Mut. Ace. Assoc. (Iowa, 1894), 61 N. W. Rep. 485, citing I Am. and Eng. Encyc. of Law (ist. ed.) 89; Robinson v. U. S. Mut. Ace. Assoc, 68 Fed. Rep. 825; Travelers' Ins. Co. v. McConkey, 127 U. S. 661; Gresham v. Equitable Ace. Ins. Co. , 87 Ga. 497, citing i Am. and Eng.. Encyc. OF Law (ist ed.) 87; Insurance Co. v. Bennett, 90 Tenn. 256. Insured Hanged by Mob. — It was accordingly held to be an accident where insured was hanged by a, mob. Fidelity, etc., Co. v. Johnson (Miss., 1895), 17 So. Rep. 2. Express Provision Bequiring Care. — Where there is an express provision requiring the insured to use due care and diligence for personal safety, the negligence of insured will defeat recovery. See infra, this title. Accidents and Injuries Usually Excepted. 3. In American Ace Co. v. Reigart, 94 Ky. 547, the insured lost his life by eating a piece of beefsteak that in the attempt to swallow accidentally passed into his windpipe, chok- ing him to death in a few minutes. It was held that death was caused by external, vio- lent, and accidental means within the mean- 294 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. an external and violent agency as its cause.* External or Visible Sign of Injury. — Akin to the provision that the injury must be the effect of external, violent, and accidental means, is the exception often inserted in accident policies that the insurance shall not extend to injuries of which there is no external or visible sign. This provision has reference only to cases of bodily injury which do not result in death.* There may be ex- ing of the policy. The court, by Pryor, J., said: " It was not designed that there should be such external violence, as a fall, a kick, or a blow, on the person, as would cause death or an injury, before the liability of the com- pany should arise. This language was in- serted in the contract to protect the company against hidden or secret diseases resulting in injury where there was no manifestation of harm to the external body. They were not attempting to restrict their liability to a particular kind of accidents, but were guard- ing the contract by the use of such terms as would prevent liability for injuries not origi- nating from accidental causes, and that were liable to occur at any time from natural causes. * * * It is plain, we think, that the means or that which caused the injury should be external, and not that the injury should have been external." A Suicide while Insane is an injury effected through external means. Crandal v. Acci- dent Ins. Co., 27 Fed. Rep. 40, 120 U. S. 527. See also infra, this title. Accidents and In- juries Usually Excepted, subd. Internal In- juries. 1. In Paul V. Travelers' Ins. Co., II2 N. Y. 472, 8 Am. St. Rep. 758, it appeared that the insured was found dead in his bed in his room at a hotel. The gas had, in some way, been turned on; the atmosphere was filled with it, and death was caused by breathing the atmosphere. It was held that death was occasioned by external and violent means within the meaning of the policy, the court saying: " That a death is the result of acci- dent, or is unnatural, imports an external and violent agency as cause." This case overrules in part Hill v. Hartford Ace. Ins. Co., 22 Hun (N. Y.) 187, where it was held that the death of a physician resulting from drinking, by mistake, water from a goblet in which there was poison was not effected through external and violent means. See also Trew v. Railway Pass. Assur. Co., 6 H. & N. 839; Winspear v. Accident Ins. Co., 6 Q. B. Div. 42, 29 Moake Rep. 488; Eggen- berger v. Guarantee Mut. Ace. Assoc, 41 Fed. Rep. 172; Healey v. Mutual Ace. Assoc, 133 111. 556, 23 Am. St. Rep. 637; McGlinchey V. Fidelity, etc, Co., 80 Me. 251, 6 Am. St. Rep. 190; Mallory v. Travelers' Ins. Co., 47 N. Y. 52, 47 Am. Rep. 410; Tucker w. .Mutual Ben. Life Co., 50 Hun (N. Y.) 53; Wehle v. U. S. Mutual Ace Assoc, 11 Misc. Rep. (N. Y. Super. Ct.) 41 ; U. S. Mutual Ace Assoc. V. Newman, 84 .Va. 52. Pollock v. U. S. Mutual Ace. Assoc, 102 Pa. St. 230, 48 Am. Rep. 204 [distinguished in Pickett v. Pacific Mut. L. Ins. Co., 144 Pa. St. 93), and Bayless v. Travelers' Ins. Co., 14 Blatchf. (U. S.) 144, where death by acci- dintal poisoning was held not due to external and violent means, are opposed to the weight of authority. For further illustrations of the interpretation of the words as to external, violent, and accidental means, see infra, this title, Accidents and Injuries Usually Ex- cepted, subds. Poison, Inhalation of Gas, Dis- ease, Lifting or Overexertion, Violent, Accidental, External, and Visible Means. — The plaintiff effected an insurance with defendants against " any bodily injury caused by violent, accidental, external, and visible means." The policy contained a proviso excepting, among other things, in- juries arising from " natural disease or weak- ness, or exhaustion consequent upon dis- ease." In stooping to pick up a marble dropped by a child the plaintiff dislocated the cartilage of his knee. Before the acci- dent the plaintiff had not suffered from any weakness of the knee or knee-joint. It was held that the plaintiff was entitled to re- cover. Hamlyn v. Crown Accidental Ins. Co. (1893), I Q. B. 750. In discussing the meaning of the require- ment that injury must arise from a violent, accidental, external, and visible cause. Lopes, L.J., says: " In stooping to pick up the marble the plaintiff used some extra ex- ertion and some extra physical force, and I think that" the expression ' violent ' is satis- fied by the facts which attended the injury. The cause of the injury was accidental in the sense that the injury was a casualty and un- foreseen and unexpected. Then comes the word ' external,' and in construing that word it is important to bear in mind the other part of the policy which deals with matters internal. Looking at the contrast between matters external and matters internal, it is suggested that the resistance of the floor sup- plies the external cause. I think a more obvi- ous cause is the act of reaching after the marble and the wrench which accompanied that act. That stooping and reaching after the marble was certainly not an internal cause, but was, in my opinion, an external cause within the policy. Once admit that there is an external cause, it is plain that it was a visible one, and that condition also of the policy is satisfied." 2. Eggenberger v. Guarantee Mut. Ace Assoc, 41 Fed. Rep. 172; McGlinchey v. Fidelity, etc., Ins. Co., 80 Me. 251, 6 Am. St. Rep. 190; Mallory v. Travelers' Ins. Co., 47 N. Y. 52, 7 Am. Rep. 410; Paul v. Travelers' Ins. Co., 45 Hun (N. Y.) 313, 112 N. Y. 452, 8 Am. St. Rep. 758. In McGlinchey v. Fidelity, etc., Co., 80 Me. 251, 6 Am. St. Rep. 190, Peters, C.J., said: " The policy declares that the insur-. anee shall not extend to bodily injuries un- less the external sign of the injury is visible, ' nor to any death caused ' in certain ways 295 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. ternal signs of a wholly internal injury,* and it has been held that the sign of an injury is visible within the meaning of the policy if it is apparent to the touch, though not perceptible to the eye.* . c. Total Disability. — All accident policies contain provisions thereby the insured becomes entitled to a certain indemnity in case of " total disability ; " and the members of benefit societies usually become entitled to the whole or a part of the benefit in a like case. Total Disability a Relative Term. — What amounts to a total disability is, in general, a relative matter and depends largely upon the occupation and employment in which the person insured is engaged.* But the phrase " total disability " is usually found in policies of insurance associated with limiting words of some kind, and the question therefore becomes largely one of. the construction of the language of the policy. The most usual phrases found in the policies will now be examined, but it will be found that, even where the language of the policies is substantially similar, the courts are not in accord as to what is to be included under the term total disability. To Prosecute One's Usual Employment. — The phrase " totally disabled from the pros- ecution of one's usual employment," in an accident insurance policy, has been held to mean wholly disabled from doing substantially all kinds of one's ac- customed labor to some extent. A disability that simply prevents the insured doing as much in a day's work as before is not total, but one that prevents his doing certain portions of his accustomed work is total, although there are other portions that he is able to perform.* 3. Hooper v. Accidental Death Ins. Co., 5 H. & N. 546; McMahon v. Supreme Council, 54 Mo. App. 468; Wolcott V. United L., etc., Ins. Assoc, 55 Hun (N. Y.) 98; Hutchinson V. Supreme Tent, etc., 68 Hun (N. Y.) 355. In Wolcott V. United L., etc., Ins. Assoc, 55 Hun (N. Y.) 98, the court, upon the ques- tion of total disability, said: " Total disabil- ity must, from the necessity of the case, be a relative matter, and must depend largely upon the occupation and employment in which the part)' insured is engaged. One can readily understand how a person who labors with his hands would be totally disabled only when he cannot labor at all. But the same rule would not apply to the case of a profes- sional man whose duties require the activity of the brain, which is not necessarily im- paired by serious physical injury. If a person engaged in the general practice of medicine and surgery is unable to go about his business, enter his office, and make calls upon any of his patients, but is confined to the bed, as in this instance, and enabled only to exercise his mind on occasional applica- tions to him for advice, he may be said to be totally disabled within the meaning of the provisions of this policy." 4. Instances — Farmer. — Sawyer v. U. S. Casualty Co. (Mass., 1868), 8 Am. L. Reg. N. S. 233. In this case a farmer was allowed to recover as for a total disability, because he was unable to do the ordinary and cus- tomary worlc on the farm, although he was able to milk a little, and do some light work in the barn. Solicitor and Registrar of County Court. — To the same effect is Hooper v. Accidental Death Ins. Co., 5 H. & N. 546, where the insured was a solicitor and registrar of a county court, and was held to be " wholly disabled from following his usual occupation " by a severe- named. There are reasons for the condition applying to a surviving claimant. He has unusual chances for feigning an internal in- jury, if disposed to defraud the insurer. But no such protection is required where the ac- cident causes death. The dead body is ex- ternal and visible sign enough that an injury was received." . 1. In Barry v. U. S. Mutual Ace. Assoc, 23 Fed. Rep. 712, affirmed in 131 U. S. 100, Dyer, J., instructed the jury upon this point as follows: " There must be an external and visible sign of the injury, but it does not necessarily follow from that that the injury must be external. * * * Visible signs of injury, withia the meaning of this policy, are not to be confined to broken limbs, or bruises on the surface of the body; there may be other external indications or evidences which are visible signs of internal injury. Com- plaint of pain is not a visible sign, because pain you cannot see; complaint of internal soreness is not such a sign, for that you can not see; but if the internal injury produces, for example, a pale and sickly look in the face, if it causes vomiting and retch- ing, or bloody or unnatural discharges from the bowels; if, in short, it sends forth to the observation of the eye, in the struggle of na- ture, any sign of the injury, — then those are external and visible signs, provided they are the direct results of the injury." Effects Not at Once Apparent. — Where the policy excepts " injuries of which there is no visible external mark upon the body of the insured," a recovery may be had for in- juries which, although not immediately ap- parent, are visible soon after the accident and as a consequence of the injury. Penning- ton 'J. Pacific Mut. L. Ins. Co., 85 Iowa 468. 2. Gale v. Mutual Aid, etc., Assoc, 66 Hun (N. Y.) 600. 296 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. To Prosecute Any Occupation whereby the Insured can Obtain a Iiivelihood. — In some in- stances the policy, while providing for indemnity when the insured is "per- ly sprained ankle which confined him to his bedroom for several weeks. Medical Practitioner. — In Wolcott v. United L., etc., Ins. Assoc, 55 Hun (N. Y.) 98, the circumstances were these; In the month of July, 1888, the plaintiff met with an accident oy which his hip was injured, without fault on his part, and was totally disabled for a period of at least two weeks. At the end of this time, supposing himself recovered and able to resume his duties, which were those of a medical practitioner having in charge a general practice, he applied to the defendant for payment and stated his claim to be for two weeks at twenty-five dollars a week. This sum was paid him and a receipt was signed by him for the amount, but it was stated in the handwriting of the plaintiff, added to the printed form, to be up to date only. It turned out afterward, upon evi- dence which was uncontradicted, that the in- juries sustained in July again prostrated him, and he was confined to his room and bed for a further period of four weeks, and was unable to go upon his rounds or to visit any patient. He did, however, during this time, as well as during the two weeks of his confinement, occasionally permit a patient to come to his bedside, when he would make some examination, and at times reached for or received certain medicines in his room which he advised to be administered, but never, so far as the evidence showed, did he leave his bed during this time. His attend- ing physician was'very strenuous in enforc- ing his advice that he should remain in bed. The question was, whether the plaintiff was totally disabled during the four weeks from the 13th of September to the nth of October, 1888. The receipt which he gave did not pre- clude him from claiming for such subsequent total disability, which he did not apprehend at the time of the first payment. It was held that the foregoing facts did not preclude him from claiming, during the continuance of such subsequent four weeks' disability, the sum specified in the policy. Iceman. — In Neafie v. Manufacturers' Ace. Indemnity Co. (Supreme Ct.), 28 N. Y. St. Rep. 55, the plaintiff was insured by a policy in which he was described as "by profes- sion, occupation or employment, an iceman (proprietor)." The plaintiff at times helped in delivering ice, and while thus engaged re- ceived an injury which disabled him from engaging in the delivery of ice, although he was able to be about and give general direc- tions to persons who took his place as ice- man during the period of disability. It was held that the plaintiff was totally disabled within the meaning of the policy. Switchman. — In Hutchinson v. Supreme Tent, etc., 68 Hun (N. Y.) 355, the facts were these: A member of a benefit association, who was a railroad switchman, lost all the fingers of one hand in coupling cars. The constitution of the association provided that "a member who, by reason of a disability incurred after admission to endowment mem- bership, becomes wholly unable to direct or perform the kind of business or labor which he has always followed and by which alone he can thereafter earn a livelihood, shall be deemed entitled to disability benefits," which are stated to be " annually one tenth part of the sum for which his endowment certifi- cate is issued." It was held, under this pro- vision, that as the evidence showed that the plaintiff was totally disabled from perform- ing the duties of a railroad switchman, and that for many years he had been engaged in that kind of labor, the verdict in his favor should be for the amount of the first instal- ment of one tenth of his endowment falling due, with interest thereon from the com- mencement of the action. Laborer — Wearing Truss. — In McMahon v. Supreme Council, 54 Mo. App. 468, upon the question whether the insured, a laborer whose usual occupation was digging cellars, was totally disabled from following his usual occupation by reason of an extensive hernia, which possibly might have been to some ex- tent relieved by wearing a truss, the court said: " In determining the liability in such a case, the courts must consider both the mental and the physical capabilities of the assured, otherwise such a benefit certificate would be a delusion and a snare. The plain- tiff's evidence tended to prove that in the fall of i88g he became disabled as the result of hernia; that he was operated on three times without securing any relief; that his occupa- tion was that of a day-laborer — engaged in digging cellars; that the rupture was of such a character as to unfit him for performing manual labor, and that he had been unable during the four years preceding the trial to earn a livelihood. His physical condition was well established by the testimony of three reputable physicians, all of whom con- curred in the opinion that the plaintiff was permanently incapacitated to perform such labor as required lifting or unusual exertion. They were also of opinion that this rupture was so large that a truss could not be worn without great danger of serious injury, and that, even though the hernia could be re- duced and held in place by a truss, the plain- tiff could not perform labor which required much exertion. This evidence tended to prove that the plaintiff was totally and per- manently incapacitated to follow his usual avocation, for the use of a pick, spade, or shovel certainly requires unusual exertion." Permanent Disability — To Prosecute One's TTs- ual or Some Other Occupation. — Under a pro- vision that if a member becomes " perma- nently disabled from following his usual or some other occupation," he shall be entitled to a certain indemnity, it has been held that a member who is disabled from following his usual occupation is entitled to the benefit, although he may not be disabled from follow- ing some other occupation. Neillw. Order of United Friends (Supreme Ct.), 28 N. Y. Supp. 297 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. manently disabled from following his or her usual or other occupation," at the same time defines the disability which shall entitle the insured to recover as one which shall " permanently prevent the member from following any occu- pation whereby he or she can' obtain a livelihood." In such cases it has been held that there can be no recovery if the insured can earn a living at any other occupation, although incapacitated for his own profession.* But the question whether the insured is disabled from prosecuting some other occupation is to be determined by a consideration of his education, experience, age, and natural ability.* To Transact Any and Every Kind of Business Pertaining to One's Occupation. — The courts are not unanimous in the construction of the provision just stated. In the ma- jority of cases the clause has received a strict construction, legal effect being given to the whole language employed, it being held that the insured is not disabled within the meaning of the policy so long as he is capable of perform- ing any kind of business pertaining to his employment.' But in one instance 928. In this case Brown, P.J., in delivering judgment, said: " The defendant reads this sentence as if 'or' was 'and,' and 'some other' 'all other.' It cannot be so con- strued. The word ' or ' creates two cases in which the member may become entitled to the benefit fund. Who would be included in the second class of cases we need not now determine. When a. member, who is per- manently disabled from following some occupation other than his usual occupation asserts a claim to the fund, the expression ' some other occupation ' will be construed and given its proper place in the contract. It is sufiicient, for the present occasion, that the plaintiff is unable to follow his usual oc- cupation. That fact brings his case within the contract. Under either reading, there- fore, of the condition of the contract in ques- tion, the plaintiff's case, as made by the evi- dence, falls within it. He has lost a limb, which is a permanent disability. The loss renders him unable to follow his usual occu- pation, and its loss was by reason of an acci- dent which happened while engaged in fol- lowing his usual occupation." 1. Barber. — Albert v. Order of Chosen Friends, 34 Fed. Rep. 721. In this case the insured, a barber, received an injury which prevented him from following his oc- cupation, but he opened a restaurant and thereby made a living. And the court held, on demurrer to an answer aver- ring such facts, that the circumstance that the insured was obtaining a living from his business as a restaurant keeper was a good defense to the action, al- though the plaintiff was disabled from fol- lowing his occupation as barber. It was contended in this case that the words " or other occupation " meant " or other like oc- cupation," and that the fact that the insured was earning a living in a totally dissimilar oc- cupation was no bar to a recovery. But the court said that there was no room for the ap- plication of the rule of ejusdem generis. 2. McMahon v. Supreme Council, 54 Mo. App. 468. In this case the plaintiff, a la- borer whose usual occupation was digging cellars, was insured under a policy of the kind described in the text, and the court, after determining that he was so injured as to be totally disabled from following his usual oc- cupation, proceeded as follows: " In deter- mining whether the plaintiff was disabled to such an extent as to prevent him from pur- suing some other avocation in which he could earn a livelihood, his former occupa- tion, his education and business experience, his natural abilities, and his age must be con- sidered. The plaintiff's evidence bearing on this branch of the case tended to show that the plaintiff was fifty-eight years old; that he was enfeebled and weakened by sick- ness to such an extent that he could walk only a few blocks at a time; that he could neither read nor write; that he was naturally weak-minded, and exceedingly ignorant, — all of which had a tendency to prove that he was incapable of earning a livelihood in any of the pursuits suggested by the defendant. We therefore conclude that the court com- mitted no error in submitting the case to the jury." 3. Attorney-at-Law. — In U. S. Mutual Ace. Assoc. V. Millard, 43 111. App. 148, while the policy was in force the insured, an attorney, fell and cut the thumb of his right hand on a chair, and for about twenty-six weeks was unable to use that hand. The evidence was that after the injury and during the time that indemnity was claimed under the policy the plaintiff was at his office during office hours and attending to professional business, ad- vising clients, accepting employment as at- torney, commencing suits, and-he did not re- member to have refused during that time to accept employment as an attorney on account of the injury. And in reply to the question as to what extent he was disabled, the plaintiff stated: " Simply to the extent of not being able to use my hand; that is all." The injury to the hand was severe, and^ plaintiff suffered much pain.' It was held that the plaintiff could not recover, the in- jury being so slight as not to seriously inter- fere with the prosecution of his profession. Merchant. — In Saveland v. Fidelity, etc., Co., 67 Wis. 174, 58 Am. Rep. 863, the in- sured, a merchant, received an injury to his ankle which rendered it necessary for him to go about his business in a buggy, and in 298 Consideration of the Terms ACCIDENT INSURANCE. of tlie Policy it has been held that it is not incumbent upon the plaintiil to prove that the injury wholly disabled him from the doing of any and every kind of act neces- sary to be done in the prosecution of his business, but it is sufficient if he proves that his injury was of such a character and to such an extent that he was not able to do all the substantial acts necessary to be done in the prosecu- tion of his business.* this way, even, he was able to attend to a small portion of his business only. On ap- peal, it was held that it was error on the part of the court to instruct the jury that the defendant was to pay the amount agreed, if by the accident the plaintiff had been dis- abled in any way from prosecuting the busi- ness in which he was engaged, and that the plaintiff was entitled to recover for such time as he was " rendered wholly unable to do his accustomed labor; that is, to do substan- tially all kinds of his accustomed labor to some extent." Leather-cutter and Merchant. — Where the insured was described as having the two- fold occupation of leather-cutter and mer- chant, it was held that in order to entitle him to indemnity he must be wholly disabled from the prosecution of any and every kind of business pertaining to the occupation un- der which he was insured; that is, the two- fold occupation of leather-cutter and mer- chant. Ford V. U. S. Mutual Ace. Rel. Co., 148 Mass. 153. Manufacturer. — In Gracey v. People's Mut. Ace. Ins. Assoc, 21 Pittsb. L. J. 25, the in- sured was classed as a manufacturer. He received a fall on the ice, breaking his arm, necessitating the carrying of it in a sling. The injury and pain were such as to pre- vent him from lying in bed, and the only sleep he obtained for several weeks was in a chair. He was able to go to his factory and give a few general orders, but was not able to remain any length of time. The court held that he was not wholly " disabled from the prosecution of any and every kind of business pertaining to his occupation," with- in the meaning of the policy. Retired Gentleman. — Where the party as- sured was described in the policy as a " re- tired gentleman," and had in fact no occupa- tion, except to amuse himself, and received an injury while operating a buzz-saw at a wagon-manufacturing company's shop, of which he was a stockholder and director, and in consequence thereof was obliged to carry his arm in a sling and was deprived of its use to a greater or less extent during several months, he was denied a recovery, as he was not totally disabled and prevented from the prosecution of any and every kind of business pertaining to the occupation un- der which he received membership. Knapp V. Preferred Mut. Ace. Assoc, 53 Hun (N. Y.) 84. Disability to Transact Any Business Includes Disability to Transact a Particular Business. — Where the defendant by its policy insured the plaintiff " under classification preferred (being a capitalist by occupation) * * * against loss of time * * * resulting from bodily injuries * * * which shall, independ- ently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his oc- cupation above stated," it was held that the policy did not class the plaintiff as a capital- ist, but simply insured him in a preferred class because he was a capitalist by occupa- tion; that the policy, in order to entitle the plaintiff to recover, required that he be to- tally disabled from transacting any business pertaining to the occupation of capitalist; but that under the circumstances of the case it was not necessary to determine what kinds of business pertain to a capitalist, since the evidence showed, without conflict, that the plaintiff was totally disabled from transact- ing any business whatever, and as the whole must include the parts, that he was disabled from transacting any business as a capitalist. Bean v. Travelers' Ins. Co., 94 Cal. 58;. 1. Billiard-saloon Keeper. — Young v. Travel- ers' Ins. Co., 80 Me. 244. In this case the occupation under which the plaintiff was in- sured was that of a billiard-saloon keeper. He admitted that he could do some acts nec- essary to be done in the business of billiard- saloon keeper, but claimed, and introduced evidence tending to prove, that he was wholly disabled from doing many of the material acts necessary to be done in that business. The trial court instructed the jury as fol- lows: " Now the reasonable construction which must be put upon the language here used is, that it must have meant that if the plaintiff was so disabled as to be incapable of doing any and every kind of business pertaining to his occupation as a billiard- saloon keeper, then he would be wholly dis- abled from the prosecution of every kind of business pertaining to such occupation and entitled to the stipulated compensation. Otherwise, if he was not so disabled, he would not be entitled; and therefore, gen- tlemen, I instruct you as matter of law that the meaning of the language here used is, not that he must be so disabled as Jo prevent him from doing anything whatsoever per- taining to his occupation, or any part of his business pertaining to his occupation as bill- iard-saloon keeper, but that he must be so disabled as to prevent him from doing any and every kind of business pertaining to his occupation. There may be a difference be- tween being able to perform any part of his business, and any and every kind of business pertaining to his occupation." And the ap- pellate court, in holding that there was no error in this instruction, said: " The presid- ing justice might have gone farther and in- structed the jury that to entitle the plaintiff to recover, it was not required to prove that his injury disabled him to such an extent that he had no physical ability to do what 299 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. To Transact Any and AH Kinds of Business. — Under a provision for an indemnity where the insured is " totally disabled and prevented from the transaction of all kinds of business " there can be no recovery when the insured is totally disabled in his own occupation merely, provided he is able to engage in some other pursuit.* Total Inability to Labor. — Where the provision is to grant indemnity to the members of a relief association during "total inability to labor," and the in- sured is unable to earn a livelihood at the particular labor in which he was engaged at the time of the injury, but is capable of making as much or more money at some other employment, he may not recover.* Total Loss of Business Time. — Under a policy providing for payment of a certain sum for the " total loss of such business time as may result " from the injury, reference is had to the loss of business time in the particular occupation of the insured, and not to the whole range of business pursuits.* d. Loss OF Certain Members of the Body — in General— Permanent and Partial Disablement. — In this connection the accident policies usually provide for indem- nity in two classes of injuries. One class embraces injuries resulting in the loss of both hands or both feet, or the loss of a hand and a foot, or the com- plete and irrecoverable loss of sight in both eyes, and is called " permanent total disablement;" the other class embraces injuries resulting in the loss of one hand or one foot, or the complete and irrecoverable loss of sight in one eye, and is called "permanent partial disablement." No Recovery for Temporary Disability. — When the contract of insurance provides for liability in case only of a total or partial but permanent disability, no liability exists if the disability is but temporary.* was necessary to be done in the prosecution of his business, but that it was sufficient if he satisfied them that his injury was of such a character and to such an extent that com- mon care and prudence required him to de- sist from his labors and rest so long as it was reasonably necessary to effectuate a speedy cure, so that a competent and skil- ful physician called to treat him would di- rect him so to do." See also Sawyer v. U. S. Casualty Co. (Mass., 1868), 8 Am. L. Reg., N. S. 233; Neafie w. Manufacturers' Ace. In- demnity Co., 55 Hun (N. Y.) in; Hooper v. Accidental Death Ins. Co., 5 H. & N. 546. 1. Carpenter. — Lyon v. Railway Pass. As- sur. Co., 46 Iowa 631. One Injury Aggravated by Subsequent Injury. — Where it appears that after the accident insured against, the assured was for a time able to labor, but became totally disabled some days later on receiving additional in- juries which aggravated the first injury, the assured is not totally disabled and prevented from all kinds of business on account of the injury insured against. But if it should appear that, from the nature of the original injury, the assured would at some time be- come totally incapable of labor by reason of it, it would seem that the happening of the second injury would not deprive him of the right to recover. Rhodes v. Railway Pass. Ins. Co., 5 Lans. (N. Y.) 71. Loss of All the Fingers. — It has been held that ordinarily the loss of all the fingers of one hand does not constitute total disability within the meaning of the provision in ques- tion. Hutchinson v. Supreme Tent, etc., 68 Hun (N. Y.) 355- 2. Baltimore, etc., Rel. Assoc, v. Post, 122 Pa. St. 579, 9 Am. St. Rep. 147. In this case Paxson, J., for the court said: " This was a relief association, not an accident in- surance company. Its object was to relieve its members during the time when they were unable to work by reason of injury or sick- ness. Hence, if a member was injured in such a way that he could no longer earn a livelihood at the particular labor in which he was employed at the time of the accident, yet was capable of earning as much or more money in some other employment, it certain- ly was not the object of the association as expressed by its charter and by-laws that he should remain idle and draw benefits all his life." 3. Pennington v. Pacific Mut. L. Ins. Co., 85 Iowa 468. 4. No Liability for Disability Merely Tempo- rary. — Hollobaugh v. People's Ins. Assoc, 138 Pa. St. 595. In this case the certificate of membership stipulated for the payment of certain relief in the event of accidental injuries to the party, permanently disabling him totally or partially, and the maximum number of weeks during which relief would be allowed for each. Indorsed on the certifi- cate was a clause that payment of weekly re- lief for periods scheduled should be in full satisfaction of all claims, whether the inju- ries were totally or partially disabling; the schedule specifying certain injuries with a period of relief for each, and stating that in- juries not specified would be adjusted on their merits. It was held that the stipula- tion in the indorsement must be construed as applying to such injuries only as were within the terms of the contract found in the body of the certificate, and as the whole in- 300 Consideration of the Terms ACCIDENT INSURANCE. of the Policy, Feet and Hands. — It has been contended on behalf of the insurance companies that the provisions in regard to the "loss" of the hands and feet must be understood to imply an actual amputation or physical severance of those members from the body. But this view has not met with favor from the courts; it being held that to entitle the insured to recover, physical severance is unnecessary, but it is sufificient if he has been deprived entirely of the use of the feet and hands as members of the body. And there can scarcely be any doubt as to the soundness of this view, for if the feet and hands cannot be used for the purpose of moving about or walking, or for holding and handling things, they are in fact lost as much as though actually severed from the body.* Loss hy Severance. — Many of the companies have altered their policies so as to read, "the loss of feet or hands by severance" thereof, but this provision has been held to be intended to refer to the manner rather than to the exact phys- ical extent of the injury.* strument provided for liability only in the event of a total or partial, but at the same time permanent, disability, no liability ex- isted for disability which was temporary merely. 1. Paralysis of Both Legs. — In Sheanon w. Pacific Mut. L. Ins. Co., 77 Wis. 618, 20 Am. St. Rep. 151, the plaintiff was shot in the back while attempting to escape, from a saloon quarrel commenced by other parties and in which he had no part. The ball pierced his spine and produced an imme- diate and total paralysis of the lower part of his body, entirely destroying the use of both feet. In holding that the insured had suffered " the loss of two entire feet " within the meaning of the policy the court said: " To our minds, the loss of the hands and feet embraced in the policy is an actual and entire loss of their use as members of the body, and if their use is actually destroyed so that they will perform no function what- ever, then they are lost as hands and feet. In ordinary and popular parlance, when a person is deprived of the use of a limb, we say he has lost it. This is the ordinary sense attached to the word when used in such a connection. * * * The expression ' loss of feet ' would generally be understood to mean a loss of the use of these members; and if the lower portions of the plaintiff's body and his feet are completely paralyzed, and he is permanently and forever deprived of their use, he has suffered ' a loss of two entire feet ' within the meaning of the policy. This is the proper construction of the words of the contract. It is a forced and unnatural construction of the language as here used to hold that it means an actual amputation of these limbs, and does not embrace arid in- clude an entire deprivation of their use as members of the body." Hand No Longer Useful as Such. — In Lord w. American Mut. Ace. Assoc. (Wis., 1894), 61 N. W. Rep. 293, it was contended that there was no such thing as the loss of the hand unless the injury was such as to require the amputation cf the hand above the wrist. The court, in negativing this contention, said: " That would be too much of a refine- ment upon language for practical purposes. The hand was for use, and if it was injured so as to become useless as a hand, then the defendant became liable for its loss under the contract." Pennsylvania— Strict Construction of Policy. — In one instance where the source of the difficulty did not lie in the foot or leg, but in another part of the body, to wit, the back, and the foot itself was not lost or injured, and might be used constantly by means of an artificial device, such as a plaster jacket, •which prevented the injury in the other part of the body from affecting the use of the foot, though without this appliance the foot was useless, it was held that there could be no recovery as for loss of a foot. Stevers v. People's Mut. Ace. Ins. Assoc, 150 Pa. St. 132. In the opinion in this case there are some expressions, obiter, however, which seem to conflict with views expressed in the cases above cited. 2. Severance of Hand. — Where the plaintiff was insured under a policy providing for an indemnity for the " loss or severance of one entire hand," and the evidence showed that the fingers and heads of all the metacarpal bones of one of the plaintiff's hands had been taken off with a planer; that of the twenty- seven bones composing the skeleton of the hand thirteen bones were entirely gone and parts of five more; and the plaintiff testified that he had lost the use of the injured mem- ber as a hand, it was, held that the plaintiff was entitled to recover under the provision of the policy above given. Sneck v. Travel- ers' Ins. Co. (Supreme Ct.), 34 N. Y. Supp. 545. The court in this case proceeded upon the ground that the provisions of the policy should be strictly construed as against the insurer, and that the specification in the policy as to the loss of an entire hand by severance was intended to refer to the man- ner rather than to the exact physical extent of the injury. This case virtually overrules the decision of the court in the same case upon a former trial. See Sneck v. Travelers' Ins. Co. (Supreme Ct.), 30 N. Y. Supp. 881. In Lord v. American Mut. Ace. Assoc. (Wis., 1894), 61 N. W. Rep. 293, the question whether the tearing off of three fingers wholly and a part of the other, and cutting the hand and destroying the joint of the thumb, was " the loss of one hand, causing immediate, continuous, and total disability " of the same within the meaning of the con 301 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. Eyes. — When the policy provides for payment in the event of " the total and , permanent loss of the sight of both eyes," and the insured has lost the sight of one eye before the insurance is effected, and this fact is known to the general agent of the company, he is entitled to recover upon sustaining the loss of the remaining eye. The principle is this: under such a clause, it is the loss of sight that is insured against, and this is just as complete in the case stated as though both eyes were lost during the currency of the policy; and the knowledge of the agent of the fact that the insured had only one eye is imputable to the principal.* e. Accidents to Insured in Special Occupations — (i) Description of Occupation. — The policy usually insures a person under a special occupation, described either in the application or in the certificate.* Change of Occupation. — The insurer cannot avoid the policy on the ground that insured has changed his occupation from that under which the insurance was granted, unless there is an express proviso to that effect.' Provisions against Other or More Hazardous Occupations. — The policy usually provides, however, that the insurance shall not cover injuries received in any occupation other than that under which the policy is issued,* or that it shall not cover in- juries received in certain specified occupations,' or that if injury is received in an occupation classed as more hazardous than the one under which it is issued, the benefit shall be proportionally less.* Such a provision is a competent limitation of the policy.'' In construing the description of the occupation, the tract of insurance, was held to be one for the jury. And the jury found that such loss of the hand was entire. 1. Humphreys v. National Benefit Assoc, 139 Pa. St. 264. In Bawden v. London, etc., Assur. Co. (1892), 2 Q. B. 534, by the terms of the policy the company agreed to pay to the insured five hundred pounds on permanent total dis- ablement, and half of that sum on permanent partial disablement; the policy stating that by permanent total disablement was meant, among other things, " the complete and irre- coverable loss of sight of both eyes," and by permanent partial disablement was meant, among other things, " the complete and irre- coverable loss of sight in one eye." At the time the plaintiff signed the proposal for the insurance he had lost the sight of one eye, a. fact of which the defendant's agent was aware, although he did not communicate it to the defendant. The assured, during the life of the policy, sustained an accident which resulted in the complete loss of sight in his remaining eye, so tliat he became permanent- ly blind. It was held that it must be taken, first, that the assured had sustained a com- plete loss of sight to both eyes within the meaning of the policy; secondly, the knowl- edge of the agent was, under the circum- stances, the knowledge of the principal, and that the latter was liable on the policy for the full amount, namely, five hundred pounds. 2. Statements of Occupation Generally War- ranties. — The statements of the insured with regard to his occupation are generally, by the terms of the policy, made warranties, so that a misrepresentation in this regard avoids the instrument. See Perrins v. Marine, etc., Ins. Soc, 2 El. & El. 317, 105 E. C. L. 316; Moore v. Citizens' Mut. L. Ins. Co. (Supreme Ct.), 26 N. Y. Supp. 1014. Occupation Stated Truly but Imperfectly. — But if the statement of occupation, though im- perfect, is true so far as it goes, the policy is not avoided. Thus, where one stated him- self to be an " esquire," when in fact he was such, a policy which contained the proviso " that if any statement contained in the pro- posal be untrue, or if this policy has been ob- tained through any misrepresentation, con- cealment, or untrue averment whatsoever, then this policy shall be void," was held not to be rendered void by the failure of the in- sured to state that he also carried on the busi- ness of an ironmonger. Perrins -u. Marine, etc., Ins. Soc, 2 El. & El. 317, 105 E. C. L. 316. And it seems that where the statements of the insured as to his occupation and the duties which it requires of him sufficiently apprise the insurer of their character, it is enough; and if anything more definite is re- quired, it is the duty of the insurer to ascer- tain the facts by proper inquiries. Brink v. Guaranty Mut. Ace Assoc. (Supreme Ct.), 7 N. Y. Supp. 847. 3. In Provident L. Ins. Co. v. Fennel!, 49 111. 180, where the insured was a switchman while the contract was made and was a brake- man when killed, it was held that in the absence of special provision the insurer could not avoid the policy on this account. See also Providence L. Ins., etc., Co. v. Martin, 32 Md. 310. 4. See Knapp v. Preferred Mut. Ace As- soc, 63 Hun (N. Y.) 84. 5. See Tucker v. Mutual Ben. L. Co., 50 Hun (N. Y.) 50. 6. See Standard L., etc., Ins. Co. v. Mar- ,tin, 133 Ind. 376. 7. So an answer alleging that fnsured has changed his occupation from a brakeman on a passenger train to that Of a brakeman on a construction train, and that the risk has been changed within the provisions of the policy. 302 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. technical use of a word having an ordinary and accepted meaning, if not known to the insurer, is not binding on him.* (2) Occupation Defined — Refers to Profession, not Acts. — The term " occupation " has reference to the vocation, profession, or calling in which the insured is engaged for his profit, and does not preclude him from the performance of acts and duties which are simply incidents connected with the daily life of men in any occupation.* Change of Occupation Question for Jury. — The question whether the insured has changed his occupation within the provision of the policy is properly left to the jury under instructions.* (3) Risks Classified by the Company — Injuries Received in More Hazardous Occupation. — Where the insurer classifies risks according to the occupation of the insured, is a good defense, and a demurrer thereto will be overruled. Standard L., etc., Ins. Co. V. Martin, 133 Ind. 376. In this case the court, by Howard, J., said: " It is competent for the parties to provide in the policy of in- surance that a forbidden hazard shall make the policy void or that the amount of the in- surance in case of an increased hazard shall be diminished in proportion; and in case the policy itself does not name the forbidden or increased hazards, it will be for the jury to determine whether such a change in the risk has taken place and in what degree the risk has been increased." 1. Spare Conductor. — In Aldrich v. Mercan- tile Mut. Ace. Assoc, 149 Mass. 457, where insured was described as a " spare conductor," and evidence was offered that on the road on which insured was employed, a " spare conductor " performed the duties of all the trainmen except the engineer, and that the insured was injured while employed as a brakeman, it was held that the word "spare" having an ordinary meaning of " supernumerary," and not denoting that the insured performed any duties except those of a conductor, and the technical use of the word not having been communicated to the insurance company, such a technical use of the word could not be shown, and that the company was liable only for the amount which a brakeman could have re- covered. 2. National Ace. Soc. v. Taylor, 42 111. App. 97. Single Acts not Change of Occupation — Mer- chant Injured while Hunting. — Where the insured was described as a merchant and was accidentally killed while hunting, as a recreation, it was held that the act of hunting did not constitute the occupation of hunting. Union Mut. Ace. Assoc, v. Frohard, 134 111. 228, 23 Am. St. Rep. 664, affirming 33 111. App. 178. Agricultural Superintendent A cting as Police' man. — The insured does not change his oc- cupation from that of an agricultural superin- tendent by acting temporarily as a superin- tendent of police at a state fair. Travelers' Preferred Ace. Assoc, v. Kelsey, 46 111. App. 371- Supervising Farmer Building Bridge. — Where the insured was described as a super- vising farmer, it was held that this descrip- tion did not mean that he did no manual labor whatever, and that he had not changed his occupation to that of a bridge-builder by building a bridge on his own land, and that by driving posts with a sledge he had not changed his occupation to that of a pile- driver. National Ace. Soc. Co. v. Taylor, 42 111. App. 97. Earthenware Manufacturer Pitching Hay. — Where the insured was described as an earthenware manufacturer and received an injury while pitching hay on a visit to a farmer, it was held that his occupation was not changed by the act. North American L., etc., Ins. Co. v. Burroughs, 69 Pa. St. 43, 8 Am. Rep. 212. Teacher Constructing Building. — Where the insured was described as a teacher and an injury was received while superintending the construction of a building on his own land, it was held that he had not changed his occupation to that of a builder. Stone v. U. S. Casualty Co., 34 N. J. L. 371. Farmer Rescuing a Shipwrecked Crew. — The act of going to the rescue of a shipwrecked crew does not change the occupation of in- sured from that of a farmer to a wrecker. Tucker v. Mutual Ben. L. Co., 50 Hun (N. Y.) 50. 3. An insurance company classified its risks with reference to employment; persons insured under class A, which included " mer- chants," being entitled to a much larger in- demnity than those insured under class E, which embraced " grocers delivering goods." The insured stated in his application that he was a " merchant proper." He received the injury which resulted in his death while standing in his wagon receiving freight at a railway depot. The company contended that the recovery should be restricted to the indemnity under class E. It was held that the court properly left to the jury whether the plaintiff was a grocer delivering goods, with the instruction that a grocer delivering goods as expressed in the policy was one who was engaged as a dealer iii groceries and habitually delivered in person goods sold to his customers. An occasional delivery by himself, the rule being that delivery was made by others, would not bring him within class E. Hall v. American Masonic Ace. As- soc, 86 Wis. 518. Change of Occupation means engaging in an- other employment as a usual business. Stone V. U. S. Casualty Co., 34 N. J. L. 371. 3°3 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. and the policy contains a proviso against responsibility for injury received while performing an act pertaining to an occupation classed as more hazardous than that under which the pohcy is issued, the distinction between acts and occu- pation is not obliterated,* and it must appear that the insured was injured while doing an act peculiarly embraced in the less favored class to bring him within the exception.* Exposure Not Incidental to Occupation. — When the policy contains a proviso that it shall be void as to all accidents in any employment or exposure not incident to the risk taken, the insured cannot recover if injured in the performance of an act totally foreign to the occupation under which he was insured.^ Occupation must he Classed. — If the proviso is that no recovery shall be had for an injury in an occupation classed as more hazardous, the occupation must be one classified by the company to except it under this clause.* ClasaiJScation of Agent Binding on Insurer. — The classification of a risk as being in a preferred class made by the insurer's agent, with full knowledge of the facts, is binding upon the insurer.® General Classification No Waiver of Express Exception. — By classifying an occupation as one which will be taken as an increased hazard, the insurer does not waive an express exception of a risk incident to such an increased hazard in a policy insuring a less dangerous occupation.* 1. In Stone v. U. S. Casualty Co., 34 N. J. L. 371, a policy contained a proviso by which injuries were excluded from compensation if " received in any employment or by any ex- posure either more hazardous in itself or classed by the company as more hazardous " than that under which the policy was issued to the insured. The court, by Beasley, C.J., in construing this provision, said: "These terms literally rendered require that the in- sured to come within their effect must, at the time of the injury, be in an employ- ment more dangerous than his own. The language has respect to employments, and not to individual acts. It is true that a cer- tain degree of ambiguity is introduced by the expression ' other exposure,' but looking at the body of the policy we find these terms used in the sense of the risks arising from a business or occupation." 2. Engineer Chopping Wood. — The insured was classed as a stationary engineer, and was injured while chopping wood, the latter occupation being classed as a less favorable risk than that of a stationary engineer. The certificate provided that if the insured was injured in the performance of an occupation more hazardous than that under which the certificate was issued, he could in no event recover more than the indemnity of the class in which such more hazardous occupation was classified. It was held, under this clause, that it should have been submitted to the jury whether the insured was fatally injured while performing an act peculiarly embraced in the occupation of a wood-chop- per, and not in that of a stationary engineer. Eggenberger v. Guarantee Mut. Ace. Assoc, 41 Fed. Rep. 172. Proprietor of Ice Business Delivering Ice.— The insured was described as an " iceman (proprietor)." The proprietor of an ice business could be insured at twenty dollars a week; a deliverer of ice could be insured at only fifteen dollars a week. The insured received the injuries while engaged in the actual delivery of ice to a customer. It was held that the expression " iceman (proprie- tor)" covered not merely a proprietor who conducted a general ice business from his offices, but also the iceman or a man who might be a deliverer of ice, and who was at the same time the owner or proprietor of such business. Neafie v. Manufacturers' Ace. Indemnity Co., 55 Hun (N. Y.) iii. 3. Betired Gentleman Operating Buzz-saw. — Where the description of employment was that the insured was a " retired gentleman," and the certificate contained a proviso that it was to be wholly void as to all accidents occurring in any occupation, profession, or employment, or exposure not named, or in- cident to the occupation under which he re- ceived membership, and it appeared that the insured was injured while operating a buzz- saw for amusement, it was held that a mo- tion for a nonsuit should have been allowed, as such an exposure was not incident to the occupation of a retired gentleman. Knapp V. Preferred Mut. Ace. Assoc, 53 Hun (N. Y.) 84. 4. Where the plaintiff was insured as " a jobber and contractor," and was injured while working as a farm laborer, it was held under a clause reducing the indemnity if the insured was injured in any occupation classed as more hazardous than the one specified, that the occupation of a farm laborer not be- ing classed at all, the company could not, after the accident, class " farm laborer" as entitled to less indemnity than "contrac- tors." Bushaw V. Women's Mut. Ins., etc., j^ssoc. (Supreme Ct.), 8 N. Y. Supp. 428. See also Pacific Mut. L. Ins. Co. v. Snowden, 12 U. S. App. 704; Union Mut. Ace Assoc. V. Frohard, 134 111. 228, 23 Am. St. Rep. 664. 6. Pacific Mut. L. Ins. Co. v. Snowden, 12 U. S. App. 704; New York Ace Ins. Co. v. Clayton, 19 U. S. App. 304, 59 Fed. Rep. 559. 6. Where the policy provided that if the 304 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. /. Injuries to Passengers by Public or Private Conveyance.— Acci- dent policies are often issued against accidents while traveling in public or private conveyances for the transportation of passengers. Such a policy cov- ers injuries received while in the actual prosecution of a journey, whether the insured was at the time in a conveyance for transportation of passengers or not. Injury Received while Changing Conveyance. — It has accordingly been held that where the insured was injured by a defect in the way while walking from a steamer to a railway train in the course of his journey, he was within the protection of a clause covering risks "while traveling by public or private conveyance for the transportation of passengers." * If the insured was injured on a railway in the course of his journey, the injury is covered by the policy, although it oc- curred in attempting to board a moving train * or omnibus.' An insurance against railway accident while traveling on any line of railway covers an acci- dent caused by slipping on the steps while changing cars.* Walking Not Included in Private Conveyance. — Where the insured had left a steamer and was finishing his journey to his home on foot, and was waylaid by highway- men, the court said that the reasonable meaning of private conveyance could not include walking.® Person on Train for Other Purpose than Travel. — The insured is not a passenger in a public conveyance provided by a common carrier if he is in the train for a purpose other than travel,* nor can the insured be considered a passenger insured was injured in any occupation classed by the company as more dangerous, the in- demnity should be at the rate fixed for the increased hazard, but by special proviso the company was exempt from liability in case the insured was injured while trying to get upon a moving train, and it appeared that the insured was injured while so doing, it was contended that he could recover the amount which would be payable to one whose duty it was to get on or off moving trains. But it was held that the clause pro- viding for a reduction of recovery in the case of more hazardous occupations did not ren- der the company liable to pay the insured the amount which would have been paid to a man whose business it was to get on or off moving trains, that the insured had not changed his occupation, and that such a construction as that contended for would render of no effect the clause exempting the company from liability for injuries received while entering a moving train. Miller v. Travelers' Ins. Co., 39 Minn. 548. 1. Northup V. Railway Pass. Assur. Co., 43 N. Y. 516, reversing 2 Lans. (N. Y.) l56. The decision -in this case is criticised in 7 Am. Law Rev. 605. 2. Where the policy insured against " in- juries received while actually traveling in a public conveyance provided by common car- riers for the transportation of passengers," and the train stopped at a station and the in- sured left the train, which started up while he was off, and in attempting to get on again he was injured, it was held that if the insured were traveling beyond the station, he could leave the train at the station and return to it again. He was not bound within the policy to remain thereon all the time, and he might recover for an injury received in attempting to get on or off. Tooley v. Railway Pass. Assur. Co., 3 Biss. (U. S.) 399. I C. of L.— 20. 305 3. Where the plaintiff was trying to jump on an omnibus while in motion, it was held that he could recover under an accident policy against injuries while traveling by private or public conveyance for the trans- portation of passengers. Champlin v. Rail- way Pass. Assur. Co., 6 Lans. (N. Y.) 71. 4. Theobold v. Railway Pass. Assur. Co., 10 Exch. 45, 26 Eng. L. & Eq. 436. 5. Ripley v. Railway Pass. Ins. Co. (U. S. C. C), 2 Bigelow Ins. Cas. 738, affirmed in 16 Wall. (U. S.) 336. 6. A policy insured the plaintiff " as pas- senger in a public conveyance provided by common carrier within the limits of the United States." The insured going to Chi- cago stopped at L., intending to take a later train to Chicago. He had left the train, had gone to speak to the engineer, and was re- turning to the platform of the station, when he was injured in trying to cross the plat- form of the car after the train had started. It was held that the insured had ceased to be a passenger when the accident happened and could not recover. Hendricks v. Em- ployers' Liability Assur. Corp., 62 Fed. Rep. 893- Bailroad Engineer.^An engineer killed on a railroad locomotive had previously pur- chased a. ticket issued by the railway pas- senger assurance company, which, by its terms, insured against death " caused by accidents while traveling by public- or pri- vate conveyance provided for the transpor- tation of passengers." Suit being brought by his legal representatives upon the policy, the proof showed that the defendant was sell- ing two classes of tickets, one known as " travelers' risk," the other as the " general accident," the latter being sold for the. high- est price; that deceased purchased the lat- ter; that at the time of the purchase the de- fendant's agent knew him to be an engineer Consideration of the Terms ^ CCIDENT INS U RANGE. of the 3?olioy. while stopping over at a point upon his route.* g. Injuries Received in the Discharge of Duty — K^iiroad Employees. — The question has arisen whether an employee of a railroad company going home from his day's work is within the terms of a policy insuring him against injuries received in' the discharge of duty. Where an insured under such a policy was injured while leaving the yard of the company after quitting work for the day, it was held that he was within the protection of its terms." But it has been held that one going Lome from work on a train of the company was not within the benefit of an exception in a policy allowing railroad em- ployees, while in the performance of duty, to stand upon the platform of mov- ing cars.^ 2. Accidents and Injuries Usually Excepted — a. General Rule of Construc- tion — Construed Most Strongly against Insurer. — The usual exceptions in an insurance policy are in the nature of conditions as to the subsequent 'conduct of the in- sured, and are construed most 'strongly against the insurer. The conditions having been framed by the insurer are to be construed strongly against those for whoBe benefit they are reserved.* This principle is especially applicable in construing clauses creating a forfeiture or relating to matters subsequent to the attaching of the liability, such as notice, demand, etc.* b. Voluntary Exposure to Unnecessary Danger — (i) In General — Usaal Form of Modern Policy. — The modern insurance pohcy contains a proviso in- tended to cover cases where the insured assumes the risk of accident. This is usually in the form of a clause providing that " no claim shall be valid where- death or injury may have happened in consequence of voluntary ex- posure to unnecessary danger or perilous adventure. The certificate holder is required to show us due diligence for personal safety and protection."* and had no instructions not to sell to rail- road employees. It was held that the de- ceased was insured against all accidents without regard to the capacity in whic i he was acting, that the ticket was intendiJ to cover the accident by which he met his death, and that the defendant was liable. Brown V. Railway Pass. Assur. Co., 45 Mo. 221. 1. Where insurance was against accidental injury, subject to the condition that the in- sured was protected only against the hazard of traVel as passenger in a public conveyance provided by a common carrier in the United States, and the insiired was a drover who had gone to San Antonio to ship cattle and was injured by falling from a hayloft in a barn, and the agent of the company had rep- resented that the policy covered the entire trip, it was held that the assured was not a passenger at the time of the accident, and that the representation of the agent could not control the expressed contract, which was exact; that the limitation of the insurance to accidents while traveling, etc., was not in- consistent with the general contract and did not raise any ambiguity. Fidelity, etc., Co. ■V. Teter (Ind., 1894), 36 N. E. Rep. 283. As to the representations of agents, see infra, this title. Agents. 2. A member of an association designed for the relief of those injured by accident while in the discharge of duty was going home a few minutes after quitting work and was killed in crossing the railroad tracks be- fore he had left the company's yards. It was held that a recovery could be had under the policy; that the indispensable act of going from his work before he had gotten from the 306 tracks of the cars and out of the premises of the company was in discharge of his duties within the intention of the organization. Kinney w. Baltimore, etc.. Employees' Rel. Assoc, 35 W. Va. 385. 3. Hull w. Equitable Ace. Assoc, 41 Minn. 231. 4. Paul V. Travelers' Ins. Co., 112 N. Y. 472, 8 Am. St. Rep. 758; Burkhard v. Travel- ers' Ins. Co., 102 Pa. St. 262, 48 Am. Rep. 205; Travelers' Ins. Co. v. McConkey, 127 U. S. 661; Travelers' Preferred Ace Assoc. V. Kelsey, 46 111. App. 371; Healey t/. Mutual Ace. Assoc,, 133 111. 556, 23 Am. St. Rep. 637; Travelers' Ins. Co. v. Murray, 16 Colo. 296; Equitable Ace. Ins. Co. v. Osborne, go Ala. 201; Brown v. Railway Pass. Assur. Co., 45 Mo. 221. For the principles which the courts will apply to the construction of an insurance policy, see American Accident Assoc ». Rei- gart, 94 Ky. 547. In Cornish v. Accident Ins. Co., 23 Q. B. Div. 453, Lord Justice Lindley said: " In a case on the line, in a case of real doubt, the policy ought to be construed most strongly against the insurers; they frame the policy and insert the exceptions. But this principle ought only to be applied for the purpose of removing a doubt, not for the purpose of creating a. doubt, or magnifying an am- biguity, when the circumstances of the case raise no real difficulty." 5. Cooper v. U. S. Mutual Ace. Assoc, 57 Hun (N. Y.) 407; Wehle v. U. S. Mut. Ace. Assoc. (Super. Ct.), 31 N. Y. Supp. 865; and Standard L., etc., Ins. Co. v. Martin, 133 Ind. 376. 6. The form of the clause varies but slight- Consideration of the Terms ACCIDENT INSURANCE. of the Policy. Effect of Negligence where Such Provision Not Inserted. — Where the policy does not contain this exception the later cases are uniform in holding that negligence of the insured will not defeat an action on the policy.* This construction is based upon the fact that the contract is one of inderhnity, and that one object which the insured has in view in effecting insurance is protection against casualties occurring from this cause,* and also upon the analogy of decisions in other branches of insurance where companies have been held liable for losses occurring through the negligence of the policy-holder.* The earlier cases holding that negligence of the insured would defeat an action on the policy would probably not be followed to-day.* (2) What is a Voluntary Exposure — Implies Conscious Intentional Exposure. — The words " voluntary exposure " as used in an accident policy imply conscious in- tentional exposure — something which one is willing to take the risk of.' It must appear that the act, in order to come within the exception, was one which reasonable and ordinary prudence would pronounce dangerous,** and that the ly in any of the policies, though in England the words "obvious risk" are frequently used instead of " unnecessary danger." See Cornish o. Accident Ins. Co., 23 Q. B. Div. 433; Lovell u. Accident Ins. Co., 3 Ins. L. J. 877. 1. Providence L. Ins., etc., Co. v. Martin, 32 Md. 310, 2 Bigelow L. & Ace. Ins. Rep. 40; Freeman -v. Travelers' Ins. Co., 144 Mass. 572; Keene v. New England Mut. Ace. Assoc, 161 Mass. 149; Wilson v. North- western Mut. Ace. Assoc, 53 Minn. 470; Champlin v. Railway Pass. Assur. Co., 6 Lans. (N. Y.) 71, 3 Bigelow L. & Ace. Ins. Rep. 736; Hoffman v. Travelers' Ins. Co. (N. Y., 1871), 7 Am. L. Rev. 594; Spruill v. North Carolina Mut. L. Ins. Co., i Jones (N. Car.) 126; Schneider v. Provident L. Ins. Co., 24 Wis. 28, I Am. Rep. 157, i Bigelow L. & Ace. Ins. Rep. 731. 3. By taking a policy of insurance against accidents one naturally understands that he is to be indemnified against accidents result- ing in whole or part through his own inad- vertence. Champlin v. Railway Pass. Assur. Co., 6 Lans. (N. Y.) 71; Keene v. New Eng- land Mut. Ace. Assoc, 161 Mass. 149. Great negligence will not necessarily defeat a fire policy. Johnson v. Berkshire Mut. F. Ins. Co., 4 Allen (Mass.) 388. See also supra, this title. Accidents and Injuries Usually In- sured Against — Accidental Injuries in General. 3. Shaw v. Robberds, 6 Ad. & El. 75, 33 E. C. L. 12; Keene v. New England Mut. Ace. Assoc, 161 Mass. 149; Johnson v. Berkshire Mut. F. Ins. Co., 4 Allen (Mass.) 388; St. Louis Ins. Co. v. Glasgow, 8 Mo. 713, 41 Am. Dec. 661; Champlin w. Railway Pass. Assur. Co., 6 Lans. (N. Y.) 71, 3 Bigelow L. & Ace Ins. Rep. 736; Gates v. Madison County Mut. Ins. Co., 5 N. Y. 478, 55 Am. Dec. 360; Breasted v. Farmers' L. & T. Co., 8 N. Y. 299, 59 Am. Dec. 482; Mathews w. Howard Ins. Co., II N. Y. 9; Enterprise Ins. Co. v. Parisot, 35 Ohio St. 35, 35 Am. Rep. 589. 4. In Morel v. Mississippi Valley L. Ins. Co., 4 Bush (Ky.) 535, the insured was held to be prevented from recovering on an acci- dent policy for an injury caused by his own negligence in having his arm project from the window of a moving car. 5. Keene v. New England Mut. Ace Assoc, 161 Mass. 149. 6. Manufacturers' Ace Indemnity Co. v. Dorgan, 58 Fed. Rep. 945; Equitable Ace. Ins. Co. V. Osborn, 90 Ala. zoi; Jones v. U. S. Mutual Ace Assoc. (Iowa, 1894), 61 N. W. Rep. 485; Bean v. Employers' Liability As- sur. Corp., 50 Mo. App. 459; Burkhard v. Travelers' Ins. Co., 102 Pa. St. 262, 48 Am. Rep. 205. In Manufacturers' Ace Indemnity Co. v. Dorgan, 58 Fed., Rep. 945, an instruction to the jury in the following terms )vas approved: The voluntary exposure within the meaning of the policy " is not such exposure as men usually are going to take, such as is incident to the ordinary habits and. customs of life; such an exposure as that does not come within the range of a defense. An expos- ure, in order to have been a contributing cause and so defeat the plaintiff's right to recovery in this case, must be something be- yond the ordinary, or a wanton, a piece of gross, carelessness, as we would term such in our designation of a person's conduct in the usual walks of life." "Exposure to Obvious Eisk of Injury." — In interpreting a clause of an accident insur- ance policy which prohibited " exposure of the insured to obvious risk of injury," Lord Justice Lindley, in Cornish v. Accident Ins. Co., 23 Q. B. Div. 453, said: " It is to be ob- served that the words are very general. There is no such word as ' wilful ' or ' reck- less,' or ' careless,' and to ascertain the true meaning of the exception, the whole docu- ment must be studied and the object of the parties to it must be steadily borne in mind. The object of the contract is to insure against accidental death and injuries, and the contract must not be construed so as to defeat that object, nor so as to render it practically illu- sory. * * * Without attempting to paraphrase the language so as to meet all cases, it is, we think, plain that two classes of accidents are excluded from the risks insured against, viz.: (i) accidents which arise from an exposure by the insured to risk of injury, which risk is obvious to him at the time he exposes him- self to it; (2) accidents which arise from an exposure by the insured to risk of injury. 307 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. accident was a consequence thereof.* It is consequently not every act of negligence which will defeat a recovery under such a provision,^ and in general the question whether the conduct of the insured is such as to preclude a recov- ery is for the jury under all the circumstances of the case.* But where the circumstances have clearly shown a voluntary exposure to danger, the courts have directed a verdict or granted a nonsuit.* which risk would be obvious to him at the time if he were paying reasonable attention to what he was doing." 1. Jones V. U. S. Mutual Ace. Assoc. (Iowa, 1894), 61 N. W. Rep. 485. 2. Providence L. Ins., etc., Co. v. Martin, 32 Md. 310; Schneider v. Provident L. Ins. Co., 24 Wis. 28, I Am. Rep. 157; Follis v. U. St. Mutual Ace. Assoc. (Iowa, 1895), 52 N. W. Rep. 807. See Cornish v. Accident Ins. Co., 23 Q. B. Div. 453. In Sawtelle v. Railway Pass. Assur. Co., 15 Blatchf. (U. S.) 2i5, it was, however, de- clared by Wallace, J., that negligence and voluntary exposure to unnecessary danger were equivalent terms; but the decision went no farther than to hold that if it was appar- ent that the insured was guilty of great negli- gence, so that there could be no justification for his act in the mind of any prudent man, he was not entitled to recovery. Burden of Proof on Defendant. — The plaintiff in an action on an insurance policy has not the burden of establishing the absence of voluntary exposure to unnecessary danger. Keene v. New England Mut. Ace. Assoc, 161 Mass. 149; Meadows v. Pacific L. Ins. Co. (Mo., 1895), 31 S. W. Rep. 578. Nor the absence of " due diligence for per- sonal safety and protection." Freeman v. Travelers' Ins. Co., 144 Mass. 572. See Sutherland v. Standard L., etc., Ins. Co. (Iowa, 1893), 54 N. W. Rep. 453. 3. Travelers' Ins. Co. v. Seaver, 19 Wall. (U. S.) 544; Tooley v. Railway Pass. Assur. Co., 3 Biss. (U. S.) 399; Cotten v. Fidelity, etc., Co., 41 Fed. Rep. 506; Pacific Mut. L. Ins. Co. V. Snowden, 58 Fed. Rep. 342; Jones V. U. S. Mutual Ace. Assoc. (Iowa, 1894), 61 N. W. Rep. 485; Freeman v. Travelers' Ins. Co., 144 Mass. 572; Providence L. Ins., etc., Co. V. Martin, 32 Md. 310; Stone v. U. S. Casualty Co., 34 N. J. L. 371; Duncan v. Preferred Mut. Ace. Assoc. (Super. Ct.), 13 N. Y. Supp. 620; Guldenkirch v. U. S. Mutual Ace. Assoc. (City Ct.), 5 N. Y. Supp. 428. 4. Hoffman v. Travelers' Ins. Co. (N. Y., 1871), Baltimore Underwriter, Jan. 30, 1873, 7 Am. L. Rev. 594; Cornish v. Accident Ins. Co., 23 9. B. Div. 453. Circumstances which Show Voluntary Expos- ure — Letting One's Self from Window by Bedtick- ing. — Where the insured fell and was killed while attempting to let himself, by means of a piece of bedticking, from a window fifteen feet above a brick sidewalk, in order to elude police officers who were at the door, it was held that this was clearly a voluntary ex- posure to unnecessary danger. Shaffer v. Travelers' Ins. Co. (111., 1889), 22 N. E. Rep. 589. Traveling on Eailroad Track at Night. — Where the insured was run down and killed while traveling home on a dark night on a railroad trestle where there were other ways of travel, it was held that he was voluntarily exposing himself to unnecessary danger. Travelers' Ins. Co. v. Jones, 80 Ga. 541, 12 Am. St. Rep. 270; Lovell v. Accident Ins. Co., 3 Ins. L. J. 877. So where the insured was traveling home at night upon a railway trestle, upon the side of which there was no railing and where the ties were ten or fifteen inches apart, and was killed by falling from the trestle. Follis V. U. S. Mutual Ace. Assoc. (Iowa, 1895), 62 N. W. Rep. 807. So where the insured was trying to drive a horse and buggy on the private grounds of a railroad on a dark night, at a place where there was a network of tracks. Neill v. Travelers' Ins. Co., 31 U. C. C. P. 394, 7 Ont. App. 570, 12 Duval (Montreal) 55. So where the insured was killed while run- ning along the track to meet and board a train at night and was struck by an engine approaching from behind. Tuttle v. Travel- ers' Ins. Co., 134 Mass. 175, 45 Am. Rep. 316. Tailing Asleep on Eailroad Track. — Where the insured fell asleep in a railroad yard with his arm across the rail, it was held that the negligence of the insured precluded a recov- ery. Standard L. , etc., Ins. Co. v. Langston (Ark., 1895), 30 S. W. Rep. 427. Going on Track in Front of Approaching En- gine. — The' fact that the insured sat down upon a railroad track when an engine mov- ing toward him was only twenty-five feet away, was held to be so clearly a case of voluntary exposure as to necessitate a dis- missal of the complaint. Williams w. U. S. Mut. Ace. Assoc., 133 N. Y. 366, reversing 14 N. Y. Supp. 728. Driving in Bace so as to Bring on Collision. — The United States Supreme Court has inti- mated that when one driver in a horse-race ob- served that another driver was ahead of him, his persistence in so running his horse as to bring about a collision was a wilful exposure to danger within the meaning of the policy. Travelers' Ins. Co. v. Seaver, ig Wall. (U. S.)53i. Alighting from a Car while in Motion.— It has been held that jumping from a train after it has started is a voluntary exposure to un- necessary danger. Smith v. Preferred Mut. Ace. Assoc. (Mich., 1895), 62 N. W. Rep. 990. But see Badenfeld v. Massachusetts Mut. Ace. Assoc., 154 Mass. 77. Crossing in Front of Approaching Train. — It is an exposure to an obvious risk, within the meaning of an insurance policy, for one pos- sessing ordinary faculties of sight and hear- ing to attempt to cross the railroad track in front of an approaching train. Cornish v. Accident Ins. Co., 23 Q. B. Div. 453. Climhing over Stationary Cars, without look- ?o8 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. Voluntary Act and Voluntary Exposure Listingfuislied. — A clear distinction exists be- tween a voluntary act and a voluntary exposure to danger. A hidden danger may exist, yet the exposure thereto without any knowledge of the danger does not constitute a voluntary exposure. The act may be voluntary, yet the exposure involuntary.* Voluntary Exposure to Necessary Danger. — Under a policy which prohibits a volun- tary exposure to unnecessary danger there may be an exposure to danger which is necessary, as where there is a chance to rescue a person in peril, and this is not within the terms of the exception.® ing to see whether they are attached to an engine or not, precludes a recovery for in- juries received while making the attempt. Bean v. Employers' Liability Assur. Co., 50 Mo. App. 459. Circumstances which do Not Show Voluntary Exposure — Crossing Railroad Tracks. — It is not such voluntary exposure as to defeat a re- covery under this clause, to cross railroad tracks in order to pass over a street through which the track runs. Wright v. Sun Mut. L. Ins. Co., 29 U. C. C. P. 221. So crossing a railroad track at a point where many others crossed daily, although forbidden by the company, and though an umbrella carried by the insured obstructed his view of a detached car which was mov- ing toward him and by which he was struck and killed. Keene v. New England Mut. Ace. Assoc, 161 Mass. 149; Duncan v. Pre- ferred Mut. Ace. Assoc. (Super. Ct.), 13 N. Y. Supp. 620. Sunning beside Moving Train. — The death of one who while running to meet an incoming train and receive the mail bag stumbled and fell against the engine, was held not to be within the exception. Equitable Ace. Ins. Co. V. Osborn, 90 Ala. 201. Walking on Sidewalk on Kailroad Bridge. — One does not voluntarily expose himself to unnecessary danger where he walks on a railroad bridge where there is a plank walk five feet wide extending along the entire length of the bridge, guarded by railing, which walk was constantly used by footmen crossing the street. Follis v. U. S. Mutual Ace. Assoc. (Iowa, 1895), 62 N. W. Rep. 807. Bathing in Deep Water. — It is not within this exception for the insured to go bathing in dee'p water. Knickerbocker Casualty Ins. Co. Tj. Jordan, 7 Cine. L. Bull. (Ohio) 71. Speaking to Woman on Street. — Where the insured spoke to a woman on the street and was knocked down and killed by her escort, it was held that there was no voluntary ex- posure to unnecessary danger. Mair w. Rail- way Pass. Assur. Co., 37 L. T. N. S. 356. Insured Killed while Fighting. — Where the insured was killed in a quarrel and while carrying a concealed weapon, it was con- tended that, his acts being unnecessary, the .case came within the exception; but it was held that there was no voluntary exposure to unnecessary danger. Jones v. U. S. Mut- ual Ace. Assoc. (Iowa, 1894), 61 N. W. Rep. 485- Biding on Platform of Car. — It has been held not to be a voluntary exposure for a passen- ger to leave the interior of a car in order to ride on the platform because he was over- come from heat or suffering from nausea. Marx V. Travelers' Ins. Co., 39 Fed. Rep. 321. The court in this case said: " That the deceased was in a dangerous position on the platform as distinguished from the body of the car. in which, as a passenger, he was en- titled to ride, is clear enough; but whether in going on the platform there was a volun- tary exposure to unnecessary danger cannot be ascertained except with knowledge of all the circumstances which influenced his con- duct. If he was overcome by the heat of the car, or affected with nausea, which impelled him to seek the open air, it cannot be said that there was a voluntary exposure or that the danger was unnecessarily incurred." See Pratt V. Travelers' Ins. Co. (N. Y., 1871), 7 Am. L. Rev. 595; Scheiderer v. Travelers' Ins. Co., 58 Wis. 13, 46 Am. Rep. 618. So riding on the platform of a street car. Sutherland u. Standard L., etc., Ins. Co., 87 Iowa 505. On the other hand, it has been held that the policy was avoided where the insured was killed by falling from the platform while attempting to pass from one car to another of a train moving at full speed. Sawtelle v. Railway Pass. Assur. Co., 15 Blatchf. (U. S.) 216. " See also infra, this title, Accidents while Riding on the Platform of a Railway Car. 1. Burkhard w. Travelers' Ins. Co., 102 Pa. St. 262, 48 Am. Rep. 205; Equitable Ace. Ins. Co. -v. Osborn, 90 Ala. 201. Cleaning Gun Not Known to be Loaded. — It has accordingly been held that where the in- sured was killed while cleaning a gun which he did not know was loaded, there was not a voluntary exposure to unnecessary danger. Miller v. American Mut. Ace. Ins. Co., 92 Tenn. 167. Stepping from Train at Night on Bailroad Bridge. — The insured stepped off a railroad train when it came to a stop on a drawbridge at night, fell through a concealed hole in the bridge, and was killed; it appeared that other passengers were alighting at the time, that the bridge with the exception of the hole through which the insured fell was safe, and that the insured stepped from the train in the presence of a brakeman with a lantern, who gave no warning as to danger. It was held that although the insured by a voluntary act exposed himself to a hidden danger, there was no voluntary exposure to danger within the exception of the policy. Burkhard v. Travelers' Ins. Co., 102 Pa. St. 262, 48 Am. Rep. 205. 2. Keene v. New England Mut. Ace. Assoc, r6i Mass. 149. 309 Consideration of the Terms A CCIDENT INS U RANGE. of the Poiiey. c. Want of Due Diligence.— A stipulation for due diligence on the part of the insured for his personal safety requires only such care as prudent persons are accustomed habitually to use, and does not negative a recovery for every accident to which want of care on the part of the insured may have con- tributed.* - Does Not Include Contemplated Eisks— Risks Impliedly Assumed. — The clause prohibiting a recovery in case of voluntarily assumed risks has no application to dangers which, in view of the surrounding circumstances and the situation of the partiss, would have been naturally contemplated by them, as where the occupation of the assured was of an extra hazardous character, in which accidents were to be expected.* Going to the Bescne of a Shipwrecked Crew is not an exposure to unnecessary danger. Tucker v. Mutual Ben. Life Co., 50 Hun (N. Y.) 50. See Williams v. U. S. Mut. Ace. Assoc. (Supreme Ct.), 38 N. Y. St. Rep. 378, 133 N. Y. 366. 1. In Keene v. New England Mut. Ace. Assoc, 161 Mass. 149, the court, by Allen, J., in reference tea provision that the certifi- cate holder is required to use all due dili- gence for personal safety and protection, said: " This phrase is very general, and cer- tainly it does not mean that the assured must guarantee himself against accidents, nor do we think it means that he shall not recover for any accident to which some want of care on his part may have contributed. He is not required to use all possible diligence, but only all due diligence. Due diligence or care is sometimes said to be reasonable dili- gence or care, and reasonable care is some- times said to be the ordinary care of prudent persons. It is not a precise term, but a rela- tive one. In an accident policy it would not be reasonable to hold that this clause requires of the assured a higher degree of diligence than prudent persons are accustomed habit- ually to use. Under such a construction few persons would care to have an acci- dent policy. The due diligence required is not inconsistent with inadvertence, nor with running such risks as prudent and cautious persons habitually run." Going on Scaffold on House in Course of Erec- tion. — Where the policy required the insured to use all due diligence for his personal safety, the court declined to hold as a matter of law that the stipulation had been violated because the insured, who was having a barn built, climbed up to the second story to in- spect the work, though he was heavily clad in two overcoats and was said to be an awk- ward man, and there stepped upon a joist which, owing to a. concealed defect, broke, and he fell to the ground and was killed. Stone V. U. S. Casualty Co., 34 N. J. L. 371. Boarding a Moving Train. — Where one who was insured under a policy requiring " due diligence for self-protection," attempted to get on board of a train which was moving slowly, either on the forward platform of the rear car or between two cars, and was crushed between the wheels, it was left to the jury to say whether the insured had us«d that de- gree of caution and diligence which a pru- dent man would use under the circumstances. Tooley v. Railway Pass. Assur. Co., 3 Biss. (U. S.) 399. See Travelers' Preferred Ace. Assoc, v. Stone, 50 111. App. 222. But where the insured under a policy re- quiring due diligence for personal safety was killed by an engine at whose signal he had first stepped off the track and then de- liberately stepped on when the locomotive had almost reached him, it was held that the defendant was entitled to a nonsuit. Hoff- man w. Travelers' L. Ins. Co. (N. Y., 1871), 7 Am. L. Rev. 594. 2. Wilson V. Northwestern Mut. Ace. As- soc, 53 Minn. 470. Illustrations — Brick Mason on Swinging Scaffold. — Where the insured was a brick mason, it was held that recovery would not be defeated by the fact that he was injured while working on an insecure swinging lad- der. Wilson V. Northwestern Mut. Ace. As- soc, 53 Minn. 470. Switchman Handling Broken Gars. — The in- sured was killed while handling broken cars in the discharge of his regular duty as a yard switchman or a yard brakeman, and it was held that his death arose not from voluntary exposure to unnecessary danger, but from an accident for which the contracting parties intended the association should be liable. National Ben. Assoc, v. Jackson, 114 111. 533. See Standard L., etc., Ins. Co. v. Jones, 94 Ala. 434. Engineer Passing from Tender to Car. — Where a locomotive engineer, while backing his en- gine down grade at a speed of about eight miles an hour, attempted to pass from the tender to the car attached in front, for the purpose of checking speed, and in such at- tempt slipped between the car and the tender and was crushed to death, it was held that there was no breach of the clause prohibit- ing exposure to unnecessary risks. Provi- dence L. Ins., etc., Co. v. Martin, 32 Md. 310. Cattle-dealer Boarding Train. — Where a cat- tle-dealer, insured under an accident policy which permitted him to attend his cattle in transit on the cars, was injured while at- tempting to board a moving train, the court held that he was entitled under the policy to attend to cattle on the cars in the custom of prudent cattle-men, and that evidence of such custom was admissible. Pacific Mut. L. Ins. Co. V. Snowden, 58 Fed. Rep. 342. In delivering the opinion of the court in this case Caldwell, J., said: " Plaintiff had a right, if it was not his duty, to incur all the risk and danger incident to caring for and looking after his cattle in the cars while en Consideration of the Terms ACCIDENT INSURANCE. of the Policy. Express Exceptions of Incidental Risk. — Though this principle is applied in cases where the issue of negligence is involved, it will be construed more strictly where there is a proviso excepting risks; but the exception of a risk incident to the employment of the insured and which is known to the insured will not be allowed to defeat the policy.* If, however, the exception can stand and not defeat the policy, it will be upheld,'-* and there can be no recovery where the insured has been guilty of the want of due care in the performance of cus- tomary duties.* d. Walking or Being on Railroad. — An exception in a policy in case of injury or death received while walking or being on the road-bed of a steam railroad is intended to guard against accidents caused by moving trains, and not against all accidents which happen to occur on the track.* It includes ■route to their destination, in the time and manner customary among reasonably pru- dent and careful shippers, and such risks and dangers, no matter how great, do not constitute any violation of the provisions of the policy requiring the plaintiff to use due diligence for his personal safety and protec- tion; nor is the incurring of such risks and dangers a voluntary exposure to unneces- sary danger within the meaning of that clause in the policy." 1. Conductor Injured while Leaving Iloving Train.^-Where an accident policy was issued to one who was described in the application as " a passenger conductor," and the appli- cation was expressly made a part of the con- tract, it was held that the insurer could not resist a recovery upon the ground that the in- sured was injured while leaving a moving train, and that the policy expressly excepted the hazard of " attempting to enter or leave moving conveyances using steam as a mo- tive power." Dailey v. Preferred Masonic Mut. Ace. Assoc. (Mich., 1894), 57 N. W. Rep. 184. In this case t,he court said: " We are also satisfied from the application and the information which that gave to the de- fendant company that accidents of this kind are of the risks intended to be insured against. The sole business of the deceased was in running passenger trains, and this was plainly stated in the application. It is common knowledge that conductors of pas- senger trains on all railroads must, from the very nature of their business, not only enter but leave their trains before they come to a full stop; it is common knowledge that con- ductors of passenger trains have full charge of their trains; they give the signal to start, and after the train starts they get on board; at stations when the train pulls up and before it stops the conductor alights upon the plat- form. This may be a dangerous practice, but it is among the risks which the passenger conductor assumes when he enters upon such employment, and so general is this knowl- edge that the defendant company when it took and approved the application must have had knowledge of it." Upon a rehearing this case was reversed upon a different point not affecting the doctrine just stated. See Dailey ». Preferred Masonic Mut. Ace. Assoc. (Mich., 1894), 60 N. W. Rep. 691. Eailroad Superintendent. — A proviso except- ing injuries while getting on or off moving trains does not apply in the case of a railway superintendent whose duties require him to get on and off moving trains, of which fact the insurer had knowledge. Accident Ins. Co. V. McFee, 7 Montreal Q. B. 255. 2. Where the insured was described as a cattle dealer or broker, not a tender, it was held that an exception against injuries re- ceived while entering or trying to enter a moving steam vehicle, or while riding in a conveyance not provided for the transporta- tion of passengers, was a competent provi- sion of the policy; and that where the evi- dence showed that the injuries were sus- tained in this way it was error to refuse to instruct that the plaintiff could not ie- cover; the question being whether the in- juries were within the contract of the parties, and not whether plaintiff was conducting himself in a prudent manner. Travelers' Ins. Co. V. Snowden (Neb., 1895), 63 N. W. Rep. 392. But see Pacific Mut. L. Ins. Co. V. Snowden, 58 Fed. Rep. 345. ^ 3. Sue Care in Performing Customary Duties. —Where the plea alleged that the insured was chargeable with want of due care and : diligence for his personal safety, and the replication thereto alleged that " said in- sured was a railroad switchman, was insured as such, and met the accident which caused, his death while in the discharge of his cus- tomary duties as such switchman," it was held that the replication was demurrable and insufficient because, although the policy covered injuries resulting from the dangers incident to the service, it did not cover in- juries resulting from negligence or want of due care in the performance of customary duties. Standard L., etc., Ins. Co. v. Jones, 94 Ala. 434. 4. Where the insured was injured by step- ping off a railroad train at night when it had come to a stop at a drawbridge, and falling through a concealed hole therein, it was held that the injury was not within the exception. Burkhard v. Travelers' Ins. Co., 102 Pa. St. 262, 48 Am. Rep. 205. In explaining the ex- ception in this case the court, by Mercur, C. J., said: "The language of the "exception clearly implies two thoughts: one, that the insured must not be on the road-bed or bridge for any length of time; the other, that the prohibition is not to guard against injury 3" Consideration of the Terms ACCIDENT INSURANCE. of the Policy. only cases where the accident happens through the insured voluntarily and intentionally being or walking upon the road-bed, and not where he is there by force of accident or involuntarily.* The mere fact that the insured was injured while crossing the railroad track does not under this clause prevent a recovery,* but the exception applies where one is needlessly walking along the tracks or road-bed instead of upon a parallel walk provided for passengers.' Meaning of Road-bed. — The word " road-bed " in this connection is used with regard to the way in which railroads are usually constructed, but it does not include parts of either the foundation or superstructure whereon a prudent person might be without danger from passing trains.* e. Riding on Platform of or Getting on or off a Railroad Car. — Where the policy contains a proviso excluding liability for injuries or death happening while the insured is standing or riding or being on the platform of, or entering or leaving, a moving steam vehicle, the condition is valid and pro- tects the insurer in case of accident so happening.* resulting from a defective road-bed or defect- ive railway bridge, but against the danger of injury from trains passing thereon." 1. Where the insured while running beside the track stumbled and fell thereon and was injured, it was held that the exception did not apply. The court said: "A fair and reasonable construction of the phrase in question is voluntarily and intentionally be- ing or walking on the railway road-bed, not being there by force of accident and involun- tarily for a mere comparative moment of time." Equitable Ace. Ins. Co. v. Osborn, 90 Ala. 201. 2. Duncan v. Preferred Mut. Ace. Assoc. (Super. Ct.), 36 N. Y. St. Rep. 928; Dougherty V. Pacific Mut. L. Ins. Co., 154 Pa. St. 385; Wright V. Sun Mut. L. Ins. Co., 29 U. C. C. P. 231. See supra, this title, Voluntary Ex- posure to Unnecessary Danger. 3. Where the insured is killed while walk- ing on the road-bed between the tracks of a railroad, when parallel to it is a sidewalk which he could have used, the exception ap- plies, and the fact that rriany other people use the road-bed in the same manner is im- material. Piper V. Mercantile Mut. Ace. Assoc, 161 Mass. 589. 4. Standard L., etc., Ins. Co. -v. Langston (Ark., 1895), 30 S. W. Rep. 427; Meadows v. Pacific Mut. L. Ins. Co. (Mo., 1895), 31 S. W. Rep. 578. See Follis v. U. S. Mutual Ace. Assoc. (Iowa, 1B95), 62 N. W. Rep. 807. Ends of Extraordinarily Long Ties. — In Stand- ard L., etc., Ins. Co. v. Langston (Ark., 1895), 30 S. W. Rep. 427, the court, by Battle, J., in construing the meaning of the word " road- bed " within the exception in an accident policy, said: "The word 'road-bed,' when used in reference to railways, has = well-un- derstood meaning. It is the bed or founda- tion on which the superstructure of the rail- way rests, and the superstructure is the sleep- ers or ties, rails, and fastenings. This, of course, includes the side tracks which form a part of the railway. Santa Clara County V. Southern Pac. R. Co., 118 U. S. 413; San Francisco v. Central Pac. R. Co., 63 Cal. 469, 49 Am. Rep. 98; San Francisco, etc., R. Co. V. State Board of Equalization, 60 Cal. 34; Cass County z". Chicago, etc., R. Co., 25 Neb. 353. In this sense it was -doubtless used in the policy sued on in this case, but in using it in this sense it is presumed that the par- ties had reference to the manner in which railroads are usually constructed, and did not include in its meaning the ends of ties of unusual and extraordinary length and ex- tending to a place where there can be no possible collision with trains, and where per- sons standing or sitting would be beyond the reach of injury by passing trains. * * * Whether the appellee was on the road-bed in the sense so used was a question of fact for the jury to decide, if there was any room for doubt about it." Wide Space between Tracks. — A space be- tween railroad tracks of the width of ten feet and formed of well-beaten, level, and smooth- ly trodden cinders, is not a part of the road- bed within a policy of accident insurance which provides that it does not extend to ac- cidents on a railroad bridge, trestle, or road- bed. Meadows w. Pacific L. Ins. Co. (Mo., 1895), 31 S. W. Rep. 578. 5. Hull V. Equitable Ace. Assoc, 41 Minn. 231; Miller z-. Travelers' Ins. Co., 39 Minn. 548. See Sawtelle v. Railway Pass. Assur. Co., 15 Blatchf. (U. S.) 216. Being on Platform. — Where the insured was traveling upon a railroad car, went out upon the platform while the train was in motion, intending to get off when it should stop, for the purpose of crossing over by a switch to another track, and was thrown off and killed, it was held that the case was within the ex- ception as to injuries resulting from being upon the platform of moving cars, and that the insurer was not liable. Hull v. Equi- table Ace. Assoc, 41 Minn. 231. Getting on Moving Train.— Where the in- sured, under a policy excepting injuries while trying to enter a moving steam vehicle, was killed while attempting to get on a railroad train which was in motion, it was held that the exception applied and that the company was not liable. Miller v. Travelers' Ins. Co., 39 Minn. 548. Evidence. — Where the insured was killed by a train on which he had been a passen- ger, his body having been found a few feet from a station at which the train stopped, it 31: Consideration of the Terms ACCIDENT INSURANCE. of the Policy. Esception as to Bailroad Employees. — The policy frequently provides that this proviso shall not extend to railroad employees.* In determining w^ho is a railroad employee, regard must be had rather to the character of the employ- ment than to the person of the employer.* / Noncompliance with Rules and Regulations of Carrier or Corporation. — A proviso in accident policies sometimes excepts injuries re- ceived when the insured was violating the rules and regulations of a common carrier or corporation. It has been held that it must be shown that the rule was one which was known to the policy-holder and in force at the time of its alleged violation.* But where the insured is the employee of the corporation, it is his duty to inform himself of its rules, and it is immaterial whether in point of fact he knew of the rule violated or not.* Where the injury was received while the insured was violating a known rule of a carrier, the insurer was held by such a clause to be relieved of liability." g. Suicide or Self-inflicted Injuries — Usuai Proviso in Policies. — A pro- viso is usually inserted in policies to the effect that the insurance shall not be extended to death caused by "suicide or self-inflicted injuries." Kefers to Voluntary Conscious Act. — The question presented under such a clause in an accident policy is in all respects the same as when the question arises under a policy of life insurance. Accordingly, in courts where the established doctrine in life insurance is that suicide while insane is not within the excep- tion against suicide in a life policy, it has been held that self-destruction by a person non compos mentis is not within a similar exception in an accident pol- icy.* In jurisdictions where a suicide while insane is considered as avoiding a was held that as the burden of showing that the accident was within the exception was upon the defendants, it could not be said that his death was due to getting on or off a mov- ing train, and that the question was one for the jury. . Anthony v. Mercantile Mut. Ace. Assoc, 162 Mass. 354. Jumping on or off a Moving Car, unless Result of Design. — Where the policy excepted in- juries caused by jumping on or off moving cars, unless the claimant should establish that the injuries were caused by external, violent, and accidental means, not the result of design, and the evidence showed that the insured while attempting to board a moving car lost his balance and fell from the train, and that his left hand was run over and mashed, it was held that the exception in the policy did not prevent a recovery; that the words meant that jumping on the train was excused if the means of the injury was not the result of design, and in this case neither the means nor the injury was the result of design. 'Travelers' Preferred Ace. Assoc. V. Stone, 50 111. App. 222. 1. The same rule applies in the absence of a special'exception as to railroad employees. Dailey v. Preferred Masonic Mut. Ace. Assoc. (Mich., 1894), 57 N. W. Rep. 184; Accident Ins. Co. V. McFee, 7 Montreal Q. B. 255. See also supra, this title, Voluntary Expos- ure to Unnecessary Danger. 3. Cotten v. Fidelity, etc., Co., 41 Fed. Rep. 506. In this case the insured was a baggage checker, employed by a transfer company', and not by the railroad; his business re- quired him to meet and board incoming trains, and check baggage to other railroad lines, and to residences in the city. It was held that he was a railroad employee within the meaning of the exception. 3. Marx v. Travelers' Ins. Co.. 39 Fed. Rep. 321. In this case it was held that where it appeared that the rule of a common carrier, a violation of which was alleged, was not at all observed; that it was violated by all passengers on the road who were so in- clined, and often at the invitation of the train- men — it could not be said that it was in fact a rule of the company in force. The court in its opinion expressed a doubt whether, when under the policy certain limitations were im- posed upon policy-holders as to entering or trying to enter or leave a moving conveyance using steam as a motive power, or walking or being on a railroad bridge or road-bed, another limitation could be added under the general designation of a rule of the cor- poration. " Will any one say," remarked Hallett, J., " that on sea and land, at home and abroad, a policy-holder must constantly consider whether he is within all the rules of all the corporations, public and private, which he may in any way encounter ? " 4. Standard L., etc., Ins. Co. w. Jones, 94 Ala. 434. But in this case it was held that this exception to the insurer's liability was a matter of affirmative defense, and where it was not pleaded by the insurer it was not error for the court to exclude evidence offered tp establish the existence df the rule which it was proposed to show had been violated by the insured in such sort that the violation contributed to his death. 5. Bon V. Railway Pass, i^ssur. Co., 56 Iowa 64, 41 Am. Rep. 127. See Pratt v. Travelers' Ins. Co., 8 Alb. L. J. 88. 6. Accident Ins. Co. v. Crandal, 120 U. 8. 527; Blackstone v. Standard L., etc., Ins. Co., 74 Mich. 592. See the title Life Insdrance. In Accident Ins. Co. v. Crandal, 120 U. S. 527, Gray, J., said: " The decisions upon the 313 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. life policy containing a proviso against suicide,* a similar interpretation would probably hold in accident policies. Self-inflicted Injuries. — The same construction governs a clause against " self- inflicted injuries" as against suicide, for the former can no more be predicated of an insane person than the latter.* h. Taking Poison. — The policy frequently exempts injury or death " from taking poison." The authorities are not in accord whether this exception ex- tends to all cases of poison, whether accidental or intentional.* effect of a policy of life insurance which pro- vides that it shall be void if the insured ' shall die by suicide,' or ' shall die by his own hand,' go far towards deterrri'ning this ques- tion." And it was accordingly held upon an examination of those authorities that an acci- dent policy containing the proviso that " this insurance shall not extend to death * * * by suicide," covered adeathby hanging one's self while insane. A similar result was reached by a similar course of reasoning in Blackstone v. Stand- ard L., etc., Ins. Co., 74 Mich. 592. In this case, before examining the authorities upon the disputed point. Long, J., summed up the result of the authorities as to the distinction between voluntary suicide and accidental death as follows: " Upon the question of a voluntary suicide intentionally committed by a sane man in the possession of his faculties, knowing how to adapt means to ends, and conscious of the immorality of the act, there is no difference of opinion, and all the authori- • ties agree that self-destruction is within the exemption; and all authorities likewise agree that an accidental death, as by taking poison by mistake, or shooting one's self with a pistol supposing it not to be loaded, or fall- ing from a building, or death happening in any way by the unintended act of the party dying, is not within the exemption." See also, as to accidental death, Pierce v. Travel- ers' L. Ins. Co., 34 Wis. 396; Mutual L. Ins. Co. V. Laurence, 8 111. App. 488. Missouri Statute. — It is provided by p 5855 of Vae. Missouri 'S.e.v. Stats., that suicide in cases of life insurance shall be no defense, unless the insured contemplated suicide when he took out the policy, and any stipu- lation to the contrary in the policy is void. See Kellar v. Travelers' Ins. Co., 24 Ins. L. J. 396. Suicide — Sane or Insane. — As to the effect of a provision in the policy that the contract is to be void in the case of suicide, sane or in- sane, by the insured, see the title Life In- surance. See also Hutchcraft v. Travelers' Ins. Co., 87 Ky. 303. 12 Am. St. Rep. 484. 1. Borradaile v. Hunter, 5 M. & G. 639, 44 E. C. L. 335; Dean v. America.n Mut. L. Ins. Co., 4 Allen (Mass.) 96; Cooper v. Massa- chusetts Mut. L. Ins. Co., 102 Mass. 227, 3 Am. Rep. 451. See the title Life Insurance. But it seems, even in these jurisdictions, that if the death is infli'cted in the madness of delirium and is not the result of the will and intention, although perverted, the ex- ception does not apply. Clift v. Schwabe, 3 C. B. 437, 54 E. C. L. 437, per Alderson, B.; Cooper V. Massachusetts Mut. L. Ins. Co., 102 Mass. 227, 3 Am. Rep. 451. Nor does insane suicide avoid a policy which contains no exception as to suicide or self-inflicted injuries, although perhaps a voluntary suicide might have such an effect, upon the grounds of public policy. Horn V. Anglo-Australian, etc., L. Ins. Co., 7 Jur. N. S. 673. 2. Accident Ins. Co. v. Crandal, 120 U. S. 532. See Hutchcraft v. Travelers' Ins. Co., 87 Ky. 304, 12 Am. St. Rep. 484 ; and infra, this title. Intentional Injuries. 3. Some authorities hold that this exemp- tion extends to all cases of poisoning, whether accidental or not. Pollock v. U. S. Mutual Ace. Assoc, 102 Pa. St. 230, 48 Am. Rep. 204; Hill V. Hartford Ace. Ins. Co., 22 Hun (N. Y.) 187; Colfe V. Accidental Ins. Co., 61 L. T. N. S. 227. Illustrations of Accidental Poisoning. — In Cole V. Accidental Ins. Co., 61 L. T. N. S. 227, the insured took poison by mistake for medicine which he was in the habit of taking. In Hill V. Hartford Ace. Ins. Co., 22 Hun (N. Y.) 187, the insured, a physician, mixed some poison with water in a goblet, and after- ward mistaking the mixture for water drank it, and subsequently died. It was held that the beneficiary could not recover, because the death did not proceed from an external, vio- lent, and accidental injury, and because the policy contained an exception as to death by poisoning. This case was overruled, as to the first of the two grounds upon which the court proceeded, in Paul v. Travelers' Ins. Co., 112 N. Y. 472, 8 Am. St. Rep. 758, but its force as an authority upon the second ground seems not to have been disturbed. In Pollock V. U. S. Mut. Ace. Assoc, 102 Pa. St. 230, 48 Am. Rep. 204, the insured by mistake' drank " oil of birch " for " milk of birch," and it was held that there could be no recovery under a policy containing the exception as to death from poison. In this case Mercur, C.J., said: " To remove all doubt as to the liability of the association to the plaintiff in this case, the certificate further declares the benefits under it shall not extend to any death or disability which may have been caused ' by the taking of poison.' It is not necessary that the poison be taken with an intent to produce death, in order to defeat a claim flowing from the right of membership. If the poison be innocently taken and without any knowledge of the in- jurious effect which it was likely to produce, and did produce, so far as the person taking it is concerned, the effect may be said to be accidental." The Contrary Doctrine has, however, been laid down. Thus, in Healey ti. Mutual Ace Assoc, 133 III. 556, 23 Am. St. Rep. 637, the 314 Consideration of the Terms ACCIDENT INSURANCE, of the Policy. What is Poison. — It has been held that death by asphyxiation from the in- halation of gas is not a death from taking poison.* Whether an injury from the sting of a venomous insect is an injury from poison, has been left to the jury under an instruction from the court distinguishing venom from poison.* i. Inhalation of Gas. — Where the policy excepts death from the inhala- tion of gas, it has been held that all deaths from this cause are covered, whether the inhalation was intentional or not, since if this exception were in- tended to cover only the cases of accidental inhalation it would seem to be superfluous, as deaths by intentional inhalation of gas are excepted in the policy against suicide.* But, on the other hand, it has been held that this exception refers only to deliberate conscious acts.* j. Death Caused by Disease. — Accident policies usually contain a clause which differs considerably in the various policies in its wording, the purpose of which clause is to relieve the insured from responsibility in case of the death or disability of the insured from disease. The effect of such an exception de- pends of necessity upon the terms of the policy, and resolves itself largely into a question of construction. Where Disease Not Proximate Cause of Death. — The tendency of the courts, under the settled rules of construction applicable to insurance contracts, is to inter- pret the clause in a manner favorable to the insured, and where the accident can be considered as the proximate cause of death, although disease may have been present as a secondary cause,' or where the death is the reasonable and natural consequence of the injury, although disease may have supervened,^ the Beidle- declaration alleged that the insured died from an overdose of chloral. The policy by which the deceased was insured provided for liability in case of death through ex- ternal, violent, and accidental means, and there was a proviso excepting responsibility for death by the taking of poison. Upon a general demurrer, it was held that the death as set forth in the declaration was caused by external, violent, and accidental means, and the demurrer was overruled. But in the opinion of the court there is no allusion to or consideration of the effect of the proviso, in the policy as to death by poison, further than is implied in the fact that Pollock v. U. S. Mutual Ace. Assoc, 102 Pa. St. 230, 48 Am. Rep. 204, is disapproved. Healey v. Mutual Ace. Assoc, 133 111. 556, 23 Am. St. Rep. 637, was followed in Mutual Ace Assoc. V. Tuggle, 39 111. App. 509, where the point was distinctly made. This case was reversed upon another point in 138 111. 428. In Bayless v. Travelers' Ins. Co., 14 Blatchf. (U. S.) 143, it was held that there could be no recovery where, a specified dose of opium having been prescribed to the in- sured by his physician to allay nervousness, by inadvertence the patient took more opium than he intended, and death ensued. 1. Paul V. Travelers' Ins. Co., H2 N. Y. 472, 8 Am. St. Rep. 758; Pickett v. Pacific Mut. L. Ins. Co., 144 Pa. St. 79; U. S. Mut- ual Ace. Assoc. V. Newman, 84 Va. 52. In U. S. Mutual Ace. Assoc, v. Newman, 84 Va. 52, where the insured died by inhal- ing carbonic oxide and coal gas, it wag left to the jury to say- whether carbonic oxide was poisonous, and whether the insured died from the poisonous effects thereof or from the effects of suffocation produced by other elements of coal gas with which the oxide was combined. 8. Preferred Mut. Ace Assoc, man, i Monaghan (Pa.) 481. 3. Richardson v. Travelers' Ins. Co., 46 Fed. Rep. 843. 4. Paul V. Travelers' Ins. Co., 112 N. Y. 472, 8 Am. St. Rep. 758; Pickett v. Pacific Mut. L. Ins. Co., 144 Pa. St. 79. See Cole V. Accidental Ins. Co., 61 L. T. N. S. 227. " Death &om Anything Accidentally Taken or Inhaling Gas."- — Where the policy excepts " death or disablement arising from any- thing accidentally taken, administered, or in- haled, the contact of poisonous substances, inhaling gas, or any surgical operation," it would seem that unintentional as well as de- liberate inhalation of gas is excepted. Men- neiley v. Employers' Liability Assur. Corp., 72 Hun (N. Y.) 477. 5. See Lawrence v. Accidental Ins. Co., 7 Q. B. Div. 216; Prader v. National Masonic Ace Assoc. (Iowa, 1895), 63 N. W. Rep. 601; Freeman v. Mercantile Mut. Ace. Assoc, 156 Mass. 351; Wehle v. U. S. Mutual Ace. Assoc, II Misc. Rep. (N. Y. Super. Ct.)4i; Hall V. American Masonic Ace. Assoc, 86 Wis. 518, and the cases cited in the following notes to this section. 6. Disease the Beasonahle and Natural Conse- quence of Accident. — The insured under a policy against death from the effects of in- jury caused by accident fell and dislocated his shoulder. He was at once put to bed, and died in less than a month from the date, of the accident, having been all the time con- fined to his bedroom. In a case stated in a, reference pursuant to the Railway Passen- gers' Companies' Act (27 and 28 Vict., c 125) the umpire found that the assured died from pneumonia caused by cold, but that he would not have died when he did had not it been for the accident, that as a consequence of the accident he was rendered restless, unable 315 Consideration of the Terms A CCIDENT INS URANCE. of the Policy. policy is /not avoided unless the exception plainly includes such case. Policies excepting " death or disability in consequence of disease," * or " injury happen- ing directly or indirectly in consequence of disease, or caused wholly or in part by disease," * or " injury caused by or arising from natural dis- to wear his clothing, weak, and unusually- susceptible to cold, and that his catching cold and the fatal effects thereof were due to the condition of health to which he had been re- duced by the accident. It was held that the death of the assured was due to the effects of injury caused by accident within the mean- ing of the policy. Isitt v. Railway Pass. Assur. Co. ,'22 Q. B. Div. 504. Embolism or Thrombus — Evidence. — Where it appeared that the insured upon a certain day broke his arm, that upon the same day the fracture was reduced, that upon the fol- lowing day he was taken ill quite suddenly with severe pain in his chest and lungs, from which he was relieved and was convalescent for a week or ten days, when he was again attacked in a similar manner and died within less than three weeks from the happening of the accident, and the evidence introduced by the plaintiff tended to show that the cause of his death was embolism or thrombus, which was the direct result of his arm being broken, while the evidence of the defendant tended to show that the death was caused by pneu- monia, it was held that the evidence was sufficient to justify the trial court in finding that the fracture of the plaintiff's arm was the sole and proximate cause of his death. Peck V. Equitable Ace. Assoc, 52 Hun (N. Y.) 255. 1. Peritonitis Following » Fall. — Where a policy was conditioned not to extend "to any case in which death or disability occurs in consequence of disease, * * * nor to any case except where the injury is the proxi- mate cause of the disability or death," and it appeared that the insured died of peritoni- tis induced by a fall; that he had previously had the same disease and was, in conse- quence, more liable to a recurrence thereof, the court charged the jury that upon the question whether peritonitis, if that caused his death, was to be deemed a disease and the proximate cause of death, within the meaning of the policy, depended the ques- tion whether or not before the time of the fall and at the time of the fall he had then the disease. If he had, then, although the disease was aggravated and made fatal by the fall, he could not recover; but if, owing to existing lesions caused by the disease, he not having the disease at the time, peritoni- tis was started, the defendant was answer- able, although if there had been a normal state of things the fall would not have oc- casioned such a result. It was held that this ruling gave an interpretation to the language of the policy which was in accordance with the apparent intention of the parties, and which made the contract a beneficent pro- vision for the beneficiaries named in it. Freeman v. Mercantile Mut. Ace. Assoc, 156 Mass. 351. Tetanus.— Where the policy excepted " death resulting wholly or in part from 316 disease," and in consequence of a pistol wound the insured took lockjaw or tetanus and died, it was held that the insurer was liable if the wound was the proximate cause of the death. Travelers' Ins. Co. v. Melick, 65 Fed. Rep. 178. 2. Blood-poisoning Consequent on Wound. — Where a. policy provided that its benefits should not extend to " bodily injury hap- pening directly or indirectly in consequence of any disease, * * * death or disability caused wholly or in part by bodily infirm- ities or disease, or to any case except where the injur)' was the proximate and sole cause of the disability or death," and it ap- peared that the deceased received an injury to a finger upon his right hand, that blood- poisoning ensued and caused his death, that previously he had received an injury on his , left hand which inflamed and suppurated, and that it was possible that poisonous matter from the old wound might, at or near the time of the accident to the finger, have been communicated to it and caused such blood- poisoning, it was held that it was a question for the jury to determine whether the injury to the finger was within the terms of the policy and the sole and proximate cause of death. Martin v. Equitable Ace. Assoc, 61 Hun (N. Y.)467. Erysipelas Caused by Fall. — Where deceased was insured under a policy containing the same provision, and in consequence of an ac- cidental wound took erysipelas and died, the erysipelas resulting solely from an external injury, it was held that the external injury was the proximate or sole cause of the death within tlie meaning of the policy. Accident Ins. Co. V. Young, 20 Duval (Montreal) 280. In delivering judgment in this case Patterson, J., said: "As soon as we aban- don the notion that other diseases, such as the diseases of the lungs or kidneys, of which traces were found, produced or aided in pro- ducing the erysipelas, the reference to ' bod- ily infirmities or disease existing prior or subsequent to the date of this contract ' be- comes inapplicable to the case. * * * The proviso in the policy distinguishes between death from an injury as a direct consequence, and death from bodily infirmities and disease not caused by the injury. The latter cause of death gives no claim under the policy; the former, which is designated the proxi- mate cause, gives a claim." See the same case, Young v. Accident Ins. Co., 6 Mont- real Super. Ct. 4. Duodenitis Caused by a Jump. — Under a simi- lar policy it has been held that duodenitis produced by a jump and resulting in the death of the insured entitles the beneficiary to recover. Barry v. U. S. Mutual Ace. As- soc, 23 Fed. Rep. 712, 131 U. S. 100. Kuptured Blood-vessel Followed by Abscess Proximate Cause.— Where it appeared that one who was iijsured under an accident policy Consideration of the Terms A CCIDEN T INS U RANGE. of tlie Policy. ease,"* have received interpretations in accord with the above principles; yet where the death is directly due to disease and not to accident, the excep- tion protects the insurer.* burst a blood-vessel while exercising with Indian clubs, it was held, under a clause in the policy which provided that insurance should not extend to death caused wholly or in part by disease, nor to any case except where the injury was the proximate and sole cause of death, that if the deceased sustained injury by the rupture of a blood-vessel in his lungs, and that necessarily produced inflam- mation, and that necessarily produced a dis- ordered condition of the injured organ, which was in consequence followed by the forma- tion of abscesses and the accumulation of injurious substances or matter in the lungs, and so there resulted a diseased state of the lungs, whereby they could no longer perform their functions, and in consequence the in- sured died; that is, if all these results fol- lowed the injury as its necessary conse- quence, and would not have taken place if it had not been for the injury, then the in- jury could be said to be the proximate cause of death. But if an independent disease su- pervened upon the injury, one not necessari- ly produced by the injury, or if the alleged injury merely brought into activity a then existing though slumbering disease, and the death of the deceased was caused wholly or in part by such disease, then it could not be said that the injury was the sole and proxi- mate cause of the death. McCarthy ii. Trav- elers' Ins. Co., 8 Biss. (U. S.) 362. 1. Accident Consequent on Epileptic Fit. — Where W. was insured under a policy except- ing " injury caused by or arising from natu- ral disease or weakness or exhaustion con- sequent upon disease," and it appeared that while crossing a stream he was seized with an epileptic fit, and fell into the stream and was drowned while suffering from the fit, it was held that the accident was within the policy, and not within the exception. Win- spear V. Accident Ins. Co., 6 Q. B. Div. 42. In this case Coleridge, J., said: " I am of opinion that those words in the proviso mean what they say, and that they point to an in- jury caused by natural disease, as if for in- stance in the present case epilepsy had really been the cause of death." To the same effect is Manufacturers' Ace. Indemnity Co. v. Dorgan, 58 Fed. Rep. 945. See North American L.,etc., Ins. Co. v. Bur- roughs, 69 Pa. St. 43, 8 Am. Rep. 212. 3. Malignant Fustnle is a disease, and where one insured under an accident policy except- ing disease dies from such malignant pustule contracted by contact with putrid animal matter, the insurer is not liable. Bacon v. U. S. Mutual Ace. Assoc, 123 N. Y. 304, 20 Am. St. Rep. 748. In delivering the opinion of the court Peckham, J., said : " The definition given by the physicians for the plaintiff, as to the difficulty being a pathological condition of the body, is * * * much too refined for common ac- ceptance. It seems to me clear that the meaning of the words used in the policy covers just such a case, and that the parties never intended that a cause of death which to all outward appearances, and to the world in general, was a disease, should be converted' into a pathological condition of the body caused by an accident." Tatty Degeneration of the Heart and Brain. — Where the assured while pursuing his busi- ness as a traveling salesman sustained a heavy fall, striking and injuring his fore- head, and the evidence disclosed no cause for the fall, but the assured while standing threw up his hands and fell to the floor, and an autopsy revealed an advanced stage of fatty degeneration of the brain and heart, it was held that the cause of death was not the ac- cident insured against, and that there could be no recovery under a policy whereby in- surance was expressly withheld from any " bodily injury happening directly or indi- rectly in consequence of disease," etc. Sharpe v. Commercial Travelers' Mut. Ace. Assoc. (Ind., 1894), 37 N. E. Rep. 353. Death from Bpilepsy in Bath. — Where the evidence showed that the insured was found dead in a plunge-bath, in almost a standing position; that there was an abrasion between his eyes, and a bruise on one side of his head; and his physician testified that he was subject to epileptic fits, and that the entrance into the bath in the then condition of the insured would be likely to result in an epi- leptic fit, and that the blow that caused the abrasion and bruise was not sufficient to have caused death — it was held, under the ex- ception in the policy that insurance should not extend to injury happening directly or indirectly in consequence of disease, or which might have been caused wholly or in part by bodily infirmities or disease existing prior or subsequent to the date of the con- tract, that in view of all the circumstances of the case there was evidence that the de- ceased came to his death through other causes than external, violent, and acciden- tal means, and that there could be no re- covery. Tennant v. Travelers' Ins. Co., 31 Fed. Rep. 322. Death &om Disease " Accelerated by Acci- dent." — Where the policy excepted death or injury arising from disease, "although ac- celerated by accident," and it appeared that the insured had suffered from kidney dis- ease, but had not been troubled therewith for a considerable time, and after an acci- dent the disease returned and the insured died within three months, it was held that the insurer was not liable, as the death was within the exception as to disease acceler- ated by accident. Anderson v. Scottish Ace. Ins. Co., 27 Scot. L. R. 20; McKechnie's Trustees v. Scottish Ace. Ins. Co,, 17 Sess. Cas. (Scotland) 6. Temporary Tainting Spell Not Disease. — In Manufacturers' Ace. Indemnity Co. v. Dor- gan, 58 Fed. Rep. 945, the United States Court of Appeals for the Sixth Circuit, in 317 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. Exceptions to Special Diseases. — Where responsibility as to certain specified dis- eases is excluded by the policy, the insurer has been held still responsible where the disease is the direct, immediate, and natural consequence of the ac- cident,* or where the accident is the true cause of death or injury and the dis- ease but the occasion.* k. Surgical Operation or Medical Treatment. — Policies commonly contain an exception that insurance shall not extend to any death or disability which may have been caused wholly or in part by surgical operation or medi- cal treatment for disease. This exception has been held not to exclude cases where the surgical operation was, necessary as the natural and fairly to be ex- pected consequence of the accidental wound or injury.^ But where the insured, while suffering from disease, dies through a mistake in medical treatment, as from taking an overdose, this has been held to be within the exception, and not covered by the policy.* /. INTOXICATION. — Where the policy excepts death or injury happening while the insured was intoxicated, or in consequence of his having been under the influence of intoxicating liquors, the exception applies to prevent a recov- ery whether the condition of the insured was the cause of the injury or not.* considering whether, if the insured fell into a stream and was drowned during a fit of vertigo or faintness, an exception as to " dis- ease or bodily infirmities ' ' applied, said : " In a broad generic sense any temporary trouble by reason of which a man loses conscious- ness is a disease. It is a condition of the body not normal, and produced by the im- perfect working of some function; but as the imperfect working is not permanent, and the body returns at once, or in a short period of time, to its normal condition, it does not rise to the dignity of a disease. A fainting spell produced by indigestion or by lack of proper food for a number of hours, or from any other cause which ivould not indicate any disease in the body but would show a mere tempo- rary disturbance or enfeeblement, would not come within the meaning of the words ' dis- ease and bodily infirmity ' as used in this policy." Insanity is not included in the words "bodily infirmities or disease." Accident Ins. Co. V. Crandal, 120 U. S. 532. 1. Hernia. — Where the insured died from hernia, the direct consequence of an acci- dent, the insurer was held liable, although this was one of the diseases excepted by name in the policy. Travelers' Ins. Co. v. Murray, 16 Colo. 296. So where by one of the conditions of a policy of insurance against accidental death or injury it was provided that the policy insured against cuts, stabs, concussions, etc., etc., " when accidentally occurring from ma- terial and external cause where such acci- dental injury is the direct and sole cause of death to the insured, or disability to follow his avocations," and then followed this ex- ception: "but it does not insure against death or disability arising from rheumatism, gout, hernia, erysipelas, or any other dis- ease or cause arising within the system of the insured before, or at the time, or follow- ing such accidental injury, whether causing death or disability directly or jointly with such accidental injury,"— it was held that death from hernia caused solely and directly ii8 by external violence, followed by a surgical operation performed for the purpose of re- lieving the patient, is not within the above exception. Fitton v. Accidental Death Ins. Co., 17 C. B. N. S. 122, 112 E. C. L. 122. Erysipelas. — But where the excepting clause, the same in other respects as that just quoted, contained instead of the words "any other disease or cause arising," the words " any other disease or secondary cause or causes arising," it was held that the insurer was not liable in case of the death of the insured by erysipelas following im- mediately and directly from an accidental wound. Smith v. Accident Ins. Co., L. R., 5 Exch. 302. 2. Accident Occasioned by Fits. — Where the policy provided against accidental injuries, the direct or sole cause of death, but ex- cepted " death arising from fits * * * or any disease whatsoever arising before or at the time or following such accidental injury, whether consequent upon such accidental in- jury or not, and whether causing such death directly or jointly with such accidental in- jury," and it appeared that the insured while at a railway station was seized with a fit and fell forward off the platform across the rail- way, when an engine passed over his body and killed him, it was held that the death of the insured was caused by an accident within the meaning of the policy, and that the in- surers were liable, the Only question being whether death was due to the accident or to the fit. Lawrence v. Accidental Ins. Co., 7 Q. B. Div. 216. 3. Travelers' Ins. Co. v. Murray, 16 Colo. 296. 4. Bayless v. Travelers' Ins. Co., 14 Blatchf. (U. S.) 145. In this case the in- sured while ill had opium prescribed by his attending physician. He accidentally took an overdose, in consequence of which he died. 6. Shader v. Railway Pass. Assur. Co., 66 N. Y. 441, 23 Am. Rep. 65, 5 Thomp. & C. (N. Y.) 643; Standard L., etc., Ins. Co. v. Jones, 94 Ala. 434. It seems that the clause covers injuries Consideration of the Terms ACCIDENT INSURANCE. of the Policy. The phrase " under the influence of intoxicating liquors" means such in- fluence as disturbs the quiet, equitable action of a man's faculties,* and has been said to be equivalent in this connection to the word "intoxicated."* Evidence of Intoxication. — Evidence that the insured was intoxicated when last seen alive, his body having been found after the expiration of some weeks, is not evidence of intoxication at the time of the injury.* Nor is testimony of a physician who attended the insured at a hospital, that he smelled liquor in the insured's breath, admissible, when it is uncertain how long a time elapsed be- tween the injury and the time when he reached the hospital.* The question of intoxication seems to be for the jury.® m. Lifting or Over-exertion. — When the exception is that no claim shall be made where injury is caused by lifting or over-exertion, the lifting or over- exertion which is intended by this exception is such as is voluntary and de- liberate, and not that exertion put forth in an emergency, as where the insured was lifting a heavy post which slipped unexpectedly and subjected him to a very severe strain.* n. Gymnastic or Athletic Exercise. — A proviso against liability for injuries caused by taking part in any gymnastics does not exempt the company from liability where insured was drowned while bathing.' 0. Violation of Law. — Accident insurance policies usually contain a provision whereby the insurance is not to extend to injuries caused by, or while, or in consequence of, violating the law.* Causal Connection between Violation and Injury. — The authorities agree that in received by the insured in consequence of his having previously been under the influ- ence of liquor. Standard L., etc., Ins. Co. ■V. Jones, 94 Ala. 434. Death in Consequence of Drunkenness. — Death or injury happening while the insured is un- der the influence of liquors means death or injury causing death, and covers a case where ' the insured is sober when he dies. Mair v. Railway Pass. Assur. Co., 37 L. T. N. S. 356. 1. Mair v. Railway Pass. Assur. Co., 37 L. T. N. S. 356. To be under the influ- ence of intoxicating liquors within the mean- ing of an accident policy, the insured must have drunk enough to disturb the action of the physical and mental faculties so that they are no longer in their natural or normal condition. Shader v. Railway Pass. Assur. Co., 5 Thomp. & C. (N. Y.) 643. 2. Standard L., etc., Ins. Co. v. Jones, 94 Ala. 434. Intoxication is a synonym of " inebriety," "drunkenness" — implying or evidenced by undue and abnormal excitation of the pas- sions and feelings, or the impairment of the capacity to think and act correctly and eflS- ciently. Standard L., etc., Ins. Co. v. Jones, 94 Ala. 434. Where there was evidence that the de- ceased left home sober with two friends, and they drank from a quart bottle of whiskey, of which some was left when they returned; that the deceased then drank two glasses of wine, and soon after was injured by slipping into a hole, and it appeared that those in whose company he was considered him sober, it was held, that the evidence did not show that the deceased was injured while under the influence of intoxicating liquors. Prader V. National Masonic Ace. Assoc. (Iowa, 1895), 63 N. W. Rep. 601. 3. Coudeau ». American Accident Co. (Ky., 1894), 25 S. W. Rep. 6. 4. Sutherland v. Standard L., etc., Ins. Co., 87 Iowa 505. 5. FoUis V. U. S. Mutual Ace. Assoc. (Iowa, 1895), 62 N. W. Rep. 807. 6. Reynolds v. Equitable Ace. Assoc. (Su- preme Ct.), 17 N. Y. St. Rep. 337. But see Hutchcraft v. Travelers' Ins. Co., 87 Ky. 303, 12 Am. St. Rep. 484. ' The strain caused by lifting a heavy bur- den may be an injury from " external and material cause." See Martin ■v. Travelers' Ins. Co., I F. & F. 505; Pennington v. Pacific Mut. L. Ins. Co., £5 Iowa 468. 7. Knickerbocker Casualty Ins. Co. v. Jordan, 7 Cine. L. Bull. (Ohio) 71. 8. Must be Violation of Criminal Law. — It is generally laid down that the unlawful act committed must be criminal, and not a mere violation of a civil right, or the infraction of a law not criminal. Insurance Co. v. Ben- nett, 90 Tenn. 256. See Cluff v. Mutual Ben. L. Ins. Co., 13 Allen (Mass.) 308; Bradley v. Mutual Ben. L. Ins. Co., 45 N. Y. 422; Adams V. Cowles, 95 Mo. 506. But the contrary has been held so far as it relates to the violation of a positive rule of civil law, which proximately leads to the injury when it is such an act as increases the risk and' naturally leads to the injury. Bloom V. Franklin L. Ins. Co., 97 Ind. 478. Illustration — Fornication. — The fact that at the time the insured was killed by a pistol- shot through the heart he was living with a woman in a state of fornication, there being no proof that the fornication was of such notoriety as to constitute a violation of the criminal laws, does not bring the case within the. exception. Insurance Co; v. Bennett, 90 Tenn. 256. 319 Consideration of the Terms ACCIDENT INSURANCE. oi the Policy. order to bring the case within this exception there must be a causal connection between violation of law and injury received.* Where the policy excepts in- juries " caused by " violation of law, it seems that the violation of law must be the proximate cause of the accident.* But where the policy excludes liability for injuries received while engaged in or in consequence of an unlawful act, although the causal connection must exist even when the accident happens while the insured is actually committing an unlawful act, yet it is sufficient that the violation of law is a conditional or remote cause of the injury.* 1. Travelers' Ins. Co. v. Seaver, ig Wall. (U. S.) 531; National Ben. Assoc, z/. Bow- man, no Ind. 355; Jones v. U. S. Mutual Ace. Assoc. (Iowa, 1894), 61 N. W. Rep. 485; Utter V. Travelers' Ins. Co., 65 Mich. 553, 8 Am. St. Rep. 913; Insurance Co. v. Bennett, 90 Tenn. 257; Duran v. Standard L., etc., Ins. Co., 63 Vt. 437. The same construction prevails as to simi- lar clauses in life-insurance policies. Bloom V. Franklin L. Ins. Co., 97 Ind. 478; Cluff v. Mutual Ben. L. Ins. Co., 13 Allen (Mass.) 308; Hatch V. Mutual L. Ins. Co., 120 Mass. 550, 21 Am. Rep. 541; Murray v. New York L. Ins. Co., 96 N. Y. 614, 48 Am. Rep. 658. 2. Travelers' Ins. Co. v. Seaver, 19 Wall. (U. S.) 531. Circumstances Forming One Continuous Trans- action — Horse-racing. — Where the insured was killed while driving in a horse-race, in consequence of a collision, in a state where horse-racing was a misdemeanor, the jury found that when the sulky of the deceased came into collision with the sulky of G. the deceased jumped to the ground and was clear from the sulky, harness, and reins, upright and uninjured, and spoke to his horse to stop, and then started forward to get hold of the lines to stop him, and in that attempt was killed. It was held that the death of the insured was due to a violation of law, and there could be no recovery; that the leap from the sulky, and securing the lines, and the subsequent fall and injury to the in- sured were so close and immediate in relation to his racing, and all so manifestly a part of one continuous transaction, that it could not be said that there -was any new influence subsequent to the violation of law to which the disaster should be attributed. Travelers' Ins. Co. V. Seaver, 19 Wall. (U. S.) 531- I" delivering the opinion of the court in this case Miller, J., said: " The company in pro- tecting themselves against accident or death caused by violation of law acted upon a wise and prudent estimate of the dangers to the person generally connected with such viola- tion. * * * It was against this general spe- cies of danger attending nearly all infractions of the law that the co mpany sought to pro- tect itself by the clause of the policy in ques- tion, and of this class was the reckless driv- ing of Gilmore." 3. National Benefit Assoc, v. Bowman, no Ind. 355; Insurance Co. v. Bennett, 90 Tenn. 256; Duran v. Standard L., etc., Ins. Co., 63 Vt. 437. ' ' While Engaged in or in Consequence of Un- lawful Act " — Meaning of the Phrase. — In Insur- ance Co. V. Bennett, 90 Tenn. 256, the court, by Snodgrass, ]., said: " The provision of the policy excluding liability for injury re- ceived by the insured while committing an unlawful act refers to such injury as may happen as the necessary or natural conse- quences of the act — as its probable and to be anticipated consequences, and the reference to injuries received ' in consequence of any unlawful act ' is to those injuries which rise out of or flow naturally from the act com- mitted as its effect or resulting consequence." In Duran v. Standard L. , etc., Ins. Co., 63 Vt. 437, the court, by Thompson, J., said, in reference to this provision in an accident in- surance policy: " The provision quoted from the policy excluded liability from any injury of which a violation of law was the cause or the condition producing it. It also expressly provides exemption from liability where vio- lation of law is either the proximate or re- mote cause or condition producing the in- jury." Violation of Sabhath Law. — In accordance with these principles it has been held that the insured could not recover for injury re- ceived by slipping upon a frozen, ploughed ' field, across which he was returning home from a combined hunting and visiting expedi- tion, for that he was in violation of law, both as to hunting and traveling on the Sabbath. Duran v. Standard L., etc., Ins. Co., 63 Vt. 437- Where, however, the insured, who had been hunting on Sunday, was killed by an acci- dent which happened at a house to which he had gone some hours after he had stopped hunting, and some miles from the place where he had been engaged in this occupation, it was held that the connection between the violation of law and the accident was too remote to prevent a recovery. Prader v. National Masonic Ace. Assoc. (Iowa, 1895), 63 N. W. Rep. 601. Intoxication in Public Highway. — The fact that at the time of the accident, through which the plaintiff was injured, he was in a public highway, in a public place, in a state of intoxication, contrary to the criminal stat- ute, does not show any causative connection between the act which constituted the viola- tion of law and the injury, and consequently an answer alleging such fact is bad. Na- tional Benefit Assoc, v. Bowman, no Ind. 355. Deserter Shot in Attempt to Arrest Him. — Where the insured, a. deserter from the United States army, was shot and killed by a deputy sheriff, at a house where the officer went to arrest him, and the evidence was conflicting as to whether the officer knew the insured and demanded his surrender and shot him in self-defense, or whether the shooting was reckless and the officer did not 320 consideration of the Terms ACCIDENT INSURANCE. of the Policy. While Violating the law. — Where the policy merely excepts injuries received while violating the law, the exception has been held not to apply unless the insured was at the instant of receiving the injury in the act of violating the law.* Proof beyond ReasonaMe Doubt Not Required. — Proof of the criminal act beyond a reasonable doubt is not required in order to warrant a verdict and decision in support of the exception. A preponderance of evidence, as in other civil cases, is sufficient.* /. Assault Provoked by Quarrelling. — Where the policy excludes liability for death from assault provoked by quarrelling, it has been held that the death of the insured does not fall within the exception unless it occurred as the result of a quarrel provoked by himself, and of such a serious nature that he might reasonably have expected that anger would be aroused and violence inflicted. It is not every trivial dispute that is a quarrel within the meaning of this clause.* q. Injuries Received while Fighting. — Where the policy excepts in- juries received while fighting, it has been held that this exception covers only fighting caused wholly or in part by the insured as the wrongdoer, and not an unprovoked or unwilling conflict in which the insured takes part in self-de- fense.* But cases are found giving the exception an interpretation more favorable to the insurer.* F. Ins. Co., I Gray (Mass.) 529; Rothschild V. American Cent.jins. Co., 62 Mo. 356; Kane V. Hibernia Ins. Co., 39 N. J. L. 697, 23 Am. Rep. 239; Folsom v. Brawn, 25 N. H. 114; Matthews v. Huntley, 9 N. H. 146; Young V. Edwards, 72 Pa. St. 257; Bradish v. Bliss, 35 Vt. 326; Washington Union Ins. Co. v. Wilson, 7 Wis. i6g; Blaeser v. Milwaukee Mechanics' Mut. Ins. Co., 37 Wis. 31. 3. Insurance Co. v. Bennett, 90 Tenn. 256. 4. Gresham v. Equitable Ace. Ins. Co., 87 Ga. 497. In this case it was held that where the insured and his antagonist willingly en- gaged in a personal encounter and the in- sured was killed, the insurer was not liable. Bleckley, C.J., delivering the opinion of the court, said: " It is not every fight in or from which a mortal injury might be received by the insured, which could be regarded as the cause of the injury or of death resulting therefrom. A faultless and unwilling con- flict by the insured, one which he neither provoked nor invited, one which he did not accept when formally or informally tendered, one in which he was forced to engage for self-defense alone and from which he with- drew, or endeavored in good faith to with- draw, when his defense was accomplished, ought not to and would not be treated as a causative fight on his part within the mean- ing and intent of the policy, but would be regarded as right and proper resistance to aggressive or offensive violence. To protect his life from destruction or his person from injury might be as much a matter of duty to the insurance company as of interest to him- self." Where the insured, who was unarmed, was shot while engaging in an altercation, it was held that his death was accidental, and not within the exception against death from duelling or fighting. Robinson v. U. S. Mutual Ace. Assoc, 68 Fed. Rep. 825. 5. The fact that the insured engaged in a fight, though he himself was not the assault- know the deceased, it was held that it could not be declared as a matter of law that the insured was engaged in an unlawful act, or was shot in consequence thereof, and that this was a question for the jury. Utter v. Travelers' Ins. Co.j 65 Mich. 545, 8 Am. St. Rep. 913. Instured Shot when Leaving Bawdy-honse. — Where it appeared that the insured was shot after leaving a house of ill-fame, where he had been for an immoral purpose, and while carrying concealed weapons in violation of law, the insurer is liable unless the shooting was in a legal sense caused by the visit to the bawdy-house or by the carrying of con- cealed weapons.. Jones v.\i. S. Mutual Ace. Assoc. (Iowa, 1894), 61 N. W. Rep. 4S5. 1. Where the insured, in pursuance of a prearranged plot to rob the state treasury, entered that institution, drew a revolver upon the treasurer and demanded and re- ceived certain moneys from him, and was shot by a watchman while making his escape from the building, it was held that his death did not take place while violating the law; upon the ground that his act in obtaining money had been accomplished, and that he was merely escaping from the building when he was shot. Griffin v. Western Mut. Ben. Assoc, 20 Neb. 620, 57 Am. Rep. 848. This decision may be doubted as hardly in accord with the weight of authority, espe- cially when it is considered that at the time the insured was killed he was in the act of carrying away property which he had ob- tained by robbery. 2. New York Ace. Ins. Co. v. Clayton, U. S. App. 304, citing U. S. V. Shapleigh, U. S. App. 26; Welch V. Jugenheimer, Iowa II, 41 Am. Rep. 77; vEtna Ins. Co. Johnson, ir Bush (Ky.) 587, 21 Am. Rep. 223; Hoffman v. Western Marine, etc., Ins. Co., I La. Ann. 216; Knowles v. Scribner, 57 Me. 495; Ellis V. Buzzell, 60 Me. 209, 11 Am. Rep. 204; Schmidt v. New York Union Mut. 19 12 56 I C. of L. — 21. 321 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. r. Intentional Injuries. — It has been seen that, in the absence of spe- cial provisions in the policy, injuries inflicted on the insured intentionally by other parties have been generally held to be accidental, and to render the in- surer liable.* Most policies, however, contain an exception in case of inten- tional injuries inflicted by the insured or by any other person. Intentional Injury Inflicted by Another. — An intentional injury inflicted by another person is an injury which such other person intentionally inflicts, whether the insured intends to have it inflicted or draws it upon himself ; * but the inten- tion must be directed against the insured, and not against another or against a class of individuals.' And it has been held that where death ensues from the injury, it is necessary that the person inflicting the injury should have had the intent to kill.* Death Inflicted by Insane Person — It seems that the fact that the insured was killed by an insane person does not avoid the policy, since death so inflicted cannot be said to be intentional.® But in order to render an injury inten- tional, by reason of the insanity of the person who inflicts it, there must be such a diseased and deranged condition of the mind as to render the person incapable of distinguishing between right and wrong in relation to the par- ticular act with which he is charged.* The burden is upon one seeking to re- cover upon the policy to establish insanity, as taking the case out of the excep- tion as to intentional injury.' Intentional Injuries Inflicted by Insured. — Where the policy excepts death from ing party, brings his injury clearly within the meaning of the ternns of the policy as exclud- ing injuries so received from its operation and insurance as being caused by fighting. U. S. Mutual Ace. Assoc, v. Millard, 43 111. App. 148. 1. See supra, this title, Accidental Injuries in General. 2. Travelers' Ins. Co. v. McConkey, 127 U. S. 661 ; Fischer w. Travelers' Ins. Co., 77 Cal. 246; Travelers' Ins. Co. v. McCarthy, 15 Colo. 351, 22 Am. St. Rep. 410; Hutchcraft v. Travelers' Ins. Co., 87 Ky. 300, 12 Am. St. Rep. 484; American Ace. Co. v. Carson (Ky., 1895), 30 S. W. Rep. 879; Phelan w. Travel- ers' Ins. Co., 38 Mo. App. 640; DeGraw v. National Ace. Society, 51 Hun (N. Y.) 142. 3. Hutchcraft v. Travelers' Ins. Co., 87 Ky. 300, 12 Am. St. Rep. 484; Utter v. Travelers' Ins. Co., 65 Mich. 545, 8 Am. St. Rep. 913. In Hutchcraft v. Travelers' Ins. Co., 87 Ky. 300, 12 Am. St. Rep. 484, the court, by Bennett, J., said: " We think, however, that said clause was intended to apply to such in- juries by other persons as are intentionally directed against the insured, and not to such injuries as the insured may receive at the hands of third persons who are attempting to do mischief generally, or who are attempt- ing to injure any particular individual, other than the insured, or class of individuals, or any kind of property; for in such cases it cannot be said that the injuring was inten- tionally aimed directly and individually at the insured." In Utter v. Travelers' Ins. Co., 65 Mich. 545, 8 Am. St. Rep. 913, Morse, J., speaking for the court, said: " It seems to me that the design intended by the terms of the policy must be the design that intended the actual result accomplished, and not the design of the act itself, which act resulted in the killing of one contrary to the design.of the act." Evidence of Intention — Threat. — The fact that the person by whom the insured is alleged to have been killed armed himself a short time before the killing, and stated that he was going home, and that if he found the in- sured he was going to kill him, is admissible as tending to show both that he killed the in- sured and that he did it intentionally. Stand- ard L. , etc., Ins. Co. u. Askew (Tex. Civ. App., 1895), 32 S. W. Rep. 31. 4. Richards v. Travelers' Ins. Co., 89 Cal. 170, 23 Am. St. Rep. 455. See Utter v. Trav- elers' Ins. Co., 65 Mich. 545, 8 Am. St. Rep. 913. 5. Marceau v. Travelers' Ins. Co., loi Cal. 338; Travelers' Ins. Co. v. Houston, 3 Tex. App. Civ. Cas., § 429. Aliter where the insured provokes a fight with an insane person. Gresham v. Equi- table Ace. Ins. Co., 87 Ga. 497. 6. Marceau w. Travelers' Ins. Co.,ioi Cal. 338; Travelers' Ins. Co. v. Houston, 3 Tex. App. Civ. Cas., § 429. In Marceau v. Travelers' Ins. Co., loi Cal. 338, the court laid down the test stated in the text, citing People v. Hoin, 62 Cal. 120, 45 Am. Rep. 651, and considered that the ques- tion of insanity in this connection was to be determined by the same rule as in criminal law, and that an irresistible insane impulse was not suiEcient. 7. Travelers' Ins. Co. v. Houston, 3 Tex. App. Civ. Cas., § 429. Becord of Criminal Conviction. — Where the plaintiff offers evidence tending to show that the person who is alleged to have inflicted the intentional injuries was not mentally re- sponsible, the defendant cannot, for the pur- pose of refuting the evidence, introduce the record of the criminal conviction of such person for the assault upon the insured. Marceau v. Travelers' Ins. Co., loi Cal. 338. 322 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. intentional injuries inflicted by the insured, the condition is broken if the in- sured intentionally injures himself by the infliction of bodily wounds from which he dies.* 3. Stipulations as to Notice and Preliminary Proof, Time of Instituting^ Suit, Arbitration — a. Notice and Proof of Injury — (i) In Genera/— conHtion Precedent. — Most of the policies provide that notice of the injury, on account of which indemnity is claimed, together with full particulars of the same, shall be given to the company within a specified time, and compliance with this provision is generally regarded as a condition precedent to the enforcement of the policy.* When Compliance Impossible. — At the same time, where the circumstances of the accident were such as to render it impossible to comply with the condition, giving the notice within a reasonable time after it became possible to do so has been held sufficient.' And where by the terms of the policy the bene- ficiary was required to give notice of the death within ten days after the acci- dent causing it, and death did not occur within that time, the condition was held to be unreasonable and invalid.* Notice in Case of Disability — No Disablement at the Time, bat Death ensues. — And where the policy stipulated for notice only in the event of disability, it was held that notice was not called for where the accident did not disable the insured at the time from working, although it afterwards resulted in death.* Immediate Notice. — In some of the policies it is stipulated that immediate no- tice of the injury shall be given. The word " immediate " in such cases is not to be construed literally, but the notice must be given within a reasonable time, according to the circumstances of the particular case.* 1. Hutchcraft v. Travelers' Ins. Co., 87 Ky. 304, 12 Am. St. Rep. 484. See supra, this title, Suicide or Self-inflicted Injuries. 2. Martin v. Equitable Ace. Assoc. (Su- preme Ct.), 16 N. Y. Supp. 279; Gamble v. Accident Assur. Co., 4 \i. R. C. L. 204; Pat- ton V. Employers' Liability Assur. Co., 20 L. R. Ir. 93; Cawley v. National Employers' Assoc, I C. & E. 597. See also Victorian Stevedoring, etc., Co. v. Australian Ace, etc., Ins. Co., 29 Vict. L. R. 139; Cassel v. Lancashire, etc., Ins. Co., I Times L. R. 495. In Heywood v. Maine Mut. Ace. Assoc, 85 Me. 289, it was held that a policy provid- ing that failure to give notice of the injury for the period of ten days after it is received will bar all claim under the policy, is valid; and when such stipulation is neither com- plied with nor waived there can be no re- covery on the policy. But in Stoneham v. Ocean, etc, General Ace Ins. Co., 19 Q. B. Div. 237, the provi- sion as to notice was construed to be not a condition precedent to recovery. 3. Trippe v. Provident Fund Soc, 3 Misc. Rep. (N. Y. Super. Ct.) 445, affirmed 'va. 140 N. Y. 23. In this case the provision in regard to notice was as follows: " Notice of any ac- cidental injury for which claim is to be made under this certificate shall be given in writ- ing, addressed to the president of the society at New York, stating the full name, occupa- tion, and address of the injured member with full particulars of the accident and injury, and failure to give such written notice within ten days from the date of either injury or death shall invalidate any and all claims un- der this certificate." The insured's place of business was in Park Place, New York City, and he was killed August 22, i8gi, in what is known as the Park Place disaster. His body was taken from the ruins on the morn- ing of August 25th following. Notice of the injury and death in the form required as above was served the second day of Septem- ber following. It was held that as a notifica- tion on August 22d was an impossible thing under the circumstances, the legal effect of the condition was that notice served within ten days after August 25th was within the time required, and the service made on Sep- tember 2d entitled the plaintiff to recovery. See also Manufacturers' Ace. Indemnity Co. V. Fletcher, 5 Ohio Cir. Ct. Rep. 633. 4. Unreasonable Condition. — Hoffman v. Manufacturers' Ace Indemnity Co., 56 Mo. App. 301. 5. McFarlandw. U. S. Mutual Ace Assoc, 124 Mo. 204. 6. "Immediate" Notice Means Reasonable No- tice. — Railway Pass. Assur. Co. v. Burwell, 44 Ind. 460. In this case, notice given six days after the alleged injury, which happened in the city where the policy was issued and where the company had a resident agent, was held to be too late, no excuse being shown for the delay. In McFarland ». U. S. Mutual Ace Assoc, 124 Mo. 204, it was held that, under a policy requiring immediate notice of the death of the insured and providing that it should be given by letter, notice given within ten days after the death was held sufficient. In this case the court said: " The condition requires that immediate written notice shall be given. The word 'immediate' cannot be construed lit- erally without in many cases causing a forfeit- ure. It is frequently impossible, under the cii:- 1>'^1 Consideration of the Terms ACCIDENT INSURANCE. of the Policy. And What is a Reasonable Time under all the facts and circumstances of the case is a question for the jury, unless the delay has been so great that the court may rule it as a question of law.* Examination of Body. — A provision in the policy that the medical adviser of the company shall be allowed to examine the person or body of the insured, in respect to any alleged injury or cause of death, when and as often as he may require on behalf of the company, Tnd in the event of any post-mortem exami- nation by or on the part of the insured's representatives or beneficiaries, the company shall be afforded opportunity to attend and participate, merely gives the right to scrutinize and inspect the-body before burial, and does not author- ize an exhumation or dissection of the body against the wishes of the surviving relatives.* Dissecting Body. — ^Nor will the circumstance that the policy does not extend to accidental injuries or death resulting from or caused directly or indirectly, wholly or in part, by disease, give the company the right to dissect the body in the hope of finding some trace of disease which might, under the provision stated, exempt it from liability.* Notice to Agent— Misstatement of Date— Estoppel Where the agent of the company; upon receiving from the insured verbal notice of the accident and the claim cumstances of the accident or death, to give immediate notice. This condition subsequent must be liberally construed in favor of the beneficiary. So it has been uniformly held that this and similar words should be con- strued to mean within a reasonable time." In People's Mut. Ace. Assoc, v. Smith, 126 Pa. St. 317, a person, insured under a policy requiring immediate notice, whose eye was injured on September 4th, though the injury was not considered dangerous until some days afterward, was held, under the facts and circumstances of the case, to have com- plied with the provision as to notice by noti- fying the company on October ist. In Kentzler v. American Mut. Ace. Assoc, 88 Wis. 589, the policy stipulated that, in the event of injury or death, notice of the claim should be given to the company immediately after the accident, and positive proof of death should be furnished within six months thereafter. The insured, a tugboat engi- neer, disappeared on November 9, 1892, and his body was found in the water near the boat on April 19th of the following year, and notice of death was given the 26th of the fol- lowing month, and the proofs on the 12th of July following. This was held to be a reasonable compliance with the require- ment. Notice "as Soon as Possible." — The expres- sion "as soon as possible," in connection with giving notice, is not to be taken literal- ly, but means with due diligence, or without unnecessary procrastination or delay, under all the circumstances of the case. Provident L. Ins., etc., Co. v. Baum, 29 Ind. 236; Providence L. Ins., etc., Co. v. Martin, 32 Md. 310. 1. When Question for Jury and When for the Court. — People's Mut. Ace. Assoc, v. Smith, 126 Pa. St. 317; Providence L. Ins., etc., Co. V. Martin, 32 Md. 310; Lyon v. Railway Pass. Assur. Co., 46 Iowa 631. In American Ace. Ins. Co. v. Norment, 91 Tenn. i, the policy provided that failure to ■ give immediate written notice to the company at its home office should invalidate the policy. The beneficiary called at the office of the local agent to notify him of the injury on account of which the claim was made, and left word with his clerk, whereupon the agent notified the home office in writing. The home office thereupon had the case in- quired into by its agent, and its physician attended the post-mortem examination of the insured. The notice to the local agent was given in May, and although the accident oc- curred in March it did not until April ap- pear to be serious. It was held to be proper to submit to the jury the question whether writtep notice had been given within a rea- sonable time. Compare Accident Ins. Co. of North America v. Young, 20 Duval (Montreal) 281, overruling 6 Montreal Super. Ct. 3. In McFarland v. U. S. Mutual Ace. Assoc. (Mo., 1894), 27 S. W. Rep. 436, it was held that where the only dispute as to the facts showing whether reasonable notice of the insured's death has been given to the com- pany as required by the terms of the policy, is whether a letter containing the notice was sent, it is a question for the jury whether the notice was sent and for the court whether it was reasonable; and the fact that the let- ter was mailed, duly stamped, and addressed, is evidence that the person to whom it was sent received it. 2. Wehle v. U. S. Mutual Ace. Assoc, 11 Misc. Rep. (N. Y. Super. Ct.) 36. In American Employers' Liability Ins. Co. V. Barr, 68 Fed. Rep. 873, there was a similar provision in the policy. No request was made for an examination until some weeks after the insured was buried, when a request was made, not to the beneficiary, but to the widow of the insured, which was refused. It was held that this constituted no defense to an action by the beneficiary. See also Ballantine v. Employers' Ins. Co. (Scot. Ct. of Sess., 1894), 31 Scot. L. R. 230. 3. Wehle v. U. S. Mutual Ace. Assoc, II Misc. Rep. (N. Y. Super. Ct.) 36 324 Consideration of the Terms ACCIDENT INSURANCE. ofthePoUoy. for indemnity, undertakes to make out the necessary notice and proofs, and therein misstates the date of the accident, the company may not take advan- tage of such misstatement if the proofs are signed by the insured without any improper motive, and by the advice of the agent.* Indemnity Payable at Designated Place — Effect upon Place of Notice. — A provision that any claim for indemnity is payable at the company's office in a certain city, or (at the company's option) at the general agency through which the policy was issued, is not a requirement that notice and proofs of loss shall be made at the city named.* (2) Waiver— "EiX^xci to Give Notice. — Waiver by the company of the condition in regard to the time of serving notice and proofs of the injury may be made by acts and conduct indicating an intention to waive such condition, occurring subsequent to the breach thereof, although there is no new consideration, and although there be no technical estoppel.* Refusal of Agent to Becognize Claim.— The refusal by a general agent to recognize the insured's claim to indemnity constitutes a waiver of compliance with the conditions as to preliminary notice and proof.* Irregularities in Notice — Retaining Notice and Proofs without Ohjection. — -The receipt and retention by the company of informal notice and proofs, without objec- tion, or demand for further or more definite notice and proofs, constitutes a waiver of objections as to their regularity.® Acting upon Verbal Notice— Waiver of Written Notice. — Where the company, after verbal notice of the injury, sends its medical director to examine the condition of the injury, it must be considered to have waived the requirements of written notice.* "^ b. Time of Instituting Suit. — The policies generally provide that no suit in law or equity shall be maintained thereon unless the same is instituted within a specified time after the happening of the alleged injury — usually one year ; and also that suit may not be instituted until the expiration of a cer- tain period, usually ninety days, after the claimant has furnished proof of the injury as pointed out in the policy. It is undoubtedly competent for the parties to thus limit the time for bringing suit.' 1. Young w. Travelers' Ins. Co., 80 Me. 244. 4. Travelers' Ins. Co. v. Harvey, 82 Va. 3. Pennington v. Pacific, etc., Ins. Co. 949. In this case it was further held that a {Iowa, 1892), 52 N. W. Rep. 482. clause in the policy denying the right of the 3. Reynolds v. Equitable Ace. Assoc. (Su- insured to claim " a waiver by reason of anj- preme Ct.), 17 N. Y. St. Rep. 337; Trippe v. acts of any agent, unless such waiver is Provident Fund Soc, 140 N. Y. 23. In this specially authorized in writing over the sig- latter case it was held that the company nature of the president or secretary of the waived the condition requiring notice within company," does not include those conditions ten days after the injury, by retaining, with- that are to be performed after a loss occurs, out objection, a notice of the accidental such as giving notice and proofs, death of the insured, given more than ten A reply by the general active officer of a days after that event, and a subsequent no- mutual benefiit association, to the request of tice from the administrator of the insured; a member for blanks in order to make no- by furnishing necessary blanks for proofs tice and proofs of his injury and disability, of loss; by retaining, without objection, the that it would be useless for the member to proofs made in compliance with the terms of do so, as his claim would be rejected, consti- the policy; arid by afterward calling for and tutes a waiver on the part of the association receiving additional information. of the member's obligation to present notice Refusing to Pay Policy on Other Grounds. — and proofs. Hutchinson v. Supreme Tent, Where, on receiving proofs of the injury, etc., 68 Hun (N. Y.) 355. the company examined the same, and re- S. Brink v. Guaranty Mut. Ace. Assoc, fused to pay the policy on other grounds (Supreme Ct.), 28 N. Y. St. Rep. 921; Bu- than the omission to give the required no- shaw v. Women's Mut. Ins., etc., Co. (Su- tice, the condition in regard to notice was preme Ct.), 8 N. Y. Supp. 423. See also deemed waived. Unthank w. Travelers' Ins. Trippe z'.Provident Fund Society, 140 N.Y. 23. Co., 4 Biss. (U. S.) 357. See also Sheanon 6. Martin w. Equitable Ace. Assoc, 61 Hun V. Pacific Mut. L. Ins. Co., 83 Wis. 507. (N. Y.) 467. See also American Ace. Ins. Compare Accident Ins. Co. of North Co. v. Norment, 91 Tenn. i; Sheanon v. America v. Young, 20 Duval (Montreal) 281, Pacific Mut. L. Ins. Co., 83 Wis. 507. overruling 6 Montreal Super. Ct. 3. 7. In Law v. New England Mut. Ace. As- 325 Consideration of the Terms ACCIDENT INSURANCE. of tliB Policy. When the Time Begins to Sua. — This limitation in the policy against death re- sulting from accident is held to begin to run from the death of the insured, and not from the time when the right of action accrues.'' This ruling is in accordance with the decisions in some of the states upon similar limitations in other kinds of insurance.* In other jurisdictions, while the question has not arisen in regard to accident insurance, yet it is held in other classes of insur- ance that under a policy limiting the time for bringing an action upon it and requiring the performance of conditions precedent, which must occupy a por- tion of that time, the limitation does not commence to run until the right of action accrues.' When the Time Begins to Run against Benefieiary in Case of Death of Insured.— And it iS held that in case the insured dies from the injury, the beneficiary has the full time from that event in which to bring suit, without regard to the time of the origi- nal injury, as until then such party has suffered no injury within the meaning of the policy, and therefore has no right of action.* soc, 94 Mich. 266, where the policy provided that no suit should be brought or arbitration required to recover any sum unless com- menced within one year after the injury, and more than five months elapsed alter the insured was fully advised that the company refused to pay or arbitrate the claim before the expiration of the year, it was held that a suit thereafter brought was barred by the limitation, unless it had been waived by the company. The court cites Mclntyre v. Michi- gan State Ins. Co., 52 Mich. 189; Gould w. Dwelling-house Ins. Co., 90 Mich. 302 ; Voorheis w. People's Mut. Ben. Soc. ,91 Mich. 469; Steele v. German Ins. Co., 93 Mich. 81. 1. McFarland v. Railway Officials, etc., Ace. Assoc. (Wyoming, 1894), 38 Pac. Rep. 347. Compare note 4 below. 2. See the titles Fire Insurance; Insur- ance; Life Insuranpe. 3. See Barber v. Fire, etc., Ins. Co., 16 W. Va. 658, 37 Am. Rep. 800; Murdock v. Frank- lin Ins. Co., 33 W. Va. 407; Matt v. Iowa Mut. Aid Assoc, 81 Iowa 135; McConnell v. Iowa Mut. Aid Assoc, 79 Iowa 757; German Ins. Co. V. Fairbank, 32 Neb. 750; Hong Sling V. Royal Ins. Co., 8 Utah 135; Hay v. Star F. Ins. Co., 77 N. Y. 235; Sun Ins. Co. V. Jones, 54 Ark. 376. Also the titles Fire Insurance; Insurance; Life Insurance. Mutual Insurance — When Cause of Action Com- plete. — In Mutual Ace, etc., Assoc, v. Kay- ser, 14 W. N. C. (Pa.) 86, the policy in a mut- ual insurance company covenanted to pay the assured in case of injury by accident a stipulated sum for every week he might be disabled from following his usual occupa- tion, not exceeding ten weeks. A by-law of the association provided that if any suit was brought " after the expiration of six months next after the loss shall have occurred, the lapse of time shall be deemed conclusive against the validity of the claim." The as- sured sustained an accident which for more than ten weeks disabled him from working. This suit was instituted more than six months after the date of the accident, and less than six months affer the expiration of ten weeks after the accident. An instruction that the limitation of six months named in the by-law did not begin to run until the cause of ac- tion was complete, which was not until the expiration of ten weeks after the happening of the accident, and that the action therefore was brought within six months after the loss occurred within the meaning of the by-law, was sustained. In this case it was further held that in a mutual insurance company the policy constitutes an agreement between the parties, and a by-law in force at the time of the policy limiting the right of action to six months after the loss occurs is not a bar to a member's suit upon his policy brought for that period, unless such by-law is made a part of the policy. 4. Death of Insured — Time in which Bene- ficiary must Bring Suit. — Cooper v. U. S. Mutual Ace. Assoc, 132 N. Y. 334. In this case provisions were made in the policy for two different persons who, upon the happen- ing of the events named, would have a right of action against the company. One provi- sion was in favor of the insured, who was entitled to recover during his lifetime the amount provided for his disability resulting from the accidental injury sustained; the other was in favor of his wife, which was for the injuries which she would suffer by reason of his death resulting from such acci- dent. The court said: " The injury received by Cooper did not injure the plaintiff or give her a right of action until death ensued. So far as she is concerned the infliction of the wound is but the beginning, and the death is the completion, of the injury. Her suit must be ' commenced within one year from the time of the alleged accidental injury'; in other words, within one year from the time of the injury to her, which was the death of her husband as the result of the accident. As to Cooper, he suffered from the date of the wound. His right of indemnity dates from that event, and it is possible that his right to maintain an action would not con- tinue after the expiration of a year from that date. But as to the plaintiff, it appears to us that the construction already indicated was intended and should be given to the cer- tificate. As thus construed the various clauses of the contract are rendered harmoni- ous, and the different beneficiaries thereun- der are given the same period of limitation ?26 Proximate Cause. ACCIDENT INSURANCE. Proximate Cause. Failure to Cite Defendant until Expiration of Time Specified. — In one instance the action was held to be seasonably brought where the petition was filed and a non- resident notice served on the defendant within the time limited by the policy for bringing the action, although citation was not served upon the defend- ant's agent until after the expiration of such time.* c. Arbitration. — Where the policy stipulates for the payment of a certain sum in the event of injury, and contains a proviso that " no suit or proceed- ing at law or in equity shall be brought to recover any sum herein, unless the same has been first referred to arbitration " in the manner pointed out, such arbitration is not a condition precedent to a right of action upon the policy.* But it seems that if the promise is to pay not a definitely stated amount, but the amount which may be awarded by the arbitrators, then the provision for arbitration will be a condition precedent to the right to bring an action for an injury within the policy.* VI. FboximaT£ Cause. — It has been held uniformly and independently of special provisions inserted in the policy, that an accident, in order to entitle the insured to recovery for injuries resulting therefrom, must be the proximate cause of such injuries.* The question of proximate cause has usually arisen within which to bring actions to establish their claims." In the lower court (Cooper v. U. S. Mutual Ace. Assoc.,. 57 Hun (N. Y.) 407) it was held that the words "the time of the alleged in- jury " meant when the proofs were accepted and the claim in a condition to be sued, and that the beneficiary had twelve months to bring suit after the right of action was com- plete. It will be observed that the view of the lower court is directly opposed to that taken by the court in the case in note i im- mediately preceding. 1. Standard L., etc., Ins. Co. v. Askew (Tex. Civ. App., 1895), 32 S. W. Rep. 31. 2. When Submission to Arbitration Not Con- dition Precedent. — Badenfeld v. Massachu- setts Mut. Ace. Assoc, 154 Mass. 77. Here the court said: " The promise is not to pay the award, but to pay the sum named, and the proviso does not make the award a con- dition precedent to the promise to pay, but a mode of enforcing that promise. It is well settled that such an agreement is no bar to an action on the promise." Citing 'R.&e.i v. Washington F.,etc., Ins. Co., 138 Mass. 572. In Kinney w. Baltimore, etc., Employees' Rel. Assoc, 35 W. Va. 385, it was held that a provision in an insurance contract that all differences arising under it should be sub- mitted to arbitrators thereafter to be chosen would not prevent a party from maintaining a suit in the first instance in a court to en- force his rights under the policy. See also Smith V. Preferred Masonic Mut. Ace As- soc, 51 Fed. Rep. 520; Whitney v. National Masonic Ace Assoc, 52 Minn. 378; Prader V. National Masonic Ace. Assoc. (Iowa, 1895), 63 N. W. Rep. 601. Mutual Benefit Societies. — As to the power of mutual benefit societies to limit the right of members to sue, see Bauer v. Samson Lodge Knights of Pythias, 102 Ind. 262; McMahon v. Supreme Council, 54 Mo. App. 468; and the title Beneficial or Benevo- lent Associations, where the subject will be fully discussed. 3. When Submission to Arbitration a Condition Precedent. — Braunstein v. Accidental Death Ins. Co., I B. & S. 782, loi E. C. L. 782. In this case there was a condition indorsed on the policy, that in the event of differences of opinion as to the amount of compensation payable in any case the question should be referred to arbitration in the manner pointed out in the condition, and the award made on such arbitration was to be taken as a final settlement of the question and might be made a rule of court. It was held that a reference to arbitration in the manner pre- scribed was rendered a condition precedent to bringing an action for an injury within the policy. The court cites and relies upon Scott V. Avery, 5 H. L. Cas. 811. See, generally, the title Arbitration and Award. 4. Suicide of Person Insane from Accident. — Where after an accident the insured became insane, and while in that state took his own life, it has been held that the accident and the death were too remotely connected to allow of a recovery under a policy of acci- dent insurance. Harris v. Travelers' Ins. Co., 8 Alb. L. J. 86. So under a policy of life insurance it has been held that death taking place under the same circumstances was due not to accident, but to suicide. Streeter v. Western Union Mut. L., etc., Soc, 65 Mich. 199, 8 Am. St. Rep. 882. Death rollowing Accidental Bnnaway. — In McGlinchey w. Fidelity, etc., Co., 80 Me. 251, 6 Am. St. Rep. igo, the circumstances of the death of the insured were these: The insured was driving in a carriage along the principal thoroughfare of the place of his residence, when his horse became frightened at an un- sightly object on the street and suddenly be- gan to run, first jumping to the side of the way and nearly colliding with other teams, and ran a considerable distance before he was brought under control. There was no collision, nor was the carriage upset or any one thrown therefrom, but immediately 327 Agents. ACCIDENT INSURANCE. Power to Waiye. in cases where the accident was complicated with disease, or under clauses exempting the insurer from liability in certain specified cases, and the author- ities have already been considered under their appropriate heads.* VII. Agents — 1. Misstatements in Application. — Where the agent of an in- surance company authorized to procure applications, either by his direction or his direct act, makes out an application incorrectly, notwithstanding all the facts are correctly stated to him by the applicant, the error is chargeable to the insurer, and not to the insured.* And a stipulation that the agent shall be considered in filling out the application as the agent of the insured will not relieve the company or change the rule.* 2. Power of Agent to Waive Conditions and Forfeitures. — Within the apparent scope of his authority, the acts and assurances of the agent of an insurance company are the acts and assurances of the company ; ■* consequently, where the agent makes misrepresentations to the applicant for insurance, as to the scope of the policy, or the risks covered by it, it has been held that the com- afterwards the insured experienced great siclcness and pain, and going directly to his house, died in about an hour from the mo- ment of the accident. He wasin good health on that morning before the accident, and there was no suggestion that he was not a person of generally sound and strong consti- tution. The court, by Peters, C.J., said: " We think, on these facts, that the common judgment of men would instinctively de- clare, irrespective of the refinements that are often indulged in over primary and sec- ondary causes, that here was a plain acci- dent causing death, and that the company should pay the sum promised in the poli- cy." 1. See supra, this title. Death Caused by Disease; Accidental Injuries in General. 2. Agent's Misstatements in Application. — The principle of the text has been applied where the insured stated truthfully the amount of compensation which he received from his employer, and the agent misstated this amount in filling out the application. Howe v. Provi- dent Fund Soc, 7 Ind. App. 586; where the agent misstated the age of the applicant, Brink v. Guaranty Mut. Ace. Assoc. (Su- preme C:.), 28 N. Y. St. Rep. 921; where the agent, with knowledge of the facts, misstated the occupation of the applicant. Pacific Mut. L. Ins. Co. V. Snowden, 12 U. S. App. 704; 58 Fed. Rep. 342; New York Ace. Ins. Co. v. Clayton, ig U. S. App. 304; Bushaw v. Women's Mut. Ins., etc., Co. (Supreme Ct.), 8 N. Y. Supp. 423. See Perrins v. Marine, etc., Travelers' Ins. Co., 2 El. & El. 324, 105 E. C. L. 324; and where the agent, with the knowledge of the secretary of the insurance company, inserted in the application a false statement that the applicant had no other insurance. Dailey v. Preferred Masonic Mut. Ace. Assoc. (Mich., 1894), 57 N. W. Rep. 184. Knowledge hy Agent of False Statement of Ap- plicant. — Where the local agent of an insur- ance company has actual knowledge of the falsity of a statement made by the insured in his application, and forwards the application upon which the policy is issued, the knowl- edge of the agent is the knowledge of the company, and the false statements will not avoid the contract. Follette v. Mutual Ace. Assoc, no N. Car. 377, citing Eggleston v. Council Bluffs Ins. Co., 65 Iowa 308; Andes Ins. Co. V. Fish, 71 111. 620; Fishbeck v. Phenix Ins. Co., 54 Cal. 422; Hornthal v. Western Ins. Co., 88 N. Car. 73; Dupree v. Virginia Home Ins. Co., 92 N. Car. 417, 93 N. Car. 240; American. Cent. Ins. Co. v. Mc- Crea, 8 Lea (Tenn.) 513, 4 Am. Rep. 647; MuUin V. Vermont Mut. F. Ins. Co., 58 Vt. 113; Shafer v. Phoenix Ins. Co., 53 Wis. 361. See also Keystone Mut. Ben. Assoc, v. Jones, 72 Md. 363. On the other hand it has been held that where an untrue statement was inserted in the application for membership in a benefit accident association, by the agent of the as- sociation, at the request of the applicant, it would be sufficient ground to defeat an action upon the certificate. Wilde v. Preferred Mut. Ace. Assoc. (Supreme Ct.), 14 N. Y. St. Rep. 365, citing Rowley v. Empire Ins. Co., 36 N. Y. 550; Mowry v. Rosendale, 74 N. Y. 360; Flynn v. Equitable L. Assur. Soc, 9 N. Y. Wkly. Dig. 324. Agents of Kntual Benefit Association. — The courts in general repudiate any distinction as to the effect of misstatements of agents in case of the agents of mutual benefit so- cieties. Howe V. Provident Fund Society, 7 Ind. App. 586. See Kausal v. Minnesota Farmers' Mut. F. Ins. Assoc, 31 Minn. 17, 47 Am. Rep. 776; Russell v. Detroit Mut. F. Ins. Co., 80 Mich. 407. View that Policy cannot be Modified hy Extrin- sic Evidence. — The view that in an action at law upon an insurance policy, the rights of the parties must be determined by the con- tract of insurance, which cannot be altered or modified by extrinsic evidence of a different agreement to be established from the actual knowledge of the insurer or its agents, has been maintained. See Franklin F. Ins. Co. V. Martin, 40 N. J. L. 568, where the authori- ties are extensively collected and examined. See also the title Insurance. 3. Howe V. Provident Fund Soc, 7 Ind. App. 586; Bushaw v. Women's Mut. Ins., etc., Co. (Supreme Ct.), 8 N. Y. Supp. 423. See Kausal v. Minnesota Farmers' Mut. F. Ins. AsSoc, 31 Minn. 17, 47 Am. Rep. 776. 4. Pacific Mut. L. Ins. Co. v. Snowden, 12 U. S. App. 704. 328 Agents. ACCIDENT INSUKANCE. Knowledge of Agent. pany will be estopped to deny such representations ; * but the authorities are not in accord as to the circumstances which demand an application of this principle.* 3. Knowledge of Agent Imputed to Insurer. — The knowledge of the agent is the knowledge of the insurer, hence the latter cannot avoid a policy upon the ground that the risk was taken in ignorance of material facts not referred thereto, if these facts were known to its agent.' 1. Pacific Mut. L. Ins. Co. v. Snowden, 12 U. S. App. 704; New York Ace. Ins. Co. v. Clayton, 19 U. S. App. 304; Henderson v. Travelers' Ins. Co., 65 Fed. Rep. 438; Brown V. Railway Pass. Assur. Co., 45 Mo. 221. A representation of a general agent of an insurance company, that the risk included in- tentional injuries inflicted on the insured, waives a contrary proviso in the policy. Henderson v. Travelers' Ins. Co., 65 Fed. Rep. 438. 2. For a full discussion of the powers 'of insurance agents to waive conditions and forfeitures, see the title Insurance. The different views of the courts are illustrated by the following cases. Proviso in Policy Limiting the Agent's Autiior- ity. — Where the policy stated that it would not cover accidents received while under the in- fluence of intoxicating liquor, and also stated that no agent had power to alter or waive any of its terms or conditions, and the agent reported to the insured that the policy would cover an accident received while intoxicated, it was held that the expressed restriction in the policy was proper, and would be sup- ported. Cook V. Standard L., etc., Ins. Co., 84 Mich. 12. In this case the court followed Cleaver -v. Traders' Ins. Co., 65 Mich. 527, 8 Am. St. Rep. go8, where it is declared that " when the policy of insurance contains an express limitation upon the power of the agent, such agent has no legal right to con- tract, as agent of the company, with the in- sured, so as to change the conditions of the policy, or to dispense with the performance of any essential requisite contained therein, either by parol or writing; and the holder of the policy is estopped by accepting the policy from setting up or relying upon powers in the agent in opposition to limi- tations and restrictions in the policy." But where, although such a stipulation as to the power of agents is ^inserted in the policy, yet, owing to the particular circum- stances of the case, certain terms of the policy may be properly susceptible of an- other than their apparent meaning, the stipu- lation will not prevent the agent from waiving or altering such terms as between the insured and the company. As to the power of agents to waive stipula- tions inserted in policies with regard to no- tice and proof of injury, see supra, this title. Stipulations as to- Notice and Preliminary Proof of Injury, Time of Instituting Suit, Arbitration. As to the power of agents to waive conditions as to payment, see supra, this title, Payment of Premiums. Power of Agent Held Not to Extend to Abrogate Plain Provision of Policy. — Where the policy insured the holder while traveling on a public conveyance, and the agent told the applicant that the policy covered all risks during his trip, whether upon a conveyance or not, it was held that there could be no recovery where the insured was injured while stopping over at a town upon his route; that where the policy was perfectly plain and unam- biguous in its terms, and where there was no evidence of fraud or concealment, the representations of the agent would not affect the contract. Fidelity, etc., Co. v. Teter, 136 Ind. 672. Method of Waiver Provided in Policy. — Where the policy provided that nothing less than a distinct specific agreement, indorsed upon or attached to it, should be considered as a waiver of any printed or written condition or restriction contained in it, it was held that a local agent of the insurer could not waive any of the provisions of the policy, except in the manner thus provided for. Enos v. Sun Ins. Co., 67 Cal. 621. Waiver of Provisions' of Charter. — An incorpo- rated insurance company is the creature of its charter, and where the charter gives it power to contract and prescribes the form and mode of making such contract, the com- pany must observe the form or mode pre- scribed, or the contract will be void; and in such case it is not within the power of the officer or agent of the company to waive a strict compliance with the requirements of its charter. Leonard v. American Ins. Co., 97 Ind. 299. Company Estopped from Denying Authority of Agent. — Where a circular issued by an insur- ance company represents without qualifica- tion that the company issues policies pro- viding for certain payments in the event of special injuries, the company by the circular represents that the agent has authority to issue a, policy as described in the circular, and cannot, in case of such injuries, deny his authority to do so. Frank v. Pacific Mut. L. Ins. Co. (Neb., 1895), 62 N. W. Rep. 454. Where the insurer has placed the agent in a position to deliver a completed policy to the insured, who did not know that the com- pany required all contracts to be referred to the home office, the insurer cannot avoid the policy on the ground that the contract was not submitted to the home office for ratification. American Employers' Liability Ins. Co. V. Barr, 68 Fed. Rep. 873. 3. See supra, this section, as to the insur- ance company being bound by the misstate- ments of its agent, even when there is an attempt in the policy to make the agent the representative of the insured. See also the title Insurance. Total Loss of Sight— Knowledge of Agent that ■Insured had Lost an Eye. — Where the agent 329 Evidence. ACCIDENT INSURANCE. Proof of Death. VIII. Evidence— 1. Proof of Death by Violent, External, and Accidental Means. — Under a policy insuring the holder against death or injury by external, vio- lent, and accidental means, and providing that the insurance shall not extend to any case of death or injury unless the claimant shall establish that the death or injury was occasioned by " external violence and accidental means," it is incumbent upon the plaintiff under the policy to show that the death or in- jury of the insured was the result not only of external violence, but of acci- dental means.* Direct and Positive Proof. — A proviso in a policy that the claimant shall establish "by direct and positive proof" that death or personal injury was caused by external violence and accidental means, does not, where the insured has been found dead, require the facts and circumstances of his death to be proved by eye-witnesses, nor does such a provision exclude circumstantial and pre- sumptive evidence.* with knowledge insures a one-eyed man against total loss of the sight of both eyes, the company is liable if the insured loses the sight of his remaining eye. Humphreys v. National Ben. Assoc., 139 Pa. St. 264; Baw- den V. London, etc., Assur. Co., 61 L. J. R. 792, (1892) 2 Q. B. 534. 1. Travelers' Ins. Co. w. McConkey, 127 U. S. 661; Tennant v. Travelers' Ins. Co., 31 Fed. Rep. 322; Trew v. Railway Pass. Ins. Co., 5 H. & N. 211. Several Equally Beasonable Theories of Death. — Where the circumstances are consistent with several equally reasonable theories, some pointing to accidental death, and some pointing to death from design or natural causes, a case is not made out for the jury until there is some proof offered tending to establish one of such theories. Merrett v. Preferred Masonic Mut. Ace. Assoc, 98 Mich. 338. Where there is Sufficient Evidence to warrant a finding that death was due to accidental and not to some other cause, as, for instance, dis- ease, a verdict in favor of the beneficiary will not, of course, be disturbed. So where there was evidence that the insured died from the effects of a fall, although there was testi- mony tending to show that typhoid fever might have occasioned the death. Standard L., etc., Ins. Co. v. Thomas (Ky., i8gi), 17 S. W. Rep. 275. So where the death might have resulted from the effects of a fall, although it was contended that the cause of death was soften- ing of the brain. Hall w. American Masonic Ace. Assoc, 86 Wis. 518. So where death was found by the jury to have resulted from sudden strain, although there were no external marks of the injury. Owen V. Travelers' Ins. Co. (Ind.), 12 Ins. L. J. 75. 2. Travelers' Ins. Co. v. McConkey, 127 U. S. 661; Travelers' Ins. Co. v. Sheppard, 85 Ga. 800; Peck v. Equitable Ace Assoc, 52 Hun (N. Y.) 255; Reynolds v. Equitable Ace. Assoc. (Supreme Ct.), i N.Y. Supp. 738. In Travelers' Ins. Co. ». Sheppard, 85 Ga. 80C the court, by Bleckley, C.J., in constru- ing this provision of an accident policy, said: 'In one sense, all oral evidence is direct. * * * If we take the policy as meaning by the use of the terms ' direct and positive ' this much and no more, it can be easily recon- ciled with the rules of law on the subject of evidence. But the more general, and with us the established, use of the terms ' direct evidence ' gives to them a different and more restricted meaning." The learned judge then gave the accepted definitions of direct and circumstantial evidence, citing i Stark. Ev. 15, and the Code of Georgia, § 3748, and proceeded: " It is manifest that if it was the purpose of the insurance company to exact by contract direct evidence of death and ac- cident, in the sense contemplated by Starkie and our code as above quoted, then the rule laid down by the policy is in conflict with that established by law — a conflict which must be reconciled by adherence to the law and repudiation of this article in the policy." Unknown Cause Incapable of Direct and Posi- tive Proof. — In Wright v. Sun Mut. L. Ins. Co., 29 U. C. C. P. 221, the court, in con- struing a provision in a policy of insurance preventing a recovery " where the cause or manner of the accident is unknown or incap- able of direct and positive proof," said: "The true meaning of this clause appears from the contexts * * * ' the insurance shall not be held to extend to mysterious disap- pearances, nor to any case of death or dis- ability, the nature, cause, or manner of which is unknown or incapable of direct and positive proof.' We think it would be a per- version of the true meaning of this clause to hold that where the immediate cause of death is indisputable and evidenced by outward violence, caused by a train running over the body, and an acciAenl prima fade within the direct meaning of the insurance, it can be any objection that no human eye witnessed the precise manner in which the deceased fell into or got into the cattle-guard. A large pro- portion of accidental deaths occur under such circumstances that evidence is wanting as to the precise manner in which the deceased met his fate. Where the visible injuries plainly account for death, it can hardly be necessary to explain step by step how it happened." See also Accident Ins. Co. v. Bennetl, 90 Tenn. 256. Direct and Positive Proof of Design. — A clause in an accident policy requiring direct and positive proof that death or injury was not the result of design, either on the part of 330 EvHsnse. ACCIDENT INSURANCE, Presumptions. Declarations of the Insured as to Accident and Physical Conditien. — Upon the question whether the death of the insured was accidental, his declarations at the time of the accident explaining the nature of the facts and forming part of the res gestm are admissible,* but such declarations made some time after the injury and not part of the res gestce cannot be admitted.* Where a vested interest passes to the beneficiary under the policy, statements of the insured as to his physical condition made after the issue of the policy are not admissible, since he is not a party in interest, and he cannot destroy or affect the vested interest of the beneficiary by his unsworn statements.^ Evidence of Physician. — The insurer cannot introduce the testimony of the physician of the insured as to his condition, whether the physician's informa- tion has been gained by observation or from statements of the insured, such information being generally a privileged communication under our statutes.* 2. Presumptions — Against Suicide. — Where the insured is found dead under such circumstances that death may have been due to suicide or to accident, the presumption is against suicide and in favor of accident.* But it has been held that the circumstances of the case may overcome the presumption.* the insured or any other person, cannot be allowed to govern the courts, which will not permit the course of justice upon trials be- fore them to be stipulated or contracted in such manner as to defeat the ends to be sub- served by such trials. Parties may contract in relation to a condition precedent before bringing suit, or in relation to anything go- ing to the remedy, but not to the right of re- covery itself. Utter v. Travelers' Ins. Co., 65 Mich. 545, 8 Am. St. Rep. 913. Proof Satisfactory to Directors of Insurance Company. — Where one of the conditions in the deed of settlement of an insurance com- pany, which by the terms of the policy was incorporated in it, provided that, before payment of the sum insured by any policy, proof satisfactory to the directors of the company should be furnished by the claim- ant, of the death or accident, together with such further evidence or information, if any, as the directors should think necessary to establish the claim, it was held that this pro- vision must be understood to mean such evi- dence or information as the directors might reasonably, not such as they might unrea- sonably and capriciously, require. Braun- stein V. Accidental Death Ins. Co., I B. & S. 782, Id E. C. L. 782. 1. Ten Broeck v. Travelers' Ins. Co. (Su- preme Ct.), 6 N. Y. St. Rep. 100, 116 N. Y. 663; Hall V. American Masonic Ace. Assoc, 86 Wis. 518; Travelers' Ins. Co. v. Mosley, 8 Wall. (U. S.) 397. 8. Equitable Mut. Ace. Assoc, v. Mc- Cluskey, i Colo. App. 473. 3. Rawls V. American Mut. L. Ins. Co., 27 N. Y. 282; Swift V. Massachusetts Mut. L. Ins. Co., 63 N. Y. 186. See also title Insurance. But it has been held that a different rule applies where the insured is a member of a mutual benefit society, for in that case the beneficiary has no vested interest in the policy or certificate. Steinhausen v. Pre- ferred Mut. Ace. Assoc, 59 Hun (N. Y.) 336. 4. Prader v. National Masonic Ace. Assoc. (Iowa, 1895), 63 N. W. Rep. 601. But it has been held that statements made by the deceased to his physician, upon which the physician forms an opinion and write as prescription, are competent to prove what was the actual cause of illness and death, though the symptoms are such as might have been produced either by disease or accident, and such statements may be brought out by the defendant on cross-examination of the physician, a witness for the plaintiif. Trav- elers' Ins. Co. V. Dabbert, 2 Cine Super. Ct. Rep. (Ohio) 98. Beport of Physician Inadmissible. — The writ- ten report of a physician who examined the insured in behalf of the insurer at the time of the accident is not admissible as compe- tent proof of the plaintiff's condition. Mc- Mahon v. Supreme Council, 54 Mo. App. 468. 6. Travellers' Ins. Co. v. McConkey, 127 U. S. 661; Travelers' Ins. Co. v. Sheppard, 85 Ga. 802; Travelers' Ins. Co. v. Nitter- house (Ind. App., 1894), 38 N. E. Rep. mo; Couadeau v. American Ace. Co., 95 Ky. 280; Meadows v. Pacific Mut. L. Ins. Co. (Mo., 1895), 31 S. W. Rep. 578; Mallory v. Travel- lers' Ins. Co., 47 N. Y. 52; Peck v. Equitable Ace Assoc, 52 Hun (N. Y.)255; Whitlatch V. Fidelity, etc., Co., 71 Hun (N. Y.) 148; Washburn v. National Ace. Soc. (Supreme Ct.), lo N. Y. Supp. 366; Knickerbocker, etc., Ins. Co. v. Jordan, 7 Cine L. Bull. (Ohio) 71; Warner v. U. S. Mutual Ace. Assoc. (Utah), 22 Ins. L. J. 704; Cronkhite V. Travelers' Ins. Co., 75 Wis. 116, 17 Am. St. Rep. 184. See Connecticut Mut. L. Ins. Co. V. Aken, 150 U. S. 468; Ingersoll v. Knights of Golden Rule, 47 Fed. Rep. 276; Walcott V. Metropolitan L. Ins. Co.,64 Vt. 228; Wehle V. U. S. Mutual Ace. Assoc. (Super. Ct.), 31 N. Y. Supp. 865. Drowning. — Where the insured is found dead in the water, the presumption is in favor of death by drowning. Supreme Coun- cil V. Boyle, 10 Ind. App. 301. 6. Where the insured went to bed as usual at night, and the next morning his body was found in a cistern three or four feet from a path and six or eight feet from the house, the opening to which was only fifteen by twenty inches, the court held that the pre- sumption against suicide was overcome by 331 Amount of Becovery. ACCIDENT INSURANCE. Amoant of Becovery. Against Intentional Injury. — The presumption is against the insured having come to his death by injuries intentionally inflicted upon him.* 3. Establishing a Proviso Limiting the Insurer's Liability. — Where the plaintiff has shown that death resulted from violent, external, and accidental means, the defendant must allege and prove the facts necessary to bring the case within the exception limiting the general liability of the company. This is true, whether the exception is incorporated in the general insurance clause by reference, or whether it is simply a condition printed on the back of the policy.* IX. Amount of Recoveey.— loss of Time and Profit. — Where the agreement is to pay a stated sum in the event of death, and a proportionate part thereof in the case of personal injury, the assured is entitled to recover for only the personal expense and pain occasioned to him by the injury, and not for the loss of time or profit caused thereby.' Money Value of Time. — But where the insurance is a sum certain, provided the insured shall " recover no more than the money value of his time," the in- demnity covers all loss by the injury, including the value of his time outside of his regular employment.* Weekly Indemnity. — Under a policy stipulating for a certain sum in the case of injuries occasioning death within ninety days from the accident, and for a weekly sum for a certain period " for any single accident by which the assured shall sustain any personal injury which shall not be fatal," the weekly indem- nity is due for injury by an accident which does not occasion death within the time specified, although it is finally fatal.' the circumstances. Johns v. Northwestern Mut. Rel. Assoc. (Wis., 1895), 63 N. W. Rep. 276. See also Merrett v. Preferred Masonic Mut. Ace. Assoc, g8 Mich. 338. 1. Accident Ins. Co. v. Bennett, 90 Tenn. 256; Jones V, U. S. Mutual Ace. Assoc. (Iowa, 1894), 61 N. W. Rep. 485. 2. Standard L., etc., Ins. Co. v. Jones, 94 Ala. 434; Railway Pass. Assur. Co. v. Bur- well, 44 Ind. 460; National Ben. Assoc, v. Bowman, no Ind. 355; Sutherland v. Stand- ard L., etc., Ins. Co., 87 Iowa 505; Couadeau V. American Ace. Co., 95 Ky. 280; Anthony V. Mercantile Mut. Ace. Assoc, 162 Mass. 354; Badenfeld v. Massachusetts Mut. Ace Assoc, 154 Mass. 77; Freeman v. Travelers' Ins. Co., 144 Mass. 572; Keene v. New Eng- land Mut. Ace Assoc, 161 Mass. 149; Mead- ows V. Pacific Mut. L. Ins. Co. (Mo., 1895), 31 S. W. Rep. 578; C ildenkirch w. U. S. Mutual Ace. Assoc. (Brooklyn City Ct.), 5 N. Y. Supp. 428; Dougherty v. Pacific Mut. L. Ins. Co., 154 Pa. St. 3B5; Cronkhite v. Travelers' Ins. Co., 75 Wis. 116, 17 Am. St. Rep. 184; Jones v. U. S. Mutual Ace Assoc. (Iowa, 1894), 61 N. W. Rep. 485; Travelers' , Ins. Co. V. Nitterhouse (Ind. App., 1894), 38 N. E. Rep. inc. Where the defendant has made out a. prima facie defense under such a proviso, the bur- den of disproving it is upon the plaintiff. Travellers' Ins. Co. v. Houston, 3 Tex. App. Civ. Cas., § 429; Anthony v. Mercantile Mut. Ace Assoc, 162 Mass. 354. Exercise of Due Care. — Where the policy con- tains a proviso to the effect that the insured must exercise due care for his own protec- tion, it is incumbent on the insurer to prove the lack of due care, and the burden is not shifted by the iact that the body of the in- sured is found mangled upon a railro?d track after the train has passed, on a dark night, where there was no evidence as to how the accident occurred. Meadows v. Pacific Mut. L. Ins. Co. (Mo., 1895), 31 S. W. Rep. 578. See Anthony v. Mercantile Mut. Ace Assoc, 162 Mass. 354. Records of Coroners' Inquests. — Where the policy provides that proof of death should contain, in case of a coroner's inquest upon the body of the deceased, a copy of the ver- dict and all the evidence on which the verdict was based, the plaintiff may ofifer as evi- dence the verdict so furnished as proof of the performance of the conditions of the policy. Mutual L. Ins. Co. v. Laurence, 8 III. App. 492. Becord of Criminal Court Inadmissible. — Where the plaintiff has met a defense on the part of the insurance company, that the insured came to his death by injuries intentionally in- flicted upon him, by evidence of the fact that the person alleged to have inflicted such in- juries was insane, the defendant cannot in- troduce the record of the criminal conviction of such person in order to establish his san- ity. Marceau v. Travelers' Ins. Co., loi Cal. 338. The fact that the a^ssailant of the insured has been acquitted on a charge of man- slaughter does not show that the insured was in fault, and that he attacked his op- ponent, so as to bring the case within an ex» ception against injuries caused by fighting. Robinson v. U. S. Mutual Ace Assoc, 68 Fed. Rep. 825. 3. Theobald v. Railway Pass. Assur. 26 Eng. Law & Eq. 432. 4. Bean w. Travelers' Ins. Co., 94 581. 5. Perry ». Provident L. Ins., etc., Co. Mass. 242. Co., Cal. 103 332 Amount of Kecovery. ACCIDENT INSURANCE. Amount of Recovery. ■Weekly Indemnity— Instant Death. — But a policy which provides merely that the insured shall be indemnified in a certain sum per week against loss of time during the period of disability to work, not exceeding a certain number of weeks, does not entitle the administrator of the insured to recover any indem- nity in the case of an accident causing instant death. * Income Erroneously Stated. — -A stipulation, in an application for mutual accident indemnity, that the benefits to which the applicant shall become entitled shall be regulated and paid in the same ratio that his weekly income bears to the amount of weekly indemnity insured, is binding on the insured, although the agent, by false statements as to his income, put him in a higher class, paying larger premiums.* Final Proofs Submitted before Expiration of Period of Disability. — Under a policy re- quiring proof of the claim to be filed within seven months after the injury, and allowing a recovery for a period of disability not exceeding twenty-six consecutive weeks, where final proof of the claim is made before the expiration of the latter period, the insured may not recover for any time not covered by the proof.' ACCOMMODATING. — By. using the words "accommodating terms" in a contract the parties must have intended that the purchase money, or some part of it, should be permitted to remain in the vendee's hands, as if a loan for his convenience.* 1. Dawson v. Accident Ins. Co. of North quired any distinct technical meaning, they America, 38 Mo. App. 355. Here the court must be regarded as having been used by said: " The policy is on its face not a death the parties in the sense which is ordinarily policy, but a mere indemnity policy; and ascribed to them in business transactions, where the insured is immediately killed, ' In mercantile language,' says Webster's there is nothing upon which it can operate." Dictionary, ' acconvmoAatlon is used for a 2. Howe V. Provident Fund Soc, 7 Ind. loan of money, which is often of great con- App. 586. venience.' The parties, therefore, must have 3. Bickford v. Travelers' Ins. Co. (Vt., intended that the purchase money, or some 1895), 32 Atl. Rep. 230. part of it, should be permitted to remain in 4. The plaintiff agreed to sell, and the de- the defendant's hands, as if a loan for his fendant to purchase, a brig, and the terms convenience. The aeconvmodaHon was not Were to be acconvmodatimg. The court said: only intended to be reasonable, but for the "There being no evidence that the words benefit of the defendant." Rice zf. McLarren- ' terms acconvmodatimg ' have, by usage, ac- 42 Me. 163. 333 ACCOMMODATION PAPER. By L. P. McGehee. I. Definitions, 335. 1. Accotnmodation Paper, 335. 2. Accommodation Party, 336. II. Nature and Essentials of Accommodation Papeb, 336. 1. Generally, 336. 2. Consideration, 336. a. General Principles, 336. b. Cross Bills or Notes, 338. 3. Party Accommodated, 339. 4. Inception of the Contract, 340. a. Inoperative until Negotiated, 340. b. Revocation, 340. (i) Generally, 340. (2) i?/ Death, 341. 5. Place of the Contract, 342. 6. Parol Evidence to Prove Character of Instrument, 343. 7. How Far Affected by Statute of Frauds, 344. III. Accommodation Paper of Particular Parties, 345. 1. Parttiers, 345. 2. Corporations, 348. 3. Agents, 349. 4. Married Women, 350. IV. Rights and Liabilities of Parties to Accommodation Paper, 350 1. General Obligations of Parties, 350. 2. Position of Party Accommodated, 350. 3. Rights of Accommodation Party after Payment, 351. a. Against Party Accommodated, 351. (i) Indemnity — Generally, 351. (2) Accommodation Makers and Acceptors, 352. (3) Accommodation Ijtdorsers, 354. (4) Right to Costs and Expenses, 355. • b. Right of Accommodation Indorser against Prior Parties, 356. 4. Successive Accommodation Parties, 356. a. Rights and Liabilities Generally, 356. b. When Cosureties — Contribution, 357. 5. Holders of Accommodation Paper, 360. a. Rights of Bona Fide Holders, 360. (i) General Statement, 360. (2) Transferee before Maturity, 360. (fl) Generally, 360. (^) Contrast with Business Paper, 361. (3) Transferee after Maturity, 362. (a) Generally, 362. (^) Purchaser from Holder for Value, 362. (c) Transferee from Accommodated Party after Maturity 363. ^ (aa) English Rule, 363. (W) United States Rule, 364. ^. rf/4o w .5c«a Fide Holder, 365. (i) General Rule, ibi. (2) Pledgee, 365. (a) i^or Antecedent Debt, 365. (*) Of Diverted Paper, i(A. 334 Definitions. ACCOMMODATION PAPER. Aooommodation Paper. c. When Chargeable with Notice of Accommodation Character of Instru- ment, 307. d. Burden of Proof, 368. e. Amount of Recovery against Accommodation Acceptor or Maker, 369. v. Accommodation Paety as Stjeety, 371. 1. As between the Party Accommodated and the Accommodation Party, 371. a. Generally, 371. b. Subrogation to Creditor's Securities, 371. c. Subrogation to Defenses against Holder, 373. 2. As to Third Parties, 374. a. Holders without Notice, 374. b. Holders with Notice, 374. (i) Generally, 374. (2) Discharge by Dealings with Principal, 375, {a) English Doctrine, 375. {aa) At Law, 375. (bb) In Equity, yj6. {b) United States Authorities, 376. (3) Discharge by Breach of Condition, 379. (a) Generally, 379. (^) Diversion, 379. (aa) Use of Accommodation Paper Generally, 379. Xbb") What A7nounts to a Diversion, 380. {cc\ Effect of Diversion, 383. VI. Fb£sentment and Notice, 385. VII. Extinguishment, 386. CROSS-REFERENCES. Formatters of Procedure, see the title NEGOTIABLE INSTRUMENTS, Encyclo- pedia OF Pleading and Practice. For other matters of Substantife Law and Evidence related to this subject, see the following titles in this work : AL TERA TION OF INSTR UMENTS; BILLS AND NOTES; CERTIFICATES OF DEPOSIT; CHECKS; COLLATERAL SE- CURITY; CONFLICT OF LAWS; CONTRIBUTION ; PLEDGE; SUBRO- GATION ; SURETYSHIP ; USURY. I. Definitions — 1. Accommodation Paper. — Accommodation paper is a bill of exchange or promissory note to which the acceptor, drawer, maker, or in- dorser, as the case may be, has put his name without consideration, for the pur- pose of accommodating by a loan of his credit some other person who is to provide for the bill or note when it falls due.* 1. Jefferson County v. Burlington, etc., R. commercial paper given without value to Co., 66 Iowa 385; Singer I/. Dickneite, 51 Mo. enable the party to whom it was given to App. 249; Pollard v. Huff (Neb., 1895), 63 N. use it for his own benefit without restriction W. Rep. 58; Peoria Mfg. Co. v. Huff (Neb., as to the manner in which it should be used, 1895), 63 N. W. Rep. 121; Byles on Bills there is no question that it could have been *I3I, *4I2; Daniel on Nag. Ins., § 189; 2 pledged as collateral security." Randolph Commercial Paper, § 472. Sealed Notes. — Where suit was brought Other Definitions. — In Carpenter z/. Republic against the accommodation indorser of a Nat. Bank, 106 Pa. St. 170, Clark, J., defined sealed instrument and the only defense was accommodation paper as follows: " Accom- want of consideration, it was held that, con- modation paper is such as is made, accepted, ceding that a sealed note was not by strict or indorsed by one party for the benefit of commercial law a negotiable instrument, yet another without consideration; it represents the court was right in directing a verdict for a loan of credit." the plaintiff. Farrar v. New York Bank, go In Altoona Second Nat. Bank v. Dunn, 151 Ga. 331. In this case Bleckley, C.J., said: Pa. St. 228, it seems to be considered that no " The pleas in the record set up no defense paper can be called accommodation paper in except the want of consideration, and yet, the strictest sense, unless it is a loan of while declaring the instrument to be an ac- credit without restriction as to the manner commodation paper, they do not deny that of its use. In delivering the opinion of the the accommodation was extended by the court, Heydrick, J., said: " The next ques- plaintiff and realized by the person intended tton is as to the character of the note. If it to be accommodated. If it be true that noth- were an accommodation note, that is to say, ing but strictly commercial paper, negotiable 335 Natttre and Essentials ACCOMMODATION PAPER. of Accommodation Paper. Term Used in Narrower Sense. — The phrase " accommodation paper " is also used in a narrower sense, including only bills accepted or notes made for accommo- dation.* 2. Accommodation Party. — The term "accommodation party" is always used in the sense corresponding to the wider meaning of accommodation paper. An accommodation party is a person who has signed as drawer, acceptor, maker, or indorser, without receiving value and for the purpose of lending his name to some other person as a means of credit.* II. Nature and Essentials of Accommodation Papek— 1. Generally. — An accommodation bill or note must be in the nature of a loan of credit without consideration by the accommodation party to the party accommodated, who may or may not be a party to the instrument. 2. Consideration — a. GENERAL Principles — Absence of consideration not sufficient. — There must be an absence of consideration between the party accommodated and the accommodation party, but absence of consideration in itself is not enough to make a bill or note accommodation paper.' Must be a Loan of Credit. — The instrument must be loaned or signed by one party for the purpose of procuring credit for the other, generally or for a specific purpose, in order that it may be strictly accommodation paper.* by the law merchant, can be accommodation paper, or used as such, the defense ought to prevail; but we can discover no obstacle in the nature of things to the use of any class of paper whatever as a means of accommoda- tion. When one man pledges his credit for the benefit of another without receiving any part of the consideration himself, whatever be the form of instrument by which he makes the pledge, the paper has all the necessary elements, so far, at least, as consideration is concerned, which any accommodation paper requires." 1. In Miller v. Larned, 103 111. 562, Scott, J., said: " A recognized definition of accom- modation paper is, either a negotiable or non-negotiable bill or note made by one who puts his name thereto without consideration, with the intention of lending his credit to the party accommodated." The true analogy is between a note made and a bill accepted for accommodation. (See the title Bills and Notes.) And this definition would seem to be misleading as applied to bills, in that it implies apparently that a bill must be drawn by an accommodation party in order to be accommodation paper. In Benjamin's Chalmers' Dig. of Bills and Notes, art. 90, an accommodation bill is de- fined to be "a bill whereof the acceptor (that is, the principal debtor on the instrument) is substantially a mere surety for some other person who may or may not be a party thereto." In Scott V. Lifford, i Campb. 246, by an arrangement between the plaintiffs and one Agar, who was indebted to them, Agar was given further time to pay his debt upon the deposit with the plaintiffs as security of a bill drawn by the defendant in favor of the plaintiffs and accepted by Agar. Lord Ellen- borough held that the bill was not to be con- sidered as an accommodation bill, there hav- ing been a consideration as between the payee and the acceptor. See also Shirley v. Fel- lows, 9 Port. (Ala.) 304. 336 2. British N. A. Bank v. Ellis, 6 Sawy. (U. S.) 96; Devereaux v. Phillips, 97 Mich. 104; Peoria Mfg. Co. v. Huff (Neb. , 1895), 63 N. W. Rep. 121; Newbold v. Boraef, 155 Pa. St. 227; Bills of Exchange Act (45 and 46 Vict., c. 61), § 28 (i); I Parsons Bills and Notes 184; Benj. Chalm. Dig. Bills and Notes, art. 90; 2 Rand, on Commercial Paper, §472. 3. Bill Drawn Subject to State of Accounts. — Where A drew a bill upon B, to whom he had been sending goods for sale, and B accepted the bill, neither party knowing the state of accounts between them, and it turned out that A at the time was indebted to B, the court held that this was not to be considered an accommodation bill, and consequently there was no implied contract of indemnity for costs. Bagnall w. Andrews, 7 Bing, 217, 20 E. C. L. 107. See also Farmers', etc.. Bank v. Rathbone, 26 Vt. 19, 58 Am. Dec. 200. Eill of Commission Merchant in Favor of One Shipping in Drawer's Name. — Where the plain- tiff shipped wheat to the defendant's com- mission merchants, in the defendant's name by his consent, and the defendant notified the commission merchants of the shipment without reference to the plaintiff, and after the sale of the wheat shipped the commission merchants rendered an account of sales to the defendant, placing the proceeds to the defendant's credit, a bill drawn by the de- fendant upon the commission merchants in favor of the plaintiff for the amount was held to be not accommodation paper. Singer V. Dickneite, 51 Mo. App. 245. Bill Accepted in Consideration of Goods to be Shipped. — Where one accepts a bill in con- sideration of goods to be shipped to him by the drawer, although the goods are never shipped, such person is not an accommoda- tion acceptor. Cameron v. Chappell, 24 Wend. (N. Y.) 94. 4. Capital City State Bank v. Des Moines Cotton Mill Co., 84 Iowa 561; Dunn v. Wes- ton, 71 Me. 270, 36 Am. Rep. 310; Pollard v. Nature and Essentials ACCOMMODATION PAPER, of Accommodation Faper. Accommodation Party Holding Security or Interested in Proceeds. — It does not affect the rights of the parties, or prevent the paper from being accommodation paper, that the accommodation party has taken security for the loan of his credit,* or even that he has an interest in the proceeds of the paper.* Credit to Party Accommodated as Consideration. — After the instrument containing the accommodation signatures has been negotiated, the credit given to the accom- modated party upon the instrument is sufficient consideration to bind the accommodation party.* Consideration for Accommodation Indorser after Delivery. — But where one becomes an accommodation indorser after dehvery, there must, in general, be a new con- sideration known to the indorser in order to bind him.* HuH (Neb., 1S95), 63 N. W. Rep. 58; Apple- ton V. Donaldson, 3 Pa. St. 381 ; Lord v. Ocean Bank, 20 Pa. St. 384, 59 Am. Dec. 728; Lenheim v. Wilmarding, 55 Pa. St. 73; Mosser v. Criswell, 150 Pa. St. 409; Fant w. Miller, 17 Gratt. (Va.) 47. That accommodation paper is a loan of credit prima facie, without restriction as to the manner in which it shall be used, see «w- fra,Va\st\\\e, Diversion : Use of Accommoda- tion Paper Generally. In the older books the fact that accommo- dation paper was in the nature of a loan of credit seems not to have been so clearly ap- preciated. See Bailey on Bills, 2 Am. ed. 458. Mr. Justice Byles (Wood's Byles on Bills *4i2) notices and 'corrects the popular use of the term as paper accepted or indorsed without any consideration. 1. Miller -v. Larned, 103 111. 562. See Corn- wall V. Gould, 4 Pick. (Mass.) 444; Beach v. Fulton Bank, 3 Wend. (N. Y.) 573; Mont- gomery County Bank v. Walker, g S. & R. (Pa.) 229; AUston v. Alljton, 2 Hill (S. Car.) 362; May V, Boisseau, 8 Leigh (Va.) 185. 2. Richards v. Simms, i Dev. & B. (N. Car.) 48; Youngs v. Ball, 9 Watts (Pa.) 139. See also Gillespie v. Campbell, 39 Fed. Rep. 724. 3. United States, — U. S. Bank v, Weisiger, 2 Pet. (U. S.) 331; Offiitt V. Hall, i Cranch (C. C.) 572; Patton V. Violett, i Cranch (C. C.) 463, 5 Cranch (U. S.) 142; Yeaton v. Alex- andria Bank, 5 Cranch (U. S.) 49. Alabama. — Dunbar v. Smith, 66 Ala. 490. Arkansas. — Harrell v. Tenant, 30 Ark. 684; Rockafellow v. Peay, 40 Ark. 69. California. — Westphal v. Nevills, 92 Cal. 545- Georgia. — Farrar v. New York Bank, 90 Ga. 331. Illinois. — Dawson v. Tolman, 37 111. App. 134; Diversy v. Loeb, 22 111. 394; Heintz v. Cahu, 29 111. 308. Iowa. — Brenner v. Gundershiemer, 14 Iowa 82. Maine. — Dunn v. Weston, 71 Me. 270, 36 Am. Rep. 310. Massachusetts. — Kenworthy v. Sawyer, 125 Mass. 28; Black River Sav. Bank v. Ed- wards, 10 Gray (Mass.) 387; Robertson v. Rowell, 158 Mass. 94. Mississippi. — Hawkins v. Neal, 60 Miss. 256. New VorJi.— Grant v. Ellicott, 7 Wend. (N. Y.)228; Mechanics', etc.. Bank v. Livingston, 6 Mjsc. Rep. (N. Y. C. PI.) 81; Spencer v. Ballou, 18 N. Y. 327; Gates v. Williams, 9 Misc. Rep. (N. Y. C. PI.) 176. North Carolina. — Hatcher v. McMorine, 3 Dev. (N. Car.) 228. Tennessee. — Marr v. Johnson, 9 Yerg. (Tenn.) i. See also the title Suretyship. No Credit Obtained upon the Instrument. — Where one joins with the debtor in the exe- cution of a promissory note payable to the creditor, to be delivered to the payee as col- lateral security for the original debt, and there is no extension of time to the debtor, nor other consideration moving to him, the accommodation maker is not liable, since the note is without consideration; but a valid contemporary promise by the debtor to in- demnify the accommodation maker is a suffi- cient consideration to support the note as to him. Rutledge v. Townsend, 38 Ala. 706. Liability on Old Note Supports Eenewal Ac- commodation Note. — An accommodation party's liability upon one note is a sufficient cohsid- eration to support, as to him, a new note to which he becomes a party in order to take up the first note. Spencer w. Ballou, 18 N. Y. 327. See also Lucas v. Pitney, 27 N. J. L. 221. 4. Pratt V. Hedden, I2i Mass. 116; Robert- son V. Rowell, 158 Mass. 94. See Killian v. Ashley, 24 Ark. 511, 91 Am. Dec. 519; Piatt V. Snipes, 43 Ark. 21; Leverone v. Hildreth, 80 Cal. 139; Cassell v. Morrison, 8 111. App. 175. See also the title Suretyship. Accommodation Maker Signing after Execu- tion and Delivery. — As a general rule, one . who adds his signature to a promissory note after its execution and delivery is not bound unless there is a new consideration. Yet where a loan is made upon the consideration that the borrower will execute the note and procure the signature of another party to it as joint maker, with the understanding that the note shall not be considered as delivered until signed by such other party, and his signature is procured several days after- wards, the party so adding^ his signature is bound by the note without the necessity of a new consideration notwithstanding he had no prior knowledge or agreement respecting the loan previously made. Winders v. Sperry, 96 Cal. 194. Benefit to Accommodated Party Sufficient. — Here, as where the accommodation party signs before delivery, an advantage accru- ing to the party accommodated is a consid- I C. of L. — 22. 337 Nature and Essentials ACCOM MOD A TION PAPER. of Accommodation Paper. b. Cross Bills or Notes — Not Accommodation Paper. — Cross bills or notes, that is, bills or notes exchanged for mutual convenience, are not accommodation paper, since each is a consideration for the other.* Payment Gives Right of Action. — When one of the parties to such an exchange of notes has paid his own note, he may maintain an action against the other party upon the note of the latter, although he holds it still unused.* No Suretyship. — But there is no relation of suretyship between the parties, and each is the primary debtor upon his own paper.' eration sufficient to bind the accommodation party. Anderson v. Norvill, lo 111. App. 240. 1. England. — Rolfe v. Caslon, 2 H. Bl. 570; Cardwell v. Martin, g East 190; Cowley v. Dunlop, 7 T. R. 565; Buckler v. Buttivant, 3 East 72; Rose v. Sims, i B. & Ad. 521, 20 E. C. L. 437. Illinois. — Union Trust Co. v. Rigdon, 93 111. 459- Indiana. — Farber v. National Forge, etc., Co. (Ind., 1894), 39 N. E. Rep. 249, citing 2 Am. and Eng. Encyc. of Law (ist ed.) 363. Louisiana. — Crescent City Bank v. Her- nandez, 25 La. Ann. 43. Maine. — Dockray v. Dunn, 37 Me. 443. Maryland. — Williams v. Banks, 11 Md. 198. Massachusetts. — HigginsOn v. Gray, 6 Met. (Mass.) 212; Eaton z/. Carey, 10 Pick. (Mass.) 211; Whittier v. Eager, i Allen (Mass.) 499; Backus V. Spaulding, 116 Mass. 418. New York. — Cohu v. Husson, 113 N. Y. 662, 14 Daly (N. Y.) 200, 57 N. Y. Super. Ct. 238; Dowe V. Schutt, 2 Den. (N. Y.) 621; Wooster v. Jenkins, 3 Den. (N. Y.) 187; Rice V. Mather, 3 Wend. (N. Y.) 62; Cobb -v. Titus, 10 N. Y. 198; Newman v. Frost, 52 N. Y. 422; Leslie v. Bassett, 129 N. Y. 523; Mickles V. Colvin, 4 Barb. (N. Y.) 304; State Bank V. Smith, 85 Hun (N. Y.) 201. Ohio. — Rankin v. Knight, I Cine. Super. Ct. Rep. (Ohio) 515. Intention Controlling. — A mutual exchange of notes will amount to a sufficient considera- tion for the note so given, but to do so it must appear that it was the intention of the parties to make a mutual exchange of paper, and whether such was their design will de- pend upon the particular circumstances of each case. Williams v. Banks, ji Md. 198. Note Exchanged Proving Worthless. — The fact that one of the notes exchanged proves worthless will not alter the rule. Rice v. Grange, 131 N. Y. 149. Bills Paid for in Bills of the Purchaser. — Where one buys bills of exchange upon a foreign country, giving in exchange there- for bills drawn by himself upon a firm of which he is a member, the purchaser is a holder for value. In re London, etc.. Bank, L. R. 9 Ch. 686. See Adams v. Soule, 33 Vt. 538. TJsury. — Where A and B exchange notes for the purpose of raising money, and A ob- tains the note of B to be discounted at a premium exceeding the lawful rate of inter- est, such transaction is not usurious, and cannot be set up in bar of a recovery in an action by the purchaser of the note against B, the maker. Rice v. Mather, 3 Wend. (N. Y.) 62. 2. Cohu V. Husson, 14 Daly (N. Y.) 200, 113 N. Y. 662. Payment without Liability. — Where one party to such an exchange of notes pays his own note, when by reason of the fraudulent misappropriation thereof by the other party to the exchange, to which fraudulent misap- plication the holder was a party , he had a good defense thereto, it seems that the payment having been made without a legal liability does not give him the right to recover against the other party. Mix v. Muzzy, 28 Conn. 186. No Eecovery until Payment. — One party to such an exchange of notes or checks has no right of action against the other party on the note or check of the latter until he has paid his own note or check. Burdsall v. Chrisfield, i Disney (Ohio) 51. Agreement with Begard to Payment. — When it is agreed between the two parties to the exchange that the drafts given by the first party shall not be paid until those given by the second party are paid, one who takes the drafts of the first party with full knowledge of the agreement cannot recover. Dunning V. Pratt, 4 Duer (N. Y.) 331. 3. No Implied Contract of Indemnity. — There is no implied contract of indemnity in such a case, as there is in the case of accommoda- tion paper. So where one of the parties to an exchange of notes has paid his own note and made payments upon the note of the other party, he cannot recover of the latter the amount so paid. Wooster v. Jenkins, 3 Den. (N. Y.) 187. In this case Bronson, C.J., said: " It is urged that as between the original parties cross notes or acceptances should be regarded as accommodation, in contradistinction to business securities. But the rule is settled the other way. Each party may prove the debt against the other under a commission of bankruptcy. And although one party sells the note or bill at a greater discount than seven per centum, the purchaser will acquire a good title. It is true that so long as the securities are in the hands of the original parties they will bal- ance each other; but it will be by way of set-off, and not on the ground that they are invalid. If a party lend his note or accept- ance, and take a counter security of the same kind, by way of indemnity merely, the lent note or bill will not have inception as a valid security until it passes into the hands of a bona fide holder. But I do not consider this a transaction of that kind. Neither firm took the notes of the other by way of in- demnity merely. But the notes on both sides were made to be negotiated and used as valid securities." 338 Nature and Essentials ACCOMMODA TION PAPER. of Accommodation Paper. 3. Party Accommodated — Who is— Incidental Benefit. — The accommodated party is he to whom the credit of the accommodation party is loaned, but the fact that one derives some incidental benefit from the paper will not make it accommodation paper as to him.* Need not be Party to Instrument. — An instrument signed, accepted, or indorsed by one for the accommodation of another is accommodation paper although the party for whose accommodation it was signed is not himself a party to the in- strument.* Indorsement for Accommodation of Two. — An accommodation indorsement or sig- nature may be for the accommodation of more than one of the parties to the in- strument, as, for example, for the accommodation of both drawer and payee.' At Whose Sequest. — But the fact that one signs a note for the accommodation of his comaker at the request of a third person will not estabUsh the relation of accommodation and accommodated parties between the accommodation maker and such third person,* nor is paper which one makes for the benefit of Party Faying His Own Note not Entitled to Subrogation. — Where A and B exchange their notes for their mutual accommodation, and A •at the maturity of his note pays it to a party who has discounted it upon the indorsement of B, A in making such payment does not act as a surety of B, and is not entitled to be subrogated to securities held by the party who discounted the instrument for B to in- demnify him for the liability thereby as- sumed. Stickney v. Mohler, ig Md. 490. 1. Here Incidental Benefit. — C makes his promissory note at the request of and for the benefit of F to take up an old note made by F and indorsed by M; F does not become a party to the new note, but M indorsed it for the accommodation of F. The relation of accommodation and accommodated parties -does not exist as between M and C, and M may maintain an action upon the instrument against C. Mosser v. Criswell, 150 Pa. St. 409. In this case, in delivering the opinion of the court, Mitchell, J., said: " The debt for which this note was given was unquestion- ably Feight's, and it was incumbent on him to pay the note, though he was not party to it. When it fell due and Feight was un- able to pay it, plaintiff being an indorser -would have been liable to be called on by the bank for payment; and therefore to have the money raised on a new note made by defendant was in a certain popular sense an accommodation, that is, a convenience, to the plaintiff — just as it is a convenience to a creditor who wants his money but cannot get it from his debtor in cash, to get payment by a note on which he can raise the money temporarily, though at the risk of an in- dorsement which he may ultimately have to pay. But this is very far from what the law means by accommodation paper." Where A and B are cosureties on a bill for the drawer, and A takes up the bill and receives thereafter a note signed by the drawer and indorsed by B for one half the amount of the bill, the note is not made for A's accommodation, but the drawer and B being liable, one to indemnify A and the other as a cosurety with him to contribu- tion, the bill is for value, and A may recover thereon against B. Hatcher v. McMorine, 3 Dev. (N. Car.) 228. 2. Benj. Chalm. Dig. Bills and Notes, art. 92; Miller v. Larned, 103 111. 562. See Corn- wall V. Gould, 4 Pick. (Mass.) 444; Powers v. French, i Hun (N. Y.) 582; Messmore v. Meyer, 56 N. J. L. 31; Gunnis v. Weigley, 114 Pa. St. igi; Mosser v. Criswell, 150 Pa. St. 409. 3. Farrar v. Gregg, 1 Rich. (S. Car.) 378. Accommodation Note for A and B Delivered by A to B as Negotiable Paper. — A was indebted to B upon a note; B agreed to take C's note in payment thereof; A procured C to make his note payable to B; C believing that the note was for the accommodation of A and B. C delivered the note to A, who delivered it to B. It was held that B accepted the note for his own accommodation, and could main- tain no action thereon. The court reasoned thus: If the note had any validity it must have obtained it either by the delivery from C to A or from A to B; and if it came into legal existence by C's delivering it to A, A must be considered B's agent to accept de- livery, and so B was bound by its delivery as accommodation paper for himself; and if A's delivery to B gave it existence, A in de- livering it was acting as an agent of C with authority to deliver it to B only as accom- modation paper for B's benefit, and as a special agent he could not bind his principal beyond his real authority. Messmore v. Meyer, 56 N. J. L. 31. The reasoning of this case seems hardly satisfactory. If the principles of agency are applicable at all, which seems doubtful, it is not apparent why A, acting as B's agent to receive delivery, is able to bind his principal in excess of his powers, while if acting as C's agent to make delivery, C is not bound if he goes beyond his authority. 4. Person Bequesting Signature for Another not Accommodation Party. — Where it appears that E signed for the accommodation of P at the request of J, the law will not in the ab- sence of evidence imply a promise by J to indemnify E, and if J subsequently acquires the note he may enforce it against E. Lock- wood V. Twitchell, 146 Mass. 623. Where it appeared that a stranger indorsed a note at the request of the payee, receiving from him a consideration for so doing, the payee supposing that the indorser was as- 339 ITature and Essentials A CCOMMODA TION PAPER. of Accommodation Paper. another, without the request or knowledge of the latter, accommodation paper.* May Become Holder for Value. — The party accommodated may by agreement be- tween the parties, founded upon a good consideration, become entitled to hold the instrument as a valid security.* 4. Inception of the Contract — a. Inoperative until Negotiated. — No obligation whatever attaches to an undelivered bill or note, and accommodation paper, although complete in form and signed by all the proper parties, creates no liability and is of no validity until it is negotiated and has passed into the hands of a holder for value. ^ b. Revocation — (i) Generally. — It follows from the fact that accommo- dation paper is operative only when negotiated, that until negotiation an accommodation party may revoke the instrument,* and no one who takes with suming the liability of a surety for the maker, and the indorser having previously agreed to indorse the note of the maker to be delivered to the p^yee; and where it is a reasonable inference from the indorser' slan- guage at the time he placed his signature upon the instrument that he understood that he was becoming surety for the maker, a verdict for the payee in an action against the indorser upon the instrument is supported by the evidence. Laflin v. Pomeroy, II Conn. 440. Indorser for Accommodation of Accommodation Indorser. — Where it appeared that the plain- tiff, for a consideration paid to him by the makers of a note, indorsed the note for their accommodation and undertook to raise the money on it, and that, being unable to dis- count the note without further indorsement, the plaintiff procured the defendant to in- dorse the note for him, the plaintiff is as to the defendant the accommodated party, and cannot, after taking up the instrument, re- cover from the defendant a contributory share of the amount paid. Martin v. Mar- shall, 60 Vt. 321. 1. Party Accommodated must Bequest Signa- ture or Promise Indemnity. — Where a married woman, in 1879, voluntarily gave her note for the amount of a claim against her hus- band, without any request on his part that she should become surety for him and with- out any consideration either by way of transfer of the claim to her or otherwise, and in an action upon the note there was no allegation or finding that she had any sepa- rate estate, it was held that want of consid- eration was a. good defense, although the plaintiff was a bona fide purchaser for value, and although by the terms of the instrument it was held a charge on her separate estate. Linderman v. Farquharson, loi N. Y. 435. In order to establish that a third person is liable to indemnify an indorser who has been compelled to pay the instrument, it must ap- pear that the latter sigfie'd at the request of such third person or that such third person agreed to indemnify him. Cornwall v. Gould, 4 Pick. (Mass.) 444. See Gates v. Williams, 9 Misc. Rep. (N. Y. C. PI.) 176. 2. Norton v. Downer, 33 Vt. 26; Cogge- shall V. Ruggles, 62 111. 401. See Parker v. Lewis, 39 Tex. 394. 3. England. — Arden v. Watkins, 3 East 322; Willis V. Freeman, 12 East 656; Downes v. Richardson, 5 B. & Aid. 674. Alabama. — Connerly v. Planters', etc., Ins. Co., 66 Ala. 442. 7«rfea»a!. ^-Hoffman v. Butler, 105 Ind. 371. Kentucky. — Thompson v. Poston, i Duv. (Kyi) 389. Maine. — Tufts v. Shepherd, 49 Me. 312. Massachusetts. — Robertson v. Rowell, 158 Mass. 94. Minnesota. — Second Nat. Bank v. Howe, 40 Minn. 390. Missouri. — Macy v. Kendall, 33 Mo. 164. New York. — Jones v. Hake, 2 Johns. Cas. (N. Y.) 60; Wilkie v. Roosevelt, 3 Johns. Cas. (N. Y.) 66; Marvin v. McCullum, 20 Johns. N. Y.) 288; Smith v. Wyckoff, 3 Sandf. Ch. N. Y.) 77; Beach v. Fulton Bank, 3 Wend. N. Y.) 573; Douglass W.Wilkinson, 17 Wend. (N. Y.) 431; Dowe V. Schutt, 2 Den. (N. Y.) 621; Peck V. Burwell (Supreme Ct.V i N. Y. Supp. 33; Dowden v. Calvin (C. PL), 2 N. Y. Supp. i6r. North Carolina. — Norfolk Nat. Bank v. Griffin, 107 N. Car. 173. Tennessee. — Tennessee Bank v. Johnson, i Swan (Tenn.) 232. Virginia. — Whitworth v. Adams, 5 Rand. (Va.) 333. Note Indorsed for only Part of its Value. — A makes and signs a promissory note for twenty-five hundred dollars and requests B to indorse it for his accommodation; B re- fuses to indorse for the whole amount, but does indorse it for seven hundred and fifty dollars as follows: " Mr. O. pay on within seven hundred and fifty dollars." It was then procured to be discounted for the latter sum. It was held that the note was in legal effect a note for seven hundred and fifty dol- lars, inasmuch as being accommodation paper it was of no validity or value until negotiated, and it first acquired validity by being dis- counted as a note for seven hundred and fifty dollars. Douglass v. Wilkinson, 17 Wend. (N. Y.) 431. 4. Bevocable by Accommodation Party until Negotiated. — This principle applies to all ac- commodation parties, Tennessee Bank v. Johnson, i Swan (Tenn.) 233 ; thus, to ac- commodation makers. Second Nat. Bank v. Howe, 40 Minn. 390, citing 2 Am. and Eng. Encyc. of Law (ist ed.) 365; Norvell v. Hudgins, 4 Munf. (Va.) 496; and to accom- modation indorsers, Skidling v. Warren, 10 Johns. (N. Y.) 270; Dogan v. Dubois, 2 Rich. Eq. (S. Car.) 85; Tennessee Bank v. Johnson, i Swan (Tenn.) 217; May v. Bois- 340 Nature and Essentials ACCOMMODATION PAPER. of Accommodation Paper. knowledge of such a revocation acquires any right against the revoking party.* Such a revocation is accomplished by giving notice to the parties concerned,* and this notice may be verbal.^ (2) By Death. — The death of the accommodation party before the instru- ment has been issued is a revocation, and a party who afterwards takes thre instrument with knowledge of its accommodation character cannot recover against the estate of the deceased accommodation party,* although he took the paper in ignorance of the accommodation party's death.* But it is other- seau, 8 Leigh (Va.) 193; Berkeley v, Tinsley, 88 Va. looi. Bevocation of Fiior Accommodation Indorsers Beleases Subsequent Ones. — The revocation be- fore negotiation of an antecedent accommoda- tion indorser releases from liability a subse- quent accommodation indorser, although the revocation of such antecedent indorser was without the knowledge of the subsequent in- dorser, and one who takes the instrument with notice of the revocation is a mala fide holder as to the subsequent parties. Tennes- see Bank v. Johnson, i Swan (Tenn.) 234. Security Given to Accommodation Party. — It does not change the right of the accommoda- tion party to revoke, that he has taken secur- ity for the use of his name. May v. Bois- seau, 8 Leigh (Va.) 164. Bevocation after Pledge. — Although the paper has been pledged for a certain sum, an ac- commodation indorser, while of course re- maining liable for the amount advanced, may revoke his indorsement and prevent the discount of the instrument. Berkeley v. Tinsley, 88 Va. looi. Bevocation Withdrawn through False Bepre- sentations. — Where the accommodation maker of a promissory note gave a sufficient notice of revocation to the vice-president of the bank at which, by agreement, the note was to be discounted, but was induced by the false and fraudulent representations of the vice-president as to the financial standing and solvency of the payee, the accommo- dated party, to withdraw his revocation, it was held that the bank subsequently receiv- ing the note from the payee was responsible for the loss resulting to the accommodation maker. Second Nat. Bank v. Howe, 40 Minn. 390. Agreement to Accept for Accommodation Bind- ing. —In Ilsley V. Jones, 12 Gray (Mass.) 260, it is declared, in the opinion delivered per curiam, that a failure to accept a draft for accommodation, where the drawee had prom- ised the drawer to accept, would render the drawee liable for damages to the drawer al- though the bill was still in the hands of the latter, and the damages would be measured by the inconvenience and loss occasioned to the drawer. The expression was, however, a mere dictum, for the court declared that there was no evidence that the promise to accept in the case before it was for accom- modation. It would seem that, according to the principle that an accommodation signa- ture may be revoked before negotiation, there could be no action for damages in such a case. See Mechanics' Bank w. Livingston, 33 Barb. (N. Y.) 458. 1. Skidling v. Warren, 10 Johns. (N. Y.) 270; Dogan V. Dubois, 2 Rich. Eq. (S. Car.) 85; Norvell v. Hudgins, 4 Munf. (Va.) 496. Innocent Indorsee. — But when the accom- modation maker of a note upon the insolv- ency of the accommodated party, the payee of the note, directed the latter to return and not to use it, and the payee promised but failed to do so, and negotiated the instrument to an innocent indorsee, the latter was held entitled to recover. Hart v. U. S. Trust Co., 118 Pa. St. 565. 2. In the following cases the revoking ac- commodation party gave notice to the bank at v/hich the note was to be discounted. Sec- ond Nat. Bank w. Howe, 40 Minn. 390; Dogan V. Dubois, 2 Rich. Eq. (S. Car.) 85; Tennes- see Bank v. Johnson, i Swan (Tenn.) 238. In May v. Boisseau, 8 Leigh (Va.) 164, no- tice was given to the bank and likewise to the party holding the instrument, and its possession was demanded from him. See Norvell v. Hudgins, 4 Munf. (Va.) 496. 3. Tennessee Bank v. Johnson, 1 Swan (Tenn.) 233. 4. Hatch V. Searles, 2 Sm. & G. 147; Smith V. Wyckoff, 3 Sandf. Ch. (N. Y.) 77; Michigan Ins. Co. V. Leavenworth, 30 Vt. 11. But see Williams v. Bosson, 11 Ohio 62, where it was held that the death of one of the members of the firm which had accepted a bill for the ac- commodation of the drawer, although such death occurred while the bill was still unused in the hands of the party accommodated, did not affect the validity of a subsequent trans- fer of the paper, inasmuch as the bill " re- ceived its form and validity before his death, and no act of any member of the firm was necessary to add anything to it." Bills on Which Advances have been Made. — Bills delivered after the death of the drawer, to a person who had made advances upon their faith to the drawer while the drawer had them in his possession for the purpose of raising money, may be enforced against the drawer's representatives. Perry v. Cram- mond, I Wash. (U. S.) 100. 5. Death of Accommodation Indorser Prevents Becovery when Holders Knew of the Accommoda- tion. — An action was brought upon a bill of exchange indorsed by L. , the defendant's intestate. The bill, complete except as to date and time of payment, was indorsed by L. to R. H. & Co. for their accommodation. L. died while the bill was still in the hands of R. H. & Co. unnegotiated; subsequently, R. H. & Co. presented the instrument still containing the blanks as to date and time of payment to the plaintiffs, who filled the blanks and discounted it in ignorance of L.'s death and relying upon the indorsement. It was held that L.'s death was a revocation of 34^ ITature and Essentials ACCOMMODATION PAPER. of Accommodation Paper. ■wise where one takes an accommodation note in good faith without knowledge of its accommodation character, although informed of the death of the maker. *^ 5. Place of the Coutract. — Since an accommodation bill or note becomes operative upon negotiation only, and is not until such negotiation a binding contract, it results that the lex loci contractus ^'^zn applied to such instruments is the law of the place where they are first negotiated, and not the law of the place where the accommodation signatures are actually written.* Usury. — Thus the question whether accommodation paper is usurious or otherwise is to be tested by the law of the state in which it is actually nego- tiated.' But it has been held that where such paper expressly points out a place of performance for the contract the law of the place so pointed out will govern rather than the law of the place of negotiation, in the absence of evi- dence that it was intended to be used elsewhere.* R. H. & Co.'s authority to negotiate the in- strument, that the plaintiffs were chargeable with knowledge of the accommodation character of the paper, and that they could not recover. Michigan Ins. Co. v. Leaven- worth, 30 Vt. II. 1. Clark V. Thayer, 105 Mass. 216. In this case the court based its decision upon the ground that the plaintiff was a bona fide holder for value without notice of the fact that the note was accommodation paper, and that knowledge of the death of the maker did not affect him with notice of any invalid- ity in the note. See Snaith v. Mingay, I M. & S. 87. 8. Indorsement. — Where bills or notes are indorsed for accommodation in one state and negotiated in another, the law of the latter state controls the contract of indorsement. Mott V. Wright, 4 Biss. (U. S.) 53; Stubbs V. Colt, 30 Fed. Rep. 417; Stanford v. Pruet, 27 Ga. 243; Gay v. Rainey, 89 111. 221; Young V. Harris, 14 B. Mon. (Ky.) 447; Lawrence v. Bassett, 5 Allen (Mass.) 140; Cook v. Litch- field, 5 Sandf. (N. Y.) 330, 9 N. Y. 285; Con- nor V. Donnell, 55 Tex. 167. Acceptance. — The same rule prevails as to the contract of acceptance. Tilden v. Blair, 21 Wall. (U. S.) 241; Gallaudet v. Sykes, i McArthur(D. C.)489. Where an accommodation note is signed in Virginia, and transmitted to the payees in Maryland where blanks are filled up and the note negotiated for value, it is a Maryland and not a Virginia contract. Fant v. Miller, 17 Graft, (Va.)47. 3. Tilden v. Blair, 21 Wall. (U. S.) 241; Davis V. Clemson, 6 McLean (U. S.) 622; In re Conrad, 8 Phila. (Pa.) 147, 6 Fed. Cas., p. 333, No. 3126; Providence County Sav. Bank v. Frost, 8 Ben. (U. S.) 293, 14 Blatchf. (U. S.) 233. See also the titles Conflict of Laws; Usury. Illustrations. — A resident of Chicago drew a bill on a resident of New York, and the latter accepted for the accommodation of the former, and by the acceptance made the draft payable in New York. It was returned to Chicago, where it was negotiated. It was held that it was an Illinois contract, and was to be tested by the usury laws of that state. The court said that the controlling fact was that it was negotiated in Illinois and was expressly sent to Chicago for that purpose, that naming New York as the place of pay- ment was doubtless for the convenience of the acceptor, and to facilitate negotiation. Tilden v. Blair, 21 Wall. (U. S.) 241. Where a resident of Ohio drew and in- dorsed certain bills for the accommodation of a resident of New York, and sent them to the latter place, where they were negotiated, it was held that the law of the latter state must govern, and that being usurious within those laws the instruments were void. Davis V. Clemson, 6 McLean (U. S.) 622. Where a resident of Philadelphia made certain promissory notes for the accommoda- tion of a person residing in the same place, and the latter procured such notes to be discounted at usurious rates of interest in New York, it was held that the effect of the transaction must be determined by the usury laws of New York. In re Conrad, 8 fhila. (Pa.) 147, 6 Fed. Cas., p. 333, No. 3126. 4. Jewell V. Wright, 30. N. Y. 259; Dick- inson V. Edwards, 77 N. Y. 573; Wayne County Sav. Bank v. Low, 81 N. Y. 566. In Jewell v. Wright, 30 N. Y. 259, W. made a promissory note to the order of D., dated and payable at Lockport, N. Y. D. indorsed it for T. for his accommodation, and delivered it to T. at Lockport. T. took it to Connecti- cut and negotiated it there. It was held that the law of the place of performance. New York, must control. This case was doubted by the Supreme Court of New York, but was followed in New York Nat. Bank v. Morris, I Hun (N. Y.) 680, and was considered and repudiated by the Superior Court of Buffalo, in Bowen v. Bradley, 9 Abb. Pr. N. S. (N. Y., Buffalo Super. Ct.) 395, and by the New York Court of Common Pleas in Wayne County Sav. Bank v. Low, 6 Abb. N. Cas. (N. Y. C. PI.) 77. But in Dickinson v. Edwards, 77 N. Y. 573, the Court of Appeals affirmed it upon great consideration, overruling the two cases last cited. Subsequently in Wayne County Sav. Bank v. Low, 81 N. Y. 566, the principle of Jewell v. Wright, 30 N. Y. 259, and of Dickinson v. Edwards, 77 N. Y. 573, was again affirmed, and reconciled with the cases cited in the last noX.^ supra. The Court of Appeals, by Rapallo, J., said: " That case [Dickinson v. Edwards, 77 N. Y. 573], as well as Jewell v. Wright, 30 N. Y. 259, was dis- tinguished from Tilden v. Blair, 21 Wall. (U. S.) 241, expressly upon the ground that Nature and Essentials A CCOMMODA TION PAPER. of Accommodation Paper. 6. Parol Evidence to Prove Character of Instrument. — Parol evidence, by the ■weight of authority', is admissible in general to show the real relation between the parties to a bill or note, and that the actual liability of the parties among themselves is not that which appears upon the face of the instrument ; and this is upon the ground that the fact of suretyship is collateral to the written instrument, and does not contradict or vary it.* Thus it may be shown that of persons apparently equally liable as comakers or codrawers of a bill or note one is in fact a principal and the other a surety,* or it may be shown in Tilden v. Blair, although the acceptance was made payable in New York by the accept- ors, who were residents of New York, yet after having accepted in New York they re- turned the acceptance to the drawer in Illi- nois, for the' purpose and with the intention that it should be negotiated by him in that state. And this court says, in its opinion in Dickinson w. Edwards, 77 N. Y. 573, that that was the controlling fact in Tilden v. Blair, and that the ruling consideration was the intention of the acceptors that the draft should be used in Illinois, while in Jewell v. Wright, and in the case then before the court, there was nothing to show an intent on the part of the maker of the note to give authority to deal with it otherwise than as the law of this state would allow. The case of Georgia Bank V. Lewin,45 Barb. (N. Y.)340, and other cases are distinguished from Jewell v. Wright on the same ground, and it may safely be said that the case of Dickinson v. Edwards rests upon the ground that there was no evi- dence of knowledge or intention on the part of the maker of the note that it was to be used out of this state, and that in the absence of such proof it must be governed by the law of the place of payment." 1. Ward V. Stout. 32 111. 399; Guild v. Butler, 127 Mass. 386; Hubbard v. Gurney, 64 N. Y. 457; Oldham v. Broom, 28 Ohio Sf.' 41; Otis V. Von Storch, 15 R. I. 41. Sf2 also the title Suretyship, and infra, this title, Accommodation Party as Surety; As to Third Parties. That parol evidence is admissible to show cosuretyship between successive accommo- dation parties, see infra, this title. Successive Accommodation Parties. To Show Who ia the Accommodation Party. — Parol or extrinsic evidence is admissible upon the question for whose accommodation a cer- tain instrument was made. Bucyrus Steam Shovel, etc., Co. v. Meyer, 70 Hun(N. Y.)37i. See Case v. Spaulding, 24 Conn. 578; Dale v. Gear, 38 Conn. 15, 39 Conn. 89; Laflin v. Pomeroy, 11 Conn. 440; Patten v. Pearson, 55 Me. 39; Kulenkamp v. Groff, 71 Mich. 675; Bliss V. Plummer (Mich., 1894), 61 N. W. Rep. 263; Pray v. Rhodes, 42 Minn. 93; Trego ». Lowrey, 8 Neb. 238; Messmore v. Meyer, 56 N. J. L. 31; Yale v. Dart (C. PI.), 19 N. Y. Supp. 389; Pearl v. Radnziner, 10 Misc. Rep. (N. Y. City Ct.) 45- Conversation at and hefore Acceptance. — In an action by the payee against the acceptor of certain drafts, the defendant set up as a defense that his acceptance was for the plaintiff's accommodation, and, it appearing that the plaintiff received the draft from the maker as collateral security for an antecedent debt, it was held that the defendant could prove conversations between himself and the maker of the draft at and before the time of the acceptance and going to show the con- ditions of the acceptance, although the plain- tiff was not present at such conversations. Yale V. Dart (C. PI.), 19 N. Y. Supp. 389; Wyckoff V. Wilson (City Ct.), 9 N. Y. Supp. 628. To Prove Irregular Indorser an Accommodation Party. — In New York a person indorsing a bill or note before its delivery is presumed to have intended to become liable as second in- dorser, and he is not liable upon the instru- ment to the payee, who is supposed to be the first indorser; but it is competent to rebut this presumption by parol proof that the in- dorsement was made to give the maker credit with the payee. Cojilter v. Richmond, 59 N. Y. 478; Moore w. Cross, 19 N. Y. 227; Bornstein v. Kauffman, 4 Misc. Rep. (N. Y. C. PI.) 83; Wyckoff V. Wilson (C. PL), 36 N. Y. St. Rep. 35; Phelps v. Vischer, 50 N. Y. 69; Bacon v. Burnham, 37 N. Y. 614; Gates V. Williams, 9 Misc. Rep. (N. Y. C. PI.) 176. So in Wisconsin : Cady v. Shepard, 12 Wis. 639. To Prove Agreement Altering Accommodation Character of Instrument. — Where the defend- ant made a promissory note payable to the plaintiff for the latter's accommodation, the plaintiff may prove that subsequently fpr a good consideration the parties agreed by parol to sustain the same relation to each other as was imported by the terms of the note, and such subsequent agreement being proved, the plaintiff is entitled to recover of the defendant upon the note. Norton v. Downer, 33 Vt. 26. See Coggeshall v. Ruggles, 62 111. 401; Scott V. Parker (City Ct.), 25 N. Y. St. Rep. 865. S. United States. — Goldsmith v. Holmes (U. S. C. C. Oregon), i L. R. A. 816. Alabama. — Branch Bank v. James, 9 Ala. 949; Summerhill v. Tapp, 52 Ala. 227. California. — McPherson v. Weston, 85 Cal. 90. Connecticut. — Orvis v. Newell, 17 Conn. 97. Florida. — Bowen v. Darby, 14 Fla. 202. Georgia. — Perry v. Hodnett, 38 Ga. 103. Illinois. — Kennedy v. Evans, 31 111. 258; Ward V. Stout, 32 111. 399. Indiana. — Dickerson v. Ripley County, 6 Ind. 128; Alley v. Gavin, 40 Ind. 446; Schulz V. Klenk, 4^ Ind. 212; Houck v. Graham, 106 Ind. 195; Porter v. Waltz, 108 Ind. 40. Iowa. — Kelly v. Gillespie, 12 Iowa 55. Louisiana.— Joaes v. Fleming, 15 La. Ann. 522. Maine. — Mariner's Bank -' Abbott, 23 Me. 280; Cummings v. Little, 45 Me. 183. 34.3 Nature and Essentials ACCOMMODATION PAPER. of Accommodation Paper. that a person who is apparently liable only secondarily upon the instrument is in fact the principal debtor.* But it has been held that where one contracts expressly as " principal " he cannot show that he was merely a surety.* 7. How Far Affected by Statute of Frauds.— The question here to be dis- cussed is how far an accommodation acceptor or indorser is within the benefit of the fourth section of the statute of frauds, providing that a special promise to answer for the debt, default, or miscarriage of another must be in writing, signed, etc. If the undertaking of an accommodation party is within this provision, a verbal promise to accept or to indorse for accommodation will not be binding upon the promisor, and the undertaking, when in writing, must conform to the local statute of frauds, as in expressing the consideration of the promise. Verbal Promise to Indorse or Accept. — It has been held' that a verbal promise to Massachusetts. — Carpenter v. King, g Met. (Mass.) 511; Harris v. Brooks, 21 Pick. (Mass.) 195; Home v. Bodwell, 5 Gray (Mass.) 457. Missouri. — Garrett v. Ferguson, 9 Mo. 125; Noll V. Oberhellmann, 20 Mo. App. 336; Eng- lish V. Seibert, 49 Mo. App. 563. New Hampshire. — Whitehouse v. Hanson, 42 N. H. 9; Maynard v. Fellows, 43 N. H. 255; Howard v. Fletcher, 59 N. H. 151. New York. — Hubbard v. Gurney, 64 N. Y. 458; Peck V. Burwell (Supreme Ct.), i N. Y. Supp. 33. O^jo. ^Oldham v. Broom, 28 Ohio St. 4T. Rhode Island. — Otis w.Von Storch,i5 R.I. 41. South Carolina. — Wayne v. Kirby, 2 Bailey (S. Car.) 551. Tennessee. — Fowler v. Alexander, i Heisk. (Tenn.) 425. (Vermont.-— 'VlWson v. Green, 25 Vt. 450; Riley v. Gregg, 16 Wis. 666. And see infra, this title. Accommodation Party as Surety : As to Third Parties. 1. Sphultz V. Noble, 77 Cal. 79; Canadian Bank v. Coumbe, 47 Mich. 358; Guild v. Butler, 127 Mass. 38b; Meggett w. Baum, 57 Miss. 22; Shelton v. Hurd, 7 R. I. 403. See also Webster v. Mitchell, 22 Fed. Rep. 86g; Neal V. Wilson, 79 Ga. 736; Hull v. Peer, 27 111. 312; Stephens!'. Monongahela Nat. Bank, 88 Pa. St. 157. See also infra, this title. Suretyships Contra. — But it has been held that parol evidence is not admissible, at least at law, to show that the parties are not all equally liable as makers. Bull v. Allen, ig Conn. lOi (but see Daggett v. Whiting, 35 Conn. 366); Yates V. Donaldson, 5 Md. 389; Hen- drickson v. Hutchinson, 29 N. J. L. 180. California. — In California it was formerly held that a comaker could not show that in fact he was an accommodation maker, and so a mere surety. And v. Magruder, 10 Cal. 282; Shriver v. Lovejoy, 32 Cal. 574; Damon V. Pardow, 34 Cal. 278. But under the civil code of California, § 2832, the real relations of the parties may be shown, except as against persons who have acted on the faith of the position of the parties as apparent upon the instrument. Harlan v. Ely, 55 Cal. 340; Chafoin v. Rich, 77 Cal. 476; Cohen v. Goux, 48 Cal. 97; Schultz V. Noble, 77 Cal. 79. Belation of Comakers and Parties Successively Liable Distinguished. — Cases are found making a distinction as to the admissibility of parol evidence to prove the relation between co- makers and parties who are successively liable. In Farmers', etc., Bank v. Rathbone, 26 Vt. ig, Isham, J., said: " On this subject it is important to observe a material distinction between joint and several promissory notes or obligations, and bills of exchange or notes on which the parties have assumed only suc- cessive liabilities. In the former case as between the makers and the holders, who at the time received the note with notice of the circumstances under which it was given, the strict relation of principal and surety may exist, and evidence of that fact is not con- sidered as contradicting its specific provi- sions, but as consistent with its terms; and the right of contribution arising out of that relation exists between them. 2 Am. Lead. Cas. 289, 303. But the drawer and acceptor and indorsers of a bill or note have not assumed a joint and several liability; neither are they strictly sureties; but are liable to each other, in the order of their becoming parties; and when the action is on the bill or instrument creating such suc- cessive liabilities, by an indorsee for value, without notice that the bill was given for accommodation, such testimony is inadmis- sible for the purpose of converting their suc- cessive liabilities into a joint and several obligation, or placing them in the relation of principal and surety. The testimony clearly contradicts the express provision of the bill, and materially changes its legal effect." But it has been held that in a suit between indorsers for contribution parol evidence is admissible to show that the defendant signed at the request of the plaintiff and with the intention of becoming surety for him. Mar- tin V. Marshall, 60 Vt. 321. 2. One Contracting as " Principal. "^ — Where one is in relation to another in fact a surety, yet if he contracts expressly as principal upon the face of the instrument he is not entitled to any of the rights of a surety. Sprigg V. Mt. Pleasant Bank, 10 Pet. (U. S.) 257; McMillan v. Parkell, 64 Mo. 286; Heath V. Derry Bank, 44 N. H. 174; Claremonr Bank v. Wood, 10 Vt. 582. See Branch Bank V. James, 9 Ala. 94g, and compare Harris v. Brooks, 21 Pick. (Mass.) 195, 344 Aooommodation Paper of ACCOMMODA TION PAPER. Particular Parties. accept for accommodation is binding in favor of one who takes the paper on the faith thereof, although he took with knowledge of its accommodation character.* But, on the other hand, it has been held that such a promise is within the statute, and therefore void.* A verbal promise to indorse for accommodation is in effect a promise to answer for the debt of another, and so is within the statute.' Written Acceptance or Indorsement for Accommodation.^ It has been held that an acceptance given for accommodation for the debt of the drawer is not within the statute of frauds, but is a new and independent promise if a consideration therefor flows to the drawer ;* for such a consideration is sufficient to support ' the promise of the accommodation party ; * but this doctrine does not apply before the bill has been negotiated and while it remains in the hands of the party accommodated.® The same doctrine has been applied to accommoda- tion indorsers.' III. ACCOMMODATION PAPEE OF PABTICUIAR PARTIES— 1. Partners— One Partner Has no Power to Issue. — It is no part of the business of a mercantile firm to accept, make, or indorse bills or notes as a firm for third persons. There is, therefore, no implied authority for a partner to execute accommodation paper in the name of the copartnership, and an accommodation bill or note accepted, made, or indorsed by one member of a firm cannot be enforced against the firm by one who took it with knowledge of the accommodation character of the firm's signature, unless all the partners assented thereto.* 1. Townsley v. Sumrall, 2 Pet. (U. S.) 170. Bank Checks. — The rule in Townsley v. Sumrall, 2 Pet. (U. S.) 170, has been held not to apply to a parol promise to accept for accommodation a bank check, and such a promise is within the statute of frauds. Morse v. Massachusetts Nat. Bank, i Holmes (U. S.) 209. Verbal Acceptances — Generally. — Upon the question as to whether a verbal acceptance is in general within the statute of frauds, and whether that statute is applicable to commercial paper, see the titles Bills and Notes; Frauds, Statute of. 2. Wakefield v. Greenhood, 29 Cal. 597; Williams v. Caldwell, 4 S. Car. 100; Carville V. Crane, 5 Hill (N. Y.) 484, 40 Am. Dec. 364. See Pike v. Irwin, i Sandf. (N. Y.) 14; Curtis V. Brown, 5 Cush. (Mass.) 488. In Pillans v. Van Mierop, 3 Burr. 1668, there is a dictum by Lord Mansfield which has been cited as showing that that great jurist took the view that a verbal promise to accept for accommodation was within the statute. The point involved in the case was merely a question whether a parol promise to accept is binding, and the words of Lord Mansfield would seem to show that whatever his view with regard to a simple promise to accept for another, yet where such a promise had been acted upon, and the principle of estoppel conld be invoked, the promise would be valid. 3. Gallager v. Brunei, 6 Cow. (N. Y.)346; Carville v. Crane, 5 Hill (N. Y.) 484, 40 Am. Dec. 364; Taylor v. Drake, 4 Strobh. (S. Car.) 431, 53 Am. Dec. 680. See Mallet v. Bateman, L. R. i C. P. 163. Contra. — In Pennsylvania it has been held that an accommodation indorsement is not within the statute of frauds. Shaffer w. Dan- ville Bank, i W. N. C. (Pa.) 244. 4. But where there is no consideration flow-' ing to the drawer, such an acceptance must, where the statute of frauds so requires, express a consideration. Dunbar v. Smith, 66 Ala. 490. ■ 5. See sufra, this title, Nature and Essen- tials of Accom?nodation Paper. 6. Hood V. Robbins, 98 Ala. 484. 7. Hood V. Robbins, 98 Ala. 484. 8. United States. — Fort Madison Bank v. Alden, 129 U. S. 381; Presbrey v. Thomas, 1 D. C. App. 171; Columbus City Bank v. Beach, i Blatchf. (U. S.) 438. California. — Hendrie v. Berkowitz, 37 Cal. 113, 99 Am. Dec. 251. Connecticut,. — New York Firemen Ins. Co. V. Bennett, 5 Conn. 574. Illinois. — Marsh v. Thompson Nat. Bank, 2 111. App. 217. Indiana. — Beach v. State Bank, 2 Ind. 488. Kentucky.— C\vexiO'«\th. v. Chamberlin, 6 B. Mon. (Ky.) 60, 43 Am. Dec. 145; Wagnon V. Clay, I A. K. Marsh. (Ky.) 257. Louisiana. — Vredenburgh v. Lagan, 28 La. Ann. 941. Maine. — Darling v. March, 22 Me. 184; Rollins V. Stevens, 31 Me. 454. Michigan. — Heffron v. Hanaford. 40 Mich. 305; Moynahan v. Hanaford, 42 Mich. 329. Minnesota. — Van Dyke v. Seelye, 49 Minn. 557; Osborne v. Stone, 30 Minn. 25. Mississippi. — Andrews v. Planters' Bank, 7 Smed. & M. (Miss.) 192, 45 Am. Dec. 300; Sylvestein v. Atkinson, 45 Miss. 8r; Bloom V. Helm, 53 Miss. 21. New Hampshire. — Kidder v. Paige, 48 N. H. 380. New York. — Foot v. Sabin, ig Johns. (N. Y.) 154; Schermerhorn v. Schermerhorn, I Wend. (N. Y.) 119; Laverty w. Burr, i Wend. (N. Y.) 529; Rochester Bank v. Bowen, 7 Wend. (N. Y.) 158; Boyd v. Plumb, 7 Wend. (N. Y.) 309; Jovce V. Williams, 14 Wend. (N. Y.) 141 ; Wilson z;. Williams, 14 Wend. (N. Y.) 345 Aecommodation Paper of ACCOMMODATION PAPER. Particular Parties. Burden cf Proof. — The burden of proof is upon the party who takes the part- 146; Stall V. Catskill Bank, 18 Wend. (N. Y.) 466, 15 Wend. (N. Y.) 364; Austin v. Van- dermark, 4 Hill (N. Y.) 259; Fielden v. Lahrens, 9 Bosw. (N. Y.) 436, 2 Abb. App. Dec. (N. Y.) Ill; Atlantic State Bank v. Savery, 18 Hun (N. Y.) 36, 82 N. Y. 291. North Carolina. — Long v. Carter, 3 Ired. (N. Car.) 23S. Ohio. — Gano v. Samuel, 14 Ohio 592. Pennsylvania.— Bov/ma.n v. Cecil Bank, 3 Grant's Cas. (Pa.) 33; Shaaber v. Bushong, 105 Pa. St. 514. See McQuewans v. Hamlin, 35 Pa., St. 517- Tennessee. — Berryhill v. M'Kee, 1 Humph. (Tenn.) 31; Whaley v. Moody, 2 Humph. (Tenn.)495; Tennessee Bank v. Saffarrans, 3 Humph. (Tenn.) 597; Scott v. Bandy, 2 Head (Tenn.) 197. Canada. — Harris v. McLeod, 14 U. C. Q. B. 164; Wilson V. Brown, 6 Ont. App. 41S; Federal Bank ». Northwood, 7 Ont. Rep. 389. See Smyth v. Strader, 4 How. (U. S.)404; Mayberry v. Sainton, 2 Harr. (Del.) 24; Selden v. Commerce Bank, 3 Minn. 166; Osborne v. Thompson, 35 Minn. 229; Langan V. Hewett, 13 Smed. & M. (Miss.) 122; Sutton V. Irwine, 12 S. & R. (Pa.) 13; Pooley v. Whit- more, 10 Heisk. (Tenn.) 629, 27 Am. Rep. 733; Avery v. Rowell, 59 Wis. 82; In re Irving, 17 Nat. Bankr. Reg. 22; Stewart w. Parker, 18 New Bruns. 223; Duncan v.' Lowndes, 3 Campb. 478; Brettel w. Williams, 4 Exch. 623; Code of Georgia (1882), § 1914. Partnership Note in Payment of Individual Debt. — This rule applies especially against one who takes a bill or note, accepted, made, or indorsed by one partner in the name of the firm, for the individual debt of the part- ner who signs the paper; and one who ac- quires partnership paper from one partner for his individual debt is chargeable with notice that the firm's signature is without value and fraudulent as to the other partner. Alabama. — Maudlins. Mobile Branch Bank, 2 Ala. 502; Hibbler u. DeForest, 6 Ala. 92; Lang V. Waring, 17 Ala. 145; Tyree v. Lyon, 67 Ala. i; Rolston v. Click, i Stew. (Ala.) 526. Connecticut. — Mix v. Muzzy, 28 Conn. 186. Georgia. — Miller v. Hines, 15 Ga. 197. Illinois. — Marsh v. Thompson Nat. Bank, 2 111. App. 217; Davis V. Blackwell, 5 III. App. 32. Iowa. — Whitmore v. Adams, 17 Iowa 567. Massachusetts. — Sweetser v. French, 2 Cush. (Mass.) 311; Chazournes v. Edwards, 3 Pick. (Mass.) 5; Butterfield v. Hemsley, 12 Gray (Mass.) 226; Commonwealth Nat. Bank V. Law, 127 Mass. 72; Atlas Nat. Bank v. Savery, 127 Mass. 75; National Security Bank V. McDonald, 127 Mass. 82; Central Nat. Bank v. Frye, 148 Mass. 498. ' Neiv York. — Livingston v. Roosevelt, 4 Johns. (N. Y.) 251, 4 Am. Dec. 273; Williams V. Walbridge, 3 Wend. (N. Y.) 415; Wilson V. Williams. 14 Wend. (N. Y.) 146, 28 Am. Dec. 518; Elliott V. Dudley, 19 Barb. (N. Y.) 326- North Carolina. — Cotton v. Evans, I Dev. & B. Eq. (N. Car.) 284; Weed u. Richardson, 2 Dev. & B. (N. Car.) 535; Hartness v. Wal- lace, 106 N. Car. 427. Pennsylvania. — Bell v. Faber, I Grant's Cas. (Pa.) 31; King v. Faber, 22 Pa. St. 21; Kaiser v. Fendrick, 98 Pa. St. 528; Dickson ■V. Primrose, 2 Miles (Pa.) 366. Rhode Island. — Windham County Bank v. Kendall, 7 R. I. 77. y ennessee.— Scott v. Bandy, 2 Head (Tenn.) I97- Vermont. — Huntington v. Lyman, i D. Chip. (Vt.) 438, 12 Am. Dec. 716. West Virginia. — Tompkins v. Woodyard, 5 W. Va. 216. Partner Individually Liable. — A partner who so executes firm paper without the consent of his copartner is personally liable upon the paper in the same manner and to the same extent as if he signed his individual name thereto. Silvers v. Foster, 9 Kan. 44. See Columbus City Bank v. Beach, i Blatchf. (U. S.)438. Partner Liable to Firm. — The partner who misuses the firm credit by accepting accoiji- modation paper is liable to the partnership for resulting loss. Smith v. Loring, 2 Ohio 440. What Amounts to Notice of Character of Paper. — Other circumstances, besides taking partnership paper for the individual debt of the partner, will charge the transferee with knowledge of the character of the firm's sig- nature. If the face of the paper itself shows that the firm executes not as principal, but as a surety or guarantor for some other per- son, the person who takes it has actual notice. Marsh v. Thompson Nat. Bank, 2 111. App. 217. As to when the appearance of the paper is sufficient to charge a party with presumptive notice of its character, see infra, this title. Holders of Accommodation Paper: When Charge- able with Notice of Accommodation Character of Instrument. K. procured a certain note, signed by G., payable to his own order, of which note K. was second indorsee, to be discounted at the S. Bank, depositing as collateral with the bank a note of M. & Co. made and signed by one of the members of that firm without the knowledge of his partner. This note K. received as security for the G. note. It was of the same date and amount as the G. note, and there was upon its back a memorandum signed by K. to the effect that the note was held by him as security for the G. note. The S. bank had no knowledge of the deal- ings between K. and M. & Co. In an action by the bank against M. & Co. upon the firm note it was held that the plaintiff was charge- able with knowledge that the paper was given as security merely, from the face of the two notes and from the memorandum upon the firm note. National Security Bank v. McDonald, 127 Mass. 82. A debtor gave his creditor notes of a third party, which the creditor discounted on his own indorsement, but had to take up when they fell due. The debtor then gave the creditor other notes of the same person, but 346 Accommodation Paper of ACCOMMODA TION PAPER. Particular Parties. ncrship paper with such knowledge, to show that all the members of the firm consented to the act of him who aiiSxed the firm's signature.* with the name of a firm to which the maker belonged written across the back. It was held that the parties must be supposed to have had the previous debt in view, and that the creditor had therefore notice that the firm name was a mere accommodation. Moynahan v. Hanaford, 42 Mich. 329. 1. United States. — Presbreyw. Thomas, i D. C. App. 171. Alabama. — Maudlin v. Mobile Branch Bank. 2 Ala. 502; Hibbler v. DeForest. 6 Ala. 92; Rolston v. Click, i Stew. (Ala.) 526; Tyree v. Lyon, 67 Ala. i. California. — Hendrie v. Berkowitz, 37 Cal. 113, gg Am. Dec. 251. Connecticut. — New York Firemen Ins. Co. V. Bennett, 5 Conn. 574. Georgia. — Miller v. Hines, 15 Ga. 197. Maine. — Darling v. March, 22 Me. 184. New Hampshire. — Kidder w. Page, 48 N. H. 380. Massachusetts. — National Security Bank v. McDonald, 127 Mass. 82. Minnesota. — Selden v. Commerce Bank, 3 Minn. 166; Van Dyke v. Seelye, 49 Minn. 557. Mississippi. — Andrews v. Planters' Bank, 7 Smed. & M. (Miss.) ig2, 45 Am. Dec. 300. But compare Sylverstein v. Atkinson, 45 Miss. 81. New York. — Butler v. Stocking, 8 N. Y. 408; Foot V. Sabin, 19 Johns. (N. Y.) 154; Schermerhorn v. Schermerhorn, i Wend. (N. Y.) 119; Williams v. Walbridge, 3 Wend. (N. Y.)4i5; Boyd?/. Plumb, 7 Wend. (N. Y.) 309; Joyce V. Williams, 14 Wend. (N. Y.) 141; Wilson V. Williams, 14 Wend. (N. Y.) 146, 28 Am. Dec. 518. Pennsylvania. — Bowman v. Cecil Bank, 3 Grant's Cas. (Pa.) 33; Kaiser v. Fendrick, 98 Pa. St. 528. Vermont. — Huntington v. Lyman, i D. Chip. (Vl.) 438, 12 Am. Dec. 716; Jones v. Booth, 10 Vt. 268. West Virginia. — Tompkins v. Woodyard, 5 W. Va. 216. But compare with the foregoing cases Henderson v. Carveth, 16 U. C. Q. B. 324. In Andrews v. Planters' Bank, 7 Smed. & M. (Miss.) 192, 45 Am. Dec. 300, it was held that the burden of proof was upon the holder. See also Bloom v. Helm, 53 Miss. 21. But in Sylverstein v. Atkinson, 45 Miss. 81, it was held that whenever the name of a commercial partnership is upon negotiable paper the firm is prima facie bound, and it devolves upon the member contesting his liability to show the facts which exonerate him. The facts of the case, however, show that there was nothing about the appearance of the note in suit to show that the partner- ship, one of the makers of the note, signed as surety for the other maker, and the plain- tiff appears to have been a bona fide holder without notice. English Rule. — The English rule as to the burden of proof is the same as that stated in the text and supported by the United States authorities. Leverson v. Lane, 13 C. B. N. S. 278, 106 E. C. L. 278; Exp. Bonbonus, 8 Ves. Jr. 540; Frankland v. M'Gusty, i Knapp 274; Shirreff z/. Wilkes, i East 48; Green v. Deakin, 2 Stark. 347; Ex p. Goulding, 2 G. & J. 118. A dictum of Lord Ellenborough in Ridley V. Taylor, 13 East 175, threw some doubt upon the question as to the burden of proof, and it appears to have misled Mr. Chitty (Bills and Notes, 13 Am. ed. 48), and induced some of the courts of this country to declare that the English and U'-ited States r.ules were different. Laverty v. Burr, i Wend. (N. Y.) 529, /«>- Sutherland, J.; Hibbler v. DeForest, 6 Ala. 92, per Goldthwaite, J.; Henderson v. Carveth, 16 U. C. Q. B. 327. But in Leverson V. Lane, 13 C. B. N. S. 278, 106 E. C. L. 278, the question was fully examined, the dictum of Lord Ellenborough overruled, and the rule stated to the same effect as in the text. Consent — How Proved — General Rule. — Con- sent may be established by positive proof, or inferred from prior or subsequent acts of the partner whom it is sought to charge. Beach v. State Bank, 2 Ind. 488; Butler v. Stocking, 8 N. Y. 408. Evidence of subsequent assent must be strong and satisfactory. Slight and uncon- clusive circumstances will not be sufficient. Wilson V. Williams, 14 Wend. (N. Y.) 146, 28 Am. Dec. 518. Silence. — Mere silence of a nonconsenting partner, after having acquired the knowledge of the existence of such a note, is not of itself assent. Tyree v. Lyon, 67 Ala. i; Reubin ». Cohen, 48 Cal. 545; Van Dyke v. Seelye, 49 Minn. 557: Elliott v. Dudley, 19 Barb. (N. Y.) 326- It is not sufficient to prove assent, that the partner whom it sought to bind was present and heard the arrangement between his co- partner and the party accommodated, as an accommodation indorsement by the firm's assent cannot be inferred, but must be proved. Mercein v. Andrus, 10 Wend. (N. Y.)46i. Waiver of Notice. — Waiver of notice, in- dorsed upon the note by a nonconsenting partner, is not a ratification of the note. Marsh v. Thompson Nat. Bank, 2 111. App. 217. Accepting Security. — Where the nonconsent- ing partner accepted a mortgage to secure the firm from liability on the note guaranteed in the firm name by his copartner, a ratifica- tion may be inferred. Clark v. Hyman, 55 Iowa 14, 39 Am. Rep. 160. Course of Business. — The holder of a note indorsed by a firm, between which and the maker there have been frequent interchanges of accommodation upon bills and notes for a long time, has a right to presume the as- sent of all the partners. Darling v. March, 22 Me. 184. See Tennessee Bank v. Saffarrans, 3 Humph. (Tenn.) 597; Scott v. Bandy, 2 Head (Tenn.) 197. But see Early v. Reed, 6 Hill (N. Y.)i2. Ratification Ineffectual as against Existing 347 Aooommodation Paper of A CCOMMODA TION PAPER. Particular Parties. Bona Eide Purchaser. — But, since every member of a mercantile firm h^s the power to accept, make, draw, or indorse business paper for partnership pur- poses, a fo^a^a^^holder for value without notice has the right to presume that the firm name was signed in the usual course of the partnership business (if it is not apparently out of the scope of such business), and to hold the firm liable upon its signature, although such signature proves in fact to have been affixed by one partner by way of accommodation merely.* 2. Corporations — No implied Power to Execute Accommodation Paper. — A corporation has no power to bind itself by becoming an acceptor, maker, or indorser of accom- modation paper for the benefit of other persons or corporations,* even though a consideration is received for the loan of its credit upon the paper.^ And since the corporation itself has no such power, of course it cannot authorize its officers to bind it by making or indorsing such paper.* Partnership Creditors. — The ratification by the firm, of the unauthorized act of one partner in signing the contract of suretyship, is in- effectual against existing partnership credit- ors, being in effect an adoption by the firm of the debts of one partner. Kidder v. Page, 48 N. H. 380. 1. United States. — Columbus City Bank v. Beach, i Blatchf. (U. S.) 438; Presbrey v. Thomas, i D. C. App. 171. Alabama. — Mauldin v. Mobile Branch Bank, 2 Ala. 502; Hibbler v. DeForest, 5 Ala. g2. Connectieut. — New York Firemen Ins. Co. V. Bennett, 5 Conn. 574. Georgia. — Freeman v. Ross, 15 Ga. 252. Illinois. — Marsh v. Thompson Nat. Bank, 2 111. App. 217. Indiana. — Beach v. State Bank, 2 Ind. 488. Maine. — Redlon v. Churchill, 73 Me. 146, 40 Am. Rep. 345. Maryland. — Hopkins v. Boyd, II Md. 107. Massachusetts. — Atlas Nat. Bank v. Savery, 127 Mass. 75; Stimsont'. Whitney, 130 Mass. 591- Minnesota. — Van Dyke v. Seelye, 49 Minn. 557- Mississippi. — Sylverstein v. Atkinson, 45 Miss. 81; Bloom zi. Helm, 53 Miss. 21. Missouri. — Edwards v. Thomas, 66 Mo. 468; Potter V. Dillon, 7 Mo. 228, 37 Am. Dec. 185. New York. — Mechanics' Bank v. Living- ston, 33 Barb. (N. Y.)458; Austin j/. Vander- mark, 4 Hill (N. Y.) 259; Chemung Canal Bank v. Bradner, 44 N. Y. 680; Atlantic State Bank v. Savery, 18 Hun (N. Y.) 36, 82 N. Y. 291. Ohio. — Gano v. Samuel, 14 Ohio 592. Rhode Island. — Parker v. Burgess, 5 R. I. 277. South Carolina. — Howes v. Dunton, i Bailey (S. Car.) 146, ig Am. Dec. 663; Flemming z/. Prescott, 3 Rich. (S. Car.) 307,45 Am. Dec. 766. Tennessee. — Whaley v. Moody, 2 Humph. (Tenn.) 495- See Michigan Ins. Bank v. Eldred, g Wall. (U. S.) 544;Lemoine v. North America Bank, 3 Dill. (U. S.)44. Holder may Take Benewal Note with Knowl- edge. — If the holder acquires good title to the firm note as an innocent indorsee, he may take renewal notes of the firm from one part- 348 ner, and may hold the partnership liable upon such renewal notes, although at the time he took them he had knowledge that the original note was given without authority. Hopkins v. Boyd, 11 Md. 107. 2. United States. — Commerce Nat. Bank w. Atkinson, 55 Fed. Rep. 465; Ex p. Estabrook, 2 Lowell (U. S.) 547. California. — Hall v. Auburn Turnpike Co., 27 Cal. 255, 87 Am. Dec. 75. Connecticut. — ./Etna Nat. Bank v. Charter Oak L. Ins. Co., 50 Conn. 167; Webster z'. How* Machine Co., 54 Conn. 394. Indiana. — Smeao v. Indianapolis, etc., R. Co., II Ind. 104. Maryland. — Savage Mfg. Co. v. Worthing- ton, I Gill (Md.) 284. Missouri.- — Lafayette Sav. Bank v. St. Louis Stoneware Co., 2 Mo. App. 2gg. New Jersey. — Republic Nat. Bankz/. Young, 41 N. J. Eq. 531. New York. — Genesee Bank v. Patchin Bank, 13 N. Y. 309, ig N. Y. 312; Central Banki/. Empire Stone Dressing Co., 26 Barb. (N. Y.) 23; Morford v. Farmers' Bank, 26 Barb. (N. Y.) 568; Bridgeport City Bank ». Empire Stone Dressing Co., ig How. Pr. (N. Y. Supreme Ct.) 51. Repeated Assumption or Exercise by a Corpora- tion of the power to become an accommoda- tion party does not make such an exercise of power valid. Webster v. Howe Machine Co., 54 Conn. 394. Indorsement "for Value Received." — An in- dorsement by a corporation expressed to be " for value received " is not to be deemed an accommodation indorsement. Connecticut Mut. L. Ins. Co. V. Cleveland, etc., R. Co., 41 Barb. (N. Y.) 9. 3. National Park Bank v. German-Ameri- can Warehousing Co., 116 N. Y. 281. 4. Webster v. Howe Machine Co., 54 Conn. 394; Central Bank v. Empire Stone Dressing Co., 26 Barb. (N. Y.) 23; Farmers', etc., Bankz/. Empire Stone Dressing Co., 5 Bosw. (N. Y.) 275. See Commerce Nat. Bank v. Atkinson, 55 Fed. Rep. 465. Power to Execute Business Paper does not Im- ply Power to Execute Accommodation Paper. Even if a corporation has power to become an accommodation party to bills and notes, the fact that its agent is permitted to sign and indorse the corporation name upon busi- ness paper does not empower him to sign or Accommodation Paper of ACCOMMODATION PAPER. Particular Parties. Bona Fide Purchaser.— But as the general power to make and indorse commer- cial paper is among the implied powers of private corporations, the innocent purchaser for value of commercial paper, signed or indorsed by a corporation, has a -right to presume that it is paper made in the usual course of business and binding upon the corporation, and he can, therefore, recover upon a bill or note signed by a corporation to accommodate some other party.* Notice of Accommodation Character. — The form of the instrument may, however, show that it is accommodation paper. And it has been held that one who in good faith discounts for value, before acceptance, a bill drawn upon a corporation, does so upon the credit of the drawer or indorser, and though the corporation afterwards accepts it, if the acceptance is for the accommodation of the drawer the corporation is not liable thereon.* 3. Agents. — A general power to indorse or make commercial paper on behalf of his principal does not give an agent power to bind his principal by indorsing or issuing accommodation paper.* indorse accommodation paper. iEtna Nat. Bank v. Charter Oak L. Ins. Co., 50 Conn. 167; McLellan v. Detroit File Works, 56 Mich. 579. Qorporation Formed from Partnership — Benewal Notes. — Where a corporation is organized from a partnership, notes given by an officer of the corporation in renewal of partnership notes are presumptively accommodation notes given to take up the notes of third parties, and the holders of the partnership notes who receive the corporation notes in renewal are chargeable with notice, and cannot recover, unless they show express authority in the officer who signs the notes. McLellan v. Detroit File Works, 56 Mich. S79- Cashier of Bank. — The cashier of a bank is not as such presumed to have the power to bind it as an accommodation indorser upon his individual note, and the payee who fails to prove that the cashier had authority to make the indorsement cannot recover against the bank. West St. Louis Sav. Bank v. Shawnee County Bank, 95 U. S. 557. A cashier has, in general, no power as such to accept or indorse bills and notes for ac- commodation.' Blair v. Mansfield First Nat. Bank, 2 Flipp. (U. S.) in; Farmers', etc., Nat. Bank v. Troy City Bank, Dougl. (Mich.) 457- 1. United States. — Ex p. Estabrook, 2 Low- ell (U. S.) 547- Connecticut. — Webster v. Howe Machine Co., 54 Conn. 394. Massachusetts. — Bird v. Daggett, 97 Mass. 494; Monument Nat. Bank v. Globe Works, loi Mass. 57. Missouri. — Bremen Sav. Bank v. Branch- Crookes Saw Co., 104 Mo. 425; Lafayette Sav. Bank v. St. Louis Stoneware Co., 4 Mo. App. 276, 2 Mo. App. 299. New Jersey. — Republic Nat. Bankw. Young, 41 N. J. Eq. 531. New York. — Genesee Bank v. Patchin Bank, 19 N. Y. 312, 13 N. Y. 309; Mechanics' Banking Assoc, v. New York, etc., White Lead Co., 23 How. Pr. (N. Y. Supreme Ct.) 74. 35 N. Y. 505; Morford v. Farmers' Bank, 26 Barb. (N. Y.) 568; Bridgeport City Bank V. Empire Stone Dressing Co., 19 How. Pr. (N. Y. Supreme Ct.) 5i- Holder of Checks Certified for Accommodation. — Where a bank certifies a check without funds, for the accommodation of the drawer, a bona fide holder may enforce its payment. Farm- ers', etc., Bank v. Butchers', etc., Bank, 16 N. Y. 125. Holder Keceiving Accommodation Paper from Corporation's Agent. — If an agent duly author- ized to sign "all notes and business paper" of a corporation gives accommodation notes in the name of the company, the corporation, notwithstanding the want of authority of the agent, is liable to a holder in good faith for value before maturity, and such holder can- not recover, damages against the agent for his unauthorized issue. Bird v. Daggett, 97 Mass. 494. Accommodation Paper Executed in Violation of Express Statute. — It seems that accommoda- tion notes executed by a corporation in vio- lation of an express statute are void even in the hands of an innocent purchaser. See Root V. Godard, 3 McLean (U. S.) 102; Hay- den V. Davis, 3 McLean (U. S.) 276. But although by statute it is unlawful for a corporation to appropriate its funds for any purpose not stated in its articles, its accom- modation paper is not void in the hands of a bona fide holder for value, unless such paper is expressly declared void by statute. Farm- ers' Nat. Bank v. Sutton Mfg. Co., 52 Fed. Rep. 191. See the title Ultra Vires, and infra, this title. Holders of Accommodation Paper : When Chargeable with Notice of Accom- modation Character of Instrument. Z. Farmers', etc., Nat. Bank v. Empire Stone Dressing Co., 5 Bosw. (N. Y.) 275. But see Mechanics' Bank v. Livingston, 33 Barb. (N. Y.)458. 3. Wallace v. Mobile Branch Bank, i Ala. 565; jEtna Nat. Bank v. Charter Oak L. Ins. Co., 50 Conn. 167; McLellan v. Detroit File Works, 56 Mich. 579; German Nat. Bank v, Studlcy, I Mo. App. 260; North River Bank V. Aymar, 3 Hill (N. Y.) 262; Stainer f. Ty- sen, 3 Hill (N. Y.) 279; Kingsley v. State Bank, 3 Yerg. (Tenn.) 107. See Haynes v. Foster, 2 C. & M. 237. See also the titles Agency; Bills and Notes. Agent Signing Renewal Accommodation Notes. — Where an agent, empowered to make and 349 Bights and Liabilities ACCOMMODATION PAPER. of Parties. 4. Married Women. — A married woman, by the common law, could not make, accept, or indorse commercial paper, nor become a surety for her hus- band or for another.* In the statute^ of some of the states, wherein a mar- ried woman is given power to contract, it is expressly provided that she shall not become an accommodation party to commercial paper.^ In other states a married woman is bound by her accommodation indorsement.^ IV. Rights and Liabilities of Parties to Accommodation Papek — 1. General Obligations of Parties. — The strict obligations of parties to commercial paper are modified to a certain extent in the case of accommodation parties. Accommodated Party. — The accommodated party undertakes, impliedly if not expressly, first, that he will provide for the bill or note at its maturity ; and second, that he will indemnify the accommodation party in case the latter is compelled to take up the paper.* Accommodation Party. — The accommodation party, on the other hand, by his signature, first, confers a power or authority upon the party accommodated to bind him, the accommodation party, in favor of third persons by the issue of the paper;* and second, when the paper has been negotiated, he becomes bound to the indorsee or holder in accordance with the rules of commercial law and the position of his name upon the instrument,* from the date of the instrument.'' 2. Position of Party Accommodated — No Bight of Action. — The party for whose benefit accommodation paper has been made acquires no right against the indorse promissory notes for his principal, indorses a promissory note with the "assent of his principal for the purpose of taking up paper upon which the principal is already liable as accommodation maker or indorser, the principal will be bound. German Nat. Bank v. Studley, i Mo. App. 260. Bona Fide Holder. — The principal may be bound to a bona fide holder without notice. North River Bank v. Aymar, 3 Hill (N. Y.) 262; Bird ». Daggett, g7 Mass. 494; Edwards V. Thomas, 66 Mo. 468; Bank of Commerce V. Cohen (Supreme Ct.), 26 N. Y. St. Rep. 631. 1. SeeWillardw. Eastman, 15 Gray (Mass.) 328, 77 Am. Dec. 366. See also the titles Bills and Notes; Married Women; Sure- tyship. Separate Property. — As to bills and notes charged upon her separate estate, see the ti- tle Separate Property of Married Women. 2. Hackettstown Nat. Bank v. Ming, 52 N. J. Eq. 156. 3. Kenworthy v. Sawyer, 125 Mass. 28; Bo.wery Nat. Bank v. Sniffen, 54 Hun (N. Y.) 395; Queens County Bank w. Leavitt, 56 Hun (N. Y.)426. Married Woman Bound to Accommodation In- dorser. — A married woman is liable to an ac- commodation indorser of her note who has been compelled to take up the instrument at maturity. Scott v. Otis, 25 Hun (N. Y.) 33- 4. Reynolds v. Doyle, i M. & G. 753, 39 E. C. L. 638; Sleigh v. Sleigh, 5 Exch. 514; Jef- ferson County V. Burlington, etc., R. Co., 66 Iowa 385; Lockwood v. Twitchell, 146 Mass. 623. Express Promise to Indemnify. — Where there is an express promise to indemnify the ac- commodation party, he may still sue upon the promise implied in law, and if there is anything in the written promise to contradict the implication of the latter, the defendant may show it, Gibbs v. Bryant, I Pick. (Mass. ) 118. When Contract of Indemnity Takes Effect. — The contract of indemnity takes effect from the date of the accommodation party's con- tract, and the debt of the accommodated party is contracted at that time. Byers v. Franklin Coal Co., 106 Mass. 131. 5. Smith V. Wyckoff, 3 Sandf. Ch. (N. Y.) 77; Michigan Ins. Co. v. Leavenworth, 30 Vt. II. See Williams v. Banks, 11 Md. 198. See also supra, this title. Inception of the Contract. Promise to Accept for Accommodation. — It has been said that a promise to accept for accom- modation merely, renders the promissor liable to the promisee who has drawn a bill upon the strength of the promise, even though it remains unnegotiated in his hands. Ilsley V. Jones, 12 Gray (Mass.) 260. But this may be doubted. See supra, this title. Inoperative until Negotiated. 6. See infra, this title, Successive Accom- modation Parties ; Holders ; Pres^ tment and Notice. Guarantees Capacity of Prior Parties. —An ac- commodation indorser, like the indorser of ordinary business paper, guarantees the ca- pacity of prior parties to contract. Edmunds V. Rose, 51 N. J. L. 547. 7. Williams v. Banks, 11 Md. 198. Accommodation Party Within Statute of Fraud- ulent Conveyances. — A voluntary conveyance made by an accommodation party to a bill or note is fraudulent as to the holders of the in- strument. Pashby v. Mandigo, 42 Mich. 172; Primrose v. Browning, 56 Ga. 369. So also if made while the instrument was still unnegotiated. Williams w. Banks, 11 Md. 198. See the title Fraudulent Sales and Conveyances. 35° Bights and Liabilities ACCOMMODATION PAPER. of Parties. accommodation party,* since as between them there is no consideration, a fact which is always a defense to a suit upon negotiable paper between the immediate parties.* Accommodation Instrument Given to a Partner. — Where a bill or note has been made, accepted, or indorsed for the benefit of one of the members of a firm, the firm, although purchasers for value before maturity, cannot maintain an action thereon against the accommodation party, because the position of the firm can be no better than that of the partner who is the accommodated party.' 3. Rights of Accommodation Party after Payment — a. Against Party Ac- commodated — (i) Indemnity — Generally. — When the accommodation party has been compelled to pay the instrument, the party accommodated becomes, in consequence of the implied contract of indemnity, a debtor of the accommo- dation party, and the latter has a right of action against the former.* But this 1. England. — Thompson v. Clubley, i M. & W. 212. Alabama, — Hood v. Robbins, 98 Ala. 484. Arkansas. — Piatt v. Snipes, 43 Ark. 21. California. — Coghlin v. May, 17 Cal. 515. Connecticut. — Case v. Spaulding, 24 Conn. 578; Dale V. Gear, 38 Conn. 15, 9 Am. Rep. 353- Iowa. — Sherman v. Elder, 12 Iowa 433; Larned v. Ogilby, 20 Iowa 410. Louisiana. — Whitwell v. Crehore, 8 La. 540, 28 Am. Dec. 141. Maine. — Patten v. Pearson, 55 Me. 39. Massachusetts. — Corlies w. Howe, 11 Gray (Mass.) 125, 71 Am. Dec. 693; Kellogg it. Bar- ton, 12 Allen (Mass.) 527; Woods v. Woods, 127 Mass. 150; Lockwood v. Twitchell, 146 Mass. 623. Michigan. — Kulenkamp v. Groff, 71 Mich. 675. Minnesota. — Pray v. Rhodes, 42 Minn. 93. Nebraska. — Trego v. Lowrey, 8 Neb. 238. New Jersey. — Messmore v. Meyer, 56 N. J. L. 31. New York.— Vale v. Dart (C. PI.), 46 N. Y. St. Rep. 675. Ohio. — Simms v. Field, i Cleve. L. Rep. (Ohio) 337. Texas .^Pa.r\ieT v. Lewis, 39 Tex. 394; Lewis V. Parker, 33 Tex. 121. Washington. — Weeks v. Bussell, 8 Wash. 440. Illnstrations. — Where the drawee of a bill accepts at the request of the drawer for the accommodation of the payee, the payee can- not recover in an action against the acceptor. Thompson v. Clubley, I M. & W. 212. Where one of two makers of a note signs the instrument for the accommodation of the payee, the latter cannot recover upon the note, although there was a. consideration as to the other maker. Weeks v. Bussell, 8 Wash. 440. Draft Accepted with the Intention ot Accom- modating Plaintiff. — Where it appeared that the defendant, sued as the acceptor of a cer- tain draft, had accepted with the intention of accommodating the payee, the plaintiff in the action, and the payee had afterwards re- ceived the draft as collateral security for an antecedent debt, it was held that the plaintiff was not a bona fide holder for value; that he took subject to the equities which might be asserted by the defendant, and that he was not entitled to recover. Yale v. Dart (C. PI.), ig N. Y. Supp. 389; Messmore v. Meyer, 56 N. J. L. 31. Accommodation Paper as to Part. — Where the drawee, when a bill for ^^19. 5^. was pre- sented to him for acceptance, agreed to ac- cept for £\o, but upon being urged by the payee accepted for the whole sum, for the ac- commodation of the payee, and at maturity paid £\o upon the bill, it was held in a suit by the payee against the acceptor that the former was not entitled to recover, since as between them it was an acceptance for ^^lo only. Darnell v. Williams, 2 Stark. 166, 3 E. C. L. 361. Burden of Proof.— The burden is upon the maker sued upon a note to establish that he signed for the accommodation of the suing holder. Weill v. Trosclair, 42 La. Ann. 171; Crosbie v. Leary, 6 Bosw. (N. Y.) 312; Bower V. Hastings, 36 Pa. St. 285. 2. See the title Bills and Notes. 3. Sparrow v. Chisman, 9 B. & C. 241, 17 E. C. L. 366; Quinn v. Fuller, 7 Cush. (Mass.) 224. See Richmond v. Heapy, i Stark. 202, 2 E. C. L. 83; Cochran v. Hume, 19 D. C. 517; Hart V. Palmer, 12 Wend. (N.Y.) 523. Firm Affected with Notice of Partner. — In Quinn v. Fuller, 7 Cush. (Mass.) 224, Dewey, J., said: "As one of the parties, who must have been a plaintiff if the action had been brought for the firm, is shown to have no right to recover, his coplaintiff and partner is affected with notice of the want of consid- eration and want of equity * * *, and the action wholly fails." 4. Nelson v. Richardson, 4 Sneed (Tenn.) 307. Payment by Accommodation Acceptor before ma- turity. — Payment before maturity by a drawee who has accepted for the accommodation of the drawer is a payment in disregard of the terms of the accommodated party's contract of indemnity, for he contracts to indemnify only in case he fails to meet the obligation at maturity, and, as the consideration of the in- strument may be shown between the accep- tor and the drawer, the accommodation party who has paid the bill before maturity may be defeated in an action against the maker by proof that the consideration has failed. Stark V. Alford, 49 Tex. 277. Accommodation Party Paying without Notice. — As to the right of an accommodation party 35' Bights and Liabilities ACCOMMODATION PAPER. of Fartles. relation does not arise until payment has been actually made ; * and the stat- ute of limitations begins to run from that date.* (2) Accommodation Makers and Acceptors. — Where the accommodation party is t'he acceptor of a bill of exchange, or the maker of a promissory note his right to be saved harmless after payment cannot be worked out by an action upon the instrument, since in such a case payment by him extinguishes the- security, but he may bring an action against the party accommodated directly upon his implied contract to indemnify.' to recover upon a. bill which he has paid without notice, see infra, this title, Present- ment and Notice. Bight to Eecover Defeated by Fraud. — Where it appears that the person to whom the ac- commodation party paid the instrument was not himself -entitled to receive payment by reason of the fact that he was not a bona fide holder for value; or where, although the person to whom payment was made was a bona fide holder, the accommodation party making payment is himself a party to fraud in the procurement of the instrument, the accommodation party's right to recover an indemnity of the party accommodated is defeated. Erie Boot, etc., Co. v. Eichenlaub, 127 Pa. St. 164. Where, however, the accommodation party signed in good faith without knowledge of fraud, he may recover after payment, though he paid with knowledge. Beckwith v. Webber, 78 Mich. 390. 1. Taylor v. Higgins, 3 East i6g; Chilton V. Whiffin, 3 Wils. 13; Jefferson County w. Burlington, etc., R. Co., 66 Iowa 385; Gro- ning V. Krumbhaar, 13 La. 402; Shannon v. Langhorn, 9 La. Ann. 526: Todd v. Shouse, 14 La. Ann. 428; Porter v. Sandidge, 32 La. Ann. 449; Wheeler v. Young, 143 Mass. 143; Henderson v. Thornton, 37 Miss. 448, 75 Am. Dec. 70; Parks v. Ingram, 22 N. H. 283, 55 Am. Dec. 153; Suydam v. Combs, 15 N. J. L. 133; Planters' Bank v. Douglass, 4 Head (Te-nn.) 699. Accommodation Party not Holder until Pay- ment. — In Van Duzer v. Howe, 21 N. Y. 531, Denio, J. , said : " In inquiring at what stage of a transaction respecting a negotiable bill or note it became operative as commercial paper, successive indorsements are not neces- sarily regarded as separate transfers of the paper, but the inquiry is, in whose hands it first became available in a sense which would enable that party to maintain an action upon it against the prior parties. One who indorses for the accommodation of a prior party does not thereby become the holder of the bill, nor can he maintain an action iipon it until he has taken it up by paying the amount to a subsequent purchaser." Attachment Issued by Accommodation Party. —An attachment issued by accommodation acceptors against the drawer of a bill before they have been obliged to pay it, is invalid, and is not rendered valid by a subsequent payment of the instrument. Read v. Ware, 2 La. Ann. 498; Todd v. Shouse, 14 La. Ann. 428; Henderson v. Thornton, 37 Miss. 448, 75 Am. Dec. 70. See, generally, the title At- tachment. Evidence of Payment. — The fact that the bill is in the accommodation acceptors' hands is not proof of payment, for the instrument may never have been in circulation, but the fact of possession by the acceptor, coupled with proof that the instrument has been in circulation, raises a presumption of pay- ment, and the same presumption is raised by a receipt upon the baclc of the bill, proved to be in the handwriting of a. per- son entitled to demand payment upon it. Pfiel V. Vanbatenberg, 2 Campb. 439. See Landrum v. Brookshire, I Stew. (Ala.) 252; Allen V. Mathews, i Stew. (Ala.) 273. 2. Reynolds v. Doyle, i M. & G. 753, 39 E. C. L. 638; Thayer v. Daniels, no Mass. 345; Wheeler v. Young, 143 Mass. 143. In Texas it has been held that the action by an accommodation acceptor who has paid the bill is grounded upon the instrument, and that the statute of limitations applicable is that of contracts in writing, and that where the bill is payable upon demand, the time be- gins to run from the date of the bill. Sublett V. McKinney, ig Tex. 438. 3. Accommodation Acceptor. — England. — Reynolds v. Doyle, i M. & G. 753, 39 E. C. L. 63B; Asprey v. Levy, 16 M. & W. 851. Indiana. — Dickerson v. Turner, 15 Ind. 4. Kentucky. — Turner v. Browder, 5 Bush (Ky.) 216. Louisiana. — Soery v. Friend, 12 La. Ann. 579; Martin v. Muncy, 40 La. Ann. 190; Por- ter V. Sandidge, 32 La. Ann. 449. Massachusetts. — Byers v. Franklin Coal Co., 106 Mass. 131. New York. — Seymour v. Minturn, 17 Johns. (N. Y.) l6g, 8 Am. Dec. 380; Griffith v. Reed, 21 Wend. (N. Y.) 502; 34 Am. Dec. 267; Suydam v. Westfall, 4 Hill (N. Y.) 211, 2 Den. (N. Y.) 205; Wing v. Terry, 5 Hill (N. Y.) 160; Wright V. Garlinghouse, 27 Barb. (N. Y.) 474, 26 N. Y. 539; Pomeroy v. Tanner, 70 N. Y. 552. Pennsylvania. — De Barry v. Withers, 44 Pa. St. 356. Tennessee. — Nelson v. Richardson, 4 Sneed (Tenn.) 307; Planters' Bank v. Douglass, 2 Head (Tenn.) bgg; Irby v. Brigham, g Humph. (Tenn. 750. See also Kirkman v. Benham, 28 Ala. 501; Tift V. Carlton, 73 Ga. 145. Accommodation Maker. — Wheeler v. Young, 143 Mass. 143. The accommodation maker of a note, who has been obliged to pay the instrument, may recover the amount in an action for money paid, against the estate of the accommodated party after the decease of the latter. Bliss v. Plummer (Mich., 1894), 61 N. W. Rep. 263. 35 = Bights and Liabilities ACCOMMODATION PAPER. of Parties. Surety Drawers. — The promise to indemnify is implied from one who signs a bill as a mere surety, to the same extent as from the drawer who is in fact the principal, and this although the relations of the parties are known to the accommodation acceptor.* But in New York it is held that where the surety drawer signs the instrument "as surety" the accommodation acceptor cannot look to him for reimbursement.* Where the accommodation maker of a. promissory note for the benefit of the payee discounts the instrument, whether the maker could or could not sustain an action against him directly upon his indorsement, the latter is in good conscience bound to pay or to pro- vide for the payment of the debt. Owens v. Miller, 29 IVId. 158. Acceptor supra Protest. — An acceptor supra protest who takes up and pays the bill for the honor of the drawer may recover against the accommodation acceptor of the bill. Ex p. Wackerbarth, 5 Ves. Jr. 574; In re Overend, L. R. 6 Eq. 344 (overruling Ex p. Lambert, 13 Ves. Jr. 179). See Mertens v. Winnington, i Esp. 113; Benedict v. De Groot, i Abb. App. Dec. (N. Y.) 125. But Ex p. Lambert, 13 Ves. Jr. 179, has been followed in some courts in this country, and it has been held that where a third party takes up an overdue bill for the honor of the drawer he releases the accom- modation acceptor. McDowell v. Cook, 6 Smed. & M. (Miss.) 420, 45 Am. Dec. 289; Gazzam v. Armstrong, 3 Dana (Ky.) 554. Acceptor's Right of Action Founded on Subroga- tion. — In Sublett v. McKinney, 19 Tex. 438, it was maintained that the accommoda- tion acceptor's right to sue the drawer after payment is founded not upon an im- plied contract of indemnity, but upon subro- gation to the rights of the holder whom he has paid. In delivering the opinion of the court Wheeler, J., said: " The doctrine that the plaintiff must sue upon the implied con- tract is, to say the least, quite technical, and is confined in its application to courts which recognize the distinctions of forms of action. Our law does not recognize these distinctions, but the plaintiff must sue upon his case ; and the writing certainly con- stitutes a very material and essential part of that case. The mere fact of payment does not raise a promise by implication. No prom- ise to indemnify is implied, except it be upon request, and that request in this case is in writing: so the writing is the foundation of the promise; and, discarding technical nice- ties, it may be said to be the ground of the action. It gives rise to the promise which, in compliance with the request, springs out of and is grounded upon it. An accommo- dation acceptor who has been obliged to pay the bill, though primarily liable to the payee, as between himself and the drawer, is en- titled to be regarded in the light of a surety, and has equal claims upon the aid of a court of equity to enforce his rights against the maker, with any other surety who has paid the debt of his principal. It is the doctrine of the civil law, and it was the doctrine of the Court of Chancery in England in the time of Lord Hardwicke, that the surety is en- titled, upon payment of the debt of the prin- cipal, not only to have the full benefit of all the collateral securities, both of an equitable and legal nature, which the creditor has taken as additional pledge for his debt, but he is entitled to be substituted, as to the very debt itself, to the creditor, and to have it assigned to him." But compare Stark v. Alford, 49 Tex. 277. Production of Bill. — Where the acceptor is prepared to prove the admission, by the drawer, of the fact essential to make out his right of recovery, it seems that the produc- tion of proof of the drawing of the bill would altogether dispense with it, since the bill is not the foundation of the action, and is mere- ly evidence. Irby v. Brigham, 9 Humph. (Tenn.) 750. 'Qui compare Sublett v. McKin- ney, 19 Tex. 438. Interest. — The acceptor can recover, upon his implied contract of indemnity, only legal and not conven. onal interest. Martin v. Muncv, 40 La. Ann. 190. See Stanley v. Mc- Elratli, 86 Cal. 449. Bill by Sxecutor, Accepted for Accommodation. — A bill of exchange, drawn by G. S., with the addition of the words ' ' executor of S. S. ," is the personal contract of the drawer; and an accommodation acceptor who pays the bill has no claim against the estate. Kirkman v. Benham, 28 Ala. 501. Action against Accommodation Drawer. — Where an acceptor without funds, who has paid the bill at maturity, brings an action against the drawer to recover the amount ex- pended, it is no defense to the drawer that he drew the bill for the accommodation of the payee, and that it was understood be- tween himself and the acceptors that the payee was to provide for the draft; but the drawer is responsible to the acceptor, as he would have been to the holder whom the acceptor has paid. Soery v. Friend, 12 La. Ann. 579. 1. Dickerson v. Turner, 15 Ind. 4; Nelson V. Richardson, 4 Sneed (Tenn.) 307. See Swilley v. Lyon, 18 Ala. 552; Church v. Swope, 38 Ohio St. 493. But compare Turner V. Browder, 5 Bush (Ky.) 216. 2. Griffith v. Reed, 21 Wend. (N. Y.) 502, 34 Am. Dec. 267: Suydam v. Westfall, 4 Hill (N. Y.) 211, 2 Den. (N. Y.) 205; Wing v. Terry, 5 Hill (N. Y.) 160; Wright v. Garling- house, 27 Barb. (N. Y.) 474, 26 N. Y. 539. New York.— In Griffith v. Reed, 21 Wend. (N. Y.) 502, 34 Am. Dec. 267, the defendant signed as "surety," and it was held that the plaintiff, an acceptor for accommodation who had paid the bill, could not look to him for indemnity. In Wing V. Terry, 5 Hill (N. Y.) 160, it was held that the rule established in Griffith V. Reed, 21 Wend. (N. Y.) 502, 34 Am. Dec. . I C. of L.— 23. 355 Bigbts and liabilities ACCOMMODATION PAPER. of Farties. (3) Accommodation Indorsers — Right of Action. — The accommodation indorser who has paid an instrument is entitled to bring an action against the party accommodated, either upon the instrument or for money paid.* Rep. 263; Fenn v. Dugdale, 40 Mo. 63; Flint V. Schomberg, i Hilt. (N. Y.) 532; Robertson V. Williams, 5 Munf. (Va.) 381. No Action in Assumpsit. — It is held in Penn- sylvania that where an accommodation in- dorser has paid the instrument at maturity he must sue upon the note and not in as- sumpsit. Kennedy v. Carpenter, 2 Whart. (Pa.) 344. Part Payment by Accommodation Indorser. — Where the accommodation indorser makes only a part payment upon the instrument, his right of recovery is upon the implied con- tract of indemnity only, and not upon the instrument. Sleigh v. Sleigh, 5 Exch. 514. Accommodation Indorser not Compelled to Be- Bort to Collaterals. — An accommodation in- dorser who has taken security from the accommodated party for his indemnity is not compelled to resort to the security when he has paid the instrument, but may sue upon the implied promise to indemnify, unless it has been agreed that he shall look only to the security. Cornwall v. Gould, 4 Pick. (Mass.) 444. See infra, this title, Accofnmodation Party as Surety ; Subrogation to Creditor's Securities, Takes Free from Counter Claim. — Where A. indorses a note for the accommodation of the. maker, and is obliged to pay it at maturity to the bank which has discounted it; he succeeds to the rights of the bank although he took the instrument when overdue, and may recover of the maker, although the latter has a set- off which he might have asserted against the payee of the note in an action brought by the payee, and although the state of affairs between the nfaker and the payee was known to A. when he indorsed. Barker v. Parker, 10 Gray (Mass.) 339; Flint v. Schomberg, i Hilt. (N. Y.) 532. Payment after Maturity, by Third Party. — G. made a promissory note payable to D.; at the request of the plaintiff, who was not a party to the instrument, O. indorsed the note and procured it to be discounted at a certain bank. Upon the failure of G. to pay the note at maturity, the plaintiff, considering himself honoiably bound to O., paid and took it up from the bank. It was held that the plaintiff acquired all the rights of the bank, which was the bona fide holder of the note, and that he could enforce it against the defendants, — the maker and first indorser. Benedict v. DeGroot, i Abb. App. Dec. (N. Y.) 125. Accommodation Indorsement for Partner— Ee- covery against Firm.— Where it appeared that C. indorsed a note made by T. H., who was a member of the firm of H. C. & Co.; that C.'s indorsement was for the av;commodation of T. H. ; that said note was then indorsed by F. H., another member of said firm, and lastly by the firm of H. C. & Co.; that the note was then discounted for the benefit of the firm; and that C, after the maturity and dishonor of the note, was compelled to take up the instrument, — it was held, in an action by C. 267, would apply even though there were an express promise on the part of the surety drawer to indemnify, and such express prom- ise was held void under the statute of frauds. It seems doubtful, however, whether this case is not impliedly overruled by Suydam V. Westfall, 2 Den. (N. Y.) 205, and the in- terpretation given to that case in Wright v. Garlinghouse, 26 N. Y. 539. In Suydam v. Westfall, 4 Hill (N. Y.) 211, 2 Den. (N. Y.) 205, one W. appeared upon certain bills as a drawer. In truth he signed merely as a surety for the other drawers, but his relation as surety did not appear upon the instrument, although it was known to the acceptor. W.'s name was added at the request of the acceptor, who, it appears, an- nexed that condition to his agreement to ac- cept. It was held in the Supreme Court, Suydam v. Westfall, 4 Hill (N. Y.) 211, that the doctrine of Griffith v. Reed, 2i Wend. (N. Y.) 502, 34 Am. Dec. 267, applied, and that the acceptor could not look to W. The Court for the Correction of Errors, how- ever, reversed the decision of the Supreme Court, and held that under the circumstances W. was responsible to the acceptor. Suy- dam V, Westfall, 2 Den. (N. Y.) 205. The reasons stated upon pronouncing the opinion in this case are apparently broad enough to overturn Griffith v. Reed, 21 Wend. (N. Y.) 502, 34 Am. Dec. 267, although that case was not formally overruled. In Wright V. Garlinghouse, 27 Barb. '^'' . Y.)474, the Supreme Court, considering v fith V. Reed, 21 Wend. (N. Y.) 502, 34 Am. Dec! 267, to have been overruled hy Suydam 1'. Westfall, 2 Den. (N. Y.) 205, held that where J. had signed a bill as "surety," and the plaintiff without J.'s knowledge had signed as " surety for the above surety," the plaintiff who had reimbursed the accommodation acceptors and had been paid by them, could recover from J. the amount so paid. The Court of Appeals, however, in Wright v. Garlinghouse, 26 N. Y. 539, reversed the decision of the Supreme Court, holding that under the decision in Griffith V. Reed, 2i Wend. (N. Y.) 502, 34 Am. Dec. 267, J was not liable to reimburse the acceptors, and consequently that he was not liable to the plaintiff. Griffith w. Reed, 21 Wend. (N. Y.) 502, 34 Am. Dec. 267, was declared to be a binding precedent in similar cases, that is, apparently, where the surety drawer signs expressly as surety; and Suydam v. Westfall, 2 Den. (N. Y.) 205, was distinguished upon the facts of that case, as stated above. 1. Brown v. American Wheel Co., 46 Fed. Rep. 733; Stanley v. McElrath, 85 Cal. 449; Rodman v. Denison, 2i Conn. 407; Hoffman V. Butler, 105 Ind. 372; Lewis v. Williams, 4 Bush (Ky.) 678; Pinney v. McGregory, 102 Mass. 186; Cornwall v. Gould, 4 Pick. (Mass.) 444; Barkers'. Parker, to Gray (Mass.) 339; Bliss V. Plummer (Mich., 1894), 61 N. W. 354 Bights and liabilities ACCOMMODATION PAPER. of Parties. Amount of Recovery— Indemnity Merely. — As to the amount of recovery in such an action the authorities are not in accord. Some cases hold that the accomnio- dation indorser is entitled to recover only such an amount as will indemnify him for the loss which he has suffered by reason of making payment, inasmuch as his relation to the party accommodated is as between themselves that of a surety.* Face Value of Instrument. — But it is held that the accommodation indorser tak- ing up a promissory note from a bona fide holder succeeds to all the rights of the latter against the maker of the note, the party accommodated, and may recover the face of the note although he gave only part value for it.* (4) Right to Costs and Expenses — Costs. — The right of an accommodation acceptor to be indemnified by the drawer extends not only to the amount of the bill, but also to the costs of an action brought against the acceptor thereon and defended by him.* But costs cannot be recovered where there was evi- dently no defense to the bill, unless the defense was authorized by the party accommodated.* And in order to recover costs in any case the acceptor must have actually loaned his credit to the other party; it is not sufficient that "^e was an acceptor without consideration.* The maker or indorser of an accom- modation note has been held entitled to costs upon the same principle.* Expenses Incurred in Consequence of Befault. — The accommodation party's right to indemnity entitles him to call upon the party accommodated, for all reasonable expenses legitimately incurred in consequence of the latter's default, or for his own protection.'' against the firm, that he was entitled to re- cover the amount so paid, although at the time of his indorsement he had no knowledge whether the npte was to be used for partner- ship purposes or not; but that, had the firm not received the proceeds of the instrument, C. would not have been entitled to recover. Cochran v. Hume, 19 D. C. 517. Accommodation Quarantor. — The accommo- dation guarantor of a. note, who has been compelled to pay the same upon default of his principal, is entitled to be indemnified by the principal, and the guarantor is subrogated to all the rights of tjie holder to whom he makes payment. Babcock v. Blanchard, 85 111. 165. 1. Nolte V. Creditors, 7 Martin N. S. (La.) g; Dorsey v. Creditors, 7 Martin N. S. (La.) 499; Pace v. Robertson, 65 N. Car. 550; Bar- nett V. Cecil, 21 Gratt. (Va.) 95; Burton v. Slaughter, 26 Gratt. (Va.) 914. See Lyon v. Robertson, so Ala. 74; Bethune v. McCrary, 8 Ga. 114; Leeke v. Hancock, 76 Cal. 127; Lewis V. Williams, 4 Bush (Ky.) 678. Accommodation Indorser not Besponsible for Misapplication by Another Indorser. — Where there are two accommodation indorsers upon a note, and one of them receives from the maker the amount of the instrument but fails to pply it, the other indorser who has been compelled to pay may recover of the maker the amount so paid by him on the judgment obtained upon the note. Meek v. Black, 4 Stew. & P. (Ala.) 374. 2. B indorsed A's promissory note pay- able to B's order for A's accommodation, and A negotiated it to C for full value before maturity. After the maturity of the instrument, B, having been informed by A that he could not pay the note, took it up, paying C therefor half the amount thereof. It was held that B could recover the full amount of the note as payee in an action against the maker. Fowler v. Strickland, 107 Mass. 552. See also Beckwith v. Webber, 78 Mich. 390; Flint v. Schomberg, i Hilt. (N. Y.) 532. Compare, however. Tucker v. Jenckes, 5 Allen (Mass.) 330. 3. Jones v. Brooke, 4 Taunt. 464; Stratton V. Mathews, 3 Exch. 48. See Bleaden v. Charles, 5 M. & P. 14; Connely v. Bourg, 16 La. Ann. 108. 4. Beech v. Jones, 5 C. B. 6g6, 57 E. C. L. 696; Roach V. Thompson, M. & M. 487. Implied Bequest. — The request to defend need not be expressed, an implied request being sufficient. Garrard v. Cottrell, 10 Q. B. 679, 59 E. C. L. 679. 8. Bagnall v. Andrews, 7 Bing. 217, 20 E. C. L. 107; Dawson v. Morgan, 9 B. & C. 618, 17 E. C. L. 457; Wood's Byles on Bills *4I2. 6. Baker v. Martin, 3 Barb. (N. Y.) 634; Hubhly V. Brown, 16 Johns. (N. Y.) 70. As to when a surety can recover costs generally, see the title Suretyship. 7. M. being an accommodation indorser upon the notes of T. who had died insolvent, by giving security to the holders for their payment obtained authority from them to commence actions in their names for the pur- pose of collecting the notes out of the estate of T. , and in prosecuting the actions he in- curred necessary and reasonable costs and expenses over and above the costs allowed in the judgments. In an action to marshal and distribute the assets of the estate, it was held that M. was entitled to be allowed such costs and expenses. Thompson v, Taylor, 72 N. Y. 32, II Hun (N. Y.) 274. 355 Bights and Liabilities ACCOMMODATION FAPER. of Parties. b. Right of Accommodation Indorser against Prior Parties. — An accommodation indorser who has been obh'ged to meet the obh'gation at its maturity has the full rights of a bona fide holder for value of commercial paper, against all prior parties to the instrument other than the party accommodated.* 4. Successive Accommodation Parties — a. Rights and Liabilities Gen- erally — Liable in Order of Names. — It is the established rule that the parties to ordinary commercial paper negotiated for value in the regular course of business are liable to each other in succession as their names appear upon the instrument, the acceptor of a bill or the maker of a note being the principal debtor, and the indorsers being liable severally in the order in which their names are written.* The same rule applies, in the absence of special agreement, to successive accommodation parties, and a subsequent accom- modation indorser who has been compelled to meet the obligation may maintain an action upon the instrument against any prior accommodation party and recover the whole amount paid,' although he knew that the latter's 1. Houle V. Baxter, 3 East 177; Beckwith V. Webber, 78 Mich. 390. Accommodation Party Subrogated to Bights of Holder on Payment. — In Beclcwith v. Webber, 78 Mich. 3go, the plaintiff indorsed a cer- tificate of deposit for the accommodation of one T. in wliose favor it was issued. The certificate was given in part payment for a forged check, but the plaintiff when he in- dorsed acted in good faith and without knowledge of the original fraud. The cer- tificate was protested, and the plaintiff paid it with knowledge of its fraudulent inception, and brought suit against the bank which issued it. It was held that the plaintiff was entitled to recover; that upon his indorse- ment made in good faith he assumed the liability of an indorser of commercial paper, and that upon payment he was subrogated to all the rights of the bank cashing the paper, against the drawers and prior indorsers of the paper; that the status of the plaintiff when lie made the indorsement, and the equities which then controlled and protected his rights, continued until he was fully re- imbursed for the payment made, unaffected by after-acquired knowledge concerning the fraud. Accommodation Party Taking np Xote at Less than its Face Value. — An accommodation in- dorser who at maturity takes up a note from a holder, paying less than its face value therefor, can recover from its prior indorser only the amoun'- which he has actually paid, and if the accommodation indorser after maturity reissues the note his transferee succeeds only to his rights. Bethune v. McCrary, 8 Ga. 114. See supra, this title, Rights of Accommodation Party after Pay- ment; Against Party Accommodated ; Accom- modation Indorsers. 2. See the title Bills and Notes. Comakers, Codrawers. — The liability to each other of comakers or codrawers on bills and notes., some of whom are principals and others sureties as between themselves, applies more appropriately to the matter of suretyship as applied to bills and notes generally. See the titles Bills and Notes; Suretyship. Irregular. Indorsers. — Where several persons 356 write their names upon the back of a note or bill before delivery, for the accommodation of the drawer, they are to be considered as cosureties, and in the absence of special agreement are not liable to one another as prior and subsequent indorsers. Camp v. Simmons, 62 Ga. 73, 64 Ga. 726; Brady i/. Reynolds, 13 Cal. 31. 3. England. — See Macdonald v. Whitfield, L. R. 8 App. Cas. 733. Canada. — Fisken v. Meehan, 40 U. C. Q. B. 146; lanson v. Paxton, 23 U. C. C. P. 439, reversing 22 U. C. C. P. 505. United States. — McCarty v. Roots, 21 How. (U. S.) 432; M'Donald v. Magruder, 3 Pet. (U. S.) 470, reversing 3 Cranch (C. C.) 298; Gillespie v. Campbell, 39 Fed. Rep. 724; Pomeroy v. Clark, i McArthur (D. C.)6o6; Mason v. Mason, 3 Cranch (C. C.) 648, 4 Cranch (C. C.) 401; Robinson v. Kilbreth, i Bond (U. S.) 592. Alabama. — Moody v. Findley, 43 Ala. 167; Abercrombie v. Conner, 10 Ala. 293; Stodder V. Card well, 20 Ala. 223 {distinguishing Meek V. Black, 4 Stew. & P. (Ala.) 374); Brahan v. Ragland, 3 Stew. (Ala.) 247. Connecticut. — Talcott v. Cogswell, 3 Day (Conn.) 512; Post v. Tradesmen's Bank, 28 Conn. 420; Kirschner v. Conklin, 40 Conn. 77- Georgia. — Stiles v. Eastman, i Ga. 205. Indiana. — Core v. Wilson, 40 Ind. 204; Armstrong v. Horshman (Ind.), 6 Cent. L.J. 176. Kentucky. — Eldridge v. Duncan, i B. Mon, (Ky.) loi; Hixon v. Reed, 2 Litt. (Ky.) 174; Smith V. Bacon, 3 J. J. Marsh. (Ky.) 312; Denton v. Lytle, 4 Bush (Ky.) 597. Louisiana. — Newman v. Goza, 2 La. Ann. 642; Stone V. Vincent, 6 Martin N. S. (La.) 518; Weir V. Cox, 7 Martin N. S. (La.) 368; Connely v. Bourg, 16 La. Ann. 108. Maine. — Smith v. Morrill, 54 Me. 48; Coolidge V. Wiggin, 62 Me. 568; Wescott v. Stevens, 85 Me. 325. Maryland. — Wood v. Repold, 3 Har. & J. (Md.) 125; Rhinehart v. Schall, 69 Md. 352. Massachusetts. — Woodward v. Severance, 7 Allen (Mass.) 340; Howe v. Merrill, 5 Cush. (Mass.) 80; Church v. Barlow, 9 Pick. (Mass.) KightB and liabilities ACCOMMODATION PAPER. of Parties. signature was given for accommodation merely.* Reason for the Eule. — The reason for the rule holding accommodation parties liable iii the order of their names is, that each indorser is presumed to have indorsed upon the faith of all prior signatures, and consequently he is entitled to hold the prior parties responsible.* b. When Cosureties — Contribution. — It follows that successive accommodation parties, acceptor and indorser, maker and indorser, or suc- cessive indorsers, are not to be considered as cosureties, and therefore they are not entitled to contribution among themselves unless they specially agree that they are to be bound jointly and not severally,' but where such an agree- 547; Barker v. Parker, lo Gray (Mass.) 339; Shaw V. Knox, 98 Mass. 214; Moore v. Gush- ing, 162 Mass. 594. Michigan. — McGurk v. Huggett, 56 Mich. 187. Missouri. — McCune v. Belt, 45 Mo. 174. Nevada. — Heintzelman v. L'Amoroux, 3 Nev. 377. New Hampshire. — Johnson v. Crane, 16 N. H. 68. New Jersey. — Laubach v. Pursell, 35 N. J. L. 434- New York. — Brownw. Mott, 7 Johns. (N. Y.) 361; Dygert v. Gros, 9 Barb. (N. Y.) 506; Kelly V. Burroughs, 102 N. Y. 93; Palmer v. Field, 76 Hun (N. Y.) 229; Watson v. Shuttle- worth, 53 Barb. (N. Y.) 357. Pennsylvania. — Youngs v. Ball, 9 Watts (Pa.) 139. See Allison v. Purdy, 6 Pa. St. 501. South Carol.na. — Cathcart v. Gibson, I Rich. (S. Car.) 10. Tennessee. — Marr v. Johnson, 9 Yerg. (Tenn.) I. Virginia. — U. S. Bank v. Beirne, i Gratt. (Va.) 265, 42 Am. Dec. 551; Hogue v. Davis, 8 Gratt. (Va.) 4; Robertson v. Williams, 5 Munf. (Va.) 381. In California it seems that it is only when there is a special agreement between a prior and subsequent accommodation indorser that the former is liable to the latter as an actual indorser for value. Leeke v. Hancock, 76 Cal. 127; Machado v. Fernandez, 74Cal. 362. Indorser Bona Fide Holder after Payment. — - An accommodation indorser who pays the note at its maturity to the bank where it was discounted, and gets possession of it, is a bona fide holder for value, and may recover ;he amount of the note from the accommoda- tion maker thereof. Rhinehart v. Schall, 69 Md. 352. Indorser may Assign. — The accommodation indorser taking up such a paper may assign it as collateral security for a pre-existing debt. McCarty v. Roots, 21 How. (U. S.) 432. Indorser Beceiving Part of Proceeds. — The fact that the last accommodation indorser re- ceives part of the proceeds of the note when discounted, in payment of a debt due to him by the maker, will not change the relation of liability between the indorsers. Youngs v. Ball, 9 Watts (Pa.) 139; Gillespie *. Camp- bell, 39 Fed. Rep. 724. Cannot Maintain Assumpsit. — An accommo- dation indorser cannot sue an accommodation maker upon an implied contract to indemnify. since as between them there is no such con- tract implied. Cornwall v. Gould, 4 Pick. (Mass.) 444. Accommodation Acceptor and Drawer. — An accommodation acceptor may, after taking up the bill, hold the accommodation drawer responsible, for the acceptor succeeds to the riglits of the holder to whom he has made payment. Loery v. Friend, 12 La. Ann. 579. 1. Gillespie v. Campbell, 39 Fed. Rep. 724; Kirschner v. Conklin, 40 Conn. 77. Agreement between Accommodation Indorsers that One will Protect Notes. — Where one of two accommodation indorsers upon a note indorses under an agreement by the other indorser to pay or protect the notes out of funds due and to become due to the makers of the instrument, the latter indorser, after payment, cannot bring an action against the former indorser. Hawley v. McCredy, 54 Cal. 388. Where there are two indorsers upon a note for the accommodation of the drawer, and the drawer provides the second indorser with means to pay the note, but this is without the knowledge of the first indorser, the drawer and second indorser may subsequently agree to appropriate the means to another pur- pose. But if the second indorser has prom- ised the first that the means provided shall be used to satisfy the note, and thereby lured him into inaction, the promise creates an equity which will support an action by the first indorser. Price v. Trusdell, 28 N. J. Eq 200. a. M'Donald v. Magruder, 3 Pet. (U. S.) 470; Gillespie w. Campbell, 39 Fed. Rep. 724; Stiles V. Eastman, i Ga. 205; Newman v. Goza, 2 La. Ann. 642; Marr v. Johnson, 9 Yerg. (Tenn.) i. And see generally the cases cited in the last two notes above. 3. United States. — McCarty v. Roots, 21 How. (U. S.)432; Law v. Stewart, 3 Cranch (C. C.) 411; Robinson v. Kilbreth, i Bond (U. S.) 592; Gillespie v. Campbell, 39 Fed. Rep. 724. Alabama. — Sherrod v. Rhodes, 5 Ala. 683; Spence v. Barclay, 8 Ala. 581; Moody v. Findley, 43 Ala. 167. Georgia. — Stiles v. Eastman, I Ga. 205. Indiana. — Wilson w.Stanton, 6 Blackf.(Ind.) 507; Dunn V. Sparks, 7 Ind. 490. Maryland. — Wood v. Repold, 3 Har. & J. (Md.) 125. Massachusetts. — Clapp v. Rice, 13 Gray (Mass.) 403, 74 Am. Dec. 639. Michigan. — McGurk v. Huggett, 56 Mich. 187; Farwell w. Ensign, 66 Mich. 600. 357 Eights and LialjilitieB ACCOMMODATION PAPER. of Parties. ment exists, contribution may be enforced.* And the agreement may be proved by parol,* or may be evidenced by the circumstances of the case.' Missouri. — McNeilly v. Patchin, 23 Mo. 40, 66 Am. Dec. 651; Dunn v. Wade, 23 Mo. 207; McCune v. Belt, 45 Mo. 174; Stillwell ». How, 46 Mo. 589; Hillegas v. Stephenson, 75 Mo. 118, 42 Am. Rep. 393; Druhe v. Christy, 10 Mo. App. 566. New York. — Easterly v. Barber, 66 N. Y. 433; Kelly V. Burroughs, 102 N. Y. 93; Pfluger V. Wilshusen (C. PI.), 17 N. Y. Supp. 516. Oregon. — Cogswell v. Hayden, 5 Oregon 22. South Carolina. — Aiken v. Barkley, 2 Spears (S. Car.) 748, 42 Am. Dec. 397; State Bank v. M'Willie, 4 McCord (S. Car.) 438; Simons v. Hort, 3 Brev. (S. Car. ) 452. Virginia. — Farmers' Bank v. Vanmeter, 4 Rand. (Va.) 553; U. S. Bank v. Beirne, i Gratt. (Va.)234, 42 Am. Dec. 551; Hogue v. Davis, 8 Gratt. (Va.) 4. Canada. — lanson v. Paxton, 23 U. C. C. P. 439, reversing 22 U. C. C. P. 505. When Accommodation Indorsers Have Each Made Part Payment to the holder at maturity, the subsequent indorser, since they are not cosureties, may recover of the prior in- dorser the proportion so paid by him. John- son V. Crane, 16 N. H. 68. Not Entitled to Contribution. — Where the first of two accommodation indorsers upon a note pays it, he is not entitled to recover a moiety from the other indorser. Aiken v. Barkley, 2 SpearB (S. Car.) 748, 42 Am. Dec. 397; Druhe v. Christy, 10 Mo. App. 566. 1. Reynolds v. Wheeler, 10 C. B. N. S. 561, 100 E. C. L. 561; Phillips V. Preston, 5 How. (U. S.) 278; Murre v. Chittenden, 56 Ind. 462; Edelen v. White, 6 Bush (Ky.) 408; Weston 1). Chamberlin, 7 Cush. (Mass.) 404; Farwell v. Ensign, 66 Mich. 600; Dunn v. Wade, 23 Mo. 207; Paul v. Rider, 58 N. H. 119; Easterly v. Barber, 66 N. Y. 433, 3 Thomp. & C. (N. Y.) 421; Love v. Wall, i Hawks (N. Car.) 313. And see additional authorities in the note following. Burden of Proof. — The burden of proving such an agreement is upon the prior indorser who seeks the benefit of it. Hogue v. Davis, 8 Gratt. (Va.) 4. Subsequent Agreement Bequires Consideration. — An understanding that the successive in- dorsers are cosureties, entered into subse- quently to the time of making the indorse- ments, especially after the liability of the parties has become fixed by judgment, is in the nature of a new contract, and in the ab- sence of a new consideration will not support an action for contribution by a prior against a subsequent indorser. Druhe w. Christy, 10 Mo. App. 566; Pfluger z/. Wilshusen (C. PI.), 17 N. Y. Supp. 516. See Dygert v. Gros, 9 Barb. (N. Y.) 506. Securities Given between Cosureties. — Where the indorsers of the notes of a corpora- tion enter into an agreement to share the liability thereon as cosureties, and each executes to a trustee a mortgage as security for the provisions of his agreement, the holders of outstanding notes of the corpora- 3S8 tion are not entitled, upon the corporation becoming insolvent, to enforce the mort- gages for their own benefit, inasmuch as the trust was created not for the benefit of the creditors, but solely for that of the parties to the agreement; and as it imposes no primary liability upon the latter, no liability what- ever arises upon the mortgages until the company fails to pay the note at maturity and one of the parties to the agreement pays a portion of such note and another party thereto fails to pay his equal share or fails to repay the party so paying his aliquot part of any payment made. Seward v. Huntington, 94 N. Y. 104; Hampton v. Phipps, 108 U. S. 260. 2. Macdonald v. Whitfield, L. R. 8 App. Cas. 733; Phillips v. Preston, 5 How. (U. S.) 278; Rhodes v. Sherrod, 9 Ala. 63; Weston v. Chamberlin, 7 Cush. (Mass.) 404; Clapp v. Rice, 13 Gray (Mass.) 403, 74 Am- Dec. 639; Paul V. Rider, 58 N. H. iig; Easterly v. Barber, 3 Thomp. & C. (N. Y.) 421, 66 N. Y. 433; Love V. Wall, i Hawks (N. Car.) 313; Kelley v. Few, 18 Ohio 441; Ross v. Espy, 66 Pa. St. 481, 5 Am. Rep. 394; Aiken v. Bark- ley, 2 Spears (S. Car.) 748, 42 Am. Dec. 397. In New Jersey a contrary doctrine pre- vails, and a parol agreement for a joint lia- bility cannot be shown. Johnson v. Ramsey, 43 N. J. L. 279, 39 Am. Rep. 580, overruling Johnson v. Martinus, 9 N. J. L. 144, 17 Am. Dec. 464. 3. Circumstances Showing Joint liability. — The fact that two indorsers paid in moieties a note which they had indorsed for the maker's ac- commodation, and that three years elapsed before the subsequent indorser brought suit to recover the money paid by him, fur- nishes sufficient evidence that the indorse- ment by both was joint, and each having paid what in that case each would be com- pellable to pay, no recovery can be had by the subsequent against the prior indorser. Tal- cott V. Cogswell, 3 Day (Conn.) 512. See Denton v. Lytle, 4 Bush (Ky.) 597. P. made a promissory note payable to C; F. indorsed for P.'s accommodation; C. then indorsed above F. for P.'s accommodation; at maturity C. paid the note and brought action against F. thereon. It was held that the defendant was liable as accommodation promisor and not as indorser, that the ob- ject of the parties was to become sureties for P., and that P. and C. were to be considered as cosureties, and that the plaintiff was en- titled to -recover of the defendant one half of the sum he had paid, deducting whatever sum he had received or could realize on cer- tain mortgages held by him on propertv of P. as security for P.'s liability to him. Cur- rier V. Fellows, 27 N. H. 366. But compare Clapp V. Rice, 13 Gray (Mass.) 403, 74 Am. Dec. 639. The maker of a promissory note applied separately to three of his friends to indorse it for his accommodation; each promised to in- dorse if the others would do so; nothing was Biglits and Liabilities ACCOMMODA TION PAPER. ot Parties, Contrary Doctrine. — The contrary doctrine that successive indorsers for accom- modation are cosureties obtains to a limited extent in North Carolina,^ Ohio,^ said about the order of indorsement, nor was there any understanding about sharing the liability further than was implied in their understanding that the note was to have the triple indorsement to complete the transac- tion, and in the condition made by each that he would sign only if the others did so; the note was sent around to them to be signed severally as they happened to be found, without any design as to precedence of sig- natures. It was held that upon these facts the jury was justified in finding that the indorse- ment was joint, and that upon payment the three were liable to contribute as cosureties. Hagerthy v. Phillips, 83 Me. 336. See Mac- donald v. Whitfield, L. R. 8 App. Cas. 733. Circumstances Insufficient to Show Joint Lia- bility. — Where the defendant had indorsed several notes for the accommodation of the same party, the fact that the names of the parties in the several notes were not always the same was held to raise no presumption that the obligation was joint and not several. Palmer v. Field, 76 Hun (N. Y.) 229. The fact that A indorsed a bill for the ac- commodation of the drawer at the request of B, another accommodation indorser, does not make A and B joint indorsers. Shawii. Knox, 98 Mass. 214. Taking a joint judgment by several accom- modation indorsers of a promissory note, from the makers, for the indemnity of the in- dorsers, will not have the effect of creating an implied agreement for a joint liability. Dy- gertj/. Gros, 9 Barb. (N. Y.) 506. English Rule.^In England it has been de- cided that while the liability among them- selves of successive indorsers is prima facie that implied in the order of their names, yet where several persons become accofnmoda- tion indorsers upon a note, in pursuance of an agreement between themselves that they will mutually become sureties for the maker of the note, the presumption is that they are equally liable and are entitled to contribution among themselves. Macdonald v. Whitfield, L. R. 8 App. Cas. 733. In this case Lord Watson, in delivering the opinion of the Privy Council, referred to the cases of M'Donald v. Magruder, 3 Pet. (U. S.) 470, and lanson v. Paxton, 23 U. C. C. P. 439, and disapproved the rule laid down in them and generally received in the United States, that accommodation indorsers will be liable in the order of their names unless it has been specially stipulated that they are to be liable as cosureties. See also Reynolds v, Wheeler, 10 C. B. N. S. 561, 100 E. C. L. 561. 1. North Carolina. — Daniel v. McRae, 2 Hawks (N. Car.) 590, 11 Am. Dec. 787; Smith V. Smith, i Dev. Eq. (N. Car.) 173; Gomez v. Lazarus, i Dev. Eq. (N. Car.) 205; Hatcher v. McMorine, 3 Dev. (N. Car.) 228; Richards v. Simms, i Dev. & B. (N. Car.) 48; Dawson v. Pettway, 4 Dev. & B. (N. Car.) 396- It has been laid down that indorsers upon accommodation paper for the benefit of a third person, where there is no specific agreement between them, are to be consid- ered as cosureties. So that where A and B became, at different times, indorsers on a note made for C, on which the latter, by dis- counting it at a bank, received the money, it was held that B, against whom the bank re- covered, was entitled to call upon a prior indorser for only one half. Daniel v. Mc- Rae, 2 Hawks (N. Car.) 590, n Am. Dec. 787. See also Hatcher v. McMorine, 3 Dev. (N. Car.) 228. In Smith v. Smith, l Dev. Eq. (N. Car.) 173, it was held that the rule of cosuretyship established in Daniel v. McRae did not, in the absence of special agreement, extend to a surety maker and accommodation indorser. In Gomez v. Lazarus, i Dev. Eq. (N. Car.) 205, it was held that where there .was no agreement between an accommodation ac- ceptor and an accommodation indorser to change the order of their liability appearing on the face of the transaction, the acceptor stands prior in liability to the indorser, and cannot call upon the latter for contribution. In Richards v. Simms, i Dev. & B. (N. Car.) 48, Daniel v. McRae, 2 Hawks (N. Car.) 590, II Am. Dec. 787, was followed; but the court declared that although, upon the principle of stare decisis, the judges all re- garded that decision as binding, yet were the question res integra the court was unani- mously of the opinion that the principle laid down in that case should not be sanctioned. In Dawson v. Pettway, 4 Dev. & B. (N. Car.) 396, it was held that the accommoda- tion indorser of a single bill could not be con- sidered a cosurety with one who signs the instrument as co-obligor with the principal. In this case Gaston, J., reviewed all the pre- ceding cases, and stated the limitations of the rule established in Daniel v. McRae, 2 Hawks (N. Car.) 590, 11 Am. Dec. 787, as follows: That case "lays down a rule from which, whether originally right or wrong, we cannot depart without violence to the under- standing and practice of the community, which have conformed to it; but it is a rule confined to prior and subsequent indorsers upon accommodation paper. It does not es- tablish, nor was it intended nor has it been understood to establish, the like rule as be- tween the maker and indorser, or the ac- ceptor and indorser. or others liable in differ- ent characters, upon such paper. And to introduce it among these would be to violate principles, to produce confusion, and to con- tradict the general usages of the commercial world." 2. Ohio. — Douglas v. Waddle, i Ohio 413, 13 Am. Dec. 630; Williams v. Bosson, 11 Ohio 67; Kelley v. Few, 18 Ohio 441; Barnet v. Young, 29 Ohio St. 7. In Douglas v. Waddle, i Ohio 413, 13 Am. Dec. 630, it was held that the accommodation indorsers of promissory notes are cosureties. In Williams v. Bosson, 11 Ohio 67, the court refused to extend the rule to acconiJij.*,- 3S9 Bights and Liabilities ACCOMMODATION PAPER. of FartieB. and possibly in Vermont,"^ and it is the rule established by statute in Georgia,^ and appears to prevail, in the absence of special agreement, in California.^ Accommodation Indorser and Surety Maker. — The same rule as to the absence of cosuretyship where there is no express agreement as to joint liability applies between an accommodation indorser and the surety maker of a note* 5. Holders of Aecommodation Paper — a. RIGHTS OF BONA FiDE HOLDERS — (i) General Statement. — When accommodation paper has passed in the reg- ular course of business into the hands of a bona fide holder for value, it acquires all the properties of business paper ; that is, paper which, as between the original parties, is founded upon a valuable consideration.' (2) Transferee before Maturity — (a) Generally. ^ — It follows, therefore, that one who has in good faith taken an accommodation bill or note before maturity, for value and in the regular course of business, may enforce it against prior accommodation parties, whether acceptors, drawers, makers, or indorsers, although he knew when he received the instrument that it was accommodation paper.* dation indorsers of a bill of exchange, hold- ing such indorsers to be liable to each other in the order in which they became parties to the instrument. In Barnet u. Young, 29 Ohio St. 7, it was held that the accommodation drawers and the accommodation acceptors of a bill for the benefit of the payee are not cosureties, nor liable to contribution. In this case the court, by Gilmore, J., after citing Douglas v. Waddle, i Ohio 413, 13 Am. Dec. 630, and Williams v. Bosson, 11 Ohio 62, said: "It is to be regretted that the general rules of the commercial law are not applicable alike to, both classes of business paper in this state and that a difference in the mere form of the instrument used should operate a difference in the rights and liabilities of accommodation parties thereto as between themselves. Still, the distinction is clearly established in the cases above cited, and it would be unwise now to attempt to break it down." 1. Vermont. — Pitkin v. Flanagan, 23 Vt. 160, 56 Am. Dec. 61, lays down the rule that successive accommodation indorsers are to be treated as cosureties; but this case would seem to have been overrziled by the doctrines laid down in the subsequent cases. Farmers', etc., Bank v. Rathbone, 26 Vt. ig, 58 Am. Dec. 200; Keith v. Goodwin, 31 Vt. 268, 73 Am. Dec. 345; Briggs v. Boyd, 37 Vt. 534. 2. Georgia. — Freeman v. Cherry, 46 Ga. 14; Hull V. Myers, go Ga. 674. In Stiles v. Eastman, I Ga. 205, it was held that accommodation indorsers are not cosureties, nor liable to contribute. By sec- tion 2123 of the Georgia Code of 1868 (section 2151 of the present code) it was enacted that "the form of the contract is immaterial, provided the fact of suretyship exists; hence an accommodation indorser is considered merely as a surety." And it was held in Freeman v. Cherry, 46 Ga. 14, followed in Hull V. Myers, go Ga. 674, that this provision was intended to change the rule of law an- nounced in Stiles u. Eastman, i Ga. 205, and that it rendered cosureties liable to contri- bution. 3. California. — Machado w. Fernandez, 74 Gal. 362; Leeke v. Hancock, 76 Cal. 127. 4. Core v. Wilson, 40 Ind. 204; Nurre v. Chittenden, 56 Ind. 462; Phillips v. Plato, 42 Hun (N. Y.) 189. 5. Connerly v. Planters', etc., Ins. Co., 66 Ala. 432. 6. England. — Smith v. Knox, 3 Esp. 46; Charles v. Marsden, i Taunt. 224; Stein v. Yglesias, 3 Dowl. 252; Sturtevant v. Ford, 4 M. & G. loi, 43 E. C. L. 61; Hunter v. Wil- son, 4 Exch. 48g; Millis v. Barber, i M. & W. 425; Bank of Ireland v. Beresford, 6 Dow. 237; Percival v. Frampton, 2 C. M. & R. 180; Carruthers w. West, 11 Q. B. 143, 63 E. C. L. 143. United States . — Yeaton v. Alexandria Bank, 5 Cranch (U. S.) 49; Violett' v. Patton, 5 Cranch (U. S.) 142; U. S. Bank v. Weisiger, 2 Pet. (U. S.) 331; British N. A. Bank v. El- lis, 6 Sawy. (U. S.) 96; Union Bank v. Crine, 33 Fed. Rep. 8og; Armstrong v. Scott, 36 Fed. Rep. 63; Molson v. Hawley, i Blatchf. (U. S.) 409; Perry v. Crammond, I Wash. (U. S.) 108. Alabama. — Connerly w. Planters', etc., Ins. Co., 66 Ala. 432; First Nat. Bank v. Dawson, 78 Ala. 67; Marks v. First Nat. Bank, 79 Ala. 550. California. — Leeke v. Hancock, 76 Cal. 127. Illinois. — Best v. Nokomis Nat. Bank, 76 111. 608; Cronise w. Kellogg, 20 111. 11; Di- versy v. Loeb, 22 111. 394; Miller w. Larned, 103 111. 562; Waite z/. Kalurisky, 22 111. App. 382; Holmes v. Bemis, 25 111. App. 232; Daw- son V. Tolman, 37 111. App. 134; Hodges v. Nash, 43 111. App. 638. Indiana. — Niles v. Porter, 6 Blackf. (Ind.) 44; Spurgin v. McPheeters, 42 Ind. 527; Marsli V. Low, 55 Ind. 271. Iowa. — Iowa College v. Hill, 12 Iowa 462; Brenner v. Gundershiemer, 14 Iowa 82; Washington Bank v. Krum, 15 Iowa 53; Jones V. Berryhill, 25 Iowa 290; Winters v. Home Ins. Co., 30 Iowa 172; Capital City State Bank v. Des Moines Cotton-mill Co., 84 Iowa 561. Kentucky. — Clay v. Johnson, 6 T. B. Men. (Ky.) 649; Smith v. Bacon, 3 J. J. Marsh. (Ky.) 312; Hunt v. Armstrong, 5 B, Mon. (Ky.) 399. Louisiana. — Weir v. Cox, 7, Martin N. S. 36c Bights and liabilities ACCOMMODATION PAPER. of Parties. (b) Contrast with Business Paper. — The rule above stated as to the rights of holders of accommodation paper may be expressed in a different form as fol- (La.)368; Union Bank v. Morgan, 2 La. Ann. 418; Matthews v. Rutherford, 7 La. Ann. 225; Smith V. Adams, 14 La. Ann. 411; Crane v. Trudeau, 19 La. Ann. 307; Weill v. Trosclair, 42 La. Ann. 171. Maine. — Bramhall v. Beckett, 31 Me. 205; Dunn V. Weston, 71 Me. 270, 36 Am. Rep. 310. Maryland.— YaXss v. Donaldson, 5 Md. 389, 61 Am. Dec. 283; Maitland v. Citizens' Nat. Bank, 40 Md. 540, 17 Am. Rep. 620. Massachusetts. — Thompson v. Shepherd, 12 Met. (Mass.) 311, 46 Am. Dec. 676; Pacific Bank v. Mitchell, g Met. (Mass.) 297; Cole v. Cushing, 8 Pick. (Mass.) 48; Davis v. Ran- dall, 115 Mass. 547, 15 Am. Rep. 146; Tucker V. Jenckes, 5 Allen (Mass.) 330. Michigan. — Thatcher v. West River Nat. Bank, 19 Mich. 196; Warder v. Gibbs, 92 Mich. 29. Minnesota. — Robinson v. Bartlett, 11 Minn. 410. Mississippi. — Meggett 7.'. Baum, 57 Miss. 22; Hawkins v. Neal, 60 Miss. 256. Missouri. — Macy v. Kendall, 33 Mo. 164; Miller v. Mellier, 59 Mo. 388; Faulkner v. Faulkner, 73 Mo. 338; Beveridge v. Rich- mond, 14 Mo. App. 405. JVew Hampshire. — Newbury Bank v. Rand, 38 N. H. 166. New Jersey. — Duncan v. Gilbert, 29 N. J. L. 521. JVew York. — Benedict v. De Groot, i Abb. App. Dec. (N. Y.) 125; Corbitt v. Miller, 43 Barb. (N. Y.) 305; East River Bank v. Butter- worth, 45 Barb. (N. Y.) 476; Scheppz/. Carpen- ter, 49 Barb. (N. Y.) 542, 51 N. Y. 602; Gordon V. Boppe, 55 N. Y. 665, 7 Alb. L. J. 45; De Zeng V. Fyfe, i Bosw. (N. Y.) 335; Robbins V. Richardson, 2 Bosw. (N. Y.) 248; Arnson V. Abrahamson, 16 Daly (N. Y.) 72; Pierson V. Boyd, 2 Duer (N. Y.) 33; Harbeck v. Craft, 4 Duer (N. Y.) 122; Seneca County Bank v. Neass, 5 Den. (N. Y.) 329, 3 N. Y. 442; Gould V. Segee, 5 Duer (N. Y.) 260; Pet- tigrew V. Chave, 2 Hilt. (N. Y.) 546; Com- mercial Bank v. Norton, I Hill (N. Y.) 501; Archer v. Shea, 14 Hun (N. Y.) 493; Peck v. Burwell (Supreme Ct.), I N. Y. Supp. 33; Garfield Nat. Bank v. Colwell, 57 Hun (N. Y.) i6g; Higgins v. O'Donnell, 68 Hun (N. Y.) 100; Holland Trust Co. v. Waddell, 75 Hun (N. Y.) 104; Brown v. Mott, 7 Johns. (N. Y.) 361; Mechanics', etc.. Bank v. Liv- ingston, 6 Misc. Rep. (N. Y. C. PI.) 81; Davis V. Dayton, 7 Misc. Rep. (N. Y. C. PI.) 488; Western Nat. Bank v. Flanagan, 11 Misc. Rep. (N. Y. City Ct.) 445; Portland First Nat. Bank v. Schuyler, 39 l>r. Y. Super. Ct. 440; Grandin v. LeRoy, 2 Paige (N. Y.) 509; Mont- ross V. Clark, 2 Sandf. (N. Y.) 115; Lathrop V. Morris, 5 Sandf. (N. Y.) 7; Ross v. White- field, I Sweeny (N. Y.) 318: Grant v. Ellicott, 7 Wend. (N. Y.) 227. North Carolina. — Norfolk Nat. Bank v. Griffin, 107 N. Car. 173; Hatcher v. McMo- rine, 3 Dev. (N. Car.) 228. Pennsylvania. — Bonsall v. Bauer, 2 W. N. C. (Pa.) 298; Holmes v. Paul, 3 Grant's Cas. (Pa.) 299; White v. Hopkins, 3 W. & S. (Pa.) 99> 37 Am. Dec. 542; Lewis v. Hanchman, 2 Pa. St. 416; Lord v. Ocean Bank, 20 Pa. St. 384, 59 Am. Dec. 728; Work v. Kase, 34 Pa. St. 138; Stephens w. Monongahela Nat. Bank, 88 Pa. St. 157, 32 Am. Rep. 438; Carpenter v. Republic Nat. Bank, 106 Pa. St. 170; Mosser V. Criswell, 150 Pa. St. 409; Newbold v. Bo- raef, 155 Pa. St. 227; Gatzmer v. Pierce, 6 W. N. C. (Pa.) 433. Rhode Island. — Wilbur v. Williams, 16 R. L 242. Tennessee. — Harris v. Bradley, 7 Yerg. (Tenn.) 310; Marr v. Johnson, 9 Yerg. (Tenn.) i. Texas. — Jones v. Primm, 6 Tex. 170. Vermont. — Arnold v. Sprague, 34 Vt. 402; Quinn v. Hard, 43 Vt. 375, 5 Am. Rep. 284. Virginia. — Fant v. Miller, 17 Gratt. (Va.) 48. Wisconsin. — Cady v. Shepard, 12 Wis. 639. See also supra, this title. Successive Accommo- dation Parties. Want of Consideration no Defense, except against Accommodated Parties. — In British N. A. Bank v. Ellis, 6 Sawy. (U. S.) 96, Deady, D.J., said: "A party who makes or indorses a note without consideration, and for the pur- pose of thereby lending his credit to another, is an accommodation maker or indorser, and can- not make the defense of a want of consider- ation against any one except the accommo- dated party. The note is supposed to be taken by third persons upon the credit given to him, and he is expected to pay it. * * * It would not be inconsistent with this defense if the defendants indorsed these notes without con- sideration for the accommodation of the makers or payee or its indorsee, and, there- fore, they may be liable thereon, notwith- standing such want of consideration. The plea, to be a good defense, must meet this phase of the case by denying directly that the defendants were accommodation in- dorsers, or by stating facts inconsistent therewith." Accommodation Guarantor. — A guarantor of a promissory note for the accommodation of the holder is liable, under the Iowa statute, to the same extent as an accommodation in- dorser to a third person to whom the note has in good faith, for a valuable consideration, been transferred, though at the time of tak- ing the note such person had knowledge of the fact that such indorsement or guaranty was without consideration. Jones v. Berry- hill, 25 Iowa 290. Payee of Note or Bill. — The rule protects the payee of a promissory note or bill of ex- change taking it with knowledge that it is accommodation paper as between prior parties. Spurgin z;. McPheeters, 42 Ind. 527; Israel v. Ayer, 2 S. Car. 344. The Fact that the Accommodation was Pro- cured by Fraudulent Representations does not affect the rights of an innocent holder against the accommodation party. Humphrey v. Clark, 27 Conn. 383; Von Windisch v. Klaus, 361 Bights and Liabilities ACCOMMODATION PAPER. of Parties. lows : The accommodation party, when sued by a subsequent bond fide holder for value who took the paper with knowledge of the real relation to it of such accommodation party, cannot set up as a defense the want of consideration as to himself. Thus expressed, a distinction between accommodation paper and ordinary business paper becomes apparent. The general rule with regard to commercial paper is, that the defendant sued thereon may defend on the ground of want of consideration not only against immediate parties, but against remote parties, who took with knowledge that it was open to this defense. "^ But the party for whose accommodation a bill or note has been drawn, ac- cepted, made, or indorsed, and against whom the defense of want of consider- ation would be complete, may pass to his transferee for value with knowledge of the nature of the instrument, a perfect title.* (3) Transferee after Maturity — (a) Generally.— As a general rule the trans- feree of overdue commercial paper takes it subject to the equities which at- tach to the instrument, and succeeds only to the title of his transferrer. Thus, where the failure or want of consideration could have been shown as against the transferrer it may be shown against his transferee who took the paper after maturity.' How far this general rule is applicable to the rights of a trans- feree of overdue accommodation paper, is a matter upon which the courts are not in accord. (b) Purchaser from Holder for Value. — There is no doubt that if he who holds accommodation paper at maturity can recover thereon, then his right of recovery may be thereafter transferred to another.* The conflict of authority 46 Conn. 435; Beckhaus v. Commercial Nat. Bank (Pa., 1888), 12 Atl. Rep. 72; Third Nat. Bank I-. McCann, 11 W. N. C. (Pa.) 480; Jones V. Primm, 6 Tex. 170. Understanding that the Kaker is not Liable. — Where, at the time the note is discounted, there is a distinct understanding between the maker and the payee, which is stated to the discounting bank, that the maker should in- cur no liability, he will not be held liable to the bank which has discounted the note. Such paper is not mere accommodation paper, and is, under the circumstances, unenforcible against the maker. Garfield Nat. Bank v. Colwell, 57 Hun (N. Y.) 169; Daggett v. Whiting, 35 Conn. 366. See Corcoran w. Hodges, 2 Cranch (C. C.)452; Thompson v. Galloway, 5 W. N. C. (Pa.) 383. But, by what seems to be the better doctrine, such a defense on the part of the acceptor of a bill, or the maker of a note, could not be proved when lying in parol, on the ground that it would violate the rule that parol evi- dence is inadmissible to vary the terms of a written contract. Davis v. Randall, 115 Mass. 547, 15 Am. Rep. 146; Wright v. Morse, 9 Gray (Mass.) 337, 69 Am. Dec. 291; Abrey v. Crux, L. R. 5 C. P. 37. See Cowles v. Town- send, 31 Ala. 133. Understanding must be Known to Bank. — Where the defense of an agreement that a particular party should not be liable upon the instrument is admissible, it must appear that the holder had knowledge thereof. Thus, allegations in an answer by the maker of a promissory note, that the note was an accom- modation note given to the payee at the re- quest of the bank by which it was discounted, and that the note was given on the distinct understanding that the payee should take it up at maturity, but not stating that such un- 362 derstanding was had with the bank, or that the bank engaged with the maker that he should not incur any liability on the note, do not constitute a defense in an action brought by the bank against the maker. Higgins v. O'Donnell, 68 Hun (N. Y.) 100. 1. See the title Bills and Notes. 8. This is but a corollary to the proposi- tion for which numerous authorities have just been cited. The distinction here noted between business paper and accommodation paper will be found clearly statedin Weill v. Trosclair, 42 La. Ann. 171. See also Lord v. Ocean Bank, 20 Pa. St. 386, 59 Am. Dec. 728; Winters v. Home Ins. Co., 39 Iowa 172; British N. A. Bank v. Ellis, 6 Sawy. (U. S.) 96. 3. See the title Bills and Notes. 4. Howell V. Crane, 12 La. Ann. 126, 68 Am. Dec. 765; Pacific Bank v. Mitchell, 9 Met. (Mass.) 297; Thompson v. Shepherd, 12 Met. (Mass.) 311, 46 Am. Dec. 676; Chester V. Dow, 41 N. Y. 279; Gould v. Segee, 5 Duer (N. Y.) 260; Hubbard v. Farrington (Su- preme Ct.), 5 N. Y. Supp. 103; Wilson v. Mechanics' Sav. Bank, 45 Pa. St. 488; Riegel V. Cunningham, 9 Phila. (Pa.) 177; Cottrell V. Watkins, 89 Va. 801. See Carruthers v. West, II Q. B. 143, 63 E. C. L. 143; Sleigh v. Sleigh, 5 Exch. 514; Woodman v. Churchill, 52 Me. 58; Blenn v. Lyford, 70 Me. 149. Recovery not Dependent on Accommodation Character of Paper.— In Chester w. Dow, 41 N. Y. 279, Woodruff, J., said: "If the note be not paid at maturity, the contract [with the accommodation indorser] is broken, and if he who then holds it can recover thereon, then his right of recovery maybe transferred to another; and the recovery of the latter will be, not because the accommodation indorse! undertook that the note should be paid to Bights and Liabilities ACCOMMODA TION PAPER. of Parties. begins where the paper not yet negotiated by the accommodated party is in his hands at maturity, and is afterwards issued by him.* (o) Transferee from Accommodated Party after Maturity — (aa) English Rule — Way Enforce In- strument. — It is a well-established rule in England, and in some of the states of the Union, that a transferee of accommodation paper after maturity acquires greater rights than his transferrer, and, if he is a holder for value, may enforce the paper against the accommodation party, although he received it with notice from the party accommodated.* him, or should be paid at some date after it was due, but because a valid cause of action existing in favor of the holder at maturity has been transferred to him." Limitation of Right, — In such cases it seems that the transferee can recover no more upon the paper than his transferrer could have recovered. Dubuque First Nat. Bank (/. Werst, 52 Iowa 684. 1. A materially different question arises when an accommodation bill once negotiated before maturity is afterwards paid and taken up by the party accommodated, and reissued by him when overdue. See infra, this title, Extinguishment. 2. England. — Charles v. Marsden, i Taunt. 224; Sturtevant v. Ford, 4 M. & G. loi, 43 E. C. L. 61; Stein v. Yglesias, i C. M. & R. 565; In re Overend, L. R. 6 Eq. 358; Car- ruthers v. West, 11 Q. B. 143, 63 E. C. L. 143. See Bosanquet v. Dudman, i Stark, i, 2 E. C. L. 11; Atwood V. Crowdie, i Stark. 483, 2 E. C. L. 185; Watkins v. Maule, 2 Jac. & W. 244; Lazarus v. Cowie, 3 Q. B. 459. Illinois. — Miller v. Lamed, 103 111. 562. Maine. — Salem First Nat. Bank v. Grant, 71 Me. 374. But see Cummings v. Little, 45 Me. 183. Maryland. — Renwick v. Williams, 2 Md. 356. New Jersey. — Seyfert v. Edison, 45 N. J. L- 393- See also Warder v. Gibbs, 92 Mich. 29. Growth of the Doctrine in England. — In Tin- son V, Francis, i Campb. 19, a nisi prius case before Lord Ellenborough in 1807, it was held that the holder of accommodation paper acquired after maturity stands in the same position as the holder of overdue business paper. This decision has been, however, overruled by a series of authorities com- mencing the following year and uniform to this time. See the cases just preceding. The first of these cases was Charles v. Marsden, I Taunt. 224, decided in 1808 by the Court of Common Pleas. In this case Sir James Mansfield, C.J., said: " He [the holder] receives the bill from the proper hand which was entitled to have possession of it, the person to whom it was payable. It is not necessarily to be inferred because it was an accommodation bill that there was an agreement not to negotiate it after it became due, but if there was such an agreement it was the defendant's own fault that the bill was outstanding, for, even supposing that the drawer had undertaken to provide for the payment when the bill became due, the ac- teptor had a right to require that it should 'be given up." In the same case Lawrence, J., said. " In the presertt case it is to be sup- posed that the party persuades a friend to accept a bill for him because he cannot lend him money. Would there be any objection if, with the knowledge of the circumstance that this is an accommodation bill, some per- son should advance money upon it before it was due ? Then, what is the objection to his furnishing the money on it after it is due ? for there is no reason why a bill may not be negotiated after it is due unless there was an agreement for the purpose of restraining it." The authority of Charles v. Marsden, i Taunt. 224, was followed in Sturtevant v. Ford, 4 M. & G. loi, 43 E. C. L. 61, rather, apparently, upon the doctrine of stare decisis than from assent to the reasoning of the court therein. In In re Overend, L. R. 6 Eq. 358, the au- thorities are cited and examined by Malins, V.C., who shows that Charles v. Marsden, I Taunt. 224, has always been followed. It is sometimes stated that the effect of the cases of Lazarus v. Cowie, 3 Q. B. 459, and Jewell V. Parr, 13 C. B. 909, 76 E. C. L. 909, 16 C. B. 684, 81 E. C. L. 684, has been to overrule the doctrine of Charles ». Marsden. An examination will show that these cases turn upon a different point, and in no way deprive the transferee of overdue accommo- dation paper of the right to recovei thereon. In Charles v. Marsden,. i Taunt. 224, and the cases which follow it, the question was as to the power of an accommodation party to issue a bill or note after its maturity. In Lazarus v. Cowie, 3 Q. B. 459, and Jewell V. Parr, 13 C. B. 909, 76 E. C. L. 909, 16 C. B. 684, 81 E. C. L. 684, the question was as to the power of such a party to reissue after maturity a bill already paid by him. See infra, this title. Extinguishment. United States Authorities. — In Miller v. Larned, 103 111. 562, it was held that where a certain note was made by H. payable to W., for the purpose of enabling S., who was not a party to the instrument, to raise money thereon, the note was accommodation paper, and that S. having pledged the note to raise money, and paid the debt for which the instru- ment was pledged after the note had become due, might yet pledge the note again for a fresh debt, inasmuch as the rule that as against an assignee of business paper taken after maturity the maker may defend as suc- cessfully as against the original payee, * * * does not apply to accommodation paper. In Renwick v. Williams, 2 Md. 356, it was held that one who receives an accommodation bill indorsed by the acceptor to him after maturity, but who had no knowledge of the character of the note when he received it, might recover thereon. The court, though z(>z Biglits and Liabilities ACCOMMODATION PAPER. of Parties. Agreement not to Negotiate after Maturity. — But if there be an agreement express or implied not to negotiate the instrument after maturity, the transferee after maturity cannot recover, and the accommodation character of the paper is Itself evidence for the jury of such an agreement,* {bb) United States Rule— Cannot Enforce Instrument. — The courts of many of the states of the Union have, however, taken a different view of the matter, and have assimilated overdue accommodation paper to overdue business paper. These authorities hold that by the very terms of the instrument the accom- modation party lends his credit for a limited time only, that is to say, until the maturity of the instrument ; that a person taking the paper after maturity takes with knowledge of this fact; therefore he takes only his transferrer's title, and with no other or greater rights than the transferrer of ordinary business paper in similar circumstances.* The reasoning of these cases seems unan- swerable, and the authorities are certainly tending to the doctrine therein announced.' But, as stated above, in some of the states the English doctrine citing Charles w. Marsden, i Taunt. 224, and other English authorities, grounded its deci- sion expressly upon the fact that the plaintiff took without notice. In Salem First Nat. Bank w. Grant, 71 Me. 374, it was held that the payee of an accom- modation note made for his benefit might transfer it after maturity as collateral security for a loan, and that in such a case the maker would have no defense against the holder without some equity in the maker other than the accommodation character of the paper. But in Cummings v. Little, 45 Me. 183, it was stated broadly that the indorsee of a dis- honored accommodation note takes it subject to the equities existing between the original parties. In Seyfert v. Edison, 45 N. J. L. 393, the defendant failed to prove that the note was received after maturity, but the court, by Beasley, C.J., said that the fact that the note came to the plaintiff after dishonor would not have helped the defense, since there was nothing in the terms of the agree- ment under which the payee took this accom- modation that prohibited him from its use after the pay day of the instrument. 1. Parr v. Jewell, 16 C. B. 684, 81 E. C. L. 684. Suggestions that this would be a sufBcient defense are found in the opinion of Lawrence, J., in Charles v. Marsden, i Taunt. 224, and in the opinion of Erskine, J., in Sturtevant v. Ford, 4 M. & G. loi, 43 E. C. L. 61; Car- ruthers v. West, 11 Q. B. 143, 63 E. C. L. 143, is not in conflict. This case arose upon a demurrer to the plea, and the plea which set up an agreement not to negotiate after maturity was held bad, but only upon the ground that there was nothing therein in- consistent with the plaintiff's being a bona fide holder by taking after maturity from one who had become a bona fide holder for value before maturity. 2. Carrol v. Peters, i McGloin (La.) 88; Chester v. Dow, 41 N. Y. 279; Cottrell v. Watkins, 89 Va. 801. 3. Alabama. — Glasscock v. Smith, 25 Ala. 474; Battle V. Weems, 44 Ala. 105. But see Connerly v. Planters', etc., Ins. Co., 66 Ala. 442. 364 California. — Coghlin v. May, 17 Cal. 515. Louisiana. — Carrol v. Peters, i McGloin (La.) 88; Whitwell u. Crehore, 8 La. 540, 28 Am. Dec. 141. Massachusetts. — Kellogg v. Barton, 12 Allen (Mass.) 527. New York. — Chester v. Dow, 41 N. Y. 279 {overruling Brown v. Mott, 7 Johns. (N. Y.) 361; Grant, v. Ellicott, 7 Wend. (N. Y.) 227; Harrington v. Dorr, 3.Robt. (N. Y.) 275; East River Bank v. Butterworth, 45 Barb. (N. Y.) 476; Corbitt V. Miller, 43 Barb. (N. Y.) 305); Hubbard v. Farrington (Supreme Ct.), 5 N. Y. Supp. 103. Pennsylvania. — Bower v. Hastings, 36 Pa. St. 285; Hoffman v. Foster, 43 Pa. St. 137; Long V. Rhawn, 75 Pa. St. 128. See Hart v. U. S. Trust Co., 118 Pa. St. 567; Barnet v. Offerman, 7 Watts (Pa.) 130. Rhode Island. — Bacon v. Harris, 15 R. I. 599- Virginia. — Cottrell v. Watkins, 89 Va. 8ci {disapproving Davis v. Miller, 14 Gratt. (Va.) I)- The same view has apparently been taken in other courts where the question has not been directly adjudicated. See Wheeler v. Barret, 20 Mo. 573; Britton v. Bishop, 11 Vt. 70. Alabama.— In Glasscock v. Smith, 25 Ala. 474, it is laid down that one taking overdue accommodation paper takes it subject to de- fense against the accommodation party; and in Battle v. Weems, 44 Ala. 105, it was held that where the plaintiff acquired a bill after maturity which had been drawn for the ac- commodation of the acceptor, and where at the maturity thereof the acceptor was in- debted to the drawer in a larger sum than the amount due on the bill,, the plaintiff was not entitled to recover. But in Connerly v. Planters', etc., Ins. Co., 66 Ala. 442, the court seems inclined to re- vert to the English doctrine that, in the ab- sence of agreement, accommodation notes may be negotiated by the party accommo- dated after maturity. The English and old New York cases are cited, but no allusion is made to the earlier Alabama authorities. It should be noted, however, that in Con- nerly V. Planters', etc.. Ins. Co., 66 Ala. 442, Bights and Liabilities ACCOMMODATION PAPER. of Parties. favorable to the rights of the transferee after maturity obtains.* b. Who is Bona Fide Holder — (i) General Rule. — In general, the inquiry as to who is a bona fide holder of accommodation paper is to be deter- mined by the same rule and upQn the same principles as the like question in regard to a holder of ordinary business paper.* But the rights of the pledgee of accommodation paper, taken as collateral security for pre-existing debts, demand separate attention, (2). Pledgee — (a) For Antecedent Debt. — One who takes an accommodation bill or note, given without restriction as to the manner of using it, as col- lateral security for a pre-existing debt, is entitled to the rights of a holder for value to the extent of the debt for which the paper was pledged, or to the face value thereof.' This has been held even in some states wherein the there seems to have been no evidence that the accommodation notes in suit were trans- ferred after maturity, so that the remarks of the courts on this subject were apparently unnecessary. 1. See the subdivision immediately pre- ceding. a. See the title Bills and Notes. Total Want of Consideration. — Of course one who has received accommodation paper from the party accommodated, without any consid- eration, is not a holder for value and cannot recover. Millis v. Barber, i M. & W, 425. S. procured M. to make, and J. to indorse, a promissory note for his, S.'s, accommo- dation; S. then delivered said note to P., who thereupon handed S. a certain sum of money in his hands belonging to S. ; P. sued M. and J. upon the note. It was held that as P. had notice of the purpose for which the note was made and indorsed, and as he parted with nothing upon the faith of the transfer to him, he was not entitled. to re- cover, and that his rights were no greater than those of one who borrows a promissory note, as against the lender. Powers v. French, i Hun (N. Y.) 582. Kight of Accommodation Party to become Holder. — Undoubtedly an accommodation in- dorser may become a holder of the instru- ment by taking' it for value from a prior holder before maturity or even after ma- turity. Sleigh V. Sleigh, 5 Exch. 514; Pin- ney v, McGregory, 102 Mass. i85; Fowler v. Strickland, 107 Mass. 552. See supra, this title,. Rights of Accommodation Party after Payment ; Accommodation Indorsers ; Succes- sive Accommodation Parties. It has been doubted whether the accom- modation maker of a note discounting it for the payee, the party accommodated, becomes entitled to an action thereon against the payee as his indorsee; but in the absence of fraud he may discount the instrument, and the payee will, in equity, be bound to repay him. Owens v. Miller, 29 Md. 144. Whether Money Advanced upon a Note, a Ques- tion for the Jury. — Where a sum is advanced as a balance after the settlement of a prior debt upon several notes, one of which is an accommodation note, — given not to pay an antecedent debt, but to raise money, — it is -a. proper question for the jury whether any part of the money so advanced, and if so, how much, was advanced upon the accom- modation note. Hubbard v. Farrington (Su- preme Ct.), 5 N. Y. Supp. 103. Tacts Sufficient to Show Plaintiff not ajBona Fide Holder. — Where it appeared that the cashier of the plaintiff's bank discounted two bills of exchange for the drawer upon the faith of an acceptance by the defendant; that at the time of making the discount the cashier had notice that the defendant's ac- ceptance was for the accommodation of the drawer, and that the drawer had become in- solvent since the date of the acceptance; that at the time of the discount, although the drawer was indebted to the bank in an amount exceeding the value of the notes dis- counted, he received a large consideration from the bank for the transfer of the paper to it; that there was no proof of any au- thority given to the cashier to discount paper; and that his act in discounting the notes in suit was not ratified by the directors of the bank until after the defendant had informed the cashier of the equities between himself and the drawer, — it was held that the plaintiff was not a bona fide holder and could not recover against the defendant. Boggs V. Lancaster Bank, 7 W. & S. (Pa.) 331. 3. United States. — Pugh v. Durfee, I Blatchf. (U. S.) 412. Connecticut. — Bridgeport City Bank v. Welch, 29 Conn. 475; Dawson v. Goodyear, 43 Conn. 548. Illinois. — Miller v. Larned, 103 111. 562; Holmes v. Bemis, 25 111. App. 232; Buchanan V. International Bank, 78 111. 500. Indiana. — Ransom v. Turley, 50 Ind. 273; Fetters v. Muncie Nat. Bank, 34 Ind. 251, 7 Am. Rep. 225. Iowa. — Washington Bank v. Krum, 15 Iowa 53- Louisiana. — Matthews v. Rutherford, 7 La. Ann. 225. Maryland. — Maitland v. Citizens' Nat. Bank, 40 Md. 540, 17 Am. Rep. 620. Massachusetts. — Fisher v. Fisher, 98 Mass. 303. Mississippi. — Fellows v. Harris, 12 Smed. &M. (Miss.) 462. New Jersey. — Duncan v. Gilbert, 29 N. J. L. 521; Jackson v. Jersey City First Nat. Bank, 42 N. J. L. 177. New York. — Grocers' Bank v. Penfield, 69 N. Y. 502, 7 Hun (N. Y.) 279; Freund v. Importers', etc., Nat. Bank, 76 N. Y. 352, 12 Hun (N. Y.) 537; Continental Nat. Bank v. 36s Sights and Liabilities ACCOMMODATION PAPER. of Parties. mere transfer of negotiable paper as collateral security for an antecedent debt does not render the transferee a holder for value.* But other states wherein this doctrine prevails do not regard such a pledgee of accommodation paper as an exception to the general rule.* (b) Of Diverted Paper. — Even those courts which regard the pledgee of ac- commodation paper as an exception, hold that if the paper has been diverted from its intended purpose and pledged for an antecedent debt, the pledgee is not to be considered as entitled to the privileges of a holder for value, unless some new consideration has passed.^ Townsend, 87 N. Y. 8; Inglis v. Kennedy, 6 Abb. Pr. (N. Y. C. PI.) 32; East River Bank ■V. Butterworth,45 Barb. (N. Y.) 476; Cole v. Saulpaugh, 48 Barb. (N. Y.) 104; De Zeng w. Fyfe, I Bosw. (N. Y.) 335; Robbins v. Rich- ardson, 2 Bosw. (N. Y.) 248; Gould v. Segee, 5 Duer (N. Y.) 260; Mechanics', etc.. Bank v. Livingston, 6 Misc. Rep. (N. Y. C. PI.) 81; Weaver v. Farrington, 7 Misc. Rep. )(N. Y. C. PI.) 405; Grandin v. Le Roy, 2 Paige (N. Y.) 509; Harrington v. Dorr, 3 Robt. (N. Y.)275; Montross v. Clark, 2 Sandf. (N. Y.) 115; Lathrop v. Morris, 5 Sandf. (N. Y.) 7; Rutland Bank v. Buck, 5 Wend. (N. Y.)66; Grant v. Ellicott, 7 Wend. (N. Y.) 227. See Schepp V. Carpenter, 51 N. Y. 602, 49 Barb. (N. Y.) 542; Agawam Bank w. Strever, 18 N. Y. 502. Ohio. — Pitts V. Foglesong, 37 Ohio St. 676, 41 Am. Rep. 540. Pennsylvania. — Twining v. Hunt, 7 W. N. C. (Pa.) 223; Appleton v. Donaldson, 3 Pa. St. 381; Lord V. Ocean Bank, 20 Pa. St. 384, 59 Am. Dec. 728; Work v. Kase, 34 Pa. St. 138; Stephens v. Monongahela Nat. Bank, 88 Pa. St. 157, 32 Am. Rep. 438; Hart v. U. S. Trust Co., 118 Pa. St. 565; Beckhaus v. Com- mercial Nat. Bank (Pa., 1888), 12 Atl. Rep. 72; National Union Bank v. Todd, 132 Pa. St. 312. . Tennessee. — Kimbro v. Lytle, 10 Yerg. (Tenn.) 417, 31 Am. Dec. 585. Washington. — Peters v. Gay, 9 Wash. 383. See infra, this title. Amount of Recovery against Accommodation Acceptor or Maker. Payment of Antecedent Debt. — One who takes an accommodation bill or note, not as col- lateral security for but in payment of an antecedent debt, is of course a holder for value. England. — Cook v. Long, i C. & M. 510, 41 E. C. L. 279. United States. — Columbus City Bank v. Beach, i Blatchf. (U. S.) 438; Jewett v. Hone, T Woods (U. S.) 530; Varnura v. Bel- lamy, 4 McLean (U. S.) 87. Alabama. — Marks v. First Nat. Bank, 79 Ala. 550. Indiana. — Fetters v. Muncie Nat. Bank, 34 Ind. 251, 7 Am. Rep. 225. Kentucky. — Frank v. Quast, 86 Ky. 649. Massachusetts. — Walker v. Sherman, 11 Met. (Mass.) 170; Pierce v. Kittredge, 115 Mass. 374. New York. — Fish v. Jacobsohn, 2 Abb. App. Dec.(N.Y.) 132; SenecaCountyBank w. Neass, 5 Den. (N. Y.) 329, 3 N. Y. 442; Deems v. Crook, lEdm. Sel. Cas. (N. Y.) 95; Wheeler V. Allen, 59 How. Pr. (N. Y. C. PI.) 118; Mohawk Bank v. Corey, i Hill (N. Y.) 513; Boyd V. Cummings, 17 N. Y. loi; Schepp v. Carpenter, 51 N. Y. 602; Graf v. Smith (Supreme Ct.), 16 N. Y. Supp. 892. Vermont. — Dixon v. Dixon, 31 Vt. 450, 76 Am. Dec. 129. New Hampshire. — It seems that the same doctrine prevails in New Hampshire. See Clement v. Leverett, 12 N. H. 317; Tucker ». New Hampshire Sav. Bank, 58 N. H. 83, 42 Am. Rep. 5B0; Paige v. Chapman, 58 N. H. 333- 1. See the cases cited in the last note, supra. Reference is made to the article Bills and Notes for a discussion of the position of the different courts upon the question how far an antecedent debt is a valuable consideration for the transfer of commercial paper. 2. Marks v. First Nat. Bank, 79 Ala. 550; McKenzie v. Montgomery Branch Bank, 28 Ala. 606, 65 Am. Dec. 369; Bramhall v. Beckett, 31 Me. 205; Nutter v. Stover, 48 Me. 163. See Thompsons. Poston, i Duv. (Ky.) 389- Alabama. — A pledgee of a bill or note is not to be considered a purchaser for value in this state, although time is granted. Reid v. Mobile Bank, 70 Ala. 199; Miller v. Boykin, 70 Ala. 469. But see Rutledge v. Townsend, 38 Ala. 706. 3. Grocers' Bank v. Penfield, 69 N. Y. 502; Comstock V. Hier, 73 N. Y. 269, 29 Am. Rep. 142; Ward V. Howard, 88 N. Y. 74; U. S. Nat. Bank v. Ewing, 131 N. Y. 506; New York Bank V. Vanderhorst, 32 N. Y. 553; Moore V. Ryder, 65 N. Y. 438; Beers v. Culver, i Hill (N. Y.) 589; Holbrook v. Mix, i E. D. Smith (N. Y.) 154; State Nat. Bank v. Covk- endall, 58 Hun (N. Y.) 205; Yale v. Dart '(C. PI.), 19 N. Y. Supp. 389; Royer v. Keystone Nat. Bank, 83 Pa. St. 248; Carpenter v. Re- public Nat. Bank, 106 Pa. St. 170; Altoona Second Nat. Bank v. Dunn, 151 Pa. St. 228. What Sufficient Consideration. — The surren- der of other collateral security is a sufficient consideration. Park Bank v. Watson, 42 N. Y. 490. See Depeau v. Waddington, 6 Whart. (Pa.) 220, 36 Am. Dec. 216; Goodwin v. Conkiin, 85 N. Y. 21. So also is the dis- continuance of valid legal proceedings. Boyd V. Cummings, 17 N. Y. loi. Misapplication. — If one not a party to the bill or note is intrusted with it, indorsed in blank, for the purpose of getting it discounted for the benefit of the maker and payee, and fraudulently appropriates it to his own use by pledging it as security for an existing debt, the maker may set up the want of con- ZS^ Sights and Liabilities ACCOMMODATION PAPER. of FartieSi c. When Chargeable with Notice of Accommodation Character OF Instrument — How Far Notice of Accommodation Character Affects Eights. — It has been shown that in general the notice of the fact that the instrument is accommo- dation paper, or that some of the parties thereto are accommodation parties, does not affect the right of the holder to recover thereon,* but this is not always the case. Thus, knowledge of its true character, according to the bet- ter doctrine, limits the rights of a transferee after maturity of accommodation paper, and such knowledge may be decisive of the rights to recover upon accommodation paper of a partnership or corporation, or accommodation paper made or indorsed by an agent, or fraudulently put in circulation or diverted from its intended purpose ; or in some jurisdictions it may obligate the holder to treat the accommodation party in certain respects as a surety.* Presumptive Notice. — It is of importance therefore to note that there are cer- tain facts from which notice that the instrument is an accommodation bill or note will be implied. Indorsed Note in Hands of Maker. — Thus the fact that a promissory note is put into circulation by the maker is notice to the transferee that whatever in- dorsements were upon the instrument were made for the maker's benefit and not in the ordinary course of business, for in the ordinary course of business the instrument would have passed from the maker to the payee or indorser.^ sideration and the fraudulent diversion as a defense against the holder. Royer v. Key- stone Nat. Bank, 83 Pa. St. 248; Carpenter v. Republic Nat. Bank, 106 Pa. St. 170. See Comstock V. Hier, 73 N. Y. 269, 29 Am. Rep. 142. ' Paper Procured by Fraudulent Hepresenta- tions. — -The defense that the paper was pro- cured from the maker by fraudulent repre- sentations may be set up to defeat a recovery by the pledgee of accommodation paper. Cummings v. Boyd, 83 Pa. St. 372; Maynard V. Philadelphia Sixth Nat. Bank, 98 Pa. St. 250. See Tinsdale v. Murray, g Daly(N. Y.) 446; Hart V. Palmer, 12 Wend. (N. Y.) 523. Diverted Paper in Payment of Antecedent Debt. — The rule stated in the text applies in New York, even when diverted paper is re- ceived in payment of an antecedent debt. Moore v. Ryder, 65 N. Y. 438. In this case Earl, C. , said: " In case the holder of diverted paper has not parted with any value, or in- curred any binding obligation, or changed his position to his detriment on the faith thereof, he cannot recover thereon against the party defrauded or wronged." 1. See supra, this title. Holders of Accom- modation Paper, 2. See this title, passim. 3. United States. — West St. Louis Sav. Bank v. Shawnee County Bank, 95 U. S. 557; Lemoine v. North Amefica Bank, 3 Dill. (U. S.) 44; National Park Bank v. Rem- sen, 43 Fed. Rep. 226. Alabama. — Wallace v. Mobile Branch Bank, I Ala. 565; Saltmarsh w. Planters', etc.. Bank, 14 Ala. 668; Noble v. Walker, 32 Ala. 456. California. — Hendrie v. Berkowitz, 37 Cal. 113, 99 Am. Dec. 251. Connecticut. — Riddle v. Stevens, 32 Conn. 387, 87 Am. Dec. 181; .^tna Nat. Bank v. Charter Oak L. Ins. Co., 50 Conn. 167. Louisiana. — Crane v. Trudeau, 19 La. Ann. 307. Michigan. — Mechanics' Bank v. Barnes, 86 Mich. 632. Missouri. — Marshall v. Cabanne, 40 Mo. App. 38. New Jersey. — Mecutchen v. Kennady, 27 N. J. L. 230. New York. — Fielden v. Lahens, 9 Bosw. (N. Y.) 436, 2 Abb. App. Dec. (N. Y.) iii; Powell V. Waters, 8 Cow. (N. Y.) 688; Austin V. Vandermark, 4 Hill (N. Y.) 259; National Park Bank v. German-American Warehous- ing Co., 116 N. Y. 2S1; Brown v. Taber, 5 Wend. (N. Y.) 566; Stall 1,. CatskiU Bank, 18 Wend. (N. Y.)466. Ohio. — Erwin v. Shaffer, 9 Ohio St. 43. Pennsylvania. — Parke v. Smith, 4 W. & S. (Pa.) 287; Tanner v. Hall, i Pa. St. 417; Eckert v. Cameron, 43 Pa. St. 120; MuUison's Estate, 68 Pa. St. Z12. Tennessee. — Overton v. Hardin, 6 Coldw. (Tenn.)375. But compare with the foregoing cases Ex p. Estabrook, 2 Lowell (U. S.) 547; Wait v. Thayer, 118 Mass. 473; Atlas Nat. Bank v. Savery, 127 Mass. 75; Redlon v. Churchill, 73 Me. 146,40 Am. Rep. 345. Successive Indorsers. — The same rule is ap- plicable to successive indorsers, and if a note is presented for discount for his own benefit by any person whose name appears thereon previous to the last indorsement, the trans- action on its face imports that the indorse- ment was for accommodation. Maiuldin v. Mobile Bran(;h Bank, 2 Ala. 502; Riverside Bank v. Totten (Supreme Ct.), 33 N. Y. St. Rep. 845; Moorehead v. Gilmore, 77 Pa. St. 118, 18 Am. Rep. 435. See Perry v. Friend, 57 Ark. 437; Atlantic State Bank v. Savery, 18 Hun (N. Y.)36. But compare Atlas Nat. Bank V. Savery, 127 Mass. 75. Note on Firm by Partner. — It has been held that the fact that a note made by a partner in favor of his firm is, in the hands of the maker, indorsed by the firm, is not conclusive of the i.ccommodation character of the in- 367 Bights and Liabilities ACCOMMODATION PAPER. of Parties. Bill Negotiated by Acceptor or Drawer. — Upon the same principle a bill of ex- change being in the hands of the acceptor is evidence to charge the trans- feree with notice that it was drawn or indorsed for the accommodation of the acceptor.' And the fact that a bill accepted or indorsed is put in circulation by the drawer is notice of its accommodation character.* Irregular Indorsement. — Where one who indorses a note above the payee is liable as an indorser, one who receives the instrument so indorsed from the payee is chargeable with notice that the irregular indorsement was for the accommodation of the maker. ^ d. Burden of Proof — General Rule. — The general rule in regard to com- mercial paper is, that when the plaintiff has shown a prima facie title he is presumed to be a bona fide holder for value, and the burden is upon the de- fendant to show the contrary.* Not Shifted by Evidence of Accommodation. — The burden of proof is in no way changed when the defendant has shown that the paper sued upon is accom- modation paper, and therefore without consideration as between the original parties." dorsement, but the question of the character of the paper is for the jury. Wait v. Thayer, Ii8 Mass. 473. See Redlon v. Churchill, 73 Me. 146. Note Given by Maker for a Third Person. — Where an indorsed note is given by one of the makers, not for his own benefit, but to take up the note of third parties, the in- ference does not arise that it is accommoda- tion paper, but the natural presumption is that such maker acts as an agent for the real debtors for whose benefit the old note is to be taken up. Austin v. Vanderraark, 4 Hill (N. Y.) 259. 1. Saltmarsh v. Planters', etc.. Bank, 14 Ala. 668; Carlisle v. Hill, 16 Ala. 398; Mc- Kenzie v. Montgomery Branch Bank, 28 Ala. 606, 65 Am. Dec. 369; Cooper v. McClurkan, 22 Pa. St. 80. 2. Noble V. Walker, 32 Ala. 456; Bloom v. Helm, 53 Miss. 21; Columbus Ins., etc., Co. V. First Nat. Bank (Miss., 1894), 15 So. Rep. 138; Vergennes Bank v. Cameron, 7 Barb. (N. Y.) 143. Bill Payable at the House of the Drawer. — The fact that a bill of exchange is made pay- able at the house of the drawer has been held to charge the holder with notice that it is accommodation paper, since why should the drawer "make the bill payable at his own house, unless he was to provide for it at ma- turity ?" Sharp V. Bailey, 9 B. & C. 44, 17 E. C. L. 329. Possession by One both Drawer and Payee. — Where the same person is both the drawer and the payee of a bill of exchange, posses- sion by him of the instrument after accept- ance is no notice that the bill is accommoda- tion paper, since it is in the natural course of business that as payee he should hold the bill. Columbus Ins., etc., Co. v. First Nat. Bank (Miss., 1894), 15 So. Rep. 138. See also Wait V. Thayer, ri8 Mass. 473; Chemical Nat. Bank v. Colwell, 16 Daly (N. Y.) 29. 8. Commonwealth Nat. Bank v. Law, 127 Mass. 72. See Moynahan v. Hanaford, 42 Mich. 329; Bowman v. Cecil Bank, 3 Grant's Cas. (Pa.) 33. California. — In California it has been held 368 that such an indorsement is prima facie for the accommodation of the payee, but it may be shown that the indorser's intention was to become surety or guarantor for the maker. Clarke v. Smith, 2 Cal. 605. See Brady t. Reynolds, 13 Cal. 31. As to irregular indorsements generally, see the title Bills and Notes. 4. See the title Bills and Notes. 5. Millis V. Barber, i M. & W. 425; Perci- val V. Frampton, 2 C. M. & P. 180; Whit- taker V. Edmunds, i M. & Rob. 366, i Ad. & El. 638, 28 E. C. L. 171; Jacob v. Hungate, I M. & Rob. 445 ; Heath v. Sansom, 2 B. & Ad. 2gi, 22 E. C. L. 78; dissenting opinion of Parke, J., Capital City State Bank v. Des Moines Cotton-mill Co., 84 Iowa 561; Duncan V. Gilbert, 29 N. J. L. 521; Ross v. Bedell, 5 Duer (N. Y.)462; Harger v. Worrall, 6g N. Y. 370, 25 Am. Rep. 206; Knight v. Pugh, 4 W. & S. (Pa.) 445, 39 Am. Dec. 99. In Millis V. Barber, i M. & W. 425, Lord Abinger said: "There is a substantial dis- tinction [between bills given for accommoda- tion only, and cases of fraud], inasmuch -as in the former case it is to be presumed that money has been obtained upon the bill. If a man comes into court without any suspicion of fraud, but only as the holder of an accom- modation bill, it may fairly be presumed that he is a holder for value. The proof of its being an accommodation bill is no evidence of the want of consideration in the holder. If the defendant says: ' I lent my name to the drawer for the purpose of his raising money, upon the bill,' the probability is that money was obtained upon the bill. Unless, therefore, the bill be connected with some fraud, and a suspicion of fraud be raised from its being shown that something has been done with it of an illegal nature, so that it has been clandestinely taken away, or has been lost or stolen (in which cases the holder must show that he gave value for it), the onus probandi is cast upon the defendant." Former English Eule.— Formerly the rule was otherwise,and proof by the defendant that a bill was originally without consideration threw the onus upon the plaintiff to prove Bights and Liabilities ACCOMMODATION PAPER. of Parties. Paper Fraudnlently Circulated. — But when the defendant has shown, in addition, that the instrument was fraudulently put into circulation, the burden is shifted, and the holder must show that he received the instrument for a good con- sideration and without notice.* Paper Diverted. — According to the better authority, si.., pie diversion does not shift the burden of proof to the holder,* but the rule seems to be otherwise in New York.^ e. Amount of Recovery against Accommodation Acceptor or Maker. — ^The person paying full value for accommodation paper may recover the full value thereof of the accommodation maker or acceptor, although he took it with knowledge of its true character.* But the courts are not in agree- ment as to the rights of a holder who has taken paper at less than its face value, or who has upon the security of the paper advanced a sum less than its face value. Pledgees. — It is well settled that where the holder of accommodation paper has received it as security for a debt he can recover thereon in an action against the accommodation maker or acceptor only the amount of the debt for which the instrument was pledged, unless he is accountable to some other person for the surplus.* himself a holder for value, Thomas w. New- ton, 2 C. & P. 606, 12 E. C. L. 285; Heath v. Sansom, 2 B. & Ad. 291, 22 E. C. L. 78; Bas- sett V. Dodgiti, 10 Bing. 40, 25 E. C. L. 21. See especially the remarks of Lord Abinger, C.B., in Simpson v. Clarke, 2 C. M. & R. 342- The Holder of a Non-negotiahle ITote, accepted for the payee's accommodation, must show that he received it for a valuable considera- tion. Lee V. Swift, i Den. (N. Y.) 565. 1. Whitaker v. Edmunds, i Ad. & El. 638, 28 E. C. L. 171; Duncan v. Scott, i Campb. 100; Heath v. Sansom, 2 B. & Ad. 291, 22 E. C. L. 78; Wallace v. Mobile Branch Bank, i Ala. 565; Merchants' Exch. Nat. Bank v. New Brunswick Sav. Inst.. 33 N. J. L. 170; War- dell V. Howell, 9 Wend. (N. Y.) 170; Ives v. Jacobs 21 Abb. N. Cas. (N. Y. City Ct.) 151; Comstock V. Hier, 73 N. Y. 269, 29 Am. Rep. 142. See Vosburgh v. Diefendorf, 119 N. Y. 357; Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191; Gray v. Kentucky Bank, 29 Pa. St. 365. 2. Jacob V. Hungate, I M. & Rob. 445; First Nat. Bank v. Dawson, 78 Ala. 67. Hotioe of Conditions. — The defendant must show that the holder had knowledge of the restrictions imposed upon paper which has been diverted from its intended purpose. First Nat. Bank v. Dawsop, 78 Ala. 67; Stod- dard V. Kimball, 4 Cush. (Mass.) 604; Lin- coln V. Stevens, 7 Met. (Mass.) 529; Chicopee Bank v. Chapin, 8 Met. (Mass.) 40. 3. Farmers', etc., Nat. Bank v. Noxon, 45 N. Y. 762; Schepp V. Carpenter, 51 N. Y. 602; Ives V. Jacobs, 21 Abb. N. Cas. (N. Y. City Ct.) 151; Warden v. Howell, 9 Wend. (N. Y.) 170; Ross V. Bedell, 5 Duer (N. Y.) 462; NJckerson w. Ruger, 76 N. Y. 279; Holbrook V. Mix, I E. D. Smith (N. Y.) 154; Hubbard V. Farrington (Supreme Ct.), 22 N. Y. St. Rep. 511. But see Tradesmen's Nat. Bank V. Ertell (Supreme Ct.), 31 N. Y. St. Rep. 256; Mechanics', etc., Bank v. Crow, 60 N. Y. 85. I C. of L. — 24. 369 4. See supra, this title, Holders of Accommo- dation Paper. 6. England. — Wiffen v. Roberts, i Esp. 261; Jones V. Hibbert, 2 Stark. 304, 3 E. C. L. 419; Nash V. Brown (1817), 2 Ames Cas. Bills and Notes 20; Simpson v. Clarke, 2 C. M. & R- 343- United States. — Ex pr Kelty, i Lowell (U. S. ) 394. Georgia. — See Hatcher w. Independence Nat. Bank, 79 Ga. 547. /owa.— Dubuque First Nat. Bank v. Werst, 52 Iowa 684. Louisiana. — Matthews v. Rutherford, 7 La. Ann. 225; Citizens' Bank v. Payne, 18 La. Ann. 222, 89 Am. Dec. 650. Massachusetts. — Stoddard v. Kimball, 6 Cush. (Mass.) 469; Chicopee Bank v. Chapin, 8 Met. (Mass.) 40; Hilton v. Smith, 5 Gray (Mass.) 400; Fisher v. Fisher, 98 Mass. 303. New Jersey. — Allaire v. Hartshorne, 21 N. J. L. 665,47 Am. Dec. 175: Duncan v. Gilbert, 29 N. J. L. 521. JV^ew Ko?-.4.— Williams v. Smith, 2 Hill (N. Y.) 301; East River Bank v. Butterworth, 45 Barb. (N. Y.) 476; Brown v. Mott, 7 Johns. (N. Y.) 361; Blydenburgh v. Thayer, i Abb. App. Dec. (N. Y.) 156. Ohio. — Handy v. Sibley, 46 Ohio St. g. Rhode Island. — Atlas Bank v. Doyle, 9 R. I. 76, 98 Am. Dec. 368. , See also In re Gomersall, i Ch. Div. 137; Cromwell v. Sac County, 96 U. S. 60; Valette V. Mason, i Ind. 288; Lay v. Wissman, 36 Iowa 305; Bange v. Flint, 25 Wis. 544. Where Part Payment of the Debt has been Made. — When part payment of the debt for which the accommodation paper has been pledged has been received by the pledgee he can recover against the accommodation party the only balance unpaid. Rutledge v. Town- send, 38 Ala. 706. Bankruptcy.— When a bill of exchange ac- cepted for the accommodation of the drawer is deposited by him as security for a less sum the holder is entitled to prove for the full Bights and Liabilities ACCOMMODA TION PAPER. ai Parties, Transferees of Entire Interest. — The rule that the holder's right of recovery against accommodation makers or acceptors is limited to the amount of the consideration which he has given for the instrument is applied in some states to the case of transferees who have purchased the entire interest in the paper for a valuable consideration.* But by the better doctrine such a purchaser of accommodation paper is entitled to recover the face value of the instru- ment, although he gave a less sum therefor.^ amount of the bill, although he cannot recover dividends in excess of the debt due to him by the drawer. Ex p. Bloxham, 6 Ves. Jr. 600 (reversing 5 Ves. Jr. 448); Ex p. Newton, 16 Ch. Div. 330. Explanation of the Eale. — In Stoddard w. Kim- ball, 5 Cush. (Mass.) 469, Shaw, C.J. , said: " Tn general, the holder of an indorsed note will be entitled to recover the whole amount of the face of the note, because the presump- tion of fact, in the absence of counter proof, is, that he gave the full value for it, or that he took it from some other holder for value, to collect the amount, receive a certain part to his .own use, s.nd account to the party from whom he took it for the surplus. Hav- ing taken it to secure a pre-existing debt, of a less amount, he is a holder for value in his own right, only to the amount of the debt due him. If therefore it appears in proof that the plaintiff is not accountable to any third person for any surplus, then there is no reason why he should recover any more than the balance of the debt, for which he is a bona fide holder for value. Here it appears that the plaintiff received this note of the maker, for whose accommodation the de- fendant indorsed it. It being obvious that the plaintiff can recover nothing as trustee for the party from whom he received it, he is liable over to nobody for the surplus, and therefore can have judgment only for the amount due to himself, for his own use and in his own right, which is so much of the note as may be necessary to satisfy the balance of the debt, for the security of which he received it." 1. Cook V. Clark, 4 E. D. Smith (N. Y.) 213; Holeman v. Hobson, 8 Humph. (Tenn.) 127. See Huff v. Wagner, 63 Barb. (N. Y.) 215; Holcomb V. Wyckoff, 35 N. J. L. 35, 10 Am. Rep. 219; Allaire v. Hartshorne, 21 N. J. L. 665, 47 Am. Dec. 175; Petty v. Hannum, 2 Humph. (Tenn.) 102, 36 Am. Dec. 303. I Eule Applies in Favor of One Indorsing to Aooommodate the Payee. — Where a note, valid in its inception and taken by the payee for full value, is indorsed by him, and is subse- quently indorsed by a third person for the accommodation of the payee (the holder at that time) without any consideration, and is then sold to the plaintiff at a discount greater than the legal rate, the plaintiff can recover from such accommodation indorser only the amount paid by him for the note, with in- terest and fees of protest. Cook v. Clark, 4 E. D. Smith (N. Y.) 213. But see Ingalls v. Lee, 9 Barb. (N.Y.) 647. Paper Purchased as Business Paper, in reli- ance on the representation of the parties to the instrument, entitles the purchaser to re- cover the face value without reference to the consideration paid. Burrall v. De Groot, 5 Duer (N. Y.) 379. Paper Fraudulently Diverted. — Where one has received accommodation paper fraudu- lently diverted, but without notice, he is limited in his recovery to the value which he has given for the instrument. Nickerson v. Ruger, 76 N. Y. 284; Ives v. Jacobs, 21 Abb. N. Cas. (N. Y. City Ct.) 151; Beckhaus v. Commercial Nat. Bank (Pa., 1888), 12 Atl. Rep. 72. See Huff v. Wagner, 63 Barb. (N. Y.)2I5. Huff V. Wagner, 63 Barb. (N. Y.) 215, was a case of notes obtained by false and fraudu- lent representations, but the court through- out proceeds upon the assumption that the rule applicable in such a case is the same as that applicable in the case of accommodation paper. To establish this, however, the English cases cited in the last note supra are relied upon without noticing that in those cases the notes sued upon were, in fact, pledged. 8. Fowler v. Strickland, 107 Mass. 552; Moore v. Baird, 30 Pa. St. 138; Gaul v. Willis, 26 Pa. St. 259: Burpee v. Smoot, 4 W. N. C. (Pa.) 186. See Tucker v. Jenckes, 5 Allen (Mass.) 330; 7« r^Gomersall, i Ch. Div. 137; Hunt V. Armstrong, 5 B. Mon. (Ky.) 399; Keim v. Penn Tp. Bank, i Pa. St. 36. Season of the Rule. — The ground for this view of the law was thus explained by Strong, J., in Moore v. Baird, 30 Pa. St. 138: " He who lends his own promissory note for the accommodation of another lends his credit without any restriction as to the man- ner of its use. As between the maker and the payee there is an available defense, but the maker cannot complain of a subsequent holder when called upon to perform all he has promised. * * * In Gaul v. Willis, 26 Pa. St. 259, a suit indeed by the second in- dorsee against the maker, the holder was al- lowed to recover against the maker of an accommodation note the entire amount ac- cording to its tenor, though the discount at each negotiation had exceeded six per cent. He was regarded as not the less a bona fide holder for value, because he purchased for less than upon the face of the note appeared to be due. What has the maker to do with that ? He has lent his credit for the sum named in the note. Shall one who has re- ceived it as collateral, and is not therefore a holder for value at all, be permitted to re- cover, and a recovery be denied to him who is a holder for value, but happens to have purchased for less than the face of the paper? Such is not the law." Usury. — Under the authorities in some 370 Accommadation Party ACCOMMODA TION PAPER. as Surety. V. Accommodation Pasty as Surety— 1. As between the Party Accommodated and the Accommodation Party — a. Generally. — As between the party accom- modated and the accommodation party, whatever may be the obligations which the latter assumes toward third persons, the relations are those of principal and surety ; * but this suretyship does not, in the absence of special enact- ment, enable the accommodation party to avail himself before payment of remedies provided by statute in favor of sureties against their principals.* b. Subrogation to Creditor's Securities. — It follows from the rela- tion of suretyship that an accommodation party paying the instrument at ma- turity is entitled to be subrogated to all the rights and securities against the party accommodated, possessed by the holder of the paper who has received payment.^ held to have the right, which every surety has upon general equitable principles, to come into equity after the debt has matured, and compel the principal to pay and the creditor to receive payment, and he may also in equity compel the creditor to proceed against the principal debtor for the collection of his demand upon giving security and in- demnifying the creditor against delay and expenses. Thompson v. Taylor, 72 N. Y. 32, II Hun (N. Y.) 274. 3. Tolerw.Cushman, 12 La. Ann. 733; Cum- mings V. Little, 45 Me. 183; Stevenson v. Austin, 3 Met. (Mass.) 474; Humphreys v. Vertner, i Freem. Ch. (Miss.) 251; Malone Third Nat. Bank w. S'hields, 55 Hun (N. Y.) 274; Buffalo First Nat. Bank v. Wood, 71 N. Y. 405; Toronto Bank v. Hunter, 4 Bosw. (N. Y.) 646; Sublett V. McKinney, 19 Tex. 438. See Lenox v. Prout, 3 Wheat. (U. S.) 520; McNutt V. Wilcox, I Freem. Ch. (Miss.) 116. Subrogation of Creditor to Securities of Accom- modation Indorser. — The principle of equity that the creditor is entitled to the benefit of all the securities which the principal debtor has given to his sureties for their indem- nity, applies generally to securities taken by accommodation indorsers, Newburgh Nat. Bank v. Bigler, 83 N. Y. 51, 18 Hun (N. Y.) 400; but it does not apply in favor of the holder of a note as against the accommoda- tion indorsers who have been discharged by the laches of the holder, because the holder can only claim by s'ubrogation, and the in- dorsers who have not been damnified are under no liability. Hopewell v. Cumberland ' Bank, 10 Leigh (Va.) 214. See Jones v. Quinnipiack Bank, 29 Conn. 25. Subrogation to Judgment.-.-Where judgment has been obtained by the holder against both maker and accommodation indorser of a note, the latter may pay the judgment and become subrogated in equity to" the rights of the holder under the judgment against the maker. Lenox v. Prout, 3 Wheat. (U. S.) 520. And where separate judgments have been obtained against maker and indorser, and after execution against the maker has been returned "no property found," and the ac- commodation indorser has paid the note, he may go into chancery and subject the equi- table assets of the maker to the satisfaction of the judgment, or he may resort to equity states such a purchase or accommodation paper would be usurious, and therefore the purchaser would not be a holder for value. See the title Usury. 1. United States. — In re Babcock, 3 Story